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the Second Circuit has created a virtual per se rule prohibiting fair use of unpublished works.”[1]
The Committee agrees with the Copyright Office that the Second Circuit in Salinger went astray in its treatment of the unpublished nature of the work as leading to a diminished likelihood that the fair use defense, as a whole, will in every case not be available. Of course, in making any evaluation of a claim of fair use of unpublished material, the Supreme Court’s holding that for purposes of the second statutory factor, the unpublished nature of the work is a “‘key, though not necessarily determinative’ factor tending to negate a defense of fair use,”[2] remains the law.
Analysis
H.R. 4412 amends Section 107 of title 17, United States Code, by adding the following new sentence at the end of that section: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” This sentence has a narrow, but important purpose: to reiterate Congress’s intention in codifying fair use that in evaluating a claim of fair use, including claims involving unpublished works, the courts are to examine all four statutory factors set forth in Section 107, as well as any other factors deemed relevant in the court’s discretion.
This intention is accomplished in two ways. First, the word “itself” is designed to ensure that the courts do not erect a per se rule barring any fair use of unpublished works. Each claim of fair use of an unpublished work should involve a careful consideration of all four statutory factors as well as any other factors the court deems relevant. The decision of the Second Circuit in the Wright opinion is instructive in this regard. At the same time, it is not the Committee’s intention to alter the weight currently given by the courts to the unpublished nature of a work under the second fair use factor. The general principles regarding fair use of unpublished works set forth by the Supreme Court in Harper & Row v. Nation Enterprises still apply.
The second way in which the Committee’s intention is manifested is through the concluding phrase “all the above factors.” As introduced, H.R. 4412 directed the courts to examine “all the factors set forth in paragraphs (1) through (4)” of Section 107. At the Subcommittee’s mark-up, this formulation was deleted in favor of the current language. The purpose of the change is straightforward: As the Supreme Court held in Harper & Row v. Nation Enterprises,[3] the courts, in their discretion may weigh factors in addition to those set forth in the statute.
The Committee was concerned that as introduced, H.R. 4412 might have been inadvertently construed to discourage courts from looking at additional factors. The phrase “all the above factors” is intended to encompass the terms “including” and “such as” embodied in the preamble to Section 107, terms that are defined in
