In general, interviewees reported a strong commitment to obeying copyright
law; rarely concerned about their own liability, librarians primarily felt
responsible for ensuring their institutions were in compliance with the law.
Beneath this general agreement about responsibility, we found a wide variety
of practice—some interviewees described a world where permissions were
required for any and every use, while others reported making fair use the
foundation for ambitious projects.
In many cases, however, interviewees expressed ambivalence about fair use.
They were aware of the doctrine, of its status as a flexible “rule of reason,” and
of some general categories of behavior it may protect, but they lacked a reliable
method for applying it to particular circumstances. Instead of confidently
asserting their rights, some interviewees emphasized minimizing the risk and
uncertainty associated with copyright by limiting access to copyrighted
materials and following arbitrary (but seemingly well-established) “guidelines”
that do not have the force of law, but state clear quantitative limits. Familiarity
with (and confusion about) other balancing features in copyright often added to
the uncertainty surrounding fair use, leading some interviewees to reject fair use
where other doctrines also fell short, or to impose unnecessarily on fair use the
formalities and limitations required by other copyright provisions.
Again, interviewees described a wide range
of practice, and many were moving forward with
confidence on the basis of sophisticated
understandings of fair use. What follows is a
summary of the cases where practice was not
moving forward on that basis, and where a code
of best practices might provide significant guidance. While this article will
highlight areas where some institutions could use improvement, we were more
than convinced by our interviews that there is enough wisdom and good sense
about these issues in the academic and research library community to form the
foundation for a clear code of best practices that will help all institutions make
better choices in fair use.
Teaching and Learning
In teaching and learning, the core library function where fair use was an issue
for some interviewees was the provision of electronic reserves, and relatedly,
Challenges in Employing Fair Use in Academic and Research Libraries
C O N T I N U E D
DECEMBER 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
…there is enough wisdom and good sense
about these issues in the academic and
research library community to form the
foundation for a clear code of best practices…