Code of Best Practices in Fair Use for Academic and Research Libraries
In January of this year (2012) the Association of Research Libraries (ARL) published what most academic and medical librarians now know of as “the code.” Within copyright there’s an allowance known as fair use. Since this is a gray area, the ARL interviewed hundred of librarians and came up with a code of best practices in fair use so that all academic librarians can put up a united front against the publishers who basically way too frequently think that there is no such thing as fair use. I had the opportunity to attend two of the panels presenting the new code and information on fair use. One was at MIT and the other was at Northeastern University. This post will consist of my notes as well as links to the code’s website, guides, and contact info.
What is the Purpose of Copyright?
- To promote the creation of culture by giving people who create it a perk with limited monopoly and encouraging new makers to use existing culture. The human process of creating culture is collaborative at its base.
Biggest Balancing Feature:
- Fair Use–legal, unauthorized use of copyrighted material–under some circumstances
So what is fair use?
- a space for creativity
- for lawyers
- for users
- for judges
- created in the 1840s by judges but not in writing til 1976
Four Factors of Fair Use
- Reason for the use
- Kind of work used
- Amount used → is it appropriate?
- Effect on the market
The Good News
- Judges love it and love using the factors
- Supreme Court: fair use protects free speech
- Judicial interpretation has shifted greatly since 1990
Things Judges Ask
- Is your use transformative?
- Are you adding to the culture
- Are you an innovator
- Did you use the amount that is appropriate to satisfy the transformative use
- use of works in scholarly study when they’re not intended for scholarly study
- PLUS custom and practice of individual creative communities especially when well-documented
- When judges hear a good story about why what you’re doing as a community is transformative, they want to side with you
Best Practices Codes
- Communities that use them:
- documentary filmmakers
- online video
- dance productions
- principles not rules
- limitations not bans
- reasoning not rote
Why Fair Use Matters to Librarians
- Libraries preserve culture. To keep them alive means copying especially digital.
- Patrons need answers now.
- Can libraries stay relevant to the future by serving patrons from a distance?
- Projects/needs that seem important aren’t getting done or are being abandoned because of risk aversion (fear of getting sued).
- Put legal risks into perspective “mission risk.”
The Code of Best Practices
“Nobody really wants to sue. They just want to scare you.”
“Fair use is like a muscle.”
The more people who expressly go forward with fair use, the more protection we all have.
It is fair to provide access to teaching materials (digitally) for students and professors.
- Spontaneity is not the law. You can reuse course reserves (repeated use).
- The 1976 Guidelines are not the law.
- If you’re not in the class, you don’t get access. Passwords.
- Are you making a good faith effort to limit the use to fair use?
- There’s a difference between access and distribution.
- Exhibits both physical and virtual
- Digitizing to preserve at-risk items, but only when you can’t buy it and it is in a format that is becoming outdated but not yet obsolete.
- Digital collections of archives and special collections
- Access to research and teaching materials for disabled users.
- Institutional repositories, for example dissertations, theses
Writers of dissertations/theses have a right to deposit their work in the repository without getting copyright rights from those whose work they’ve quoted/cited. This code aims to help libraries stand by authors and help places like ProQuest understand fair use.
- Data-mining/Finding aids.
- When you google, you’re not searching the internet. You’re searching google’s copy of the internet. This is legal under fair use.
- Making topically-based collections of Web-based material.
- You’re collecting for a particular reason for a different use than the original creators had.
- Libraries are not liable for bad things that their users do.
- Get your counsel involved when things aren’t in crisis mode. It will help them understand you and your needs for potential future crises.
- Bring the code of best practices to the counsel as a conversation piece.
- Reliance on code of best practices is good evidence of good faith.
- Librarians need to own fair use reasoning and get students and professors to do it too.
- This is a free speech right. We need to empower patrons and move them to agency.
- A library can avoid or reduce liabilities by having proactive staff. Develop fair use practice standards in your community.
- You can create your own culture that doesn’t view fair use as risky.
- In the context of fair use, the perfect document with all the answers is unattainable.
- Key questions to ask:
- Is it appropriate?
- Is it reasonable?
- Are you using it in good faith?
- It is not the case that by asking for permission you waive your fair use rights.
- Sometimes asking for permission can even strengthen your fair use claim.
- Checklists make rote something that is inherently fluid. Instead you should simply be able to articulate if asked why it is an appropriate use.
- We should be able to explain fair use to our people in plain language. No legalese.
- Classroom Guidelines created in the 1970s were intended as a floor but interpreted as a ceiling. 1990s cases against coursepacks found coursepacks aren’t fair use, so now they pay a use fee. Code of Best Practices is the first to look at it from a library perspective.
- What happened at GSU?
What was at issue was not the software (ie Blackboard) but the amount of info on Electronic Reserves.
- Publisher’s argument:
* should have sought and paid permission for every item on Electronic Reserves
* argued fair use checklist is weighted to fair use
* GSU could have subscribed to annual access
- Library’s argument:
* use of excerpt from books in this setting is fair use
* checklist properly used
* If GSU had an annual license from CCC, Cambridge University Press is not part of it anyway.
- So how much is fair use?
- CCC is contractually obligated to let publishers know if they think an infringement is going on.
- If you’re arguing market impact, you have to show it.
- 75 cases were submitted, of those only 5 instances of infringement found.
- Court declined to issue injunction and ordered plaintiff to pay defendent’s legal fees.
- Is the use transformative?
* using it in a new way
* the obvious exception is straight reproduction for classroom use
* the things that teachers use to teach are not usually created with the intention to use to teach, so this use is innately transformative.
* non-transformative use is 10 to 20%
* transformative use can be the whole thing.
* Textbooks are not transformative (made for teaching) so less fair use leeway.
- The actual damages to the publisher was $750
- Licenses “must be easily accessible, reasonably priced, and that they offer excerpts in a reasonable format.”
- “We’re creating a situation where fair use will disappear if we don’t use it.”
- The lawsuit is really just about scholarly nonfiction books.
- This case isn’t precedent for anyone but GSU.
You can find much more information, including contact info for the panelists, on the Code of Best Practices in Fair Use website.