Finally, some interviewees described difficulty in teaching and advising
faculty, staff, and students about fair use. Where interviewees were responsible for
teaching classes or workshops on fair use, some said their representations of fair
use left these constituencies disappointed. Some taught fair use in terms of strict
quantitative guidelines, which prompted the audience to challenge the arbitrary
outcomes these guidelines seemed to require. Others taught fair use as an
indeterminate and even mysterious doctrine, answering questions about specific
situations with probabilistic and non-committal phrases like “it’s hard to say,”
and, “I think so, but you can’t be sure.” These interviewees sometimes suggested
that obtaining permission is the only sure way to avoid infringing copyright.
Many interviewees reported users had unrealistic expectations about the certainty
of fair use determinations. However, interviewees reported that even library users
with reasonable expectations often left these sessions frustrated and discouraged.
Faculty and Student Scholarship
Interviewees expressed concern about employing fair use in support of
scholarship in three main areas: digitizing collections, managing access to
collections, and operating interlibrary loan (ILL) programs. Those with the
greatest uncertainty typically chose one of four strategies:
favoring public domain, obscure, and licensed materials;
limiting access to library holdings;
deferring or canceling projects that raise copyright concerns; and
with respect to ILL, many interviewees followed an extra-legal
norm known as the “rule of five.”
Several interviewees described digitization initiatives that were downsized,
cut short, or never seriously considered due to costs associated with seeking
permission or making what seem to be tedious case-
by-case determinations of fair use. Many of these
librarians said they were only going forward with
projects that involved works they could be sure were
in the public domain, e.g., works published prior to
1923. In most of these cases, interviewees were
acutely aware that they would make different choices if they could give priority
to projects that would attract more scholarly interest.
RLI 273
20
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
…interviewees were acutely aware that they
would make different choices if they could give
priority to projects that would attract more
scholarly interest.
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