“Write better fair use guidelines for us!”
Gretchen McCord, Digital Information Law
In response to my blog posts from Monday and Tuesday this week, I received an email from an academic librarian who said that although she agrees with me “philosophically,” she needs realistic help! She asked:
Are you saying that a library assistant should be trained to be able to evaluate and make a safe decision about, “The ultimate question of fair use: Would allowing this use go further towards promoting the goal of copyright law than would disallowing the use?” every time a faculty member fills out a course reserves request?
She then suggested, “Maybe you will write better guidelines for us that our college attorneys will approve?”
I told here that I absolutely was not suggesting that every library staff member needs to be trained to conduct a thorough fair use analysis of every use, nor that a thorough analysis of each use even needs to be made. Not only is not practical for every staff member to become a copyright expert, it’s not necessary.
My point in emphasizing that guidelines are only guidelines, not law, was, simply, to make that point. Too many users of information — not just librarians, as Tuesday’s blog piece discusses — misunderstand the law, often incorrectly believing that quantitative guidelines express the legal limit of fair use. Too many believe that those numbers are indeed the law.
My point was neither to criticize guidelines nor to imply that they should be ignored. My point was that (a) they need to be correctly understood (b) in the context of fair use – which is what they have always been intended to support. Guidelines are just a tool. Tools are neither good nor bad; it’s how you use them that matters.
I explained that in my workshops and in longer writings, I discuss the role of guidelines as a starting point or a safe harbor – if you stay within the quantitative guidelines, you can almost always be confident that your use will be considered fair. But the widely known guidelines were always intended to express a minimum, not a maximum of what constitutes fair use.
Each institution must decide how it will address fair use issues, based in part on its risk tolerance and its resources. I am a BIG proponent of policies and procedures (and, I am happy to say that the number of educational institutions who recognize their value seems be increasing, based on the increasing number of requests I’m receiving for consultation and workshops on creating strong, helpful copyright policies and procedures). These tools, and the process an institution goes through in creating/updating them, are the tools you use to determine how you will address issues as they arise.
For example, maybe your policy is that staff follow the limitations of quantitative guidelines in general, but if a request comes in for something that goes beyond those limits, you send it to a staff member designated to be your copyright resource, and they either make the decision or work directly with the faculty member. That’s just one example; there are any number of ways to shape your practices when it comes to fair use. There is no one-size-fits-all.
Which is why I don’t believe the issue is creating “better” guidelines. In fact, the trend now (in various industries, not just education and libraries) is to move away from quantitative guidelines and towards statements of best practices, which, rather than providing numbers, essentially explain what you can do to strengthen your fair use case. This allows for more flexibility in many ways, including adapting your uses as technology changes, while also offering very concrete suggestions. I like this trend!
Guidelines and best practices are both valuable tools, so long as those relying on them understand their nature and purpose. (If you want to hear more, I am actually offering a webinar through ALA Editions titled “Fair Use Guidelines and Best Practices” in about two weeks.) Policies and procedures are the tools that clarify what that purpose is for the given institution and how they will be specifically implemented at that institution.