Today, with help from our partners at the Center for Social Media at American University, and the Law School at AU, and with support from a grant from The Andrew W. Mellon Foundation, ARL is proud to unveil the Code of Best Practices in Fair Use for Academic and Research Libraries. Based on 36 hours of focus group deliberation with 90 academic and research librarians representing 64 institutions in meetings held all over the country, the Code is comprised of eight Principles that describe general circumstances where the groups found library uses to be fair, followed by Limitations that describe the outer bounds of the consensus and Enhancements that the groups thought represented salutary but not necessary steps to protect the interests of other stakeholders.
Topics covered include:
- Electronic reserves and course management systems
- Mass digitization for “non-consumptive” uses
- Facilitating access for the disabled
- Creating digital exhibits of library collections materials
That’s the overview, and you can learn more at our Code web page. In this blog post, though, I want to focus on what I think is the first question that most research and academic librarians are going to ask when they hear about this Code: Oh, no, not another set of guidelines! How is this thing any different than all the other stuff out there?
Like a lot of documents, websites and resources out there, our Code tries to apply the plain statutory text and go beyond the facts of existing cases to talk about fair use in a way that feels closer to home for academic and research librarians. So why should you care about this new document? How is it different from all the other resources you can find online? And how does it fit into your institution’s policymaking process?
Any librarian who has waded into the troubled waters of copyright has encountered a dizzying array of guidelines, rules of thumb, nutshells, and checklists. As Columbia University copyright guru Kenny Crews has pointed out in his definitive study of fair use ‘guidelines’, the dangers that attend some of these tools far outweigh the promised benefit of greater certainty. Examples that were supposed to represent minimum “safe harbors” came to be treated, all too often, as the outer limits of legitimate action. Private voluntary standards negotiated among diverse (and even adverse) groups have gotten a patina of legal authority over time and are substituted for a flexible and dynamic application of the actual law.
We set out to avoid these pitfalls by providing a new kind of resource that is more narrowly targeted and more flexible than the tools that have come before it. And because judges care what communities of practice think and do, the librarians’ Code can even help improve the law by revealing and shoring up the values of academic and research librarians. So the two things that make this Code unique are where it comes from, and how it works.
The Code is different because of where it comes from. As I said at the beginning, it represents a consensus of a large number of academic and research librarians, deliberating deeply together about their own problems. This advice does not come from outside experts or consultants at ARL speaking to you from our ivory towers in Washington, nor does it come from a company or trade association with a financial interest in discouraging fair use. It comes from your peers. And this consensus isn’t a “lowest common denominator” based on the status quo or a survey of which practices are most common. It’s based on what the academic and research librarians we spoke with came to consensus on when they had the time and opportunity to deliberate together about which practices are truly “best.”
The Code is also different from many of its predecessors because of how it works: it gives academic and research librarians and library policymakers flexible principles to guide their thinking in their particular circumstances, rather than one-size-fits-all rules that ignore context. Librarians using the Code will come to different conclusions in seemingly similar cases depending on the nature of the works they are using, the goals of the users they are serving, the ways that works are distributed or copied, and on and on. In short, the Code doesn’t provide answers; it provides tools that help librarians ask the right questions.
The Code does not purport to tell everyone how to apply fair use across all situations for all time. Instead, the Code focuses on just eight concrete, recurrent scenarios where academic and research librarians are employing fair use right now. The broad cross-section of the academic and research library community that came together to work on this Code agreed that new situations may arise where fair use could come in handy for libraries, and the community will have to confront those situations afresh. They also agreed that practice in the situations they discussed may evolve over time, and no one should be bound forever by current ideas. The Code is a snapshot, then: it captures the considered opinions of academic and research librarians at this moment about these issues, rather than purporting to speak to all issues or for all time.
The Code is not intended to short circuit or preempt the legal and risk management analysis that each institution will need to undertake in deciding on its own fair use policies. While it has a solid grounding in fair use case law, the Code is not a legal memo. It was not created by lawyers (though there were lawyers involved, of course—most importantly, the panel of outside legal reviewers who ensured that the Code principles are reasonable readings of fair use), and it certainly does not pretend to be a disinterested analysis of fair use case law. No such analysis could give definitive answers to the challenges libraries face, because the case law simply is not determinative, and is not likely to become so any time soon. (Even if the Georgia State case is decided tomorrow, that will just be the start of a long process: there may be an appeal, there can always be differences across judicial circuits, and libraries with significantly different policies may get little guidance from the GSU experience.) Although it is increasingly clear that courts look to the issue of “transformative use” in deciding these cases, reasonable people can disagree about how the general principles of fair use that emerge from the cases should apply to particular situations.
And yet, there are tremendous opportunities for academic and research libraries who have the courage to act in the face of this inevitable uncertainty. The Code is designed to be one input into the risk management process, but that process has other inputs, too. General counsels’ offices will come with their own views about the law (hopefully they’ll check out some recent scholarship that has helped shape the thinking behind the Code), and administrators will have their own ideas about which projects are important enough to warrant rational risk-taking, and which are less compelling. Knowing the consensus of academic and research librarians from institutions all over the country around fair use in some key areas will help this process, but it cannot and should not override local conditions and priorities.
To tweak an old cliché, all policy is local, and that is as it should be. The Code of Best Practices in Fair Use for Academic and Research Libraries is here to help, and not to dictate, that local policymaking process.