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Association of Research Libraries (ARL) Introduces Code of Best Practices in Fair Use for Academic and Research Libraries

by Stephen Kiyoi, Second Year NLM Associate Fellow
NN/LM Pacific Southwest Region
UCLA Louise M. Darling Biomedical Library

On February 3, 2012, the UCLA Library proudly hosted the inaugural event introducing the much anticipated ARL Code of Best Practices in Fair Use for Academic and Research Libraries. This code, created by the academic library community and reviewed by an outside panel of distinguished copyright experts, provides a guide to academic librarians as they manage risks and make important decisions for their institutions. The UCLA event featured Peter Jaszi, Professor of Law, at American University’s Center for Social Media, and Brandon Butler, Director of Public Policy Initiatives, at the Association of Research Libraries. Following is a summary of the main points of copyright, fair use, and the code. The complete code document is availalbe on the ARL web site.

The entire UCLA event is available in two parts on UCLA’s YouTube channel. In Part 1, Peter Jaszi discusses the current state of jurisprudence on Fair Use, and how that landscape has allowed the careful construction of several Codes of Best Practices within various communities of practice in recent years, including the most recent Code of Best Practices for Academic and Research Libraries. In Part 2, Jaszi and Brandon Butler discuss the collaborative process of formulating the code and detail the Principles and Limitations for 8 common situations in which Fair Use applies for academic and research libraries and the communities they support.

Copyright Balance

Copyright is central to the core library mission; it provides protection to those who have already produced knowledge works, and it allows structured access to those knowledge works for the creation of new works over time. Academic library missions depend on a healthy balance between these two equal purposes of the copyright law.

Fair Use

Fair use, the right to use copyrighted materials without permission or payment under some circumstances, has been controversial and litigious, because it is described only generally in the law. In cases involving fair use, the courts have increasingly relied on the answers to two key questions:

  • Did the use “transform” the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original?
  • Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

The history of court decisions show that it is important to develop a coherent account for how and why the material was borrowed, and show a reasonable and good faith effort to conform to the standards of accepted practice in the particular field. The ARL code follows in a line of several other practice communities, including documentary film makers, communication scholars, and poets, who have benefited from the development of a standard of best practice in fair use to address this second criterion.

The 8 Principles

The Code for Best Practices is organized into eight sets of common current practices in the use of copyrighted materials in academic libraries. Each set is organized into four parts: description, principle, limitations, and enhancements. ARL strongly encourages users to consider sets as a whole; that is, the description, limitations and enhancements are just as important as the principle itself. The verbatim principles are listed below.

  1. Online Course Content: It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.
  2. Library Exhibitions and Publicity: It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections and to promote new scholarship drawing on them.
  3. Digitizing to Preserve At-Risk Items: It is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.
  4. Digitizing Archival and Special Collections: It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.
  5. Reproduction Services for the Disabled: When fully accessible copies are not readily available from commercial sources, it is fair use for a library to (1) reproduce materials in its collections in accessible formats for the disabled upon request, and (2) retain those reproductions for use in meeting subsequent requests from qualified patrons.
  6. Integrity of Works Deposited in Institutional Repositories: It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use.
  7. Non Consumptive Databases: It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable non-consumptive analysis across the collection for both scholarly and reference purposes.
  8. Collecting and Providing Access to Materials Posted Online: It is fair use to create topically based collections of web sites and other material from the internet and to make them available for scholarly use.

Issues in copyright and fair use can be confusing and threatening, especially as copyright holders in certain areas become increasingly litigious. False information regarding copyright and fair use is common and has been widely disseminated online. This code, while not to be taken as legal advice, attempts to set the record straight on users’ fair use rights, ensuring that they not be encroached upon. While risk cannot ever be totally eliminated, this code provides a tool for academic librarians to assess risk in their institutions and make informed decisions, with the goal of providing the fullest possible access to their research collections.

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