The Association of Research Libraries’ Code of Best Practices in Fair Use for …

by Emma Pinault, Head Editor, INALJ Delaware

The Association of Research Libraries’ Code of Best Practices in Fair Use for Academic and Research Libraries

Emma Pinault DEConfused about fair use and how it applies to your library? Academic librarians, especially, often find themselves setting guidelines on what is a fair use of the library’s copyrighted materials, or advising faculty members as they decide what articles to make available to their students. While libraries and similar institutions have specific rights laid out in Section 108 of the Copyright Act of 1976, many important activities of libraries rely on the broader, less-clearly-defined provisions of Section 107, which details the limits of fair use. Whether a use of copyrighted material is considered fair – and thus not an infringement of copyright – depends on four factors; these include how and for what purpose the material is used, the nature of the material, how much of the material is used, and how the use affects the market for the material.

The language of Section 107 can be interpreted broadly, giving it the flexibility to adapt to technological change; today librarians and educators face questions about how to respect copyrights related to digital content that were not considered in 1976. These questions can include what and how much professors can make available through online course reserve websites, how libraries can preserve materials that are deteriorating or held in near-obsolete formats such as VHS, and how to adapt materials for use by students with disabilities.

However, the flexibility and vagueness in fair use law can also leave librarians with little guidance on specific questions. Some academic institutions employ legal experts to guide libraries through difficult fair use decisions, but at institutions with fewer resources librarians can be left to make decisions on their own. The fear of costly lawsuits inspires caution, in many cases, and sometimes hinders the library’s essential mission.

With the help of the Center for Social Media and the Washington College of Law at American University, and a grant from the Andrew W. Mellon Foundation, the Association of Research Libraries released the Code of Best Practices in Fair Use for Academic and Research Libraries in 2012. The Code is not legally binding, and it is not the product of negotiation with rights holders; rather it was created by research library professionals, and is an expression of their values and how they believe fair use should apply to certain vital library functions. For academic librarians especially, it can serve as a helpful guide and a starting point for thinking about fair use questions.

Useful Links to Learn More: 

Title 17 of the United States Code (copyright law)

The Association of Research Libraries’ Copyright Timeline for the United States

Text of the ARL’s Code of Best Practices in Fair Use

Information from the ARL about the code, with links to more information