uncertain, a clearer understanding of when fair use allows libraries to proceed
without permission could be helpful.
Exhibits and Public Outreach
Several interviewees expressed frustration with what they perceived as the
limits of fair use for designing and mounting exhibits, either physically at their
institutions or virtually online. Many of the problems they encountered in
connection with supporting research through collection digitization recurred in
the context of creating digital exhibits. Donated collections often include
copyrighted works of third parties (for instance, correspondence) that cannot be
governed by licenses or copyright transfers made by the donor. Rightsholders
are often difficult or impossible to find. Some collections might be exhibited in
their entirety, but this raises questions about whether the exhibit is suitably
transformative to make a fair use claim.
Interviewees often hesitated over these issues in their exhibition projects. In
particular, they worried that digital resources mounted in online exhibits could
be downloaded from library servers and redistributed online, and they worried
about their institutions’ liability for this redistribution. In many cases where
interviewees proceeded with exhibits, their institutions incurred extensive costs,
including staff time to deliberate on copyright questions, as well as licensing
costs, and there were typically significant delays associated with these efforts.
Interviewees responded to these costs and concerns by, reluctantly, distorting
their practice in ways that are similar to the response in supporting scholarship:
they favored exhibitions of public domain materials over more contemporary
works, regardless of community interest or scholarly value; they favored
exhibits involving obscure or anonymous persons over those involving high-
profile persons who they feared might be more likely to litigate; they favored
physical, on-site exhibits over virtual, online ones. Interviewees were aware of
the ways in which their choices frustrated their libraries’ mission to serve
patrons’ research and learning needs.
Access for the Disabled
In some cases, works in one format can be made accessible by creating a new,
perhaps augmented, copy of the work, but creating that copy would typically
violate copyright unless covered by an exception in the law. Knowledge of
copyright law is thus essential to facilitating access, a core library function.
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