By Emily Miranker, Project Coordinator
As we go about our work at the library—sharing coloring pages featuring images from our collection, digitizing decades-old journal volumes, pointing people towards resources on the HathiTrust and Medical Heritage Library, among other endeavors—we keep something known as fair use in the back of our minds. It’s a legal doctrine that helps determine when it’s OK to use copyrighted material without explicit permission. This week, Fair Use/Fair Dealing Week, the doctrine moves front and center for an annual shout-out by libraries, universities, arts organizations, media groups, and other institutions. It’s a form of consciousness-raising and an opportunity to share examples of fair use in action.
Fair use isn’t particularly new—the codification of it in U.S. law is part of the 40-year old Copyright Act of 1976, with the concept of fair use going back even farther. Fair Use/Fair Dealing Week, by contrast, is just three years young. It was started by Harvard’s copyright advisor Kyle K. Courtney as a way of spotlighting and sharing the Association of Research Libraries’ Code of Best Practices in Fair Use for Academic and Research Libraries.1
Not a scholar or a librarian? Wondering if you really need to know how fair use works? Yes, you do. As a reader of this blog you’re a cultural consumer, but probably a cultural producer as well. We all routinely download, share, and often repurpose photos and videos, songs and TV clips, text, artwork, and sound bites. We create—and recreate—all the time. And we would like our creations to “reference the world around us without getting [us] into trouble” with copyright infringement. 2
Copyright law works for two constituencies, broadly speaking. It defends the interests of copyright holders, protecting the success of creators. It also protects use by cultural consumers of copyrighted materials for select purposes. Deciding when copyrighted materials can be used without permission is the subject of fair use, formally known as Section 107 of the Copyright Act of 1976. Section 107 sets out four factors for determining whether a use is fair: the purpose and character of the use; the nature of the copyrighted work; the portion of the copyrighted work used, and the effect of the use on the copyrighted work.
This very blog you’re reading is a frequent arena where we at the library have applied these fair-use tests as we share, curate, interpret, and provide access to the materials in our collections. Often our blog posts feature both images and selected quotes from copyrighted materials in our collections. Here’s a look at the doctrine’s four tests in relation to our intermittent blog series on advertisements in medical journals:
- Purpose: The Academy Library has strong holdings in 20th-century journals, and highlighting them in online blog entries makes them more accessible to researchers and indeed anyone with an interest in medical history or Americana. Moreover, the Academy did not follow a common library practice of removing advertisements from journals. So we have a wealth of now nearly unique content we’re sharing, free, to eager historians and the public at large. Section 107 strongly favors this sort of education, transformative, and non-commercial use.
- Nature: Typically this factor favors fair use if the underlying work is factual in nature as opposed to involving more creative expression, such as fiction or music. While advertisements take creativity to make, their relevance in our collection and to our users lies in the cultural and historical context they provide, a public benefit that goes to the heart of this factor.
- Effect: This factor asks us to consider whether including images and quotes in posts harms the rights of the authors. Since we focus on the cultural and historical significance of these journal ads, our posts do not diminish or undermine their market.
- Portion: The less you use, the more likely a use will be considered fair. With the short format of a blog post, images and quotes shared are always minimal in contrast to how many ads appear in a single journal.
What makes fair-use worthy of a week-long celebration is that “copyright law does not specify exactly how to apply fair use.”3 Case law helps shape what is considered fair use, and industry standards guide everyday decision making. Best practices—not only the Association of Research Libraries’ code but also an increasing number of industry-specific standards for fields like journalism, documentary filmmakers, OpenCourseWare, poetry, and visual art—provide guidelines on fair use factors, facts, and community norms. To join the conversation on how to apply fair use, click on over to the feed of stories on Fair Use/Fair Dealing Week’s Tumblr.
1. Courtney, Kyle. “About Fair Use Week,” Copyright at Harvard (blog), Office for Scholarly Communication, Harvard University, 2014, https://blogs.harvard.edu/copyrightosc/about-fair-use-week/.
2. Patricia Aufderheide, Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (Chicago, University of Chicago Press, 2011), ix.
3. “Code of Best Practices in Fair Use for Academic and Research Libraries.” Association of Research Libraries. Accessed January 20, 2016. http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf.
Special thanks to Professor Betsy Rosenblatt J.D., Director of the Center for Intellectual Property Law, Whittier Law School.