29 Sep 2013

Copyright and the question of fair use in academic and research libraries

The doctrine of fair use (or fair dealing) is deliberately a flexible one and, as a result, interpreted differently by academic librarians depending on local risk management strategies and actual application in the field. Essentially, fair use ensures that copyright owners do not hold a monopoly over transformative uses of their works: fair use represents a general user right. Without the opportunity of fair use, critical discourse in education would be severely affected.  By default, protected material available to the public is open to fair use.

Take for example this generic statement about fair use under the Irish Copyright and Related Rights Act, 2000:

“fair dealing” means the making use of a literary, dramatic, musical or artistic work, film, sound recording, broadcast, cable programme, non-electronic original database or typographical arrangement of a published edition which has already been lawfully made available to the public, for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright” (Section 50 (4))

This sort of semantic “clarity” makes it difficult to interpret and apply fair use with certainty. Different user communities are affected in equal measure including broadcasters, historians, artists and publishers among others. One of the core roles of research and academic libraries is providing patrons with access to copyright material. For that reason, we must be able to comfortably argue our legal position with as much certainty as possible in the event that particular copyright material is singled out for re-purposing or re-contextualisation.

Against the backdrop of this scenario ARL developed a practical best practice code in fair use. Despite being wrapped in the United States Copyright Act (copyright law is of territorial nature), it’s perfectly usable if appropriately tweaked and re-applied within the context of Irish copyright rule.

The ARL code of best practices in fair use considers eight common library situations:

  1. Supporting teaching and learning with access to library materials via digital technologies
  2. Using selections from collection materials to publicise a library’s activities, or to create physical and virtual exhibitions
  3. Digitising to preserve at risk items
  4. Creating digital collections of archival and special collection materials
  5. Re-producing material for use by disabled students, faculty, staff, and other appropriate users
  6. Maintaining the integrity of works deposited in institutional repositories
  7. Creating databases to facilitate non consumptive research uses (including search)
  8. Collecting material posted on the Web and making it available
Take the example of you being tasked to secure at-risk analogue materials through a process of digital conversion, preservation and making available online (e.g. a legacy thesis collection going back 20 years or so): scenario 3) applies. The principle under scenario 3 states that “it is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials”.

Thus, within the specific context of the above example, I can “arguably” argue my case better – if necessary – by beefing up my interpretation of current Irish legislation under Chapter 6, Acts Permitted in Relation to Works Protected by Copyright and in particular Sections 65 and 66.

For the specific limitations and enhancements of principle three see pp. 17-19 (principle 3) in the ARL codes of best practices in fair use.

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