5 - Functional Fair Use

Summary

Doctrinal analysis suggests that the US copyright exceptions most relevant to cultural institutions are fair use in section 107 and the libraries and archives provisions in section 108. The latter were analysed in detail in Chapter 4, where it was observed that they are limited in various ways, most notably by their exclusion of museums and galleries and their focus on preservation, replacement and fulfilling some external requests. But as will be discussed in this chapter, the US fieldwork also revealed how cultural institutions have used section 107 in ways that overlap with, and extend far beyond, the activities contemplated in section 108. Indeed, fair use was the predominant exception amongst participants in this study, and was used more often and in a broader range of circumstances than the fair dealing exceptions of Australian, Canadian and UK law.