ERL 12 keynote – New ARL best practices in fair use

Brandon Butler
  • purpose of copyright: to promote the creation of culture by giving creators limited monopoly (certain length of time), and encouraging new makers to use existing culture (when copyright runs out, fair use exceptions, etc.)
  • fair use: legal, unauthorized use of copyrighted material – under some circumstances

Fair use:

  • space for creativity (for users, for lawyers, for judges)
  • four factors for judges to consider: reason for the use, kind of work used, amount used, effect on the market
  • judicial interpretation has shifted greatly since 1990
  • protects free speech
  • Judges ask: is your use transformative (new, valuable purpose)? Did you use the appropriate amount to satisfy the transformative use?
  • transforming can mean use of works for scholarly study or teaching — fashion photograph in a teaching context, etc. — different purpose than original
  • judges care about us and what we think is fair – practice of individual creative communities, especially when well-documented — practice community like libraries and librarians

Best practices codes:

  • examples of communities who’ve done this: documentary filmmakers, scholars, OpenCourseWare, dance collections
  • principles, not rules
  • limitations, not bans
  • reasoning, not rote — no easy answers, will have to think through every new project and make sure it fits within  the principles

Licensing is different — when you make an agreement with a vendor you may give up some fair use rights — depends on what you and the licensor agree to

Why does fair use matter to librarians?

  • enables our mission to serve knowledge – duty to creators of the past and present to keep things alive
  • need access to copyrighted work
  • digital innovation/obsolescence
  • we spend lots of money and time clearing copyright, we’re hesitant and unsure of what our rights actually are

ARL code of best practices in fair use for academic and research libraries

  • created by librarians – 90 from 64 institutions
  • reviewed by legal experts — but no lawyer can tell you you’re absolutely risk free, as this gets decided in court

Fair use applies in several situations:

  • digital access to teaching materials for students and profs (e-reserves) – transformative because professor is crating a narrative with the material, access is limited to the students because that use is only transformative for them
  • exhibits, both physical and virtual – illustrates a theme, creating something new
  • digitizing to preserve at-risk items (when you can’t buy it) – not a publisher trying to profit, but trying to preserve the material
  • digital collections of archives and special collections – not on the market, not going to profit from it, preserving the material
  • helping disabled users access materials, when it’s not already on the market in an accessible format
  • institutional repositories
  • creating digital databases, e.g. copying Google Books corpus to do linguistic analysis
  • making topically-based collections of web links

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