RLI 285  10 RESEARCH LIBRARY ISSUES: A REPORT FROM ARL, CNI, AND SPARC 2015 In addition to clearly accepting the functional transformation approach, the court explained the impact of a finding of transformativeness on the fourth fair use factor, the effect of the use on the potential market: “under Factor Four, any economic ‘harm’ caused by transformative uses does not count because such uses, by definition, do not serve as substitutes for the original work.”18 The court later underscored this point: “The only market harms that count are the ones that are caused because the secondary use serves as a substitute for the original, not when the secondary use is transformative….”19 And again: “Lost licensing revenue counts under Factor Four only when the use serves as a substitute for the original and the full-text-search use does not.”20 With respect to the third fair use factor, the amount and substantiality of the portion used, the court stressed that the extent of permissible copying varies with the purpose and character of the use. “For some purposes, it may be necessary to copy the entire copyrighted work, in which case Factor Three does not weigh against a finding of fair use.”21 In sum, the court found that a use is transformative if it has a different purpose or function from that of the original work. If the use is transformative, any economic harm such as lost licensing revenue is irrelevant for purposes of the fair use analysis. Further, the user may copy as much of the work as necessary to achieve his or her transformative purpose. The court’s unambiguous endorsement of the functional transformation approach, combined with its discounting of lost revenue from such transformative uses, provides libraries with a solid basis for providing full-text access to its digitized copies when the underlying purpose of providing the access is different from the author’s original purpose. Thus, a library could provide access to digitized archival material such as an organization’s records. The purpose of the access is to enable scholarly research of the organization’s history, while the records were created to facilitate the operation of the organization. Although this reasoning probably would apply to most archival material, care should be exercised with respect to archives of entertainment content such as films. It is possible that many of the potential viewers of more popular films desire access to the films for entertainment rather than research purposes. With respect to databases of digitized books, such as HDL itself, similar caution should be exercised. The Second Circuit found that providing the print-disabled with full-text access was not a transformative use: “By making copyright works available in formats accessible to the disabled, the HDL enables a larger audience to read those works, but the underlying purpose of the HDL’s use is the same as the author’s underlying purpose.”22 Even though the use was not transformative, the court nonetheless found that access was justified because of the special circumstances of the disabled. Because this rationale obviously would not apply if a library sought to provide full-text access for the non-disabled, the library typically would have to justify the access on functional transformation grounds. That is, the purpose of the use enabled by the access would have to be different from the author’s original purpose in writing the book. For certain categories of books, identifying a different purpose should be straightforward. For example, books on the natural or physical sciences written before a certain date (say 1990) would be of interest to
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