Exception 8: Fair Use
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (US Copyright Office, n. d.)
Digitization projects can be covered under the considerations of Fair Use depending on the purpose and character of the use, nature of the work, amount of the work, and effect on the potential market. Each case must be assessed on its own merits. And although there are guidelines such as CONTU, they do not have the force of law and, in effect, serve to limit the rights of users by their rigidity.
According to Besek (2003), there are uses favored by the courts, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research” (p. 11). In general, non-profit or educational use is favored, so libraries have a natural advantage. Factual, rather than creative, works are also preferred. The amount should be limited to fulfilling the purpose, but that could still mean the entire work if it would fulfill the purpose. Finally, the effect on the market should be as minimal as possible. These criteria should balance each other in the end.
Electronic reserves are not specifically addressed in copyright law, so librarians and faculty must rely on institutional policies when available or the allowance is already covered in the database license. ALA supports using Fair Use to validate libraries making e-reserves and has posted a thoughtful assessment of the four criteria in relation to them, which I will use Fair Use to copy here for you:
First factor: The character of the use
1. Libraries implement e-reserves systems in support of non-profit education.
Second factor: The nature of the work to be used
- E-reserve systems include text materials, both factual and creative.
- They also serve the interests of faculty and students who study music, film, art, and images.
- Librarians take the character of the materials into consideration in the overall balancing of interests.
- Librarians consider the relationship of the amount used to the whole of the copyright owner's work.
- Because the amount that a faculty member assigns depends on many factors, such as relevance to the teaching objective and the overall amount of material assigned, librarians may also consider whether the amount, even the entire work, is appropriate to support the lesson or make the point.
- Many libraries limit e-reserves access to students within the institution or within a particular class or classes. Many use technology to restrict and/or block access to help ensure that only registered students access the content.
- Libraries generally terminate student access at the end of a relevant term (semester, quarter, or year) or after the student has completed the course.
- Many e-reserves systems include core and supplemental materials. Limiting e-reserves solely to supplemental readings is not necessary since potential harm to the market is considered regardless of the status of the material.
- Libraries may determine that if the first three factors show that a use is clearly fair, the fourth factor does not weigh as heavily. (ALA, 2011)
As ALA shows, e-reserves are considered fair use, even when whole works are used to support the curriculum. In the same way, use these Fair Use factors to assess desired works before digitizing them. As Russell (2004) summed up nicely:
Understanding fair use is almost always possible, and applying it on a regular basis can lessen the potential liability of librarians in making use of copyrighted works. The more you use the fair use doctrine, the more comfortable you will be with it. (p. 25)
As with all rights, use it or lose it!