Professional Development

New code to help libraries exercise Fair Use

Tuesday, February 28, 2012 5:52 pm

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!


Pages
About
Categories
ACRL
ALA
ALA Annual
ALA Midwinter
ALCTS
ALFMO
ANCHASL
ANSS
APALA
ARLIS
ASERL
ASIS&T
ATLA
Career Development for Women Leaders
Carolina Consortium
CASE Conference
Celebration: Entrepreneurial Conference
Charleston Conference
Coalition for Networked Information
code4lib
Conferences
CurateGear
DHSI
DigCCurr
Digital Forsyth
EDUCAUSE
edUI
Electronic Resources and Libraries
Elon Teaching and Learning Conference
Entrepreneurial Conference
Evidence Based Library and Information Practice (EBLIP)
Ex Libris Users of North America (ELUNA)
FDLP
First-Year Experience Conference
Handheld Librarian
ILLiad Conference
Immersion
Innovative Library Classroom Conference
IRB101
Journal reading group
LAUNC-CH
Leadership Institute for Academic Librarians
Library Assessment Conference
Lilly Conference
LITA
LITA National Forum
LLAMA
LOEX
Mentoring Committee
MERLOT
Metrolina
Music Library Association
NASIG
NC-LITe
NCCU Conference on Digital Libraries
NCICU
NCLA
NCPC
NCSLA
NISO
North Carolina Serials Conference
online course
Online Learning Summit
Open Repositories
Professional Development Center
RBMS
RTSS
RUSA
SACSCOC
Site Visits and Tours
Society of American Archivists
Society of North Carolina Archivists
SOLINET
Southeast Music Library Association
SPARC
STS
Sun Webinar Series
symposium
TALA Conference
UNC Teaching and Learning with Technology Conference
Uncategorized
University Libraries Group
Webinar
WebWise
WGSS
workshops
ZSR Library Leadership Retreat
Tags
Archives
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007

Powered by WordPress.org, protected by Akismet. Blog with WordPress.com.