Know Your Copyrights
Since the inception of copyright law in the US, libraries have enjoyed special rights to promote the progress of science and the useful arts. This page is meant to support libraries in proactively asserting these rights, particularly when signing contracts for digital works under copyright.
Below is an illustration of the rights that libraries rely on to fulfill their core missions. In addition to the fair use right codified in Section 107 and the first sale doctrine in Section 109, the US Congress has adopted specific statutory rights affirming the lawfulness of certain activities, particularly those related to accessibility, teaching, learning, and research.
Fair use is a critical mechanism by which to ensure that these rights persist in the digital environment.
For instance, in Authors Guild v. HathiTrust, the US Court of Appeals for the Second Circuit found that making digital copies of works to create a full-search database and provide access for the print disabled is a fair use. In the decision, the court held that the use of digital copies to facilitate access for print-disabled persons is transformative.
The court continued, “Even if it were not, ‘[m]aking a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of a fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.’ ” Clarifying the relationship between fair use and other library rights, the court stated, “Here, fair use does not undermine Section 108, but rather supplements it.”
In another example of fair use allowing rights to persist in the digital environment, the US Court of Appeals for the Eleventh Circuit affirmed that making electronic copies of course reserves available for education is a fair use. Going forward, libraries may argue that it is a fair use to stream a film in an educational context based on an analysis of the four factors of fair use that takes into account the educational purpose of streaming the film, as well as whether the content is available commercially.
“In the United States...the fair use doctrine is regularly deployed to justify a wide range of conduct enabled by new technologies.”
“Libraries occupy a privileged space in the copyright system. Historically, libraries predate copyright, and the institutional role of libraries and institutions of higher learning in the 'promotion of science' and the 'encouragement of learning' was acknowledged before legislators decided to grant authors exclusive rights in their writings.”
Fair use is a user’s right that balances the exclusive monopoly of rights granted to copyright holders for a limited time. Determining whether a use is fair is particular to the context; fair use may apply to classroom teaching, scholarship, research, preservation, accessibility, and other library functions.
Preservation, replacement, interlibrary loan, copies for users
Reproduction by libraries and archives
Libraries and archives and their employees may make copies of works for preservation purposes, and may copy and distribute materials to support scholarship, including sharing works via interlibrary loan.
First sale doctrine
Effect of transfer of particular copy or phonorecord
Owners of copies may sell or otherwise dispose of the possession of that copy or phonorecord. Libraries rely on this “first sale” doctrine to lend books and other materials. Fair use may be a mechanism for libraries to engage in 109-type activities in the digital era.
Classroom performances and displays
Exemption of certain performances and displays
Performance or display of a work by instructor or pupils in the course of face-to-face teaching is not infringement.
Exemption of certain performances and displays
Digital transmissions of works for educational purposes is not infringement in some circumstances.
Reproduction for people with print disabilities
Libraries, nonprofit educational institutions, and users may copy and distribute accessible works to blind people and people with print disabilities without asking publishers for permission.
Import/export works in accessible formats
Reproduction for blind or other people with disabilities in Marrakesh Treaty countries
Libraries and other authorized entities or users may import and export works in accessible formats from and to another country that is a party to the Marrakesh Treaty.
Deposit of copies for Library of Congress
Copyright owners must deposit two complete copies of the best edition of a work in the US Copyright Office for the use of the Library of Congress.
Copyright owners may obtain registration of the copyright claim by depositing the material with the Copyright Office.
Remedies for infringement for employees of libraries and archives
Courts may not assess statutory damages if an alleged infringer is an employee or agent of a library or archive who believed that their use of the copyrighted work was a fair use under Section 107.
Preview content before purchase
A nonprofit library, archives, or educational institution may circumvent digital locks to determine whether to acquire a copy of that work.
Civil remedies for libraries, archives, or educational institutions
A court may not issue damages if it finds that a nonprofit library, archives, or educational institution was not aware and had no reason to believe that its acts constituted a violation.
Research libraries rely on fair use—as well as specific library rights in the Copyright Act—to provide their patrons with lawful access to digital versions of in-copyright items in their collections. This paper describes how research libraries’ analysis of fair use will likely favor sharing academic materials, especially when technical controls are applied.
Contract terms purport to prohibit activities that otherwise would be permitted under the Copyright Act. This discussion draft focuses on the question of contract preemption, or the idea of whether copyright law prevails over contract terms when the two conflict. The paper lays out a statement of the problem faced by libraries, and a series of potential strategies for ARL and its member institutions to consider.
This ARL white paper reexamines the role of the decades-old Commission on New Technological Uses of Copyrighted Works (CONTU) Guidelines in interlibrary lending. The white paper includes the history and legal status of CONTU, along with a review of the applicable copyright law, including Section 108 of the Copyright Act (reproduction by libraries and archives) and Section 107 (fair use). This white paper can inform library practice and advocacy around interlibrary lending, licensing, and journal subscriptions.
For more on fair use as an affirmative library right, please watch these videos
The history of American copyright law originated with the introduction of the printing press to England in the late fifteenth century. As the number of presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing in England.
More about Fair Use
Fair use gives users the right to use copyrighted material without permission from rightsholders, in certain circumstances. The Center for Media and Social Impact (CMSI) hosts Codes of Best Practices in fair use to support fair use in filmmaking, journalism, teaching, visual arts, and other contexts. The codes were developed by practitioners in these fields, as well as librarians, archivists, and legal experts.
In June, a bipartisan group of US lawmakers introduced a package of antitrust reform bills targeted at curbing anticompetitive practices in online markets. The bills followed a series of House Judiciary Committee hearings on anticompetition that began in 2019.
Today, President Biden issued an “Executive Order on Promoting Competition in the American Economy.” Among other provisions, the order aims to address anticompetitive terms imposed by manufacturers that restrict third-party repair or self-repair of consumer goods that are powered by software.
The US Copyright Office is conducting a study of current copyright protections for publishers, and how potential ancillary copyright protections for publishers might interact with current copyright law, particularly as it relates to news content.
US Copyright Office Allows Access to E-books for People with Disabilities, but Licenses May Still Restrict Access
Research libraries are committed to making information resources as broadly accessible as possible, regardless of users’ abilities or disabilities, but copyright law has played a role in prohibiting the international exchange of accessible books and other materials.
For this year’s Fair Use/Fair Dealing Week, MediaWell is partnering with the Association of Research Libraries to interview experts reflecting on how fair use supports research, journalism, and truth. This is the fourth and final installment of MediaWell’s four-part series, entitled “Two Questions on Fair Use.”
This is the third of MediaWell’s four-part series, entitled “Two Questions on Fair Use” in which we ask Alex Abdo, the litigation director of the Knight First Amendment Institute at Columbia University, about the key issues surrounding researchers’ and journalists’ access to data, as well as legislative efforts to promote platform transparency for researchers. The transcript has been lightly edited for clarity.
This is the second of MediaWell’s four-part series, entitled “Two Questions on Fair Use” in which we ask Rebekah Tromble—director of the Institute for Data, Democracy & Politics and associate professor in the School of Media & Public Affairs at George Washington University—about how fair use enables computational social science research, but also how limitations on fair use imposed by social media platforms constrain research and teaching about political discourse online.
Many myths persist about fair use, an essential right that allows the use of copyrighted material without permission from the copyright holder under certain circumstances. We debunk some of the most common fair use myths here.
Sandra Enimil, copyright librarian and contracting specialist at Yale University Library and chair of the Association of College and Research Libraries (ACRL) Research and Scholarly Environment Committee, shares how fair use helps information reach intended audiences.
Sandra Enimil, copyright librarian and contracting specialist at Yale University Library and chair of the Association of College and Research Libraries (ACRL) Research and Scholarly Environment Committee, explains how the copyright environment affects research and scholarship, and why this matters for society.
Eric Goldman describes how bloggers rely on fair use to publish their research. Goldman is associate dean for research, professor of law, and co-director of the High Tech Law Institute, at Santa Clara University School of Law.