Harvard Fair Use Week: Best Practices in Fair Use

This week is #FairUseWeek at Harvard. You can follow all the action here, including fair use posts by guest bloggers, videos about fair use, and a live panel on Friday. You can also follow twitter.com/fairuseweek for more updates throughout the week.

The post below is cross posted at Copyright at Harvard Library

Harvard’s Fair Use Week is an opportunity to reflect not only on the importance the doctrine has already had in the academic library community, but also to consider its future role in an ever-changing world of new technologies and circumstances. A professional community consensus on fair use with respect to when and how the doctrine is applied can provide powerful guidance, defining community standards and best practices. The Code of Best Practices in Fair Use for Academic and Research Libraries provides such guidance to a number of areas where fair use applies, including in the digital environment.

Fair use plays a critical role in the copyright system, promoting a balanced system respecting the rights of rightholders while also promoting the public interest and protecting the First Amendment. As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise and its long history demonstrates its importance in promoting access to information, future innovation and creativity. Without this flexibility, the law would simply be unable to keep pace with rapid changes and advancements in technology. Within the academic library community, fair use has allowed for better service to patrons in areas of preservation, providing access to information resources, enhancing research, promoting education, among others, particularly where specific limitations and exceptions in the Copyright Law fail to address a particular situation.

The House Judiciary Committee on Subcommittee on Courts, Intellectual Property and the Internet is currently undergoing a “copyright review” and has already held four hearings, the most recent of which addressed “The Scope of Fair Use.” The hearing examined not only the current scope and practice of fair use, but also looked toward what the future of the doctrine might be, particularly whether any changes were necessary.

During the hearing, Members posed questions that covered a wide range of issues including, among others, how to define “transformative,” whether exporting the doctrine to other countries is appropriate and whether fair use is currently working for all groups. Most comments indicated that fair use is working and statutory changes are not necessary, however some raised questions regarding whether jurisprudence on fair use has been predictable. Best practices developed through community consensus and standards goes to the heart of this issue, promoting predictability for both those relying on fair use as well as for the rightholders.

Members expressed interest in best practices during the hearing. For example, Judiciary Committee Ranking Member Conyers (D-MI) referenced best practices twice during his opening statement. After noting the historic application of the fair use doctrine in a broad range of contexts which has been made possible by the flexibility of the doctrine, Conyers concluded by encouraging development best practices: “Fair use impacts all types of industries including filmmaking, poetry, photography, music, education and journalism. We must continue to encourage these industries to develop best practices.” Similarly, Rep. Lofgren (D-CA) seemed to signal interest in best practices when she asked the Chair of the subcommittee to adopt into the record the Code of Best Practices in Fair Use for Online Video.

This interest in best practices is not limited to the legislative branch. While courts are guided by the four statutory fair use factors, in practice, they have also looked to the standard practices of the communities from which the case originates in determining whether fair use applies in a given circumstance. Codes of best practices can guide members of those communities in determining whether fair use applies in a particular circumstance and how to exercise this doctrine in a manner considered acceptable in that particular professional community, thereby minimizing risk of litigation.

The Code of Best Practices in Fair Use for Academic and Research Libraries is therefore an important and useful tool for academic and research libraries making determinations as to what activities are likely to fall under fair use and how to exercise the doctrine. Developed by and for the academic and research library community, the Code identifies eight areas where fair use is commonly exercised and articulates the principles describing each circumstance, a list of considerations to inform these practices, the limitations that are recommended, and enhancements that could strengthen the case for fair use in those situations. These areas include:

  1. Supporting teaching and learning with access to library materials via digital technologies;
  2. Using selections form collection materials to publicize a library’s activities, or to create physical and virtual exhibitions;
  3. Digitizing to preserve at-risk items;
  4. Creating digital collections of archival and special collections materials;
  5. Reproducing materials for use by disabled students, faculty, staff and other appropriate users;
  6. Maintaining the integrity of works deposited in institutional repositories;
  7. Creating databases to facilitate non-consumptive research uses (including search); and
  8. Collecting material posted on the world wide web and making it available.

While some may be hesitant in exercising fair use because of perceived unpredictability, the Code of Best Practices provides reassurances that such activities are considered to be fair use in the community, a factor likely to be looked upon favorably by both Congress and the courts. Such best practices lend predictability to the fair use doctrine, demonstrating a consensus view on the areas where fair use should be exercised and the limitations that should be observed.

Congress need not make statutory changes to a doctrine that has served the public well, providing a crucial “safety valve” in copyright law. Instead, professional communities should continue to develop and rely upon best practices, such as the Code of Best Practices in Fair Use for Academic and Research Libraries, lending greater predictability and certainty to fair use, including in areas of emerging technology.

Don’t forget to check back in throughout the week for more posts about fair use here.

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