Fear and Fair Use: Addressing the Affective Domain

Many laypersons have a certain amount of fear when confronted with the law. Fear of breaking the law, fear of being ignorant of the law, and, perhaps the strongest motivator of them all (at least in the civil law context), fear of being sued. So, when discussing fair use with patrons of the library, whether they are faculty, students, or librarians, one must also address the elephant in the room: fear. A copyright librarian’s job, quite often, is to teach others about fair use, but first the copyright specialist must deal with the learner’s visceral emotional response for the audience to have the confidence to use fair use in their daily work. This chapter, then, is aimed at quelling the fear of those in the academy and empowering them to exercise their right to fair use. The chapter will begin with a grounding of the discussion in the theory of the impact of fear on decision making. Next, the chapter will contextualize fair use within the copyright legal landscape: is it a right, a limitation on the rights of others, an affirmative defense, or all of the above? And, is there always some risk in asserting fair use? Then, the chapter will address instances where academics have been sued for exercising fair use and the outcomes of those cases. Finally, the chapter will conclude by addressing legal safe harbors for academics exercising fair use.