Abstract
Librarians wanting to use digital affordances for their patron’s and public benefit have increasingly found themselves frustrated by copyright law designed for a pre-digital era. In the U.S., this frustration has driven the nation’s most prestigious library group, the Association of Research Libraries, to explore the utility of the major exception to copyright monopoly rights, fair use, in order to accomplish basic curation and collection goals in a digital era. The ARL’s efforts to clarify how libraries can employ fair use has resulted in sometimes-dramatic changes in how work is done, and has permitted innovation at some universities. Its approach demonstrates the power of consensus in a professional field to permit innovation within the law.
Highlights
Patricia Aufderheide, Leveraging exceptions and limitations for digital curation and online collections: The U.S case, Libellarium, IX, 2 (2016): 49 – 58. This user right is structured by the purpose of copyright law in the U.S There, copyright policy is designed to stimulate the production of new culture, both by offering creators a limited monopoly over the expression of their ideas and by limiting that monopoly sufficiently to permit new culture to be generated on the platform of existing culture (Patterson and Lindberg 1991, Kaplan 2005, Netanel 2008, Hyde 2010, Netanel 2011)
The U.S library experience with fair use is only beginning, but it has already made a difference in the practices of major research libraries, which are standardbearers in the U.S library community
Most other nations do not have fair use, nor is their copyright policy grounded in the same Constitutional logic that copyright is in the U.S, to spur the creation of culture
Summary
Changes in library practice in the U.S since the creation of the Code of Best Practices in Fair Use for Academic and Research Libraries in 2012 demonstrate the power of the user right of fair use, the value of education in changing user access to this right, and the importance of consensus within the professional community in legitimating it. The ARL was aware that other professional groups had been able to expand their employment of fair use, and extend their practices to digital environments, with best practices codes (Aufderheide and Jaszi 2011) Such codes are not sets of rules, but guides to sound reasoning about fair use in the most common situations in which fair use is typically employed in the field. This is because they demonstrate a link between what the law permits and what the goals and missions of professional practice are, and because when deciding cases, judges inevitably refer back to the actual cultural practice of a field (Madison 2004) This is because making a fair use decision is grounded in specific cultural practice and in particular what new expression you are trying to achieve
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