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 Library Copyright Alliance (LCA) today filed comments (PDF) with the US Copyright Office in response to their October 22, 2012, Notice of Inquiry (NOI) about the current state of play with orphan works and mass digitization.
Research libraries have a responsibility to make library collections and services universally accessible to their patrons. And as research libraries provide more content electronically to students, faculty members, researchers, and others, the role of libraries and other partners in their institutions and beyond is changing in the provision of information resources and services to patrons with disabilities.
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.
Before the Court are two motions for judgment on the pleadings and three motions for summary judgment.
The case of Kirtsaeng v. Wiley & Sons, a case in which the key issue is the proper scope of the "first-sale doctrine" in copyright law. In this case, the first-sale doctrine is being challenged by a publisher who seeks to block re-sale in the US of the cheap editions of textbooks it authorized to be printed and sold abroad.
Letter to Ambassador Ron Kirk, United States Trade Representative, concerning the US proposal for copyright exceptions and limitations in the Trans-Pacific Partnership (TPP) Agreement
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.
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.
RLI issue 279 includes:
- Digitization of Special Collections and Archives: Legal and Contractual Issues
- Model Deed of Gift
- Model Deed of Gift, including Mixed IP Rights
- Model Digitization Agreement
- Copyright Risk Management: Principles and Strategies for Large-Scale Digitization Projects in Special Collections
On Friday, May 11, 2012, Judge Orinda Evans released her 350-page opinion in the copyright infringement lawsuit against Georgia State University. This issue brief summarizes the key rulings in the case and discusses some possible consequences for libraries generally.
This memo summarizes the key rulings in the Georgia State University (GSU) lawsuit concerning the use of electronic course reserves and discusses some possible consequences for libraries generally.
Proceedings of the 160th ARL Membership Meeting, May 2012.
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.
Memorandum discussing legal issues in website archiving.
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.
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).
On January 13, 2012, the Supreme Court by a 6-2 vote affirmed the Tenth Circuit decision in Golan v. Holder. The case concerned the constitutionality of the Uruguay Round Agreements Act (URAA), which restored copyright in foreign works that had entered into the public domain because the copyright owners had failed to comply with formalities such as notice; or because the U.S. did not have copyright treaties in place with the country at the time the work was created (e.g., the Soviet Union)
Flyer discussing copyright education and academic integrity codes.
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.
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.