Fair Use of Unpublished Works : Burdens of Proof and the Integrity of Copyright

The flexibility that Congress infused into fair use allows it to be restructured and adapted for the unpredictable scope of future needs. That flexibility also can lead to narrow interpretations of the law. A line of cases focusing on the unpublished character of the copyrighted material appear to have developed a presumption against fair use and some court rulings seemingly use the four statutory factors only as an afterthought to support a conclusion. While some cases have probed the issues more carefully, the perception of a presumption remains. Part of the interpretative problem is the infiltration of privacy interests into copyright law. The commingling of privacy and copyright and the assumption of privacy interests in unpublished works has had a detrimental effect on the law, particularly because copyright and privacy have diametrically opposing objectives. Copyright law seeks to encourage the production and dissemination of works for the advancement of knowledge; privacy law seeks to keep materials out of the public’s hands in order to prevent a sharing and expansion of knowledge. With the maturation of privacy rights in tort law, legislation, and constitutional doctrine, copyright no longer needs to carry the weight of protecting privacy. By endorsing a relationship between privacy and market value, and by stressing that value, recent decisions have made privacy a part of the "nature" factor whenever the court relies on a "right of first publication." This approach leaves little opportunity for overcoming the presumption against narrow uses of unpublished material, with devastating consequences for writing and publishing works of history and other socially important works. In the analysis of unpublished works, one factor – "nature" – is therefore preordained against a finding of fair use. Disentangling copyright and privacy interests can lead to a more balanced law. Congress amended the fair use statute in 1992, removing any notion of a "per se" rule against fair use, but still leaving users and courts to find meaning in the four factors. A restructuring of the burden of proof in fair use cases has the potential to maintain flexibility in the law while addressing the distinctive interests surrounding unpublished works from historical manuscripts to computer software code. The analysis proposed here is consistent with the current structure of fair use, yet it establishes standards of proof and shifts the burden of proof to address more directly the issues that courts tend merely to assume. Such a more nuanced approach to the “nature” factor can facilitate a more careful application of fair use, and it may be crucial for preserving a conception of fair use that protects the interests of the copyright owner while simultaneously encouraging the growth of knowledge