RLI 281
uS aND caNaDiaN DiSaBiLity POLiciES, rEcENt cHaLLENGES, aND uS aND caNaDiaN cOPyriGHt Law
use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted
work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
and (4) the effect of the use upon the potential market for or value of the copyrighted work.35
Fair use is a fact-specific analysis that weighs all four factors. Fair use generally privileges nonprofit
efforts that do not disrupt existing markets, so library services that do not compete with services offered
by rightsholders may be strong candidates for a claim of fair use. Indeed, the Code of Best Practices in Fair
Use for Academic and Research Libraries expresses the consensus of academic and research librarians—
providing accessible material is likely to be fair, particularly when tailored to the specific needs of the
patron.36 The fair use case is strongest when efforts are coordinated with the university’s disabilities
services office, which works with individuals entitled to service, informs them of their rights and
responsibilities, and adopts policies that are widely and consistently applied. The combination of
the Chafee Amendment and fair use generally provides sufficient latitude to overcome any concerns
about possible institutional risk in order to best meet mission and serve the needs of the print-disabled
community. As noted by Judge Baer in the recent ruling concerning HathiTrust, “I cannot imagine a
definition of fair use that would not encompass the transformative uses made by the Defendants’ MDP
[Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress
of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.”37
Libraries can also seek permission for specific uses from the rightsholder. Because there can be tens
or hundreds of individual rightsholders who must be contacted, however, transactional costs present a
major barrier to large-scale efforts. Libraries may mitigate these costs by leveraging their partnerships and
collaborative networks as well as their expertise and experience with licensing.
Authors Guild v. HathiTrust Litigation
The recent landmark decision in The Authors Guild, et. al., v. HathiTrust, et. al., litigation provides important
guidance on key legal questions around accessibility. For several years, the HathiTrust Digital Library
(HDL) and its member libraries have worked to index and preserve digitized works from library
collections to foster research, teaching, and learning. The Authors Guild (AG), with other associations and
a handful of individual authors, sued HDL claiming that its mass digitization program, in collaboration
with Google, constituted copyright infringement. The Library Copyright Alliance filed two amicus
briefs in this case in support of HDL. The NFB and three individuals with print disabilities intervened
in the case. In its brief before the District Court for the Southern District of New York, the NFB noted,
“without the HDL, the blind are relegated to second-class academic citizenship—one without the
privilege of access to the print collections of university libraries. With the HDL, the blind have the same
comprehensive access to the print collections of university libraries as the sighted, and as a result, can
learn and contribute to learning as do sighted students and scholars.”38
On October 10, 2012, Judge Baer of the US District Court for the Southern District of New York ruled
in favor of HDL and the NFB. First, the court held that fair use is a supplement to Section 108, and,
contrary to the AG’s arguments, libraries are entitled to a full fair use defense and are not required to rely
only on Sections 108 and 121 to preserve and provide access to library collections.39 Second, the court held
that mass digitization for search, preservation, and accessibility is a fair use and two of HDL’s purposes
(search and accessibility) are “transformative,” because the works are used for a different purpose from
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