On Tuesday, November 18th, the American Library Association (ALA) held a panel discussion on recent judicial interpretations of the doctrine of fair use. The discussion, entitled “Too Good to be True: Are the Courts Revolutionizing Fair Use for Education, Research and Libraries?” is the first in a series of information policy discussions to help us chart the way forward as the ongoing digital revolution fundamentally changes the way we access, process and disseminate information. This event took place at Arent Fox, a major Washington, D.C. law firm that generously provided the facility for our use.
These events are part of the ALA Office for Information Technology Policy’s broader Policy Revolution! initiative—an ongoing effort to establish and maintain a national public policy agenda that will amplify the voice of the library community in the policymaking process and position libraries to best serve their patrons in the years ahead.
Tuesday’s event convened three copyright experts to discuss and debate recent developments in digital fair use. The experts—ALA legislative counsel Jonathan Band; American University practitioner-in-practice Brandon Butler; and Authors Guild executive director Mary Rasenberger—engaged in a lively discussion that highlighted some points of agreement and disagreement between librarians and authors.
The library community is a strong proponent of fair use, a flexible copyright exception that enables use of copyrighted works without prior authorization from the rights holder. Fair use can be determined by the consideration of four factors. A number of court decisions issued over the last three years have affirmed the use of copyrighted works by libraries as fair, including the mass digitization of books housed in some research libraries, such as Authors Guild v. HathiTrust.
Band and Butler disagreed with Rasenberger on several points concerning recent judicial fair use interpretations. Band and Butler described judicial rulings on fair use in disputes like the Google Books case and the HathiTrust case as on-point, and rejected arguments that the reproductions of content at issue in these cases could result in economic injury to authors. Rasenberger, on the other hand, argued that repositories like HathiTrust and Google Books can in fact lead to negative market impacts for authors, and therefore do not represent a fair use.
Rasenberger believes that licensing arrangements should be made between authors and members of the library, academic and research communities who want to reproduce the content to which they hold rights. She takes specific issue with judicial interpretations of market harm that require authors to demonstrate proof of a loss of profits, suggesting that such harm can be established by showing that future injury is likely to befall an author as a result of the reproduction of his or her work.
Despite their differences of opinion, the panelists provided those in attendance at Tuesday’s event with some meaningful food for thought, and offered a thorough overview of the ongoing judicial debates over fair use. We were pleased that the Washington Internet Daily published an article “Georgia State Case Highlights Fair Use Disagreement Among Copyright Experts,” on November 20, 2014, about our session. ALA continues to fight for public access to information as these debates play out.
Stay tuned for the next event, planned for early 2015!