If the library is the heart of a university, then exercising fair use is the lifeblood. Teachers, researchers, students, librarians and publishers exercise fair use in countless ways every day. It is fair use that facilitates re-using and re-mixing, if you will, the knowledge preserved and made available by libraries into new discoveries and interpretations. This process of research and scholarship has been referred to as ‘standing on the shoulders of giants’ because we all rely on that which has gone before to provide insight, context and meaning for today.
As frequently as we rely on fair use, making a fair use determination can be difficult, and I would assert that it was never intended to be easy. When Judge Story first articulated fair use in the 1841 case of Folsom v. Marsh, he stated:
“In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”
Judge Story did not create an easy-to-apply bright line rule, he articulated a balancing test which has since been codified in U.S. Copyright Law Section 107, and expanded upon by subsequent court cases which found transformativeness as another consideration weighing in favor of fair use.
Despite having fair use articulated in the US for 175 years, fair use is a continuing point of contention, with two copyright infringement lawsuits brought against libraries. In 2008, Cambridge University Press, Oxford University Press and Sage sued Georgia State University for reserve readings (see Kevin’s post for the latest news in April 2016). The vast majority of readings were found to be a fair use. In 2011, the Authors Guild sued HathiTrust for the HathiTrust digital archive of scanned library books. The court found the HathiTrust digital archive was a fair use.
We all know that exercising fair use means accepting some risk. The most careful analysis and investigation doesn’t guarantee that a rights holder won’t consider the use an infringement. However, not exercising fair use represents a different kind of risk, what I think of as mission risk. The enduring mission of a university is generating new knowledge, and if we accept the premise that generating new knowledge relies upon what has gone before, then the mission of a university relies upon exercising fair use.
Although the threat of copyright infringement lawsuits now hangs over universities in a way that it did not when I began my career (aka the pre-internet days), I am heartened by the many ways I see libraries, presses, and individuals exercising fair use and asserting that fair use is important. For example, there is now an annual Fair Use Week in February (you know you’ve made it when you have a week named after you). At the end of this February, the Rauschenberg Foundation announced a pioneering fair use image policy, which was noteworthy enough to be covered in the New York Times. I think the rationale the Rauschenberg Foundation provides for making this change is particularly noteworthy.
First, due to the prohibitive costs associated with rights and licensing, many scholars and professors limit themselves to using freely available images in their lectures, presentations, and publications, which in turn can alter how art history itself is written and taught.
In addition, the College Art Association followed it’s own Code of Best Practices in Fair Use for the Visual Arts with new publication agreements for their journals which include fair use (h/t to Kyle Courtney for bringing this to my attention). These are only a few examples, and I invite you, our knowledgeable readers, to highlight other examples in the comments.
Merriam Webster’s online dictionary gives one definition of lifeblood as “the most important part of something, the part that provides something its strength and vitality.” The exercise of fair use is the lifeblood of the academy and the generation of new knowledge. The library, as the heart of the university, provides strength and vitality to the research and teaching mission, just as scholarly presses are an important part of the dissemination of new scholarship. Scholars, the scholarship they create, and society, benefit from fair use policies like that of the Rauschenberg Foundation and the College Art Association. When we engage in the balancing test that is a fair use analysis, and try to determine the risks and benefits of proceeding with using a copyrighted work, let’s not forget to keep our mission in mind.