Librarians, Publishers, and Fair Use Game Shows

The Center for Intellectual Property Biennial Symposium in Baltimore early June was a hotbed of fair use discussion.

How do you teach art students about making fair and legal decisions, especially in an era in which appropriation is everywhere? Paul Dobbs and Greg Wallace from the Massachusetts College of Art and Design have an answer: JeopARTy. The game show, modelled on you-know-what, engages students with real-life cases of appropriation--some of them plagiaristic, some infringing, some fair use--and asks them to decide what's fair and ethical. The students can see, via polling, how others react, and they are challenged to justify their reasoning. It's downloadable, and adaptable to your situation, and very possibly addictive.

Putting the Code to Work

Librarians and professors attending the session that the Association of Research Libraries's Brandon Butler and I had the privilege of presenting in, had all, to a person, already read the Code of Best Practices in Fair Use for Research Libraries. Several were already using it at their institutions.

Their biggest question was about how to understand the Georgia State University judicial decision. 

Brandon explained that the decision, which concerned whether GSU's e-reserves policy had infringed copyrights, was actually quite narrow. It concerned only academic books; the decision applied only to GSU; and the judge ruled that almost all the uses were non-infringing. He also pointed out that the trial took place before the Code was issued.

Standards and Standards

The judge had decided that almost all GSU's uses were fair. But very unusually, she had not taken librarians' practice into account in making that decision, and even more unusually, and decided to set a standard that no one had asked her to set, by establishing a 10%-or-one-chapter ceiling on e-reserve use of books.

"That won't work for some of my faculty's needs," said one participant, who had queried Brandon before the panel began. "What are we supposed to do?"

Librarians who are not at GSU might choose whether or not to follow this standard, which goes against the grain of fair use interpretation by most judges since 1990 and also the logic of the Code. Typically judges make a decision on the transformativeness of the use (how the use differs from its original purpose) and how closely the amount taken matches the new purpose (even if it is 100% of the original, as happened in the Bill Graham Archives case).  The Code shows how librarians can also apply the same logic.

And of course, e-reserves decisions are made on many more materials than scholarly books (for instance, music, films, and photographs, as well as non-scholarly books).

The other seven categories of use discussed in the Code remain untouched by that decision.

Librarians and Publishers

The Code was celebrated by librarians, who saw it as not only a tool to get their work done but a help in negotiating with publishers:  "It's very important to realize what our fair use rights are, so that we don't give them away in licensing agreements that we sign," one said.

But at least one academic publisher present feared that implementing the Code could jeopardize his press's financial future. I pointed out that the Codes in other areas have been used by copyright holders as well as new users, since they not only show how fair use can be employed but also show its limits.

The publisher suggested that publishers themselves may want to interpret the Code, in order to demonstrate how many uses of their academic books may not in fact be fair use. Brandon Butler encouraged this interpretation as an intervention that could help librarians get useful feedback, including examples.