Code of Best Practices in Fair Use for Academic and Research Libraries

Association of Research Libraries; Center for Social Media at American University School of Communication; Program on Information Justice and Intellectual Property at American University Washington College of Law

CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES
14
extent that they are the most appropriate, relevant, and still timely materials for
the course.
PRINCIPLE:
It is fair use to make appropriately tailored course-related content available to
enrolled students via digital networks.
LIMITATIONS:
• Closer scrutiny should be applied to uses of content created and marketed
primarily for use in courses such as the one at issue (e.g., a textbook, workbook,
or anthology designed for the course). Use of more than a brief excerpt from
such works on digital networks is unlikely to be transformative and therefore
unlikely to be a fair use.
• The availability of materials should be coextensive with the duration of the
course or other time-limited use (e.g., a research project) for which they have
been made available at an instructor’s direction.
• Only eligible students and other qualified persons (e.g., professors’ graduate
assistants) should have access to materials.
• Materials should be made available only when, and only to the extent that, there
is a clear articulable nexus between the instructor’s pedagogical purpose and the
kind and amount of content involved.
• Libraries should provide instructors with useful information about the nature
and the scope of fair use, in order to help them make informed requests.
• When appropriate, the number of students with simultaneous access to online
materials may be limited.
• Students should also be given information about their rights and responsibilities
regarding their own use of course materials.
• Full attribution, in a form satisfactory to scholars in the field, should be
provided for each work included or excerpted.

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Code of Best Practices in Fair Use for Academic and Research Libraries resources

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CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES
14
extent that they are the most appropriate, relevant, and still timely materials for
the course.
PRINCIPLE:
It is fair use to make appropriately tailored course-related content available to
enrolled students via digital networks.
LIMITATIONS:
• Closer scrutiny should be applied to uses of content created and marketed
primarily for use in courses such as the one at issue (e.g., a textbook, workbook,
or anthology designed for the course). Use of more than a brief excerpt from
such works on digital networks is unlikely to be transformative and therefore
unlikely to be a fair use.
• The availability of materials should be coextensive with the duration of the
course or other time-limited use (e.g., a research project) for which they have
been made available at an instructor’s direction.
• Only eligible students and other qualified persons (e.g., professors’ graduate
assistants) should have access to materials.
• Materials should be made available only when, and only to the extent that, there
is a clear articulable nexus between the instructor’s pedagogical purpose and the
kind and amount of content involved.
• Libraries should provide instructors with useful information about the nature
and the scope of fair use, in order to help them make informed requests.
• When appropriate, the number of students with simultaneous access to online
materials may be limited.
• Students should also be given information about their rights and responsibilities
regarding their own use of course materials.
• Full attribution, in a form satisfactory to scholars in the field, should be
provided for each work included or excerpted.

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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.

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Code of Best Practices in Fair Use for Academic and Research Libraries resources

CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES
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ENHANCEMENTS:
• The case for fair use is enhanced when libraries prompt instructors, who are
most likely to understand the educational purpose and transformative nature
of the use, to indicate briefly in writing why particular material is requested,
and why the amount requested is appropriate to that pedagogical purpose. An
instructor’s justification can be expressed via standardized forms that provide a
balanced menu of common or recurring fair use rationales.
• In order to assure the continuing relevance of those materials to course content,
libraries should require instructors of recurrently offered courses to review
posted materials and make updates as appropriate.
TWO: USING SELECTIONS FROM COLLECTION MATERIALS TO PUBLICIZE
A LIBRARY’S ACTIVITIES, OR TO CREATE PHYSICAL AND VIRTUAL
EXHIBITIONS
DESCRIPTION:
Academic and research libraries have always sought publicity of a certain kind—in
order to introduce themselves, their services, and their valuable holdings to potential
students, scholars, and others, as well as to attract donors of materials and to assure
administrators and funders of their fidelity to mission. Just as libraries have chosen
in the past to display their holdings through on-site exhibitions, or through in-house
publications ranging from simple newsletters to glossy magazines, they now use
the Internet as a tool for making themselves known. Library websites have become
extremely important modes of access for library patrons, and most temporary
physical exhibitions now have permanent virtual counterparts. While the lawfulness
of past practices has been widely (and correctly) assumed, the use of new technology
adds a new dimension to the issue. The wider audience that online exhibits reach,
and the possibility of downstream misuse, could lead librarians to avoid online uses,
but in fact these uses can be just as fair as their physical counterparts.
Section 109(c) of the Copyright Act provides a safe harbor for certain on-site
exhibits. However, exhibition and related illustrative uses, whether physical or
virtual, can also be transformative. They highlight and publicize library collections
and stimulate interest in the individual original works of which they are comprised.
Exhibits place original works in a new context to convey information and illustrate

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Code of Best Practices in Fair Use for Academic and Research Libraries resources