Uncertainty About 'Fair Use' Is Hurting Academic and Research Libraries, ARL Report Says
By Michael Kelley Dec 28, 2010A lack of consensus about how to apply the fair use provision of copyright law is consistently impairing the mission of academic and research libraries, according to a new report.
The report, released December 20 by the Association of Research Libraries (ARL), concludes that librarians often feel ill-equipped to make decisions about fair use and increasingly have as their primary goal avoiding litigation and harm to their institution, regardless of what the law allows and what the user community needs.
The 65 research and academic librarians interviewed over the past nine months were strongly committed to obeying the law, but they labored under misconceptions about the law's flexibility and also were "painfully aware of the ways in which their choices violated their mission to serve patrons' research and learning needs."
"Our greatest fear is that librarians will decide, de facto, not to meet mission because they fear the consequences of running afoul of copyright law that they do not have the confidence to interpret," Patricia Aufderheide, a professor at the School of Communication at American University and a co-author of the report, told Library Journal.
Years of consistent concern among librarians about how to employ fair use pushed the issue to the "top level of concern at ARL," Aufderheide said.
"We see that the side of copyright law that permits them to balance the interests of current copyright holders with those of scholars, students, and future creators of new cultural artifacts is poorly understood," she said.
Disturbing impact on digitization projects
For example, the interviewees revealed that they often determine which digital projects to pursue based not on scholarly needs but mainly on whether the materials are in the public domain and, thus, free of copyright questions.
Some postponed digitization altogether and others reported cherry-picking collections to exclude potentially risky items. Archivists, in particular, were "deeply disturbed" by the incompleteness of resulting collections.
Librarians reported postponing or downsizing courses and exhibits in order not to provoke litigious parties. And preservation decisions, such as Web archiving projects or format shifting (e.g., preserving videotapes in a digital format), were "shaped dramatically" by concerns about copyright.
"Interviewees told disturbing stories of rooms full of aging film and videotapes that they were neither preserving digitally nor making available, due to legal uncertainty," the report reads.
Many librarians reported managing risk by resorting to "safe" guidelines established in the 1970s to govern photocopying (with arbitrary page or percentage limits).
Access to e-reserves limited
Others implemented policies that limited access to learning materials, such as e-reserves. In some cases, they shifted responsibility to faculty or the people responsible for the course management system (such as Blackboard or Moodle).
"If digital teaching decisions move outside the library, would users become over-cautious in their copyright decisions, since they did not share the librarians' culture of service to present and future scholarship?" the report reads.
Librarians were often found to "routinely act as the de facto arbiters of copyright practice for their institutions," even though they did not have a sure grip on their fair use rights and were uncomfortable interpreting the law for others.
For example, threats from publishers have led to the adoption of conservative policies at some universities, even though state sovereign immunity, in general, limits the exposure of non-profit educational institutions and their employees (as a recent federal court decision involving Georgia State University shows).
Librarians also voiced frustration about licensing restrictions on digitized databases that stopped short of what fair use would allow.
"Rights holders gain unprecedented control over the uses available to libraries by selling or licensing media in electronic formats," Brandon Butler, ARL's director of Public Policy Initiatives and a co-author of the report, told LJ.
"By knowing the extent of what fair use allows in ordinary circumstances, libraries better understand their bargaining power and the rights they may lose by agreeing to restrictive licenses or purchasing DRM-encumbered electronic formats," he said. "In many cases it will make sense to make those trade-offs, but I believe it is fundamentally important for all academic and research libraries to understand them, first."
The effect in some cases has been to cut off new research methods at some institutions.
Code of best practices needed
Many of the librarians interviewed reported only varying levels of institutional support as they grappled with such copyright issues, which makes the need for a "firmer collective understanding of fair use" all the more critical.
"We believe that a consensus around a deep understanding of fair use can help libraries not only make better use of the materials they have, but also make better choices about how they will collect, circulate, and preserve materials going forward," Butler said.
The authors concluded that research and academic librarians would benefit from a code of best practices such as documentary filmmakers and media literacy teachers have.
Despite the uncertainty about how to apply and interpret fair use, the authors felt that there was ample copyright wisdom in the librarian community that just needed to coalesce around a shared code of best practices.
"That wisdom will form the basis of the best practices work we hope to facilitate over the next year or two," Butler said.
The report is part of a three-stage project funded by The Andrew W. Mellon Foundation, with the ultimate goal of developing and promoting a code of best practices in fair use for research libraries. The research was conducted in partnership with the Center for Social Media and the Program on Information Justice and Intellectual Property at American University.
