1. Copyright, Fair Use,
andDigitization
of At-Risk Formats
Katie Fortney
June 14, 2012
2. In just 20 minutes…
• Copyright
• Fair Use
• Codes of Best Practices
– The ARL Code
• “Digitizing to Preserve At-
Risk Items”
– Fair Use and Video
Country Mile, by Nicholas_T
3. Q: What does copyright cover?
• “original works of authorship fixed in any
tangible medium of expression, now known
or later developed, from which they can be
perceived, reproduced, or otherwise
communicated, either directly or with the aid
of a machine or device.” – 17 U.S.C. § 102 (Copyright
Act of 1976)
4. A: Most things in the library.
• With some exceptions
– Really old stuff
– Federal Government
works
– Other things I can tell you about later if
you’re really curious
The best days are not planned, by Marcus Hansson
5. For things covered by copyright
• You need to get
permission from the
copyright holder
– Derivative works
– Distribution
– Public performance
Locking nothing, by Darwin Bell
6. So what’s Fair Use?
• When you
, based on a
carefully weighed
analysis of four factors:
– Purpose of the Use
– Nature of the work being
copied
– Amount of the
copyrighted work being
used
– Effect on the market
Rock balancing, by pie4dan
8. Code of Best Practices in Fair Use for
Academic and Research Libraries
• arl.org/fairuse
• Endorsed by library
associations
• 8 “Principles”
9. Principle 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.”
– But…
10. Limitations
• Not if a fully equivalent digital copy is
commercially available at a reasonable cost.
• Don’t circulate both the original and the new
one.
• Only loan to “authenticated members of a
library’s patron community.”
• Provide full attribution.
11. Enhancements (Optional)
• Take steps to limit
downstream copying.
• Provide a way for
copyright owners to
object, like an e-mail
address.
Macro Mondays – Easter, by melloveschallah
12. Community Practices in the Fair Use of
Video in Libraries
• “a recommended body
of practice in the fair
use of video for
educational purposes”
• 5 “Illustrative Cases”
13. Case 1: Replacing Damaged or Lost
Videos
• Including “proactive preservation”
• First, check the marketplace to purchase the
title in the newer format if available at a
reasonable price.
• Use the copy the way the original was used.
• Make copies as necessary/on request – no
“wholesale copying” of a collection.
14. So what else have we got?
• Sovereign immunity
• 504(c)(2): “reasonable
grounds”; “employee or
agent of a nonprofit
educational
institution, library, or
archives”
Knight, by Walt Stoneburner
15. Questions?
Question mark sign, by Colin_K
Slide background: Ammonite, by wwarby
Editor's Notes
I am not your lawyer. This is not legal advice.
Every e-mail you send, every photo you take!
Most of our books, serials, videos, music, manuscripts… So we care about copyright.
Some exceptions: e.g.,110(1) for classroom performance; 108 for library copying within very narrow circumstances, and…
-Fair Use - the most flexible and broadly used exception to exclusive rights of copyright holders. --”for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (among other things)Balance the four factors in light of --purpose of copyright law: “to promote the progress of science and the useful arts”-can be hard to feel comfortable with if you’re not practiced at it; content owners encourage fear. But fair use is actually pretty reliable and predictable:-Barton Beebe article, 2008, analyzed 306 total cases: “in 214 (or 72.1%) of the opinions, factors one and four either both favored or both disfavored fair use. In all but one of these opinions the outcome of the fair use test followed the outcome of these two factors."
And now we have some tools to make it easier: codes of best practicesCreated by communitiesof practice, vetted by lawyers-goal: inform judges -> less likely to get sued -> increase comfort exercising rights
And now we have our own, for libraries.Opens with explanation and discussion of fair use and the code, then talks about things like e-reserves, copies for disabled students, and…
-specifically calls out VHS tapes. Can potentially apply to many things in the library.
Descriptive, rather than forward looking. Similar in main points to what we just saw.
Point of codes: persuade judges -> fewer lawsuits. But what if we DO get sued?Sovereign Immunity and 504(c)(2) make us unattractive targets for a lawsuit.If these documents, reviewed by lawyers, don’t count as “reasonable grounds” for believing these uses are fair, I don’t know what is.We have the good fortune to be at a campus and in a system where campus counsel is comfortable with exercise of fair use rights – not as common as it should be!
