Fair Use and Federal Copyright Law

This ACRL publication serves to instruct and educate readers about topics relevant to library instruction, which are either timely or underdiscussed. The publication's emphasis is on current information packaged in a recognizable, consistent, readable way. It is intended to be a user-friendly entry into reading and keeping up with library instruction research and practice.

The Section 108 Study Group is a select committee of copyright experts charged with updating for the digital world the Copyright Act's balance between the rights of creators and copyright owners and the needs of libraries and archives. The Study Group was convened as an independent group by the National Digital Information Infrastructure and Preservation program of the Library of Congress and by the U.S. Copyright Office. The recommendations, conclusions, and other outcomes of the Study Group's Report are its own and do not reflect the opinions of the Library of Congress or the U.S. Copyright Office.

Copyright continues to be a core interest of the higher education and academic library communities. This briefing will focus on eight critical legislative and legal arenas where the United States will be working on copyright: orphan works, digital fair use, broadcast flag, Section 1201 anti-circumvention rulemaking, electronic reserves, peer-to-peer file sharing, open access to government-funded research, and the report of the Section 108 Study Group on exceptions and limitations for libraries and archives. The work of the study group will be highlighted, including its primary findings and recommendations. In addition, two important recent studies will be described and their importance for libraries will be cited. The advocacy and educational roles and responsibilities of librarians on copyright also will be outlined.

The copyright legislative process in Washington traditionally focuses on increasing the protection provided to copyrights, based on the assumption that this will strengthen the economy. Recent research, however, indicates that exceptions to copyright protection also promote innovation and are a major catalyst of U.S. economic growth. Specific exceptions to copyright protection under U.S. and international law, generally classified under the broad heading of fair use, are vital to many industries and stimulate growth across the economy. In fact, business enterprises that benefit from fair use generate substantial revenue, employ millions of workers, and, in 2006, represented one-sixth of total U.S. gross domestic product. This economic research suggests that future copyright legislation needs to account for these important limitations if the policy-making process is to stimulate growth.

While policymakers pay much attention to copyrights, exceptions to copyright protection also promote innovation and are a major catalyst of U.S. economic growth. Specific exceptions to copyright protection under U.S. and international law, generally classified under the broad heading of Fair Use, are vital to any industries and stimulate growth across the economy. Companies benefiting from fair use generate substantial revenue, employ millions of workers, and, in 2006,represented one-sixth of total U.S. GDP.

Three recent appellate decisions concerning fair use should give educators and librarians greater confidence and guidance for asserting this important privilege. In all three decisions, the courts permitted extensive copying and display in the commercial context because the uses involved repurposing and recontextualization. The reasoning of these opinions could have far-reaching implications in the educational environment.

The fundamental goals of media literacy education -- to cultivate critical thinking about media and its role in culture and society and to strengthen creative communication skills -- are compromised by unnecessary copyright restrictions and lack of understanding about copyright law, as interviews with dozens of teachers and makers of media literacy curriculum materials showed.
In K-12, higher education, and after-school programs and workshops, teachers face conflicting information about their rights, and their students' rights, to quote copyrighted material. They also confront complex, restrictive copyright policies in their own institutions. As a result, teachers use less effective teaching techniques, teach and transmit erroneous copyright information, fail to share innovative instructional approaches, and do not take advantage of new digital platforms.

The Society for Cinema and Media Studies ("SCMS") has created this Statement of Best Practices
for its membership to clarify some of the issues concerning the permissible use of media for teaching.

"There are few circumstances in which it’s legal to copy a DVD and screen it in its entirety to an audience without paying royalties. One of them is in the classroom."