In addition, the code refers at several points to providing copyright holders an
opportunity to register concerns or complaints about a library’s decision to employ
fair use. The library community believes that engaging in such a process should
not necessarily lead to automatic removal of content. Rather, it would trigger a
conversation between the library and the rights holder, which would inform the
institution’s decision about whether to remove or maintain the material. Welcoming
this interaction with a rights holder shows the library’s good faith and provides an
opportunity to develop voluntary arrangements that benefit all parties.
The fair use doctrine draws no blanket distinctions among different media or among
different formats. Librarians felt strongly that except in narrow, specific instances,
all kinds of content (e.g., text, image, audiovisual, music) should be subject to the
same principles. Likewise, they did not distinguish generally between uses in various
media. So, except as otherwise indicated, a digital copy should be considered on the
same footing as an analog one for purposes of fair use.
The situations below concern the fair use of copyrighted materials, not the way
the user acquires the copy from which she works. When a user’s copy was obtained
illegally or in bad faith, that fact may negatively affect fair use analysis; similarly,
special contractual restrictions (such as conditions on the use of donated material)
may circumscribe fair use. The principles therefore assume the library or user has
obtained a copy in good faith and that it is not subject to conflicting license or
contract restrictions.
While the principles address separate situations, in practice these areas are sure to
overlap from time to time; some special collections will need digitizing for both
scholarly access and preservation, for example, implicating both the third and fourth
principles. Libraries should feel free to consult multiple principles to determine the
best fair use rationale to apply to their specific situations.
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