Association of Research Library Guidelines for fair use

Fair Use FAQ for Librarians/General Overview

What is copyright? How is it different from using proper attribution and avoiding plagiarism?

Copyright is actually a limited bundle of rights that the government grants to authors of original works such as novels, plays, essays, and movies. For a limited time (currently the life of the author plus 70 years, in most cases), copyright gives the author control over who can copy, distribute, publicly perform or display, or create derivative works (such as sequels or translations) based on their work. The purpose of copyright is to encourage the creation and dissemination of new works for the benefit of the public. Copyright is a means to the end of increased access to original works.

Copyright is therefore much broader than the norms against plagiarism. Plagiarism is the presentation of someone else’s work as one’s own; copyright infringement can take place even where the user is honest about the work’s true author. As long as you use proper attribution, plagiarism should not be a worry for you. Copyright is somewhat more complex: unless your use satisfies one of the exceptions or limitations described in the Copyright Act, you cannot use copyright protected material without permission. Fair use is one of the mostimportant limitations to copyright.

What is fair use?

Fair use is a part of copyright law that allows certain uses of copyrighted works, such as making and distributing copies of protected material, without permission. It evolved over time as judges made case-by-case exceptions to copyright to accommodate uses that seemed legitimate and justifiable regardless of the copyright holder’s apparent rights. Typical early fair uses involved criticism, commentary, and uses in an educational or scholarly context. In 1978, fair use became part of the text of the Copyright Act - it’s codified at Section 107. In recent years, fair use has been a valuable way to accommodate innovative new uses that involve technology, such as the VCR, Internet search engines, reverse engineering of software, and the like.

As you can see from the text of Section 107, fair use is not a specific exception with clearly defined borders. It continues to evolve as judges consider and apply the four statutory factors to new cases. In every case, however, judges must consider the four factors - the purpose of the use, the nature of the work used, the amount and substantiality of the original work used, and the effect on the market for the original, as well as the overall purposes of copyright. In recent decades, however, fair use decisions have placed a strong emphasis on whether a use is “transformative,” a concept first described by Judge Pierre N. Leval in a seminal law review article published in 1990. A recent article by UCLA scholar Neil Netanel concludes that informativeness has come to dominate fair use decision making in the intervening decades. This form of analysis synthesizes the four statutory factors into two key questions:

1) Did you use the work in a different manner or for a different purpose than the original, in Leval’s words: “as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings”?

2) If so, did you use an amount of the original work that is appropriate to your new, transformative purpose?

Illustrative quotations, excerpts, images, and other material used in scholarly writing and teaching can present a very powerful case for transformative use. A recent memo from the US Patent and Trademark Office shows that even copying and distributing entire scholarly articles can be transformative in the right context.

What about creative commons materials? Licensed materials (as opposed to books the library owns)? Does fair use always apply the same way to everything?

As part of her copyrights, a copyright holder can license her work for whatever specific uses she likes. Creative Commons licensing provides a way for authors to announce publicly that their work is available for certain broad types of uses without specific permission, with certain conditions. Works under a CC license can be used in whatever ways and on whatever terms the license specifies, in addition to the uses available under fair use. On the other end of the spectrum, a license can also limit a user’s fair use rights; libraries need to be vigilant as they consider which materials to license and on what terms, and users need to be more careful in using materials governed by a license, such as electronic journal articles.

Why do librarians need fair use? We already have exemptions from copyright law just for libraries and archives.

It’s true that the law includes several specific exceptions that benefit librarians and their users. Section 108 allows libraries and archives to make copies for preservation, interlibrary loan, and user research, among other purposes. Section 110 gives teachers special rights to use works in the classroom and online. Section 121 makes it easier for disabled library patrons to get access to works not available to them in accessible editions. Each of these provisions can be extraordinarily helpful where they apply, and they apply in some very important situations. They do not cover every situation, however. Indeed, critics have long argued that these specific exceptions are too limited and do not adequately serve the needs of their intended beneficiaries. Fair use is a broad, general, flexible doctrine that can fill important gaps in these specific exceptions, enabling important activities that might fall just beyond the limits of other exceptions. Fair use also allows for important new technological uses that could not have been foreseen by the drafters of the Copyright Act, such as Internet search.

But don’t our exemptions preempt fair use?

Not at all. Uses not explicitly covered by other exceptions can still be covered by fair use.Indeed, when congress wrote some of the exceptions (for example, Section 110(2), also known as the TEACH Act), it specifically intended for fair use to be available to cover ‘near-miss’ cases. Indeed, as Jonathan Band argues in his article, “The Impact of Substantial Compliance with Copyright Exceptions on Fair Use,” these “near miss” situations should be subject to a kind of ‘gravitational pull’ that makes a finding of fair use more likely.

What about the Section 108 Study Group? Shouldn’t we wait for reform of Section 108, which gives specific exceptions for libraries?

Unfortunately, the Section 108 Study Group concluded its work without reaching consensus on workable fixes in most of the key areas where the law needs updating. The Section 108 Report gives a helpful account of the problems faced by libraries and other institutions operating under current law, but it is unlikely that any such process will yield helpful substantive fixes in the near future. Fair use is going to be the best option for innovative users for the foreseeable future.

Classroom Guidelines, for example, look very official. I can’t exceed those rules, can I? How do I navigate the sea of guidelines and “rules of thumb” for fair use that I find online?

The only binding authority on the limits of fair use comes from the text of Section 107, where fair use is codified in the law (though the text was never really intended to do more than guide judges, not bind them), and the court cases applying that text to particular facts. Guidelines like the ones created in 1976 do not have the force of law and were never intended to serve as outer boundaries that users would have to obey. Guidelines that give a numerical boundary, like “no more than 10% or 1000 words,” are especially dubious, as courts have expressly abandoned such limits, looking instead to the interplay of the four statutory factors and the overarching purposes of copyright. Recent cases have found fair use where entire works were used in highly transformative contexts. 

It’s also important to look at the individuals and groups who sponsor the various guidelines, FAQs, and websites about fair use as you try to determine how useful or trustworthy they are. Like its predecessors, this Code of Best Practices is based on two years of research into the challenges that libraries face and the fair use solutions that librarians themselves favor. As a statement of community practice, the Code adds a powerful new tool to the existing guidance available to librarians with questions about fair use.

Isn’t fair use pretty vague? I need to have clear guidelines, not just for me but for my staff.

The doctrine of fair use is intentionally broad and flexible, allowing for different applications based on user context, which can be beneficial for communities with established codes of best practices. These codes provide comprehensible principles and guidelines tailored to specific library practices, making the application of fair use more straightforward than the law's plain text. However, each institution must develop its own policies reflecting its values and resources, using the code as a guiding input rather than a substitute. This approach aims to clarify fair use applications and prevent unnecessary constraints on library practices.

Fair use is a “case by case” analysis—none of us have time to keep making  judgment calls all day long!

The concept of fair use, while often described as a case-by-case decision, can be guided by established norms and best practices in various fields, such as academia and the arts. These codes help individuals and organizations, like libraries and companies that produce recording devices, to navigate fair use without needing to reassess each situation from scratch. By relying on general characteristics of use and established practices, libraries can create effective policies that reflect what is generally considered fair use, thus streamlining the process while still considering specific contexts.

Isn’t fair use too risky to use? I don’t want to put my institution at risk.

Fair use is not as clearly defined as other doctrines, but it is a crucial tool for individuals, institutions, and corporations. If used within case law and established norms, it should not pose special risks. Non-profit educational institutions have a safe haven for employees who believe they are within their fair use rights. However, fair use also creates risks for rights holders, as they may face costly lawsuits and legal fees. 

Even if I employ fair use correctly, I could still be challenged, and that would cost my institution a lot even if I’m right.

While nothing can guarantee that a bad actor will not sue, plaintiffs are not (typically) completely unaware of fair use and the rights you have under fair use. They know that they are taking a risk in suing you, and their legal costs can be significant, too. If you have a strong, good-faith story to tell about why what you are doing is fair (for example, that your use is transformative), that should be a powerful deterrent to a reasonable rights holder. TheCode of Best Practices can help you by giving you examples of practices that your peer librarians have thought deeply about and found to be fair. That statement can also be a deterrent to rights holders, because it tells them that the community of practice has endorsedthese norms.

Fair use is a mere defense, not a right.

This is a meaningless technicality. Yes, if you are actually sued, the issue of fair use will be raised as a “defense” to the charge of infringement. This is also true for libel - if you are accused of libeling someone, the fact that what you said was true is a “mere defense.” But, of course, it’s really the heart of the matter! If you know that what you’re saying is true, you can know with confidence that you aren’t guilty of libel. The same is true for fair use. Even the statute gives fair use a greater status than this old canard about “mere defenses” – Section 107says that any use that is fair is “not an infringement.” It’s that simple.

I can’t depend on a code of best practices in fair use created by my peers; I need a document that’s been accepted by people who otherwise might sue me for my choices.

Best practices written by a community are crucial for libraries due to case law valuing their own norms of fairness and best practice. Negotiating with other groups would not have the same power or authority. Past efforts at negotiated arrangements were unworkable, and libraries and other groups have struggled to reach consensus on copyright reform issues. Progress on these issues cannot wait. 

What happens when someone makes a bad judgment using the Code of Best Practices and gets us all in trouble?

Every library (and every librarian) will have its own interpretations and applications of the Code, and some will undoubtedly make mistakes. That should not be a concern for good faith actors who apply the Code conscientiously. This is where the “case-by-case” nature of fair use is actually an advantage for users, because your uses will be judged on their own merits, not on the basis of what other institutions do.

Does the Code say that librarians can rip and stream audio and video, even ofentire works, for electronic reserves and course sites without paying a special license?

Principle One of the Code emphasizes that the academic and research library community agrees that fair use allows for the posting of learning materials on digital platforms, including entire works in audio and audiovisual formats. It dispels the myth that fair use is limited to small portions of copyrighted works, asserting that entire works can be used if the use is transformative and appropriate for the educational purpose. Instructors may need to post complete movies or songs on password-protected course sites, but they must justify how this usage aligns with the course's teaching objectives. The Code provides guidance on evaluating fair use, including considerations such as whether the work is intended for educational use, if access is restricted to course participants, and how the material aids student learning. Other limitations are also outlined in Principle One, and professionals in various fields report that this reasoning becomes instinctive over time.

Can a library now buy a personal-use copy of a movie and exercise fair use to circulate it or to show it in class?

The text discusses the legal framework surrounding the use of personal copies of movies in educational settings. It clarifies that individuals can buy personal-use copies of movies and use them in classrooms without needing special licenses due to copyright exemptions, particularly the "first sale" doctrine, which allows owners of lawfully made copies to lend, resell, or share them. Educators can screen these copies in their entirety under Section 110 of the Copyright Act, which provides specific educational exemptions. However, it notes that a personal-use copy cannot be screened publicly without obtaining a special public performance license, as that would infringe on copyright.

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