Fair Use

image © Dominique ArchambaultThe Library Copyright Alliance applauds the World Intellectual Property Organization (WIPO) for finalizing the Treaty for the Blind, a treaty that will allow nations to share or make accessible copies for the print disabled in other countries, who, more often than not, have little access to reading materials. The treaty was signed on June 27 in Morocco.

HathiTrustOn June 3, the Library Copyright Alliance (LCA) filed an amicus brief (PDF) in support of HathiTrust and its partners as they defend their district court victory on appeal in the Second Circuit. LCA consists of three major library associations—the American Library Association, ARL, and the Association of College and Research Libraries—that collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the US and Canada.

"Cuppa MOOC," image © Cikgu BrianOn May 15, Brandon Butler, director of public policy initiatives at ARL, spoke about “MOOCs and the Copyright Challenge: Fair Use in the Balance” as part of the Leading Voices in Higher Education lecture series at Dartmouth College. The lecture series has featured visits from prominent writers, university presidents, and other figures in higher education.

image © ed_needs_a_bicycleOn May 10, the Library Copyright Alliance (LCA) submitted comments (PDF) on the Transatlantic Trade and Investment Partnership (TTIP), a trade agreement currently being negotiated between the US and the European Union (EU). While negotiations are still in their preliminary stages, LCA urges the inclusion of provisions to harmonize public access to the results of government-funded research. LCA also cautions against the inclusion of an intellectual property chapter in the agreement.

GSU Library
image © Jason PuckettThe Library Copyright Alliance (LCA) filed a “friend of the court” brief (PDF) late yesterday in support of Georgia State University (GSU) in the appeal of Cambridge U. Press et al. v. Mark P. Becker et al. In its brief, LCA argues that GSU’s e-reserves policy is consistent with widespread and well-established best practices for fair use at academic and research libraries, and that these uses have no negative effects on scholarship. LCA was represented by Jonathan Band and attorneys from the Electronic Frontier Foundation. The case is on appeal with the US Court of Appeals for the 11th Circuit.

The US Department of Justice (DOJ) decided not to participate in the appeal of the case Cambridge University Press v. Mark Becker as amicus curiae. The case concerns the use at Georgia State University (GSU) of electronic course reserves (e-reserves) and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. It was widely reported that the US Copyright Office requested that the DOJ file an amicus brief either on the side of the publishers or as a neutral party. On February 22, 2013, the DOJ sent this letter to the court stating that the US Attorney General had decided not to file an amicus brief in the case.

 ltr-doj-re-gsu-ereserves-22feb13.pdf

The US Department of Justice (DOJ) is evaluating whether to participate in the appeal of the case Cambridge University Press v. Mark Becker as amicus curiae. The case concerns the use at Georgia State University (GSU) of electronic course reserves (e-reserves) and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. It was widely reported that the US Copyright Office requested that the DOJ file an amicus brief either on the side of the publishers or as a neutral party. On January 25, 2013, the DOJ requested an extension of the time they have to file an amicus brief.

gsu-extension-motion-usgov-jan2013.pdf

Does the approach of creating a code of best practices, anchored in professional practice, actually work to expand the utility of fair use? What has happened to others who used codes of best practices to gain access to their rights?

This topic is discussed at length in Aufderheide and Jaszi, Reclaiming Fair Use (University of Chicago Press, 2011), but some specific examples include:

Does your university offer intellectual property education to incoming students, or have an academic integrity policy that addresses copyright issues? These are important areas where librarians can be of service in offering balanced information about copyright and fair use.

The Code of Best Practices in Fair Use for Academic and Research Libraries suggests at various points that librarians consider the use of appropriate “technical protection measures” when making digitized materials available on-line, as a way of bolstering their fair use claims. Many libraries already employ such measures as a risk-management strategy.

When teachers bring Stacey, a librarian at a Midwestern private university, their course materials to upload on the university’s e-reserves system, she always checks to make sure that the course material has not been uploaded before—or at least, not in the last three years. If it’s fresh material, and it’s only a small fraction of the original work, she’s pretty sure that uploading it for the students to study could be considered a “fair use.” If it has been uploaded before, she tries to license the material, or have the professor find a substitute that the professor hasn’t used before. She knows that at some universities, e-reserves policies are more liberal, but her institution can’t afford a legal challenge, so she likes to err on the conservative side. After all, you can’t be too careful.

The Fifth Principle in the Code of Best Practices in Fair Use for Academic and Research Libraries is entitled "Reproducing material for use by disabled students, faculty, staff, and other appropriate users." It describes in some detail the circumstances in which making and providing copies of collection materials in formats that are accessible to persons with disabilities constitutes fair use, as well as certain limitations to which that general principle is subject.

The advent of Massive Open Online Courses raises serious legal questions that in turn pose important and fundamental policy challenges for research libraries. As universities rush to find ways to add courses to emerging MOOC platforms, research libraries are being asked to take on new responsibilities (or new versions of old responsibilities) to support this new mode of teaching and learning.

issuebrief-mooc-22oct12.pdf

Before the Court are two motions for judgment on the pleadings and three motions for summary judgment.

hathitrust-decision10oct12.pdf

Does the approach of creating a code of best practices, anchored in professional practice, actually work to expand the utility of fair use? What has happened to others who used codes of best practices to gain access to their rights? This document describes specific examples of success with using codes of best practice.

fair-use-codes-success.pdf

The Association of Research Libraries (ARL) joined the American Library Association (ALA) and the Association of College and Research Libraries (ACRL), who all work collectively as the Library Copyright Alliance (LCA), to file an amicus curiae brief with the Supreme Court of the United States in support of petitioner Supap Kirtsaeng in the case Kirtsaeng v. Wiley & Sons.

lca-kirtsaeng-brief-3july2012.pdf

On Friday, May 11, 2012, Judge Orinda Evans released her 350-page opinion in the copyright infringement lawsuit against Georgia State University. This memo summarizes the key rulings in the case and discusses some possible consequences for libraries generally.

issue-brief-gsu-decision-15may12.pdf

This memo summarizes the key rulings in the Georgia State University (GSU) lawsuit and discusses some possible consequences for libraries generally.

memo_gsudirectors_15may12.pdf

Proceedings of the 160th ARL Membership Meeting, May 2012.

mm12sp-butler.pdf

In their motion for partial judgment on the pleadings, Plaintiffs in Authors Guild v. HathiTrust advance a radical and unprecedented interpretation of 17 U.S.C. § 108 that threatens the most routine library operations.

amicus-hathi-trust-20apr12.pdf

fair-use-code-key-articles.pdf

fair-use-code-faq-libs.pdf

Flyer discussing the advantages of an approach to determining fair use that is rooted in professional consensus, rather than (for example) negotiating standards with right holders or consulting legal experts.

fair-use-code-academic-research.pdf

The ability to make reasonable "fair use" of copyrighted material is both economically and culturally important to the enterprise of education. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "educational exceptionalism," for which there is no clear basis in U.S. Copyright law. Instead, they should seek to take advantage of current trends in copyright caselaw, including the marked trend toward preferring uses that are "transformative," where the amount of content used is appropriate to the transformative purpose. Over twenty years, we have accumulated considerable information about what constitutes "transformativeness," and members of the education community are well-positioned to provide persuasive narratives explaining how educational uses significantly repurpose and add value to the copyrighted content they incorporate. Published in Law & Literature, Vol. 24 No. 3 (Fall 2012).

jaszi-education-and-fair-use.pdf

Flyer discussing copyright education and academic integrity codes.

Code-brief-copyright-education-2012.pdf

Announcement that of ARL's joint project with the Center for Social Media at American University, and the Program on Information Justice and Intellectual Property in American University's Washington College of Law, to prepare a code of best practices in fair use for academic and research libraries.

fair-use-code-1pager.pdf

Several "official" and formal guidelines that attempt to define the scope of fair use for specific applications—notably for education, research, and library services—have emerged in the years since passage of the Copyright Act of 1976. Although some interested parties and some governmental agencies have welcomed these guidelines, none of them ever has had the force of law. This article analyzes the origins of guidelines, the various governmental documents and court rulings that reference the guidelines, and the substantive content of the guidelines themselves to demonstrate that in fact the guidelines bear little relationship, if any, to the law of fair use.

fair-use-code-crews.pdf

fair-use-code-faq-profs.pdf

fair-use-code-faq-students.pdf

This Note from the Harvard Law Review organizes research on pro-social motivation around the motivation-fostering effects of empowerment, community, and fairness. By incorporating these norms into the cultural architecture of the public domain, we can promote greater information production at less cost than by relying solely on the intellectual property system's traditional tools of exclusion.

fair-use-code-harvard.pdf