New Code of Best Practices – Know Your Fair Use Rights!

As we all know, those working in libraries are facing an increasing number of challenges when it comes to digital material.  For one thing, many are struggling with the issue of how to best utilize digital materials while keeping within the boundaries of “fair use.”  Thankfully, there is a new resource available to help sort this out – The Code of Best Practices in Fair Use for Academic and Research Libraries published last month by the Association of Research Libraries.

As described in this document, fair use is:

the right to use copyrighted material without permission or payment under some circumstances, especially when the cultural or social benefits of the use are predominant.  It is a general right that applies even – and especially – in situations where the law provides no specific statutory authorization for the use in question.  Consequently, the fair use doctrine is described only generally in the law, and it is not tailored to the mission of any particular community. Ultimately, determining whether any use is likely to be considered “fair” requires a thoughtful evaluation of the facts, the law, and the norms of the relevant community.

The Code of Best Practices (freely available for download) contains a set of guidelines for fair use, based on the most common needs that have come up over the years regarding digital materials in academic and research libraries.  As with other such technical guidelines, these guidelines came about after a long and deliberate process involving interviews and group discussions with 65 librarians representing a range of different research and academic libraries.  Once all the information was gathered, and consensus reached, a set of guidelines was agreed upon that represented common best practices.  A group of copyright experts then made the final review.

According to these guidelines, fair use often comes down to two major questions:

• Did the use “transform” the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
• Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Brandon Butler, Director of Public Policy Initiatives at ARL, and one of the facilitators of this project, says the notion of material being “transformative” is key:  “Several of the principles in the Code of Best Practices rely on a core intuition that was strongly and widely felt in the community, namely, that academic and research libraries really do add value and re-purpose items in their collections when they carry out mission-critical projects like preservation, curation of digital exhibits, and migration of special collections and archives into new digital contexts.”

At the core of these guidelines is a set of eight common practices that illustrate fair use of copyrighted materials for academic and research libraries:

1. Supporting teaching and learning with access to library materials via digital technologies
2. Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions
3. Digitizing to preserve at-risk items
4. Creating digital collections of archival and special collections materials
5. Reproducing material for use by disabled students, faculty, staff, and other appropriate users
6. Maintaining the integrity of works deposited in institutional repositories
7. Creating databases to facilitate non consumptive research uses (including search)
8. Collecting material posted on the world wide web and making it available

Butler notes the risk libraries have faced over the years when it comes to, for example, digitizing material with unclear copyright status.  He says, “libraries have always been aware that invoking fair use involves some level of risk that the institution will be dragged into court by a rights holder. In contrast, there is an increasing awareness among libraries that sitting idle poses a risk to the mission and continuing relevance of libraries. The Code can help libraries consider ways that articulating the mission imperative for taking on new projects can actually reduce the legal risk associated with going forward by bolstering the fair use argument.”

This project was funded by the Andrew W. Mellon Foundation, and, in addition to the Association of Research Libraries, was coordinated by two programs at American University in Washington DC – The Program on Information Justice and Intellectual Property at the Washington College of Law, and the Center for Social Media in the School of Communications.