Yesterday, January 28, 2014, the US House of Representatives Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held another hearing on copyright review. This hearing focused on the scope of fair use and included five witnesses: Peter Jaszi (professor, American University), June Besek (professor, Columbia University), Naomi Novik (author and co-founder, Organization for Transformative Works), David Lowery (singer/songwriter and lecturer, University of Georgia), and Kurt Wimmer (general counsel, Newspaper Association of America). In advance of the hearing, the Library Copyright Alliance (LCA) submitted a written statement (PDF) discussing how libraries rely on fair use in order to serve their users and meet their mission, how the federal government relies on fair use for photocopying and in the patent examination process, and how rights holders rely on fair use in developing new works. The LCA statement concludes that no changes are needed to the fair use doctrine.
Fair Use and Libraries
The LCA statement begins by noting the numerous areas where fair use allows libraries to achieve their missions and serve library patrons, including “the preservation of and providing access to our cultural, historical, local and scientific heritage; supporting and encouraging research, education, literacy and lifelong learning; and providing a venue for community engagement on a host of issues.” The statement recognizes fair use as “the most important limitation on the rights of the copyright owner—the most important ‘safety valve’ of US copyright law for the public.”
Giving a few specific examples, the LCA statement first points to the importance of fair use for mass digitization of works, including for purposes of creating full-text searches, preservation, and providing access to users with disabilities. Libraries also rely on fair use to ensure digital preservation and provide tailored access programs to orphan works, those works where it is difficult or impossible to identify and locate the rights holder. Fair use also permits libraries to improve accessibility for persons who are visually impaired or have other disabilities.
The statement also explains that the Code of Best Practices in Fair Use for Academic and Research Libraries, has identified eight situations in which the library community has expressed a consensus regarding acceptable practices for fair use:
- Supporting teaching and learning with access to library materials via digital technologies
- Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions
- Digitizing to preserve at-risk items
- Creating digital collections of archival and special collections materials
- Reproducing materials for use by disabled students, faculty, staff, and other appropriate users
- Maintaining the integrity of works deposited in institutional repositories
- Creating databases to facilitate non-consumptive research uses (including search)
- Collecting material posted on the World Wide Web and making it available
Fair Use and the US Government
The LCA statement points out that libraries are not the only entities that rely on fair use—federal agencies have relied on this doctrine in the patent examination process and for photocopying materials. A 2012 opinion issued by the general counsel of the US Patent and Trademark Office (USPTO) concluded that fair use covered: copying and distribution of non-patent literature for use in providing those copies to applicants during the examination process, providing entire copies of the patent histories to the public, and applicants copying non-patent literature for submission to the USPTO. Similarly, a 1999 opinion issued at the request of the Department of Commerce noted that fair use was a critical component in supporting the constitutional rationale of copyright. The opinion found that the public interest could be advanced through the use of government photocopying and was therefore relevant to the fair use inquiry. The opinion cautioned the Department of Commerce and other federal agencies against negotiating license deals to permit photocopying where such photocopying was covered by fair use and therefore not infringing.
Fair Use and Rights Holders
In addition to libraries and the federal government, content producers and rights holders also rely on fair use. As noted in the LCA statement, in two recent cases in which infringement suits were brought against rights holders, these rights holders asserted that fair use was critical in promoting the progress of science and protecting the First Amendment.
In Bouchat v. Baltimore Ravens, for example, the Fourth Circuit found that “Fair use…is crucial to the exchange of opinions and ideas. It protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” Furthermore, in its amici brief, film associations noted the importance of fair use in the creation of new content, stating, “Much creative culture is iterative; new works often do not arise in a vacuum, but rather are influenced by and draw upon the creative works that came before. As the Supreme Court held in Campbell, highly transformative works lie at the heart of fair use’s protection: they are the new expression that copyright law is meant to promote.”
Similarly, the LCA statement points to the case White v. West Publishing, in which large publishers relied on fair use after creating a database product, calling the doctrine a “necessary tool to further the goals of copyright law.”
The LCA statement recommends against changes to Section 107 of the Copyright Act, noting that the fair use doctrine has been successfully relied upon by diverse constituencies, including libraries, students, teachers, government agencies, patent applicants, artists, and media companies.
The Association of Research Libraries (ARL) is a nonprofit organization of 125 research libraries in the US and Canada. Its mission is to influence the changing environment of scholarly communication and the public policies that affect research libraries and the diverse communities they serve. ARL pursues this mission by advancing the goals of its member research libraries, providing leadership in public and information policy to the scholarly and higher education communities, fostering the exchange of ideas and expertise, facilitating the emergence of new roles for research libraries, and shaping a future environment that leverages its interests with those of allied organizations. ARL is on the web at http://www.arl.org/.