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Digital Copyright Policy for Libraries: Fair Use

What is Fair Use?

Fair use refers to the legal doctrine set forth in Section 107 of the Copyright Act that allows the use of unlicensed copyrighted works in certain circumstances. It establishes that use of copyrighted material "as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright," and that the following factors should be considered when determining fair use:

  •  the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  • the nature of the copyrighted work;

  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  • the effect of the use upon the potential market for or value of the copyrighted work.

All four factors need to be accounted for when evaluating whether or not the use of a copyrighted work is fair use. For example, just because the work is being used for educational purposes doesn't mean that the entirety of the work can be used. 

Fair Use Tools

Below is an interactive tool created by the Copyright Advisory Network (CAN) that can help in understanding fair use. 

Fair Use Exemptions for Libraries & Archives

While the previously mentioned fair use exemptions certainly have many applications in library settings, Section 108 of the Copyright Act details the rights of reproduction on copyrighted works that libraries and archives have. According to Section 108 libraries and archives can:

  • Make one copy of a library-owned work that can be distributed through interlibrary loan.
  • Make 3 copies of an unpublished work owned by the library for the purposes of preservation or research use. If the copy is a digital copy, it cannot be circulated outside the library or archive in which the copy was made.
  • Make 3 copies of a library-owned work for the purposes of preservation, only if the item cannot be repurchased or replaced for a fair price. If the copy is a digital copy, it cannot be circulated outside the library or archive in which the copy was made.
  • Make one copy of a work owned by the library if a user or another library/archive makes a request for the use of private study, scholarship, or research.
  • Reproduce, distribute, display, or perform a copyrighted work in its last 20 years of its copyright term for the purposes of preservation, scholarship or research, as long as a copy cannot be be obtained at a reasonable price.

It should be noted that in all of the above cases, the library/archive must be open to the public, the copies must not be made for commercial purposes, the copies are not systematic in nature, and the copies must contain a notice that states the work is protected under copyright law. 

Fair Use Exemptions for Instructors

In addition to the fair use exemptions for libraries and archives, there are also fair use exemptions for classroom/instruction use, which can certainly apply to many library instruction settings. Section 110 of the U.S. Copyright Code states that certain fair use exemptions apply in an in-person class room at a nonprofit educational institution. If an instruction environment meets these requirements, instructors and pupils have the right to perform or display any works, regardless of copyright term, and without the permission of the copyright holder. 

Fair Use Exemptions Tools

Below is an interactive tool created by the Copyright Advisory Network (CAN) that can help in understanding fair use exceptions for instructors. 

Resources

The Association of Research Libraries' Code of Best Practices in Fair Use for Academic and Research Libraries provides a guide to eight situations that "represent the library community's current consensus about acceptable practices for the fair use of copyrighted materials."

The U.S. Copyright Office's Fair Use Index keep an updated user-friendly list of fair use judicial decisions than can help make clear the distinctions between what is fair use and what isn't.

Columbia University's Copyright Checklist for Libraries can help determine whether or not a reproduction of a copyright is in compliance with Section 108.

Fair Use Week's Fair Use Resources has dozens of educational posts and videos on fair use court cases, current fair use controversies, and how fair use can be utilized to promote the progress of knowledge and society. 

The Association of Research Libraries' Fair Use Myths & Facts Infographic debunks 10 popular misconceptions about fair use and easily explains some of the intricacies of fair use law. 

Additional Readings

Bibliography

Besek, J. M. (2003). Copyright Issues Relevant to the Creation of a Digital Archive: A Preliminary Assessment. Strategies and Tools for the Digital Library. Council on Library and Information Resources. https://eric.ed.gov/?id=ED480764

Burtle, L., & Burright, M. (2018). Academic Libraries as Unlikely Defendants: A Comparative Fair Use Analysis of the Georgia State University E-Reserves and HathiTrust Cases. ScholarWorks at Georgia State University. https://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1137&context=univ_lib_facpub

Diaz, A.S. (2013). Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies After Authors Guild v. HathiTrust. Berkeley Technology Law Journal28, 683–713. https://btlj.org/data/articles2015/vol28/28_AR/28-berkeley-tech-l-j-0683-0714.pdf

Gould, T. H. P., Lipinski, T. A., & Buchanan, E. A. (2005). Copyright Policies and the Deciphering of Fair Use in the Creation of Reserves at University Libraries. Journal of Academic Librarianship31(3), 182–197. https://doi.org/10.1016/j.acalib.2005.02.001

Hansen, D. R. (2011). A State Law Approach to Preserving Fair Use in Academic Libraries. Fordham Intellectual Property, Media & Entertainment Law Journal22(1), 1–44. https://ir.lawnet.fordham.edu/iplj/vol22/iss1/1/

Jaszi, P. (2013). Fair Use and Education: The Way Forward. Law and Literature25(1), 33–49. https://www.jstor.org/stable/10.1525/lal.2013.25.1.33