fair use & copyright
1 Collaborating with Attorneys and Other Experts | 2 Is It in Copyright? | 3 Section 108 | 4 Fair Use | 5 Notice-and-Takedown or Notice-and-Notice Policies
Copyright law grants authors the exclusive right, among other things, to reproduce their works for a limited (though very long) time. The vast majority of works published after 1923 are at least arguably covered by copyright. See Peter Hirtle's Copyright and the Public Domain for detailed information about copyright duration; the Durationator is another useful tool.
Because reformatting and digitization involve creating a new copy of an existing work, projects involving post-1923 materials are likely to raise copyright questions. In some cases you may have received a full transfer of copyright to your institution along with a collection donated by the author or their heirs, but in the majority of cases you will not have express permission, and will have to work through how best to reconcile your preservation efforts with copyright law.
Preservations professionals should not be daunted by these issues, however. The law balances the author's exclusive rights with exceptions and limitations that allow for a wide variety of preservation activities without permission. Libraries and other cultural heritage institutions are increasingly developing staff expertise in copyright and becoming more supportive of projects that involve navigating copyright concerns. There is a growing awareness that copyright law, like every area of law, is rarely a matter of mathematical certainty, and that the key question is not whether all legal risk can be eliminated, but rather how to reduce that risk to a tolerable level. In the context of preservation, in particular, the level of risk is likely to be quite reasonable and will rarely necessitate abandoning a project.
In this section you will review some key considerations to keep in mind as you develop a sound copyright risk-management strategy.
If you are working on a project with copyright implications, there are likely to be valuable experts at your institution or in your community who can help you. Some institutions may call on an attorney from their general counsel's office to review a digitization plan. In some public institutions there are attorneys in the state attorney general's office who can advise on legal issues. Many research libraries are hiring specialized copyright librarians, often with law degrees, with a primary responsibility for developing strategies for working with copyrighted materials.
These experts can be wonderful resources, but they will need your help. If a lawyer or legal expert doesn't fully understand the purpose and value of a project, especially the "mission risk" associated with failing to act, they cannot give you accurate information about whether the legal risk involved in a particular project is reasonable. To help experts give you the best advice possible, be sure they understand:
- Why these materials are important - to the institution, to the scholarly community, to the general public.
- Why the materials are at risk and what will happen if they are not preserved.
- What you know about the author/rights holder of these materials that the expert may not, including whether they encourage sharing of their work or are notoriously litigious. Also, note any ongoing relationship between your institution and the rights holder or estate.
- What your peer institutions are doing in this area; the professional norms that govern this kind of project (see various best practices, described below); any partner institutions, associations, or funders who can vouch for the value and legitimacy of this kind of work.
- The latest legal developments in this area that your expert may not be aware of - the HathiTrust fair use decision, the ARL Code of Best Practices, and so on.
Most attorneys in a campus general counsel's office, for example, have extremely wide areas of responsibility - employment law, real estate, privacy, and so on. They can't be expected to keep up with every issue affecting their campuses, or with every area of the law they may encounter. This can be especially tricky in regards to copyright, as the law has changed considerably in recent years. If your campus attorney hasn't looked at copyright since he or she was in law school, you should encourage them to look into the latest developments, which largely favor educational uses, especially fair uses. The Association of Research Libraries (ARL) has published a compendium of articles related to best practices, copyright, and fair use that should be especially helpful. (There is also a short flyer that describes the articles and links to each one individually, rather than including them all in a large PDF package.)
Your first copyright question should generally be, "Is this protected by copyright?" Use what you know about the object's date of publication (or creation, depending), together with resources discussed in this section to get a rough idea of whether it's in copyright or in the public domain.
Some works are exempt from copyright for reasons other than age; if a work is authored by the federal government, for example, it immediately enters the public domain. Other works have been published under special open licenses, such as Creative Commons licenses, which allow copying without permission under certain conditions. (These licenses are a fairly recent development, however; material more than a decade old will not likely be governed by them.)
Once you know a work is in copyright, you may ask whether the preservation activity you're planning is covered by the specific exemption for library and archival preservation, which appears in Section 108 of the Copyright Act. Your preservation activities must not be for direct or indirect commercial advantage (which is not typically a concern for cultural heritage institutions). Your institution must be either open to the public or else open to unaffiliated persons doing research in a specialized field. Section 108(b) limits you to three copies for preservation purposes, which may not be consistent with your digitization plan. Circulation of digital copies made using Section 108 is also prohibited; any digital copies cannot be made available to the public beyond the premises of your library or archives.
One excellent resource for preservation using Section 108 is the set of Guidelines developed by NYU as part of its Video At Risk project. While this document is explicitly targeted toward preservation of video, and especially VHS materials, there is helpful guidance on broader issues including thorny questions about what the Section permits regarding digital copies.
While Section 108 is the most specific legal safe harbor for preservation in the Copyright Act, it is also the narrowest. Luckily, courts and commentators have argued persuasively that libraries and archives can also take full advantage of the broader fair use doctrine in support of preservation.
Fair use is by far and away the most important balancing feature in copyright law. It is an open-ended and flexible doctrine that allows use without payment or permission where enforcement of copyright would undermine the very values that copyright is meant to promote, i.e., progress in science and culture. Fair use is enjoying a renaissance in the courts that began in the early 1990s and really took off in the early 2000s, with judges endorsing broad fair use claims in support of new technological and educational practices, including digitization.
The most important case on digitization for preservation (probably the only such case, in fact) is the recent decision in Authors Guild v. HathiTrust. In a sweeping victory for the libraries, Judge Harold Baer ruled that digitizing millions of in-copyright books for purposes of preservation (among other things) was a fair use. That decision also cited important legislative history in which Congress declared in enacting the Copyright Act of 1976 that "making of duplicate copies for purposes of archival preservation certainly falls within the scope of fair use." Although the HathiTrust decision is on appeal, that opinion (and its reasoning) are evidence that judges will look kindly on preservation as a fair use.
In addition to the judicial awakening around fair use, there has been an awakening among communities who need fair use to accomplish their socially valuable missions. Working with fair use experts Peter Jaszi and Patricia Aufderheide, these communities have developed best practices grounded in fair use principles and based on their shared values and goals, with salutary effect.
Most notably, there is now a Code of Best Practices in Fair Use for Academic and Research Libraries, developed by the Association of Research Libraries in collaboration with the American University Center for Social Media and the AU Washington College of Law. Based on two years of research and collaboration with academic and research librarians around the country, the Code describes the consensus in the community about practices that are viewed as legitimate and reasonable exercises of fair use.
The ARL Code describes, in Principle Three (which starts on page 17 of the PDF), a strong consensus that digitization for preservation is often fair use, and includes some helpful limitations to that consensus. Unlike earlier "fair use guidelines," which sometimes made misleading claims of absolute authority, the Code does not purport to describe the outer limits of fair use; instead, the Code represents a snapshot of the moderate middle among practicing librarians as of January 2012. As practices evolve, or as special circumstances demand, this consensus can and should be overruled. But the Code is a great resource for helping a general counsel or other expert or administrator understand what sorts of practices are seen as normal and legitimate within the library community right now, informed by the latest legal developments.
Another way to reduce the risk of legal action (whether over copyright or other legal issues such as privacy) is to have a system in place that makes it easy for anyone with a question or concern about your project to contact you. This system can be as simple as a footer on any public-facing webpage welcoming members of the public to contact you with "any information [they] may have about the collection," and providing an email address that is checked regularly by someone involved in the project.
This strategy is modeled on the "notice and takedown" requirements that sites like YouTube must meet in order to avoid being liable for user-submitted infringing content, but with an important modification: it is not necessary (or advisable) that you commit up front that you will take down any content that raises a complaint. After all, if you are within your fair use rights, there is no legal requirement that you accommodate an unhappy rights holder. It is important not to promise something (a take down) that you may decide is neither necessary nor the right thing to do.
But it can be extremely useful in many non-legal ways to keep lines of communication open, and to set a tone of open-minded information sharing rather than adversarial demands. Many institutions have reported receiving helpful information and even additional material for collections when authors or heirs step forward, even if the initial contact is an expression of concern or reservation about the library's activities. The bottom line is that it never hurts, and will often help to be open to contact from interested members of the public.