New fair use code helps libraries expand research with confidence

Patricia Aufderheide and Peter Jaszi of American University have provided critical guidance on fair use for documentary filmmaker, artists and other creative industries.  They have done it again with a new tool for academic libraries. Today, the Association of Research Libraries (ALR) announced the release of the next project to be developed in partnership with the Center for Social Media and the Washington College of Law at American University.

The Code of Best Practices in Fair Use for Academic and Research Libraries provides a guideline of fair and reasonable approaches to fair use developed by and for librarians. The Code is not a legal brief so much as a statement of reasonable use practices developed by scholars and researchers to help clarify the legal issues.

As with other areas of copyright fair use, the seemingly byzantine rules can be rationalized when viewed in the context of a particular industry. Moreover, many of the fair use rules are highly normative, meaning that the very reasonableness of the use is dependent on how others in the same market view such unauthorized copyright exploitation. Against this practical reality, the Code will provide a powerful statement of accepted practices that will provide guidance for libraries and a significant barrier to any rights holder that seeks to be overly aggressive in the protection of its rights.

The ALR announcement describes the scope of the project:

The Code deals with such common questions in higher education as:

  • When and how much copyrighted material can be digitized for student use? And should video be treated the same way as print?
  • How can libraries’ special collections be made available online?
  • Can libraries archive websites for the use of future students and scholars?

The Code identifies the relevance of fair use in eight recurrent situations for librarians:

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

In the Code, librarians affirm that fair use is available in each of these contexts, providing helpful guidance about the scope of best practice in each.

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