Association of Research Libraries (ARL®)

Description

Academic and research libraries have a long, and largely noncontroversial, history of supporting classroom instruction by providing students with access to reading materials, especially via physical on-site reserves. Teachers, in turn, have depended on libraries to provide this important service. Today, students and teachers alike strongly prefer electronic equivalents (e-reserves for text, streaming for audio and video) to the old-media approaches to course support. Section 110(2) of the Copyright Act provides specific protection for some streaming and other uses, but it does not cover the entire variety of digital uses that are becoming increasingly important to twenty-first-century instruction. Over time, a set of practices has grown up around the related but distinct practice of providing students with physical “course packs,” which typically occurs outside the library setting. The following principle is not intended to address that activity, but rather to focus on emerging digital uses in the library context. Fair use will play an important role in making these uses possible.

There are multiple bases on which these library uses can be considered fair ones. These modes of course support occur in a nonprofit educational environment, can be persuasively analogized to activities specifically authorized by Congress in Section 110 of the Copyright Act, may be supported by a “place-shifting” argument,¹² and are susceptible to a compelling transformativeness rationale. Most of the information objects made available to students, in whatever format, are not originally intended for educational use. For example, works intended for consumption as popular entertainment present a case for transformative repurposing when an instructor uses them (or excerpts from them) as the objects of commentary and criticism, or for purposes of illustration. Amounts of material used for online course support should be tailored to the educational purpose, though it will not infrequently be the case that access to the entire work (e.g., an illustrative song in a class on the history of popular music) will be necessary to fulfill the instructor’s pedagogical purpose. It is also reasonable for works to be posted repeatedly from semester to semester to the extent that they are the most appropriate, relevant, and still timely materials for the course.

Principle

It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.

Limitations

• Closer scrutiny should be applied to uses of content created and marketed primarily for use in courses such as the one at issue (e.g., a textbook, workbook, or anthology designed for the course). 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.

• The availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction.

• Only eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to materials.

• Materials should be made available only when, and only to the extent that, there is a clear articulable nexus between the instructor’s pedagogical purpose and the kind and amount of content involved.

• Libraries should provide instructors with useful information about the nature and the scope of fair use, in order to help them make informed requests.

• When appropriate, the number of students with simultaneous access to online materials may be limited.

• Students should also be given information about their rights and responsibilities regarding their own use of course materials.

• Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted.

Enhancements

• 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. An instructor’s justification can be expressed via standardized forms that provide a balanced menu of common or recurring fair use rationales.

• In order to assure the continuing relevance of those materials to course content, libraries should require instructors of recurrently offered courses to review posted materials and make updates as appropriate.

12. Space-shifting is a theory of fair use often employed in the context of new technological uses of media. See, e.g., David Hansen, “Why Can’t I Digitize My (Institution’s) Library?,” Scholarly Communications @ Duke, July 27, 2011, http://blogs.library.duke.edu/scholcomm/2011/07/27/why-can't-i-digitize-my-institution's-library/.

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