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Fair Use for Libraries:Navigating the Current Legal LandscapePresented for Florida Virtual CampusChristine FruinUniversity of Florida
Copyright Basics The purpose of copyright is to pr omote the creation of culture by granting creators limited monopoly on use of their works and by providing exceptions to that monopoly that encourage new creators to reuse existing culture.Copyright Duration see Cornell Universitys Public Domain Chart http://copyright.cornell.edu/resources/publicdomain.cfm
Fair Use: Balancing TestBroad exception allowing for legal and unauthorized use of copyrighted works under certain circumstances.Balancing test examine four factors; no single factor controls
Four Factors of Fair Use Purpose and character of the useEducational? Transformative? Nature of the work being usedTechnical/factual or creative? Published or unpublished? Amount of the work being usedSmallest quantity to achieve stated purpose? Heart of the matter? Effect of the use upon the marketReplace or encourage sales of original? Is original readily available for reasonable price?
Fair Use in the Courts Is the use transformative?For new purpose, context, audience, etc.? Is the amount used appropriate for transformative purpose? Harm to revenue stream or reasonable availability of license at a reasonable price?
Georgia State Case Publishers suit against GSU for postings of book chapters in course reserves and course management sites. Trial Court JudgmentOverwhelmingly in favor of GSU Only applies to GSU but instructive to others On appeal oral arguments Nov. 19th
Fair Use in GSU Case Factor OneEducational purpose, not commercial Distinguished this case from earlier coursepack cases involving commercial copyshops Mere reproduction of scholarly works for course reserves not transformative Factor TwoScholarly works are informational works favored by fair use Sweat of the brow argument not applicable Factor ThreeClassroom Guidelines rejected both as to amount and repetitive use Amount must be decidedly small and narrowly tailored to purpose If book has less than 10 chapters, 10%; if more than 10 chapters, 1 chapter a guideline not a ceiling! Factor FourNo demonstrated harm to market Is license reasonably available at reasonable price for excerpts in a convenient format?
HathiTrust Case Authors Guild copyright infringement action against HathiTrust and partner universities for digitization of books for purposes of making preservation copies, for search and data mining, for access by persons with disabilities, and for orphan works access. Trial court granted summary judgment in favor of HathiTrust and universities. Orphan works issue deemed not ripe for adjudication because still proposed program not active Section 108 of Copyright Act (library exceptions) does NOT preclude library invocation of Section 107 (Fair Use) All major HathiTrust initiatives deemed to be fair use trial judge wrote I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants Section 121 academic libraries are an authorized entity that can provide access to copyrighted materials for persons with disabilities Oral Argument on the Appeal Oct. 30, 2013
Fair Use in HathiTrust Case Factor OneScholarly and research purposes = fair use Strong public interest in preservation of scholarship (although not transformative) Search function is highly transformative use because a different purpose Digitization for disabled persons access is also highly transformative because different audience Factor TwoFor transformative uses, this factor is not dispositive Factor ThreeAmount taken was necessary to the use Factor FourCopyright holder cannot preempt a transformative market Lack of market harm for noncommercial and transformative uses Stated intent to license in the future cannot trump transformative use
Code of Best Practices Released in January 2012 8 common situations in libraries where fair use applies Best practices developed from several intensive group sessions with academic librarians Final document reviewed by diverse panel of legal experts http://www.arl.org/f ocus-areas/c opyrightip/fair-use/code-of -best-practices
Scenario One: Digital Access to Teaching MaterialsEnhancements : Ask for instructor justification on reser ve request forms why is amount requested appropriate to pedagogical purpose; require instructors to review rec urrent requests for continued appropriateness Limitations : Limit use of content created/marketed for c ourse use; materials should only be accessible by enrolled students for durat ion of course; provide education to in structors about fair use; inform students about their rights and respons ibilities regarding their own use of course materials; provide full attribution for each work
Scenario Three: Digitizing to Preserve At-Risk ItemsEnhancements : employ technological measures to limit furt her redistribution of digitized items; provide clear and reliable contact information to copyri ght holders who wish to register objection Limitations : do not digitize materials that already have readily available digital copy; do not circulate original items simultaneously with providing access to digitiz ed items; provide full attribution for all items made available online
Scenario Four: Digitization of Archives and Special CollectionsEnhancements : Collections consist largely of works typica lly not exploited commercially such as personal photos, correspondence and other ephemera; copyright hold ers cannot be located; provide clear and reliable contact information to copyright holders who wish to register objection Limitations : refrain from providing access to commercially available titles; limit access to material containing damaging or sensitive private information; provide full attribution to original item
Scenario Six: Institutional RepositoriesEnhancements : Develop clear institutional policy about appr opriate use and incorporat ion of copyrighted works in faculty and student scholarship; provide cons ultation on individual basis to depositors who have questions about use of copyrighted materials in own work Limitations : provide clear and reliable contact information to copyright holders who wish to register objection; educate depositors about the nature and scope fair us e and how to provide proper forms of attribution
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