Report on “Copyright and Fair Use in the Digital Age”

On Monday I attended a very useful meeting put on by various institutions, including CARLI, Northwestern University, and the Association of Research Libraries called “Copyright and Fair Use in the Digital Age.” The first part of the program was a chance to learn the details about the Code of Best Practices for Fair Use in Academic and Research Libraries, which was published in January 2012 as a joint project of the Association of Research Libraries, Center for Social Media at American University and the Program for Information Justice and Intellectual Property at American University. The second part of the program was from Creative Commons on “Fair Use and Copyright in the Age of the Internet.” (I will probably get those notes done too at some point). I am presenting below the notes I took during the meeting, but you can follow the first presentation at the ARL site, as well as find a lot more information and the actual code at arl.org/fairuse.

The meeting was prompted by the new Code of Best Practices for Fair Use in Academic and Research Libraries, which is one of a series of guides addressing fair use in many different communities. Co-facilitators Brandon Butler (ARL) and Peter Jaszi (American University) are going around the country to help introduce the code. The guide provides tools to address challenges in determining what is fair use.

Fair Use and Research Librarians

Copyright and Fair Use

Peter Jaszi delivered the first part of the talk, which covered the legal background. After this Brandon Butler joked that we’d just gotten $7000 worth of law school. The purpose of copyright is often misunderstood or misconstrued. While some people will tell you that copyright has always been for the rights of authors, it isn’t the true story. In fact, the historic and constitutional truth is that copyright isn’t meant to reward authors or publishers, but rather is a means to promote the creation of culture. That authors and publishers are rewarded is merely a side effect. (I got a slightly different understanding of this historically from Adrian Johns’ Piracy, but that’s in a non-American context, which is of course what this talk was about). Giving people limited monopoly supposedly stimulates people to invest their time and effort in creating cultures. Another way to encourage the making of new culture is to use existing culture, so this creates a tension.

This tension could serve to unbalance the whole culture creating enterprise, so there are certain “balancing features”, such as limiting the term of the copyright (which is being eroded all the time). The biggest and most controversial balancing measure is fair use: “legal, unauthorized use of copyrighted material– under some circumstances.” As Jaszi remarked, fair use allows a space for artistic creativity–as well as legal creativity.

There are “Four Factors” in the copyright bill of 1976 in section 107 which help determine whether the use is fair. To some people these may be very well know, but I certainly need a review every so often. They are:

  • Reason for the use
  • Kind of work
  • Amount used
  • Effect on Market

This is fairly loose–while it does allow judges flexibility in making their decisions, it is difficult to apply to specific cases. It is also difficult to use to make prospective decisions about what you should do in a certain case. The Supreme Court has affirmed the critical importance of fair use in free speech. It has moved into the center and is being perceived as core feature of copyright. There has been a big shift in rulings since 1990. There has been a practical renaissance and sea change in judicial interpretation with very positive connotations for various communities, including libraries. Judges now ask the following questions:

  • Whether the use is transformative? Is it a new purpose, context, audience, insight?
  • Is the amount of material used appropriate for the transformative purpose?

If both the answers are true, then in the vast majority of cases judge will rule fair use. There are some misunderstandings about both of these concepts, however. First, “transformative” does not have to create an independently copyrightable work, nor does the use have to be a physical transformation. One example from the scholarly research realm. You could use text and images in scholarly studies: not modifying, but re-contextualizing. For instance, taking images of Google search and making into poster is an arguable fair use.

The Best Practices Approach

Judges pay attention to community practice and community values. A consensus about what constitutes fair use in a communities helps to create a better culture of fair use as well as to serve as a defense of such use. American University has been working with a variety of communities to facilitate creation of fair use principles by those communities and figure out best way of handling the material. Communities with which they have worked include documentary filmmaker, scholars, media literacy, online video, dance collections, and open courseware.

These codes have had rapid effects on gatekeepers in various areas. One example is for documentary filmmakers, which now have an easier time getting insurance for their projects when they can show that what they are doing in their works constitutes fair use. These codes have transformed their fields and brought about new culture that wouldn’t have been possible under more timid definitions.

Some important realizations for going into this document is that these are best practices, not guidelines. There are a lot of pieces of folklore floating around with specific metrics, but these are not based on law. For instance, it’s not true to say that you can use two minutes or 11 bars or what have you of a piece to make it fair use. Following such guidelines will not serve as legal protection. To that end, you can understand the document as:

  • Principles, not rules.
  • Limitations, not bans. Limitations that are embodied in the codes are as integral to the document as the principles, but they are not hard and fast rules. Rather they define a thought process
  • They promote reasoning, not rote.

Libraries and Fair Use

Obviously this guide is aimed at librarians. The genesis was that libraries have a duty to preserve the past, answer present needs (they are first and sometimes last line of copyright defense on campuses), and think about the future role of libraries and keeping libraries relevant. As the limits of copyright keep getting extended, fewer and fewer things in library collections will fall into the public domain. An additional problem is that as people want everything in digital form, this involves making lots of copies.

When they did initial field research for this project, they found that librarians had the same common set of issues. First, there is a great deal of insecurity and hesitation–stakes feel very high and no one wants to get the answer wrong. “No one ever got sued for saying no,” as Brendan Butler says. Sometimes fears have led to sunk costs in projects that were important but people were too concerned to follow through. There was a general sense that fair use is an important tool, but they didn’t know how to use it. People revert to “risk aversion” rather than “risk management”. There is never no risk. But in the copyright world there seems to be no tolerance for fear ever. We need to be more sensible about this. They created this code in order to help librarians feel more comfortable in using fair use as a tool in academic libraries

Code of Best Practices in Fair Use for Academic and Research Libraries

Brandon and Peter switched off discussing the Code and introducing its principles. It was created by librarians. Deep deliberation by 90 librarians from 64 institutions in 9 four-hour discussions. ARL and the American Center for Social Media et al. took detailed notes of these conversations. They were then reviewed by a diverse panel of legal experts. This wasn’t to develop a “perfect” code, but to see if it’s within reason. The Code puts legal risks into perspective–balance legal risk against “mission risk”. There is a real value to projects that get ended because of fear.

They said of course to read the Code, but outlined the most noteworthy or important features, which I have noted below. Each numbered item in bold represents a principle that academic librarians agree is fair use, Peter and Brandon’s comments about it, and the important limitations to keep in mind, plus some enhancements that make it even more likely the use will be perceived as fair.

Fair Use in 8 Common Principles

One: Digital access to teaching materials for students and professors.

  • This is not about physical materials. This is not about re-fighting the course pack wars. This document focuses on the digital, such as e-reserves, course websites, streaming, etc.
  • There are significant limitations to this, however. Most important: focus on pedagogical content of content being chosen.
  • When you use someone’s content, you must identify the source.
  • Consensus about providing certain enhancements.  They were dismissive of the notion of spontaneity. You can’t use something at the last minute and that makes it ok. But do have periodic review of content to see what remains necessary.
  •  Georgia State hasn’t been decided yet, but there are other things coming up potentially. This document may influence the debate.

Two: Exhibits, both physical and digital.

  • Lots of libraries have fascinating collections and are building exhibitions and need guidance on building these.
  • People who own copyrights really value attribution.
  •  Take a look at Library of Congress boilerplate on American Memory for ideas.

Three: Digitizing to preserve at-risk items

  • If the format isn’t already falling apart or already obsolete, section 108 doesn’t cover it.
  • Section 107 provides back-up to section 108.
  • Once the digital copies of items have been made, it should be possible to make these items available to the learning community rather than the fragile materials.
  •  Use reasonable measures to ensure that to the extent possible only accredited users have access to material.
  • Librarians felt they have an ethical duty to provide measures to limit downstream use of the material. This is ethical feeling only, has no legal basis. Librarians have been socialized into believing that they have legal liability if a legal copy they make ends up in illegal use.

Four: Digital collections of archives and special collections.

  •  How do we take rare and unique items and make them available more broadly?
  •  Librarians came to consensus that this is fair use. Similar rationale to exhibitions.
  • If you have a special collection of a famous person, and they made no modification to the work, you want a record of it, but not have complete version of it.
  •  Limit access to damaging or sensitive private information.

Five: Access to research and teaching materials for disabled students.

There was  little controversy and so much broad consensus on this that they said it wasn’t worth going into detail on this.

Six: Institutional repositories, e.g. dissertations, multimedia research

  •  IR contract often has clause that third party material has express permission for use, so people were cutting out material willy-nilly before depositing it.
  • Up front before the person starts researching, educate about fair use.
  •  ProQuest was “the main bad guy”, but getting better.
  • We all can improve on the language used and education.

Seven: Creating digital databases for “non-consumptive uses” (digitizing, indexing for search).

  • Data mining–you aren’t interested in reading the sources, but algorithmic analyses. This goes on in STEM and humanities. Is this a legitimate fair use activity?
  •  Subject to limitations, mostly about restriction, this is fair use.

Eight: Making topically-based collections of Web-based material

  • These are fragile and sensitive to being taken down. The purpose for which they will be consulted later is quite different than the original purpose, so this clearly seems fair use.

Practice Makes Practice

Brandon concluded by saying that he was obligated to say by the American Bar Association that “Fair use is a muscle, if you don’t use it will atrophy.” I am guessing this is hilarious lawyer humor. There were a few last comments and questions. Someone asked if the Code would be updated over time. They said that the last two principles reflected emergent scholarly practices that will have relevance to the next set of practices. Also, any institutions which uses this can and should create its own localized version. Everyone ought to know that these are opportunities that are available. Librarians know that the opportunities are fragile, and the easiest way to lose them is to sign license agreements that restrict your fair use. Suggestions for communicating with others on campus were to share this with the general counsel, but also provide backup documentation with legal information. This is something that ARL and AUSOC can help with. Faculty, on the other hand, probably need this boiled down into something more easily consumed.

I learned a lot from this presentation and feel a lot more confident in my ability to make decisions and explain concepts to faculty and students now, so it was definitely time well spent. I also really enjoy Sarah Hinchcliff Pearson on Creative Commons but will post that later.