Take Action

Fair use déjà vu

An image of the card catalogs many baby boomers grew up using.

An image of the card catalogs many baby boomers grew up using.

Occasionally I’ll walk back to the office library and pull out a decades old ALA Bulletin—the precursor to American Libraries—and open to a random page just to see what drew ALA readers’ interest in days gone by. In the year 1980, we were talking about the “coming revolution” of the latest technical innovation—Videotext—a technology that is antiquated given the Internet. One used a “dumb terminal” with Videotext (enough said). Another topic of interest was AACR2. (For non-librarian readers, AACR2 is a national cataloging code.) Its implementation was such a challenge for some librarians that they needed to be told to get a grip.

Librarians need not always view AACR2 as a mind-boggling problem. The panic resulting from one’s first realization that the heading for Chaikovskii will be changed to Tchaikovsky (thus potentially affecting hundreds of catalog cards) should be confined to a few shudders.

What about fair use in 1980? The Copyright Act of 1976 was still relatively new, and photocopying was a major concern. The Copyright Office held a hearing on the effect of “Section 108 on the Rights of Creators and Needs of Users of Works Reproduced by Certain Libraries and Archives,” a title that one commenter thought would “put listeners asleep but [discovered that] some lively testimony punctuated the day-long event.” And (this is going to sound all too familiar), publisher representatives charged that librarians “interchange sections 107 (fair use) and 108 to suit their purposes.” This was one of the arguments the Authors Guild made in Authors Guild v HathiTrust that was rejected by the judge. Section 108 does not restrict fair use.

The Copyright Act of 1976 codified both fair use and the library/archives reproduction exception. If you look back at the legislative history, the libraries were successful in getting exceptions for activities they knew they would do – preservation, interlibrary loan, using the photocopy machine and so on, which appear in 108. Section 107 was a compromise among the stakeholders who agreed that a flexible exception would be necessary to account for “the endless variety of situations and combinations of circumstances that can arise in particular cases preclude[ing] the formulation of exact rules in the statute.”  The House said the legislation:

…endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, their courts must be free to adapt the doctrine to particular situations on a case-by-case basis.

Now that’s some good reading!

It’s been said before that without fair use, among scores of other things, digital technologies that we rely on every day would be illegal. We would be using the Videotext instead of the Internet. We would type up catalog cards with arbitrary subject headings instead of allowing everyone to key word search.

About Carrie Russell

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

2 comments

Leave a Reply

Your email address will not be published. Required fields are marked *

*