Nonconsumptive uses are highly transformative. Digitizing and indexing works for
purposes such as statistical meta-analysis and search creates a powerful new scholarly
resource that is not at all a mere substitute for the original work. The analyses
facilitated by scanning for nonconsumptive use do not use the works for their
original intended purposes; no person ever “reads” the underlying work or works.
Instead, this kind of analysis focuses on the underlying facts about a collection
of works (how many times a word appears across an author’s body of work, how
frequently scientists used a particular species of mouse as test subject, and so on)
rather than the protected expression of any single work. Courts have found search
engines, which copy millions of web pages into their indexed databases in order to
help users find relevant sites, to be fair uses for precisely this reason.
Nonconsumptive uses are an emerging phenomenon at many libraries, and despite
their obvious transformative character, there is a risk that the opportunity to make
use of these techniques will be lost due to overly restrictive licensing provisions.
If librarians agree to licensing restrictions that prohibit such uses, they lose their
ability to exercise or permit others to exercise their fair use rights. Librarians should
be mindful of this as they negotiate license agreements and should work to preserve
their patrons’ rights to conduct nonconsumptive research across licensed database
It is fair use for libraries to develop and facilitate the development of digital
databases of collection items to enable nonconsumptive analysis across the collection
for both scholarly and reference purposes.
Items in copyright digitized for nonconsumptive uses should not be employed
in other ways (e.g., to provide digital access for ordinary reading) without
independent justification, either by a license from the rights holder or pursuant
to a statutory exception. Search access to database materials should be limited to
portions appropriate to the nonconsumptive research purpose.
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