Fair Use and Digital Publishing: An Academic Librarian's Perspective

From the Editor: These provocative "companion pieces" provide history and perspective on fair use issues. Representing different points of view, they share similar concerns and offer complementary strategies. Both papers were originally presented at the symposium "Fair Use and the Internet: Current Status and Emerging Trends," which was held by the National Federation of Abstracting and Information Services, January 25, 2001, in Washington, D.C.

"The Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Under Article 1 Section 8 of the United States Constitution, the Congress has for more than two centuries established the rights to intellectual property and its uses. I will tell you where I stand on this matter, and it seems to me to be imbedded in the order of priority in the very words used by the founding fathers--the social good was defined as the purpose, not the individual right. However, in the history of our democratic republic the intellectual property regime has drifted inexorably toward the latter. Today, we are arguing desperately to preserve basic rights to use copyrighted works, against the very federal agency that has custody over them--the Copyright Office of the Library of Congress. In the interest of full disclosure, I will admit also that I have a point of view as a scholar, as a journal editor, as a professor in the university classroom, and as the dean of a large research university library system. My views are shaped by that perspective, but are defensible as legitimate and worthy of serious consideration in a society that benefits greatly from the contributions of the academy.

As is well known, the legal basis that emerged in U.S. common law for noninfringing use of copyrighted materials was the doctrine of "fair use." The legal principle of fair use appeared before the Civil War and became so thoroughly instantiated in our common law that it was codified in the copyright law revision of 1976. In so doing, the Congress exercised its constitutional power to establish a legal right that recognized the common good--or to use the simple elegant prose of the founders "to promote the progress of science and useful arts." In the case of libraries, there is a special variation or embellishment of this principle known as "first sale" which, among other things, allows a library to purchase a copyrighted work and then lend it to a patron without infringing. Section 107 of the 1976 statute lists factors of fair use that courts must consider, which are neither exhaustive nor in fact clear guideposts as to what is or is not a noninfringing use:

• Purpose and character of the use

• Nature of the copyrighted work

• Amount and substantiality used in comparison to the work as a whole

• Effect on the potential market for or value of the work

Libraries and publishers struck a bargain after the 1976 revision, embodied in the so-called CONTU Guidelines, which covered practice for activities such as interlibrary lending, library reserves, classroom use, and patron photocopying. The guidelines basically outlined practices that we mutually agreed were fair use by libraries and, by extension, scholars and students. Although they do not carry the force of law, they were the "safe ground" that both parties accepted. Or to put it another way, it was the best arrangement we could reach for not suing one another.

The world of modern research, academic library practice, and publishing that we know began to emerge in the last half of the nineteenth century. The touchstones of that process were, among other things, the emergence of modern scholarly monograph publication, the development of the modern journal, classification and subject heading schemes, periodical indexing and abstracting, replacement of book catalogs by card catalogs, and the...