Why does the policy resist adoption of guidelines that explain fair use?
Fair use is not determined by “guidelines” that purport to define the boundaries of fair use. In an attempt to provide some clarification of the application of fair use to common situations, private parties have negotiated various guidelines, but those externally developed guidelines are often inappropriate for the realistic application of fair use to higher education. Such guidelines too often provide an unduly narrow or rigid definition of fair use, and they usually impose additional restrictions and conditions that are not part of the law and which may unduly hinder education and research. No such guidelines have been read into the law by Congress or the courts, and the guidelines are not binding. Fair use must be determined according to the specific circumstances of each situation. Applying and keeping a copy of the Fair Use Checklist may become a valuable resource in the event of litigation.
