With Fair Use/Fair Dealing Week approaching from February 26 through March 1, we sat down with Columbia University Libraries Director of Copyright Services Rina Pantalony to dissect what fair use means, how to determine whether or not you are within the boundaries of fair use, and the role fair use plays in today’s world.
Q: How long have you been at Columbia, and what is your background?
I’ve been Director of Copyright Advisory Services here at Columbia since 2014. Before I came to Columbia, I was Legal Counsel to the Library and Archives of Canada. I founded the Open Copyright Education Advisory Network (OCEAN), which is an initiative dedicated to continuing copyright education for professionals working in libraries, archives, and museums. I also serve as a technical expert on cultural heritage matters for the World Intellectual Property Organization (WIPO).
Q: How do you define fair use?
Copyright protects the expression of ideas. It expires—it’s not forever—and it’s not absolute. Even if material is copyright protected, we have something called fair use, and fair use is the tension valve that allows for criticism, commentary, news reporting, research, and use in the classroom.
Q: What are the main things to keep in mind when determining whether a use is or is not a fair use?
To determine whether you are within fair use, the law calls for the application of four factors. Avoid jumping to conclusions, and be sure to evaluate, apply, and weigh in the purpose of use, the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market for the work. A flexible approach to fair use is critical in order for the law to adapt to changing technologies and meet the innovative needs of higher education. Not all factors need to weigh either for or against fair use, but overall, the factors will usually lead you to a conclusion about whether your use is a fair one.
The Fair Use Checklist, designed by Kenneth Crews, my predecessor at Columbia University Libraries, is a tool that is used by educators, librarians, lawyers, and many other users of copyrighted works to help them determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act).
Q: What role do fair use and the First Amendment play in a highly politicized news cycle (especially during an election year)?
Fair use is the ability that we have as scholars to express and communicate our ideas without concern that we are infringing on someone’s copyright…It’s all about expressing opinion, expressing criticism, commentary, and news reporting. Without [fair use], we can’t make our point.
We’re in an election year, and we’re in a high news cycle where what people say matters, and the information about issues needs to be communicated. Fair use plays an absolutely essential piece in that enterprise.
Q: How have recent Supreme Court decisions impacted the constant evolution of fair use?
We’ve had a lot of recent case law that continues to develop how fair use operates. For example, we just had a recent U.S. Supreme Court decision in May of ‘23 (the Andy Warhol case) that really, in many ways, changed the first factor (the purpose and character of the use) and the way we analyze transformative use.
Q: What part does fair use play in artificial intelligence?
As we continue to develop new ways of communicating and new technologies—and certainly, in the context of AI—fair use is going to play a role. That role is yet to be determined, but we know that without it, many of the kinds of research and development exercises we’re engaging in right now may not even be possible. So, if there’s any reason to celebrate fair use in this huge evolutionary shift in technology, this is one reason to do so.
For more information and additional resources related to fair use, visit the Copyright Advisory Services website or attend Rina’s office hours on Tuesdays from 10am to 12pm.