Some librarians express concern that employing one’s fair use rights in good faith
may inadvertently make material available for potential misuse by others. But—
just as they must now—all future users will have to engage in fair use analysis for
themselves and in their own context. Libraries should of course be prepared to assist
students and others who have questions about how to exercise their own rights with
regard to library materials, but the ultimate responsibility will lie with the user, not
the library. But—just as they do now—libraries that employ fair use responsibly
to make material available to students, to researchers, or even to public view are
unlikely to have legal liability for uninvited and inappropriate downstream uses.
Perfect safety and absolute certainty are extremely rare in copyright law, as in many
areas of law, and of life. Rather than sit idle until risk is reduced to zero, institutions
often employ “risk management,” a healthy approach to policy making that seeks to
enable important projects to go forward despite inevitable uncertainty by identifying
possible risks (legal and otherwise) and reducing them to acceptable levels. This code
of best practices should be of great assistance in arriving at rational risk management
strategies, as it provides a more accurate picture of the risk (or lack thereof)
associated with exercising legitimate fair use rights. Indeed, simply by articulating
their consensus on this subject, academic and research librarians have already
lowered the risk associated with these activities.11
11. The law bars statutory damages for unauthorized reproduction of copyrighted works where
employees of nonprofit educational institutions or libraries have “reasonable grounds for belief” that
their use was fair, even if the court ultimately decides the use was not fair. See 17 U.S.C. 504(c)(2).
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