Code of Best Practices in Fair Use for Academic and Research Libraries released by ARL

Last week, The Association of Research Libraries (ARL) announced the release of the Code of Best Practices in Fair Use for Academic and Research Libraries. It was developed in partnership with the Center for Social Media and the Washington College of Law at American University.

This is a welcome document. The United States Copyright Office site provides only very general guidelines. For example, they state:

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The ARL document defines “fair use” as “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.” This has been a controversial subject for many years and the controversy only continues to grow more intense as published material is rapidly re-purposed for use on the Internet — a Google search of the phrase “fair use” turns up 33,600,000 pages, most of which add little real guidance.

The document points out:

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.

While the Code is written specifically for academic librarians it offers guidance that can be applied in other situations. It was developed from interviews with experienced research followed by small group discussions held with library policymakers around the country to reach a consensus on applying fair use.

The Code deals with such questions as: when and how much copyrighted material can be digitized for student use; whether video should be treated the same way as print; how libraries’ special collections can be made available online; and whether libraries can archive websites for the use of future students and scholars.

The Code identifies the relevance of fair use in eight recurrent situations for librarians:

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

Each situation is described in detail and then followed by a fair-use statement. The fair-use statement is then clarified with limitations and enhancements. For example, for the situation “Supporting teaching and learning with access to library materials via digital technologies” the Code states “It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks”, but clarifies that with limitations that include “Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use” and “Only eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to material.” The enhancements to the statement include “The case for fair use is enhanced when libraries prompt instructors, who are most likely to understand the educational purpose and transformative nature of the use, to indicate briefly in writing why particular material is requested, and why the amount requested is appropriate to that pedagogical purpose.”

The takeaway? It’s said well by Nancy Simms, the Copyright Program Librarian at the University of Minnesota Libraries, writing on The Copyright Librarian Blog:

The specific facts are of course still the real determinants of whether a particular use is fair, and of whether and how an institution chooses to tolerate the uncertainty that is necessarily concomitant with a fair use justification for any activities. But the Best Practices document gives the library community a great jumping-off point for deeper examinations of many of our common copyright use situations, and are a great contribution to the toolbox of anyone dealing with copyright issues, in libraries and beyond.