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This case requires us to consider to what extent the “fair use” provision of the Copyright Revision Act of 1976, § 107, sanctions the unauthorized use of quotations from a public figure’s unpublished manuscript.

In March 1979, an undisclosed source provided The Nation Magazine with the unpublished manuscript of “A Time to Heal: The Autobiography of Gerald R. Ford.” Working directly from the purloined manuscript, an editor of The Nation produced a short piece entitled “The Ford Memoirs-Behind the Nixon Pardon.” The piece was timed to “scoop” an article scheduled shortly to appear in Time Magazine. Time had agreed to purchase the exclusive right to print prepublication excerpts from the copyright holders, Harper & Row Publishers, Inc. (hereinafter Harper & Row), and Reader’s Digest Association, Inc. (hereinafter Reader’s Digest). As a result of The Nation article, Time canceled its agreement. Petitioners brought a successful copyright action against The Nation. On appeal, the Second Circuit reversed the lower court’s finding of infringement, holding that The Nation’s act was sanctioned as a“fair use” of the copyrighted material. We granted certiorari, and we now reverse.

We agree with the Court of Appeals that copyright is intended to increase and not to impede the harvest of knowledge. But we believe the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest. The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.

Section 106 of the Copyright Act confers a bundle of exclusive rights to the owner of the copyright. The copyright owner’s rights, however, are subject to certain statutory exceptions. Among these is § 107 which codifies the traditional privilege of other authors to make “fair use” of an earlier writer’s work. There is no dispute that the unpublished manuscript of “A Time to Heal,” as a whole, was protected by § 106 from unauthorized reproduction. Nor do respondents dispute that verbatim copying of excerpts of the manuscript’s original form of expression would constitute infringement unless excused as fair use.

Fair use was traditionally defined as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” The statutory formulation of the defense of fair use in the Copyright Act reflects the intent of Congress to codify the common-law doctrine. Section 107 requires a case-by-case determination whether a particular use is fair, and the statute notes four nonexclusive factors to be considered.

“The author’s consent to a reasonable use of his copyrighted works had always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus... frustrate the very ends sought to be attained.” Professor Latman summarized prior law as turning on the“importance of the material copied or performed from the point of view of the reasonable copyright owner. In other words, would the reasonable copyright owner have consented to the use?”

As early as 1841, Justice Story gave judicial recognition to the doctrine in a case that concerned the letters of another former President, George Washington.

“A reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.” As Justice Story’s hypothetically illustrates, the fair use doctrine has always precluded a use that “supersedes the use of the original.”

Perhaps because the fair use doctrine was predicated on the author’s implied consent to “reasonable and customary” use when he released his work for public consumption, fair use traditionally was not recognized as a defense to charges of copying from an author’s as yet unpublished works.

It has never been seriously disputed that “the fact that the plaintiff’s work is unpublished... is a factor tending to negate the defense of fair use.”Publication of an author’s expression before he has authorized its dissemination seriously infringes the author’s right to decide when and whether it will be made public, a factor not present in fair use of published works.

Respondents contend, however, that Congress, in including first publication among the rights enumerated in § 106, which are expressly subject to fair use under § 107, intended that fair use would apply in pari materia to published and unpublished works. The Copyright Act does not support this proposition.

Though the right of first publication, like the other rights enumerated in §106, is expressly made subject to the fair use provision of § 107, fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair. From the beginning, those entrusted with the task of revision recognized the“overbalancing reasons to preserve the common law protection of undisseminated works until the author or his successor chooses to disclose them.” The right of first publication implicates a threshold decision by the author whether and in what form to release his work. First publication is inherently different from other § 106 rights in that only one person can be the first publisher; as the contract with Time illustrates, the commercial value of the right lies primarily in exclusivity. Because the potential damage to the author from judicially enforced “sharing” of the first publication right with unauthorized users of his manuscript is substantial, the balance of equities in evaluating such a claim of fair use inevitably shifts.

The Senate Report confirms that Congress intended the unpublished nature of the work to figure prominently in fair use analysis. In discussing fair use of photocopied materials in the classroom the Committee Report states:

“A key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is ‘out of print’and unavailable for purchase through normal channels, the user may have more justification for reproducing it.... The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances, the copyright owner’s ‘right of first publication’ would outweigh any needs of reproduction for classroom purposes.”

Although the Committee selected photocopying of classroom materials to illustrate fair use, it emphasized that “the same general standards of fair use are applicable to all kinds of uses of copyrighted material.” We find unconvincing respondents’ contention that the absence of the quoted passage from the House Report indicates an intent to abandon the traditional distinction between fair use of published and unpublished works.

Even if the legislative history were entirely silent, we would be bound to conclude from Congress’ characterization of § 107 as a “restatement” that its effect was to preserve existing law concerning fair use of unpublished works as of other types of protected works and not to “change, narrow, or enlarge it.”We conclude that the unpublished nature of a work is “a key, though not necessarily determinative, factor” tending to negate a defense of fair use.

We also find unpersuasive respondents’ argument that fair use may be made of a soon-to-be-published manuscript on the ground that the author has demonstrated he has no interest in nonpublication. This argument assumes that the unpublished nature of copyrighted material is only relevant to letters or other confidential writings not intended for dissemination. It is true that common-law copyright was often enlisted in the service of personal privacy. In its commercial guise, however, an author’s right to choose when he will publish is no less deserving of protection. The period encompassing the work’s initiation, its preparation, and its grooming for public dissemination is a crucial one for any literary endeavor. The Copyright Act, which accords the copyright owner the “right to control the first public distribution” of his work, echoes the common law’s concern that the author or copyright owner retain control throughout this critical stage. The obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation outweighs any short-term “news value” to be gained from premature publication of the author’s expression. The author’s control of first public distribution implicates not only his personal interest in creative control but his property interest in exploitation of prepublication rights, which are valuable in themselves and serve as a valuable adjunct to publicity and marketing. (Exploitation of subsidiary rights is necessary to financial success of new books). Under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.

Respondents, however, contend that First Amendment values require a different rule under the circumstances of this case. Respondents argue that the public’s interest in learning this news as fast as possible outweighs the right of the author to control its first publication.

The Second Circuit noted, correctly, that copyright’s idea/expression dichotomy “strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” Respondents’ theory, however, would expand fair use to effectively destroy any expectation of copyright protection in the work of a public figure. The promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use “news report” of the book.

Nor do respondents assert any actual necessity for circumventing the copyright scheme with respect to the types of works and users at issue here. Where an author and publisher have invested extensive resources in creating an original work and are poised to release it to the public, no legitimate aim is served by pre-empting the right of first publication. The fact that the words the author has chosen to clothe his narrative may of themselves be “newsworthy”is not an independent justification for unauthorized copying of the author’s expression prior to publication.

It is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike. “To propose that fair use be imposed whenever the ‘social value of dissemination... outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.” Moreover, freedom of thought and expression includes both the right to speak freely and the right to refrain from speaking at all.

In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure’s manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use.

Fair use is a mixed question of law and fact. Thus whether the Nation article constitutes fair use under § 107 must be reviewed in light of the principles discussed above. The factors enumerated in the section are not meant to be exclusive: “Since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” The four factors identified by Congress as especially relevant in determining whether the use was fair are: (1) the purpose and character of the use; (2) the nature of the copyrighted work;(3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work. We address each one separately.

(1) Purpose of the Use: The Nation went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a “news event” out of its unauthorized first publication of a noted figure’s copyrighted expression. The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use. “Every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. In evaluating character and purpose we cannot ignore The Nation’s stated purpose of scooping the forthcoming hardcover and Time abstracts. The Nation’s use had not merely the incidental effect but the intended purpose of supplanting the copyright holder’s commercially valuable right of first publication. Also relevant to the “character” of the use is “the propriety of the defendant’s conduct.” “Fair use presupposes ‘good faith’ and ‘fair dealing.’ ” The trial court found that The Nation knowingly exploited a purloined manuscript. Fair use “distinguishes between ‘a true scholar and a chiseler who infringes a work for personal profit.’ ”

(2) Nature of the Copyrighted Work. The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy. The fact that a work is unpublished is a critical element of its “nature.” The scope of fair use is narrower with respect to unpublished works. In the case of Mr. Ford’s manuscript, the copyright holders’ interest in confidentiality is irrefutable; the copyright holders had entered into a contractual undertaking to“keep the manuscript confidential” and required that all those to whom the manuscript was shown also “sign an agreement to keep the manuscript confidential.” A use that so clearly infringes the copyright holder’s interests in confidentiality and creative control is difficult to characterize as “fair.”

(3) Amount and Substantiality of the Portion Used. As the statutory language indicates, a taking may not be excused merely because it is insubstantial with respect to the infringing work. No plagiarist can excuse the wrong by showing how much of his work he did not pirate. Conversely, the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else’s copyrighted expression. The Nation took what was essentially the heart of the book.

(4) Effect on the Market. Finally, the Act focuses on “the effect of the use upon the potential market for or value of the copyrighted work.” This last factor is undoubtedly the single most important element of fair use. Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.

Rarely will a case of copyright infringement present such clear-cut evidence of actual damage. Petitioners established a prima facie case of actual damage that respondents failed to rebut.

More important, to negate fair use one need only show that if the challenged use “should become widespread, it would adversely affect the potential market for the copyrighted work.” Placed in a broader perspective, a fair use doctrine that permits extensive prepublication quotations from an unreleased manuscript without the copyright owner’s consent poses substantial potential for damage to the marketability of first serialization rights in general.

We find that The Nation’s use of these verbatim excerpts from the unpublished manuscript was not a fair use, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

1. 何谓合理使用原则？其背后的政策考虑是什么？

2. 美国版权法如何体现美国宪法第一修正案中的基本原则？

3. 如何判断对作品的使用是否属于合理使用？判断的标准应该如何设定？

4. 一般而言，比较作者的首次发表权和合理使用原则时，法官比较倾向于哪一个？