On Copyright and Fair Use

Copyright and licensing is sort of my bag, so I’ve spent the majority of my session time so far in panel presentations on these topics. On Saturday I heard a panel called Fair Use, Intellectual Property and New Media with Jack Lerner, Kevin Smith, and Dean the Entertainment Lawyer (I didn’t hear his last name and it’s not in my program). Today (Sunday) I listened to Kenny Crews, Gretchen McCord and Carrie Russell speak on a panel entitled Do the Right Thing: Empowering Ethic Copyright Usage in Libraries.

In Saturday’s event, four cases were used as the lens through which the intersection between fair use and new media could be evaluated: Author’s Guild vs Google, Author’s Guild vs Hathi Trust, AIME vs UCLA (about fair use and streaming video via web pages exclusive to certain courses), and of course the recent Georgia State decision. The implications of that last one was on everyone’s mind, due to both the recentness of the judge’s verdict and also the potential impact to the library’s ability to claim fair use in copying for e-reserves.

If a theme emerged between these two panels, it is that copyright and fair use are a two way street; there are no easy answers for librarians seeking to utilize their full rights under section 107 (which discusses the limits to exclusive “ownership”*). Indeed, copyright and the accompanying fair use guidelines are a dynamic duo (or nemeses, like Batman and the Joker?), a set of tools by which one can critically evaluate to justify a set of actions. As Gretchen McCord said, it is super important to understand the motives of those who wish to utilize previous works under fair use, and, as highlighted by Jack Lerner in the Saturday session, to use only that which nails down a point essential to answering a research question or proving a hypothesis.

Where Saturday’s panel was rooted in case law, Sunday’s took on an ethical mien. I was struck that each panelist presented a largely positive view to the proceedings of analyzing the valid applications of fair use. The answers that seem to be presented to their advisees are generally rooted in the ways that an idea or a project can be retooled in order to comply with section 107 (and now also the guidelines found in the decision in the GSU ruling). Where copyright is involved, it is easy to say no. The panelists today posited that we can and should do all we can to find a way to advocate for full and correct use of fair use clauses. Libraries have an important mission to speak for the public while respecting the rights of authors. I would say that we should advocate for balance, but as Dr. Crews pointed out, balance in copyright is in the eyes of the beholder.

* in quotes thanks to Carrie Russell’s interesting argument that holding copyright ought not be equated with property ownership

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Filed under Conference considerations, Thoughts from Davis

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