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Fair-Use Guide Seeks to Solve Librarians’ VHS-Cassette Problem

Copyright SymbolThe Association of Research Libraries might have a solution to what some librarians call “the VHS-cassette problem.”

Here’s the scenario: An academic library has a collection of video tapes that is slowly deteriorating, thanks to the fragile nature of analog media. A librarian would like to digitize the collection for future use, but avoids making the copies out of fear that doing so would violate copyright law. And the institution’s attorneys have advised the librarian that the fair-use principle, which might offer a way to make copies legally, is too flexible to rely on.

When the Association of Research Libraries and a team of fair-use advocates surveyed librarians to find out how they navigate copyright issues, many of them described that exact conundrum. But they may soon have a way out. Tomorrow the group will announce a code of best practices designed to outline ways academic librarians can take advantage of their fair-use rights to navigate common copyright issues.

The new code is one of a series published with the help of Patricia Aufderheide and Peter Jaszi, a pair of American University scholars known for pushing back against the restrictions of copyright law. The duo has helped several professional communities develop similar codes. Brandon Butler, director of public-policy initiatives at the Association of Research Libraries, said this guide is different than early fair-use guidelines for libraries, which he described as narrowly crafted “safe harbors” that had the unintended effect of making it more difficult for librarians to do their jobs. Mr. Butler said this version gives librarians a collective voice that they haven’t enjoyed in the past.

“It’s not meant to be a legal memo handed down from on high telling librarians, We the lawyers have told you here are your rights,” he said. “It’s meant actually to be exactly the opposite of that. It’s meant to be a brief from the librarians to the lawyers saying, We know a little bit about fair use too, and here’s what we think are our rights.”

The team assembled the code during nearly 40 hours of group discussions with research librarians, Mr. Butler said. It identifies eight common library practices to which the fair-use principle can be applied, like making special-collections items available electronically and creating digital versions of library materials for patrons with disabilities. Each principle includes a set of limitations and enhancements that further specify how a fair-use claim can be made. A consensus about the eight items did not emerge immediately, Mr. Butler said, especially when some of the principles discussed material posted on the Web.

“There’s a kind of feeling that if you do something on the Internet, that’s especially dangerous,” he said. “We’ve been doing physical exhibits for time immemorial, but once it’s on the Internet, anyone in the world can see it and maybe they could even copy it. And that creates a special heartburn.”

Eventually, the groups realized that self-censoring their online activities would be contrary to their mission as librarians.

“Should we really be limiting what we do out of this kind of generic fear of the Internet?” Mr. Butler asked. “Or can we think this through and find a way to make it fair use if we do it right?”

Despite its well-meaning mission, the code is not devoid of controversial statements: It says explicitly that it was not negotiated with rights holders. Mr. Butler said the group chose not to include them because negotiations between rights holders and professional communities often result in what he called “really weak tea.” The groups usually only agree on principles that scratch the surface of what they really believe, he said. And the librarians thought it was essential to articulate some common fair-use principles, even if there are risks involved.

“There’s a risk of liability in the fair-use realm, but there’s also a risk to the mission if you don’t do anything in the fair-use realm, and these are some things that we think are important to do,” he said.

Creative Commons licensed Flickr photo by MikeBlogs

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