Posts Tagged ‘William Patry

HathiTrust: Section 108 & Fair Use Are Not Mutually Exclusive

Librarians who pay attention to copyright long have believed (and have been taught) that the the law’s fair use and library preservation provisions work cooperatively (if not simultaneously) to allow libraries and archives the opportunity to use limited portions of protected works without requiring the owner’s permission, and without having to pay a license fee to the owner. In the case of Section 108, the provision allows libraries and archives to reproduce and distribute all of a protected work under specific circumstances in the event the library or archive qualifies for such protection.

The theory behind the librarians’ belief is that the fair use provisions in Section 107 act as a backstop to all the Act’s other limitations, including those under Section 108. I long have considered fair use to be the “all-you-can-eat” limitation – one that is available to libraries (or to any other member of the public) even when they cannot fulfill specific requirements Section 108 demands. (Let’s defer, for a moment, the argument about whether fair use is best classified as a privilege, a limitation, a right, or an affirmative defense.)

As law professor James Grimmelman observes, fair use is a standard that is broadly and vaguely phrased, inherently case-specific, and requires judicial elaboration and interpretation. In contrast, the library preservation allowances under Section 108 are rules that are narrowly and tightly phrased, able for librarians to apply mechanically without judicial intervention. I always have taught, in countless workshops and classes, that Section 107 and Section 108 coexist synergistically, and should be deployed in a very specific way: try to qualify for Section 108 first, and if you cannot qualify for Section 108, then use fair use as your safety net.

Now the Authors Guild is openly disputing librarians’ beliefs and interpretations.

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Written by Dr. K Matthew Dames

03/05/2012 at 14:48

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