This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.
The start of Fair Use/Fair Dealing week, which runs from February 20-24, 2017, immediately follows a week in which ARL filed amicus briefs along with other library associations and organizations in two fair use cases. The first case, ARL joined the American Library Association (ALA), Association for College and Research Libraries (ACRL) and the Electronic Frontier Foundation (EFF) in filing a brief in the Georgia State e-reserves case which is again before the Eleventh Circuit. In the second case, ARL joined ALA, ACRL and the Internet Archive in filing an amicus brief in Capitol Records v. ReDigi, currently before the Court of Appeals for the Second Circuit, arguing that other existing limitations and exceptions can tilt the first fair use factor (character of the use) in favor of the user and that fair use encourages innovative services.
In the summary of the argument, the brief notes:
First, in its truncated fair use analysis, the district court ignored the similarity between the use ReDigi sought to make and uses authorized by Section 109(a). This similarity should have tilted the first fair use factor, the purpose and character of the use, in favor of ReDigi. In Authors Guild v. HathiTrust, 755 F.3d 87, 102 (2d Cir. 2014), this Court used the rationale for a specific exception—17 U.S.C. § 121, which permits the making of accessible format copies for people who have print disablilites—to support a finding of a valid purpose under the first factor. Likewise, the Copyright Office has repeatedly based fair use conclusions on specific exceptions in the context of a rulemaking under section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. As this Court did in HathiTrust and the Copyright Office did in the section 1201 rulemaking, the district court should have recognized that the purpose behind the first sale right tilted the first fair use factor in favor of ReDigi.
Second, the brief argues that a positive fair use determination in this case would encourage libraries to provide innovative services to their users. Fair use findings in technology cases have permitted libraries to provide new, digitally-based services such as HathiTrust Digital Library. In addition to enabling researchers to find relevant texts and perform critical data mining, HathiTrust provides full-text access to over fourteen million volumes to people who have print disabilities. A fair use finding in this case would provide libraries with additional legal certainty to roll out innovative services such as the Internet Archive’s Open Library. Such a result would increase users’ access to important content without diminishing authors’ incentive to create new works.
The full brief can be read here.