"Fair Use" Not in OED

Tue Feb 14 19:11:06 UTC 2006

        I don't think that there's any hard and fast rule to tell the
difference between a completely transparent collocation and its
emergence as a term.  This 1847 use (and the earlier 1821 example that
Fred found) is indeed a transparent combination of the more or less
technical term "fair" and the everyday word "use."  Early cases refer to
"fair quotation," "fair abridgment," and so forth.

        In the 1869 case, however, "fair use" is taken as an established
phrase, with sentences like "The defence of 'a fair use' is not tenable
in this case."  (Incidentally, that's from a summary of the lawyers'
arguments, not the court's opinion proper.)  Certainly "fair use" today
is a standalone term and should be in dictionaries, as indeed it is.
(M-W Collegiate has it, though it lists a first use of 1945.)

        But the 1869 and later uses do derive from these earlier,
originally transparent uses.  Shouldn't these initial uses be considered
part of the term's history, even though, if the phrase's development had
stopped there, nobody would consider it a separate term?

John Baker

-----Original Message-----
From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf
Of Dennis R. Preston
Sent: Tuesday, February 14, 2006 10:51 AM
Subject: Re: "Fair Use" Not in OED

How do we know when a term is a term. If I said

"He didn't make very fair use of his background advantages among his
schoolmates" I take that not to be a term.

But if I say

"That's not in accordance with the fair use principle of copyright."

it is.

Might not the 1847 use be part of the birth of a term rather than a term
itself? How can we tell the difference between a completely transparent
collocation and its emergence as a term?

Just thinkin.


>         I understand that the term is used in Curtis, A Treatise on
>the Law of Copyright 236 - 37 (1847), in the chapter on Infringement of

>Copyright, the first paragraph of which reportedly includes this
>passage:  "[W]e must bear in mind that while the primary object of the
>law of copyright is protection to the product of all literary labor,
>the interests of knowledge demand a reasonable freedom in the use of
>all antecedent literature. To administer the law in such a manner as
>not to curtail the fair use of existing materials, in any department of

>letters, is one of the great tasks of jurisprudence."
>John Baker
>-----Original Message-----
>From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On
>Behalf Of Fred Shapiro
>Sent: Tuesday, February 14, 2006 8:50 AM
>Subject: "Fair Use" Not in OED
>The copyright law term _fair use_ is not in OED.  The coinage is said
>to occur in the case of Lawrence v. Dana, 15 Fed. Cas. 26 (1869).
>Fred Shapiro
>The American Dialect Society - http://www.americandialect.org

Dennis R. Preston
University Distinguished Professor
Department of English
15C Morrill Hall
Michigan State University
East Lansing, MI 48824
preston at msu.edu

The American Dialect Society - http://www.americandialect.org

The American Dialect Society - http://www.americandialect.org

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