CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES
13
ONE: SUPPORTING TEACHING AND LEARNING WITH ACCESS TO LIBRARY
MATERIALS VIA DIGITAL TECHNOLOGIES
DESCRIPTION:
Academic and research libraries have a long, and largely noncontroversial, history
of supporting classroom instruction by providing students with access to reading
materials, especially via physical on-site reserves. Teachers, in turn, have depended on
libraries to provide this important service. Today, students and teachers alike strongly
prefer electronic equivalents (e-reserves for text, streaming for audio and video)
to the old-media approaches to course support. Section 110(2) of the Copyright
Act provides specific protection for some streaming and other uses, but it does not
cover the entire variety of digital uses that are becoming increasingly important to
twenty-first-century instruction. Over time, a set of practices has grown up around
the related but distinct practice of providing students with physical “course packs,”
which typically occurs outside the library setting. The following principle is not
intended to address that activity, but rather to focus on emerging digital uses in the
library context. Fair use will play an important role in making these uses possible.
There are multiple bases on which these library uses can be considered fair ones.
These modes of course support occur in a nonprofit educational environment, can
be persuasively analogized to activities specifically authorized by Congress in Section
110 of the Copyright Act, may be supported by a “place-shifting” argument,12 and
are susceptible to a compelling transformativeness rationale. Most of the information
objects made available to students, in whatever format, are not originally intended
for educational use. For example, works intended for consumption as popular
entertainment present a case for transformative repurposing when an instructor uses
them (or excerpts from them) as the objects of commentary and criticism, or for
purposes of illustration. Amounts of material used for online course support should
be tailored to the educational purpose, though it will not infrequently be the case
that access to the entire work (e.g., an illustrative song in a class on the history of
popular music) will be necessary to fulfill the instructor’s pedagogical purpose. It is
also reasonable for works to be posted repeatedly from semester to semester to the
12. Space-shifting is a theory of fair use often employed in the context of new technological uses
of media. See, e.g., David Hansen, “Why Can’t I Digitize My (Institution’s) Library?,” Scholarly
Communications @Duke, July 27, 2011, http://blogs.library.duke.edu/scholcomm/2011/07/27/why-
can’t-i-digitize-my-institution’s-library.
13
ONE: SUPPORTING TEACHING AND LEARNING WITH ACCESS TO LIBRARY
MATERIALS VIA DIGITAL TECHNOLOGIES
DESCRIPTION:
Academic and research libraries have a long, and largely noncontroversial, history
of supporting classroom instruction by providing students with access to reading
materials, especially via physical on-site reserves. Teachers, in turn, have depended on
libraries to provide this important service. Today, students and teachers alike strongly
prefer electronic equivalents (e-reserves for text, streaming for audio and video)
to the old-media approaches to course support. Section 110(2) of the Copyright
Act provides specific protection for some streaming and other uses, but it does not
cover the entire variety of digital uses that are becoming increasingly important to
twenty-first-century instruction. Over time, a set of practices has grown up around
the related but distinct practice of providing students with physical “course packs,”
which typically occurs outside the library setting. The following principle is not
intended to address that activity, but rather to focus on emerging digital uses in the
library context. Fair use will play an important role in making these uses possible.
There are multiple bases on which these library uses can be considered fair ones.
These modes of course support occur in a nonprofit educational environment, can
be persuasively analogized to activities specifically authorized by Congress in Section
110 of the Copyright Act, may be supported by a “place-shifting” argument,12 and
are susceptible to a compelling transformativeness rationale. Most of the information
objects made available to students, in whatever format, are not originally intended
for educational use. For example, works intended for consumption as popular
entertainment present a case for transformative repurposing when an instructor uses
them (or excerpts from them) as the objects of commentary and criticism, or for
purposes of illustration. Amounts of material used for online course support should
be tailored to the educational purpose, though it will not infrequently be the case
that access to the entire work (e.g., an illustrative song in a class on the history of
popular music) will be necessary to fulfill the instructor’s pedagogical purpose. It is
also reasonable for works to be posted repeatedly from semester to semester to the
12. Space-shifting is a theory of fair use often employed in the context of new technological uses
of media. See, e.g., David Hansen, “Why Can’t I Digitize My (Institution’s) Library?,” Scholarly
Communications @Duke, July 27, 2011, http://blogs.library.duke.edu/scholcomm/2011/07/27/why-
can’t-i-digitize-my-institution’s-library.
