However, few interviewees dealt directly with disability policy or even with the
needs of disabled patrons. Although many felt this is part of the librarian’s
mission, in practice another department usually handles the needs of disabled
users. Some interviewees were stopped short by concern that their library or
university may not satisfy Section 121 of the Copyright Act, an exception which
empowers any “authorized entity” to provide accessible copies to the disabled.
As with Sections 108 and 110, interviewees hesitated to apply fair use where
another rule gave a simpler answer, even if the answer seemed to be, “No.”
Issues arose most commonly when disabilities services departments
requested materials on behalf of disabled users. In those cases, interviewees
again struggled to find the principles governing appropriate fair uses. They
sometimes constructed elaborate scenarios to create artificial scarcity. For
instance, in cases where a student needed to use an electronic version of a book,
some interviewees believed they should take the hard copy of the book off the
shelf and make it unavailable to patrons. They suggested this would strengthen
the “effect on the market” argument, as the library would get no additional
benefit from the digital copy.
Some interviewees described problems associated with licensed materials.
Confusing licenses and limitations imposed by vendors on the materials they
licensed hindered these interviewees from serving disabled patrons. For some
interviewees, electronic journal materials in commercial databases were not
available in a format accessible to the print-disabled. In other cases, materials
were protected by digital rights management technology that prevented the use
of assistive technology. Even where there were no technical limitations,
interviewees were sometimes hesitant to make accessible copies of materials
from licensed databases because the terms of database licenses were difficult to
discern and may forbid such format shifting. This difficulty could arise either
because of the sheer volume of subscriptions held by an institution, or else
because of the complexity of the individual license.
Conclusions
Overall, we found that a significant number of academic and research librarians
were stopping short of what they believed fair use rights may allow, and they
were typically aware that they could go further, but they simply did not know
how to best determine their rights in particular situations. At the same time, we
found that there is sufficient consensus on core library values related to copyright
RLI 273
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Challenges in Employing Fair Use in Academic and Research Libraries
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C O N T I N U E D
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DECEMBER 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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