Association of Research Libraries (ARL®)

Description

In addition to making specific collection items available to patrons for intensive study, librarians have always played an important role in conducting and supporting scholarship in disciplines that examine trends and changes across broad swaths of information, e.g., information science, linguistics, bibliography, and history of science. Developing indexing systems and finding aids is also a core part of the library mission. Digital technology offers new possibilities where both of these traditional functions are concerned. Libraries can offer scholars digital databases of collection items on which to perform computerized analyses, and they themselves can employ such databases to develop new and powerful reference tools. Because they do not involve ordinary reading or viewing of the processed works, these uses are often referred to as nonconsumptive.

Nonconsumptive uses are highly transformative. Digitizing and indexing works for purposes such as statistical meta-analysis and search creates a powerful new scholarly resource that is not at all a mere substitute for the original work. The analyses facilitated by scanning for nonconsumptive use do not use the works for their original intended purposes; no person ever “reads” the underlying work or works. Instead, this kind of analysis focuses on the underlying facts about a collection of works (how many times a word appears across an author’s body of work, how frequently scientists used a particular species of mouse as test subject, and so on) rather than the protected expression of any single work. Courts have found search engines, which copy millions of web pages into their indexed databases in order to help users find relevant sites, to be fair uses for precisely this reason.

Nonconsumptive uses are an emerging phenomenon at many libraries, and despite their obvious transformative character, there is a risk that the opportunity to make use of these techniques will be lost due to overly restrictive licensing provisions. If librarians agree to licensing restrictions that prohibit such uses, they lose their ability to exercise or permit others to exercise their fair use rights. Librarians should be mindful of this as they negotiate license agreements and should work to preserve their patrons’ rights to conduct nonconsumptive research across licensed database materials.

Principle

It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable nonconsumptive analysis across the collection for both scholarly and reference purposes.

Limitation

• Items in copyright digitized for nonconsumptive uses should not be employed in other ways (e.g., to provide digital access for ordinary reading) without independent justification, either by a license from the rights holder or pursuant to a statutory exception. Search access to database materials should be limited to portions appropriate to the nonconsumptive research purpose.

Enhancements

• The case for fair use will be at its strongest when the database includes information such as rich metadata that augments the research or reference value of its contents.

• Assertions of fair use will be particularly persuasive when libraries cooperate with other institutions to build collective databases that enable more extensive scholarship or reference searching.

—> Next: EIGHT: Collecting Material Posted on the World Wide Web and Making It Available

<— Previous: SIX: Maintaining the Integrity of Works Deposited in Institutional Repositories