fair use week 2021

Can Fair Use Survive the CASE Act?

By Kenneth D. Crews

When Congress thinks of COVID, it seems to also think about copyright. Congress made that connection at a critical moment this last December.  Embedded in the appropriations bill that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright “small-claims court,” where many future infringements may face their decider. The defense of fair use will also be on the docket.

Read the full blog: http://blogs.harvard.edu/copyrightosc/2021/02/22/fair-use-week-2021-day-one-with-guest-expert-kenneth-d-crews/

photo of Bernie Sanders wearing mittens seated in a chair being lifted up into blue sky by huge bunch of multicolored balloons

We’re All Fair Users Now

Today kicks off Fair Use Week, an annual celebration of the important doctrine of fair use/fair dealing. Previously, ARL has debunked common fair use myths, and reviewed the fundamentals of fair use. This year, in acknowledgement that our world has changed since February 2020, we highlight three ways that fair use has allowed us to move our lives online during the COVID-19 pandemic.

First, just a little background. Fair use is an important right that is built into the US Copyright Act and allows the public to use copyrighted materials without asking for permission. Described by Justice Ruth Bader Ginsburg as a built-in accommodation to the First Amendment, fair use balances the exclusive rights of authors to reproduce and distribute their works with the rights of users to borrow, lend, and transfer those works. This balance is critical to the constitutional purpose of copyright: to promote the progress of science and useful arts. Scholarship builds on previous work, and researchers and educators rely on the fair use doctrine to create high-quality learning objects and to incorporate the full breadth of prior work into their current inquiries. Artists in all disciplines rely on fair use to build upon others’ work in their own creations. Ok, on to the examples.

Teaching and Learning

Teaching and learning have mostly moved online, but even before COVID-19 educators and learners could rely on fair use for online education. To support students, librarians, and open educators, American University College of Law released a Code of Best Practices in Fair Use for Open Educational Resources. Developed in consultation with practitioners and other experts, the code includes principles for how fair use may apply in common open education scenarios. For more on open educational resources (OER) this week, check out the Association of College & Research Libraries (ACRL) webinar, “Foundations of OER, on Wednesday, February 24. And don’t miss the Canadian Association of Research Libraries (CARL) webinar, “Implementing the CARL Copyright OER for University Instructors and Staff on Campus,” on Thursday, February 25.

Accessibility

HathiTrust Digital Library is a prominent example of the benefits to libraries and society from courts deciding in favor of fair use in technology cases. Hathi relies on fair use for two key functions: (1) providing accessible texts for people who are print-disabled and (2) allowing access to a database of scanned books that can be used for nonconsumptive purposes like text and data mining. In determining that providing access to works for people with print disabilities is a fair use, courts cited the rationale behind the Americans with Disabilities Act, and the legislative history of the Copyright Act itself.

Explosion of Creativity

During the pandemic, we have seen a proliferation of online creativity, sharing, and access, such as art museums offering virtual access, online performances, or the ubiquitous Bernie mittens meme. Noncommercial expressions of creativity like these rely on fair use. Read this blog post, “Copyright for Meme-Makers,” by our colleagues at Public Knowledge, then apply the four-part test to the Bernie meme. Based on your analysis, is it fair use? Why or why not?

Fair use is intentionally flexible to respond to new technologies and ways of working. But it’s important to note that these activities were all possible even before COVID-19. Fair use is meant to be used, and we hope this post illustrates its necessity.

CONTU White Paper

This ARL white paper reexamines the role of the decades-old Commission on New Technological Uses of Copyrighted Works (CONTU) Guidelines in interlibrary lending. The white paper includes the history and legal status of CONTU, along with a review of the applicable copyright law, including Section 108 of the Copyright Act (reproduction by libraries and archives) and Section 107 (fair use). It is our hope that libraries and library associations will use this white paper as a springboard for conversations about interlibrary lending, licensing practices, and journal subscriptions.

Modern Interlibrary Loan Practices: Moving beyond the CONTU Guidelines

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Fair Use Resources

Kansas State University Center for the Advancement of Digital Scholarship Resources

The Center for the Advancement of Digital Scholarship, or CADS, at K-State Libraries provides resources for K-State students, faculty and staff regarding copyright and fair use. CADS cannot provide legal advice but can provide helpful information about copyright and fair use.

CADS faculty have gathered some helpful resources to learn more about fair use:

If you have questions about Fair Use and digital scholarship, please contact CADS.

Best Practices in Fair Use for Open Educational Resources

By: American University Washington College of Law

We are pleased to announce the release of the Code of Best Practices in Fair Use for Open Educational Resources. This document is intended to support authors, teachers, professors, librarians, and all open educators in evaluating when and how they can incorporate third party copyright materials into Open Educational Resources to meet their pedagogical goals.