Fair Use is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library

Abstract

The academic library community has been at the center of the copyright wars, advancing the interests of students and faculty. Digital and network technologies, the licensing of electronic content, and the globalization of copyright have combined to challenge our traditional views of intellectual property. New laws and legislation over the past decade have threatened the sustenance of fair use and key exceptions to copyright. We must re-commit to the education of our campuses, to political advocacy, and to collective risk taking. Copyright is a MEGO topic... my eyes glaze over. Academic librarians understand the central importance of copyright to education and research on their campuses. But few make the commitment to understand the complexities of the law and the implications for library collections and services, leaving advocacy and action to a few knowledgeable exports. Copyright has become a trite topic. It is frequently talked about but rarely presented in the context of academic library relevance and success. Fair use and other exceptions in U.S. copyright law represent hard won victories for the academic library community, but even these limited advantages are at risk. Libraries advance and assert the public interest, but the ability to use content for learning and scholarship is increasingly constrained. This paper will review several recent copyrights developments that impinge on fair use, and outline a call to action, a renewed energy and capacity across academic libraries to assert and advance the principle and practice of fair use. First, a micro-lesson in the basics of copyright. Copyright in the U.S. has its roots in the Constitution, and is based on a fundamental balancing of the interests of copyright owners and users. Copyright assigns to the owner of a work control or exclusive rights to prohibit others from using that work in specific ways without permission, and to profit from the sale or sharing of that work for a fixed period of time. These exclusive rights constitute a monopoly over reproduction, distribution, adaptation, public performance, and public display. However, these rights are restricted to allow limited uses of the copyrighted work, particularly if the uses offer societal benefits. Works may be copyrighted when they are fixed in a tangible medium of expression. An important test of copyright protection is the requirement that the work demonstrate a level of originality, something more than a “merely trivial variation” and more than the product of “sweat of brow.” There is a public domain where works are not protected by copyright, and this includes materials that have reached the term limit of copyright protection and publications issued by the federal government, for example. U.S. copyright law also reflects a series of specific and general exceptions and limitations to copyright. Specific exceptions, like interlibrary loan, preservation and copies for users are captured in Section 108