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In late January, ARL released the Code of Best Practices in Fair Use for Academic and Research Libraries. The code “enhances the ability of librarians to rely on fair use by documenting the considered views of the library community about best practices in fair use, drawn from the actual practices and experience of the library community itself” (p. 3). The code uses eight common situations where consensus on acceptable practice and rights application was reached in a series of long-form interviews with 65 librarians, conducting around the country over the course of 10 months in 2010-2011, to illustrate the principles, limitations and enhancements of exercising fair use.
It is important to recognize that this code outlines best practices, and does not establish guidelines; it contains “principles, not rules; limitations, not bans; reasoning, not rote” (Peter Jaszi, Emory University panel, Feb. 14). ARL coordinated the creation of this code of best practices in part because other communities of practice that have established similar codes (e.g., documentary filmmakers) have had successful implementation across the field, and favorable viewing as good documentation of community standards by courts when cases have been brought. Furthermore, fair use in libraries is consistently under-used, and often risk aversion is substituted for fair use analysis. It is hoped that with the establishment of this code of best practices, libraries can better fulfill their mission to preserve knowledge by looking to the best practices to reduce insecurity and hesitation in exercising fair use.
Over the past month, I have participated in a series of webinars and live-streamed panel events introducing and discussing the code. I have pages and pages of notes, and as with all things copyright-related, I’d love to talk to anyone who wants to know more. But for now, I’ll share my key take-aways:
- Increasingly, courts are assessing fair use on transformativeness of the work, in addition to the traditional four factors (nature, amount, purpose, impact); can be easier to determine if use is transformative than if it clears all four factors.
- With digital content, so much is being licensed that we aren’t dealing with copyright–and by extension, fair use–as much as we are contract law; this is concerning.
- If the maximum isn’t supported from the top-down, faculty will resort to the minimum use in course reserves.
- Q: Is the transformative nature of work in digitizing collections in Special Collections enough to justify fair use? A: “Please, God yes!” (from Emory live-streamed panel; digitization a primary transformative use)
- Distinction between legal analysis and risk management analysis is important.
- Making one copy to share among 7 libraries would actually enhance fair use scenario as it would limit the number of copies created. [Interesting, not sure yet how I come down on this point – MK]
- If someone is speaking before a camera, should expect to be distributed; agreement to be filmed should be implicit agreement to be distributed, implicit nonexclusive agreement covering copyrighted content in speech. [Again, very interesting point that I’m still mulling over – MK]
- Presumption has usually been to first seek permission, and only rely on fair use as a last resort; need to flip this.
- In highly transformative use, existence or high likelihood of license revenue not recognized as valid argument against fair use; transformative use licenses do not belong to copyright owner; when transformative, effect on market no longer a factor.
- Most of the time, libraries exercising fair use aren’t going to land in the middle of lawsuit, but rather be issued a cease-and-desist order, at which point *you take it down.*
- Embrace ambiguity and risk management!
- In evaluating risk, must evaluate both bad AND good; acknowledge the good that will NOT happen if fair use isn’t exercised.
- Fair use is context-sensitive: who is the user and why is this being done?
- Reliance on fair use statements and codes adds to good-faith defense when questioned.
Finally, the code of best practices is not meant to be a ceiling (or even a floor), but represents current consensus on topics in which agreement among the 65 librarian interviewees could be reached. If it is too conservative, then it reflects the current conservative nature of our execution of fair use as a profession, and we need to go out and push those boundaries!