This dynamic legal doctrine will no doubt continue to evolve along with
educational, scholarly, and artistic practice. One area in which further developments
certainly can be expected is that of so-called “orphan works”—texts (or images
or music) that can no longer be reliably traced to a known copyright owner, and
therefore cannot be licensed for use. Although the principles below address this
problem obliquely, they do not by any means exhaust the range of possible solutions ­­­
—including those based in the application of fair use.
This code is not a guide to using material that people give the public permission to
use, such as works covered by Creative Commons licenses. While fair use applies to
such works, anyone may use those works in ways their owners authorize in addition
to ways permitted by the fair use doctrine. Similarly, it is not a guide to the use of
works that are in the public domain; those works may be used without any copyright
limitation whatever, including uses that otherwise would far exceed the bounds of
fair use.
Copyright law is “territorial,” which means that fair use applies to uses of
copyrighted material in the United States, regardless of where in the world it
originates. Hence, the principles in this code also apply regardless of a work’s origin,
so long as the use takes place in the U.S. By the same token, these principles will not
necessarily apply to uses outside the U.S., where fair use may have little or no legal
Under some circumstances, fair use rights can be overridden by contractual
restrictions. Thus, these principles may not apply if a library has agreed, in a license
agreement, donor agreement, or other contract, to forgo the exercise of fair use
with respect to some set of collection materials. If fair use rights are to be preserved,
library personnel in charge of acquisitions and procurement should be vigilant as
they negotiate and enter into contracts related to collections materials.
3. At this time, the issue of “choice of laws” in copyright disputes that cross national boundaries is
unclear, whether or not those disputes involve the Internet. See Peter K. Yu, “Conflicts of Laws Issues in
International Copyright Cases” (2001),
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