Fair Use Week 2023 (10th Anniversary): Day Five With Guest Expert Will Cross

Our last post of the glorious celebration on the final day of the 10th Anniversary of Fair Use Week is from copyright and open knowledge expert Will Cross. Will examines the Year of Open Science through the lens of fair use. – Kyle K. Courtney

Beyond An ‘Underpants Gnomes’ Theory of Copyright: Making Fair Use The Missing Piece for the Year of Open Science

by Will Cross

Fair Use Week is always a reason to celebrate, but I’m feeling especially excited this year due to some big news in copyright and open science – we’re finally saying no to the Gnomes!

This statement probably requires some explanation. As you may be aware, the US government has named 2023 the Year of Open Science and last week we celebrated the 21st anniversary of the Budapest Open Access Initiative. Along with recent recommendations on open science from UNESCO and ongoing work with projects like Plan S in Europe, the academy has never been more invested in, or more intentional about, opening up the scholarship, data, and educational materials we create. 

Further, this commitment has undergone a fundamental shift from a simple focus on open access to the published scholarly record and towards a values-led commitment to sustainable systems of open knowledge. This shift from access to values is signposted by two memoranda from the White House Office of Science and Technology Policy (OSTP) released almost a decade apart. Where the 2013 Holdren Memo focused on removing paywalls for published research, the 2022 Nelson Memo is focused on holistic equity in both the publishing of and access to the record of scholarship. This is a significant change that recognizes that the growth of open access venues (often controlled by the same old for-profit publishers) has not led to more ethical modes of production or a more sustainable, inclusive system of scholarly sharing

So, what does this all have to do with fair use? The answer is that, as our understanding of what it means to support openness has expanded from access to equity, our copyright literacy has not always kept pace. Copyright has always been a core competency for this work, whether it is called “open access,” “scholarly communication,” or “open science.” In the access-focused era of the 2000s, the copyright toolkit for scholarly communication focused on open licenses and rights retention, with an aim to move published scholarship beyond the paywalls controlled by for-profit publishers. Unfortunately, as our commitment to openness has expanded and evolved, the way we talk about copyright has often remained static. We’re trying to meet new, more expansive goals with the same old tools. And that’s where the Gnomes come in.

Readers of a certain age may be familiar with an old meme focused on a set of satirical characters called the “Underpants Gnomes” who have an unorthodox get-rich-quick scheme that is notoriously light on details. “Step one: collect underpants . . . Step two: ???? . . . Step three: profit!” This tongue-in-cheek framework of “do a thing . . . ???? . . . profit” has been a reliably irreverent way to describe any half-baked or ill-considered plan and has been used to satirize everything from privacy and antitrust law, to Web 3.0 business models, to ineffective football game plans.

For too many open scholars the default attitude towards copyright has looked a bit like the Gnomes drew it up: “Step one: apply open license. Step two: ????  Step three: global knowledge equity!” As someone who has worked to support open knowledge for many years, I am deeply invested in authors’ rights and open licenses. But it is clear that simply adding a Creative Commons license does not by itself make our work better, more inclusive, or more impactful. 

Without a commitment to bibliodiversity and equitable authorship, openly-licensed scholarship isn’t inherently more inclusive. Without clear information and values-led policy about ownership and use, open data isn’t inherently more ethical. Without shared values and a respect for agency, open education is not inherently more equitable. Adding an open license to materials is absolutely necessary but in no way sufficient to meet the goals of the open movement. The BOAI recommendations put a fine point on this issue: “open access is not an end in itself, but a means to other ends, above all, to the equity, quality, usability, and sustainability of research.”

If we want to use openness to meet those other ends, it is critical to fully engage with copyright. We need to be intentional about ownership and authorship so that we can respect the agency of all contributors. We need to take seriously the limitations built into the system so that we understand what is subject to copyright and what is free for anyone to use. Most of all, we need to understand and assert copyright exceptions like fair use and fair dealing. At every stage of the scholarly lifecycle those exceptions facilitate a holistic, values-driven approach to open science, from new forms of analysis like text and data mining to new pedagogies made possible through the Codes of Best Practice and broad sharing through models like controlled digital lending.

As a US-based scholar writing this post from Amsterdam as part of my Fulbright Fellowship on international copyright literacy I have been blown away by the shared mission and values of scholars and librarians in many nations and the tremendous work they are doing in reliance on these exceptions. For open science, fair use can and must be the missing ingredient that fills the gap between “open access” and “a global system of scholarship grounded in equity, quality, usability, and sustainability.”

Unfortunately, those Gnomes can be persistent. For many open scholars, the copyright aspects of their work still begin and end with rights retention and a CC license. For some, their hesitancy is grounded in copyright anxiety, or a sense that open licenses are an escape hatch that can free them from having to really understand the law. I’ve even had conversations with scholars who suggest that openly-licensing their work somehow disqualifies them from relying on fair use or fair dealing! Of course, nothing could be further from the truth. 

Creative Commons licenses exist within and rely on the copyright system. Scholars much smarter than me have spelled out how fair use and fair dealing permit the inclusion of third-party inserts in most jurisdictions around the world. But even as UNESCO’s Recommendations recognize that open science “builds upon existing intellectual property systems and fosters an open approach that [relies on] flexibilities that exist in the intellectual property systems,” copyright training remains focused on the simplest version of author’s rights and open licensing (both ironically contract, rather than copyright, issues). Too often we’re talking about open knowledge without any serious discussion about fair use, fair dealing, or really about copyright at all. 

So, as we celebrate Fair Use Week and the Year of Open Science, I hope you will take the opportunity to help make copyright in open science a bit less Gnomic. Open scholarship is not merely compatible with fair use; it requires a clear understanding of copyright, headlined by the ways that fair use and fair dealing can align scholarship with our values. Indeed, significant work is being done to support global shared copyright literacy in this area. Leading scholars like Tanya Aplin and Lionel Bently have argued that current treaties mandate a global right to quotation under fair use. The international Right to Research project is working to study changes needed in international copyright policy to ensure equity in the production of and access to research. In the EU the reCreating Europe project is currently releasing their final working packages.

In order to explore this issue and document the exciting new work the Journal of Copyright in Education and Librarianship is developing a special issue on Copyright in Systems of Open Knowledge. The call for proposals is currently open and, as guest editor, I would love to hear about your own work and help you develop an article. Whether you are creating open scholarship that relies on fair use, developing a training program that supports compliance with Plan S or the OSTP Memo, or advocating for changes in the law to make scholarship more inclusive and equitable, we hope you will share your stories. I know we can do so much better than following the Underpants Gnomes.

Will Cross is the Director of the Open Knowledge Center & Head of Information Policy at N.C. State University where he guides policy, speaks, and writes on copyright literacy and open knowledge. He recently served as a Hewlett-funded Open Education Fellow and as an instructor for the UNC SILS. As a course designer and presenter Will has developed training materials and workshops across the US and for international audiences from Ontario to Abu Dhabi. Will holds a law degree from UNC Chapel Hill, where he also earned his M.S. in Library and Information Science, his M.A. in Media Law & Policy, and his B.A. in Constitutional History and Dramatic Art. Will’s current research focused on the relationship between copyright literacy and open knowledge is supported by grants from the IMLS, the Hewlett Foundation, and LYRASIS. In the 2022-23 academic year he is conducting research on international copyright literacy practices as a Fulbright Schuman Innovation Fellow based in Amsterdam and working with peers across the EU.

Fair Use Week 2023 (10th Anniversary): Day Five With Guest Expert Kathleen DeLaurenti

I am delighted to kick off the final day of the 10th Anniversary of Fair Use Week with a post from a copyright music expert. Join Kathleen DeLaurenti as she explores “Musical Fair Use in the Age of Digital Access” – Kyle K. Courtney

Musical Fair Use in the Age of Digital Access

By Kathleen DeLaurenti

In their 2004 edited volume, Music and Copyright, Lee Marshall and Simon Frith suggested a future that looked a lot like the film The Fifth Element: something akin to blockchain would stamp and track every interaction you had with digital music, using a system of micropayments to tally, charge, and penalize non-payers for access to music. Thankfully, our system of compulsory licensing has continued to find ways for musicians and fans to share music without turning us all into cyborgs. Yet since the Copyright Act of 1976, changes to the law have been largely in response to the interests of rights holders, leaving libraries and music collections to navigate a different kind of dystopia.

We often talk about fair use and music in the context of sampling. And while sampling is an important part of the music copyright landscape, music collections and their users have quietly been employing fair use in other ways for decades. Performers who are using scores in collections for private study often format shift to a print or digital copy to fully annotate their work. Accompanists might digitize by creating a single-sided copy to avoid an impossible page turn. Students working in new media might use physical collections in digital media projects that require them to rescore film scenes or understand the fundamentals of making sample-based music. 

Fair use continues to bolster Section 108 uses for music collections: 108(i) limits many Section 108 activities for musical and audio-visual works. Without access to these exemptions, libraries and cultural institutions have often had to make fair use assessments for preservation and access activities. Fair use remains a critical tool for preserving and providing access to our musical cultural heritage.

But before the Music Modernization Act (MMA) went into effect in January 2019, sound recordings made before 1972 did not have clear fair use protections. In fact, prior to the passage of the MMA in 2019, pre-1972 sound recordings had no federal copyright protection at all. This also meant there was confusion and uncertainty about whether or not institutions could take advantage of federal copyright exceptions, including fair use. These recordings traditionally have not enjoyed robust digital preservation, either; in 2008, Universal Music Group (UMG) lost as many as 175,000 master recordings in a single fire that destroyed their entire physical archive of master recordings. 

And unlike paper, physical audio and visual media formats deteriorate. Quickly. Sometimes very quickly. While vinyl is a fairly stable format, each play introduces discrepancies into the actual disc that impact future playback. Magnetic tape, the recording format of choice for most of the 20th century, remains at risk of being mangled in playback equipment, being demagnetized through accidents, or in some cases literally disintegrating on the shelves through a phenomenon called “sticky-shed syndrome.” It’s hard to quantify the scale of audio-visual media that we’re losing. The Library of Congress National Jukebox only has about 10,000 recordings represented there for preservation and future access. It’s estimated that in 2022, the first year sound recordings went into the public domain, that copyright expired on more than 400,000 recordings made before 1923. 

In addition to gaining certainty with fair use in engaging in preservation and access activities, libraries garnered another important legal right: a rule construction that expands Section 108(h) to apply to all sound recordings made before 1972

You might ask me “Kathleen! That’s all great, but what does that have to do with fair use?” One perhaps unintended consequence of this provision – which gives broad latitude to reproduce, distribute, display or perform sound recordings – is that Section 108(i) still restricts that copy and lending activity for musical compositions. Suppose you discover a reel-to-reel tape in your archival collections of Billie Holiday performing “Strange Fruit” at the Café Society in Greenwich Village in 1939: At first, it might seem like you would be able to widely share this 1939 recording under the new provisions in the MMA. However, the musical composition remains copyrighted until 2033

This means that for many Section 108(h) activities – when our institutions want to share unique recordings with researchers, educators, and scholars – we may still need to make fair use assessments where the other exceptions are still 

Fair use is also a critical tool for music collections who may want to implement Controlled Digital Lending (CDL) for access to physical music collections, particularly in cases where students may need access to musical scores for course-related research and study. There are very limited options for institutions who want to acquire musical scores for digital access through purchase or license. Unlike the sciences, social sciences, and humanities, open access isn’t a workable solution for access to musical scores that are still under copyright; in fact, new music is more likely to be unavailable even for purchase, with access limited to rental copies. (Scores for film music, which are often works for hire, are almost never released for purchase to anyone). 

However, fair use and CDL can fall short for performing musicians. During the COVID-19 pandemic, several institutions who were taking advantage of the HathiTrust’s Emergency Temporary Access Service (ETAS) heard many complaints from users that the view-only access limited their ability to critically annotate, analyze, and study musical works. Unlike traditional texts where you can take meaningful notes separately in your personal notebook, musical analysis employs specialized annotations that are only meaningful in tandem with the original music notation and makes no sense when separated. 

In response to this, the Music Library Association recently issued a Model Purchase and License Agreement for Digital Scores. Without clarity around digital first sale, it continues to be important to clarify exactly how an institution will use born digital content. We hope that independent composers will also employ their own custom versions of this agreement in their online shops, making it easier for institutions to acquire, preserve, and provide access to these important new works.

The passing of the MMA has provided opportunities for music collections to engage even more deeply in critical preservation and access activities. But until we advance the policy changes we need for libraries to collect and share (and make fair use of!) digital collections, we hope tools like the MLA’s Model Purchase and License Agreement for Digital Scores will allow libraries to continue to collect important works and prevent a gaping chasm in the future cultural record.

Kathleen DeLaurenti is the Director of the Peabody Institute of the Johns Hopkins University’s Arthur Friedheim Music Library. She previously served as the arts librarian, open education coordinator, and scholarly communication librarian at the College of William & Mary. She is currently the co-chair of the Music Library Association (MLA) Legislation Committee where she has also served as chair of the Best Practices for Fair Use in Music Collections task force. 

Fair Use Week 2023 (10th Anniversary): Day Four With Guest Expert Juliya Ziskina

The second post of Day Four of the 10th Anniversary of Fair Use Week with a write up from Juliya Ziskina, Policy Fellow at Library Futures. Juliya examines two pending fair use cases and asks an important existential question.  -Kyle K. Courtney

Is Fair Use Really the Answer to Life, the Universe, and Everything?  

By Juliya Ziskina

Here on Harvard Library’s Fair Use Week blog, it is not a shocking statement to say that we love fair use. Fair use is both crucial and nebulous—indeed, its nebulousness is part of its design, given that it serves as a type of safe haven, decided on a case-by-case basis. Where statutes in the modern day are formulaic and often distilled into a multi-part judicial test, fair use is relatively open-ended, allowing judges a good amount of latitude—not just in terms of how to apply the doctrine, but also when. As such, fair use’s role in copyright law has grown as litigants and judges often use fair use as a backstop for other means of deciding copyright claims.

Fair use is undoubtedly important, but overreliance on it is not necessarily beneficial for the outcome of copyright cases, or even for the doctrine itself. As Authors Alliance Executive Director Dave Hansen wrote during Fair Use Week in 2020, there is a “pressure to look to fair use as a way to avoid other hard questions about other areas of copyright law. If we look to fair use to solve all our copyright questions, that pressure could start to water down and ultimately threaten the coherence of the doctrine.” Similarly, Public Knowledge Legal Director John Bergmayer wrote nearly 10 years ago: “If you love fair use, give it a day off once in a while.”

Exclusively relying on fair use can result in unintended consequences. Employing a fair use analysis when one is not necessarily needed can undermine the stability of the doctrine, and can preclude other means of analysis that are not only better suited to the facts of a case, but could create better precedent.

Two recent cases currently before the courts are meaningful examples of Bergmayer’s and Hansen’s prescient observations: Andy Warhol Foundation v. Goldsmith, and American Society for Testing and Materials, et al. v. Public.Resource.Org. I’ll examine each of these in turn, and discuss why fair use was applied too broadly in Warhol and is also not the suitable framework for ASTM v. Public.Resource.Org.

Andy Warhol Foundation v. Goldsmith

In 1984, photographer Lynn Goldsmith licensed to Vanity Fair the right to use one of her photographs of Prince for the purpose of creating an illustration that Vanity Fair was commissioning for an article. Unbeknownst to Goldsmith, Warhol created the illustration for Vanity Fair. Further—also unbeknownst to Goldsmith—Warhol used Goldsmith’s photograph to create 15 additional works using the silkscreen process, known as his Prince Series

Goldsmith claims that she first discovered the existence of the Prince Series after Prince’s death in 2016, when Vanity Fair used one of the Prince Series images in a tribute issue. The Andy Warhol Foundation (AWF) sought a declaratory judgment that the Prince Series was fair use. Goldsmith counterclaimed for copyright infringement.

The lower court ruled in favor of AWF, finding that Warhol’s work was transformative and therefore that it was a fair use. The Second Circuit reversed on appeal. The Second Circuit focused on visual similarity of the works and the fact that both were “created as works of visual art” and are “portraits of the same person.” The Second Circuit refused to “seek to ascertain the intent behind or meaning of the works” contrary to the Supreme Court in Campbell v. Acuff-Rose Music, which instructed that courts must view a work as transformative if it adds a new “meaning or message.” (Importantly, the Campbell Court also made clear that a finding of transformative use, while important, is not necessary for a finding of fair use.)

And, as such, the district court and the Second Circuit positioned Warhol and its fair use analysis as revolving around a single, critical concept: “transformativeness.” The issue with this is that the vast majority of modern courts already use the transformative use concept throughout the fair use inquiry as the dominant means of resolving various fair use questions. Once courts determine that a use is transformative, that determination often seems to dictate the rest of the fair use analysis and, ultimately, the case’s outcome. As one study asked: “is transformative use eating the fair use world?”

Warhol is a useful example. Rather than centering on the lawfulness of the Prince Series, the lower courts should have focused more narrowly on the lawfulness of the Andy Warhol Foundation’s licensing of the Prince Series for reproduction and distribution in Vanity Fair. Judge Dennis Jacobs argued in his concurring opinion that, properly understood, this case does not necessarily address whether the creation of appropriation art is a fair use, but whether the licensing of a derivative image for widespread distribution in a magazine is a fair use. According to Judge Jacobs, fair use is about uses, not works. Perhaps, he offered, some uses of the Prince Series may be within the scope of fair use, even if others are not. Specifically, while licensing the Prince Series as images of Prince competes directly with Goldsmith’s exploitation of her photograph, the creation of the original artworks did not, nor do other sorts of licenses (such as museum displays).

Why does it matter that the courts viewed the Warhol case through a broad fair use lens? As detailed in the Library Futures, et. al. amicus brief, this decision could impact libraries and archives because research, teaching, scholarship, and preservation rely on the stability of fair use. 

Upending our understanding of fair use could upend many of a library’s functions and make it harder for libraries and researchers to leverage fair use to create new research tools or improve accessibility of collections, such as in Authors Guild v. Google and Authors Guild v. HathiTrust. Incidentally, in an attempt to make fair use more predictable to supposedly ensure consistent application, the Court risks undermining the stable understanding of fair use that has already existed since Campbell. This potential result could have been avoided by taking a narrower fair use view.

American Society for Testing and Materials, et al. v. Public Resource Org

ASTM v. Public.Resource Org, currently pending in the D.C. Circuit Court of Appeals, is also a case that unsuitably applies a fair use analysis. In ASTM v. Public.Resource Org, several major industry associations, including ASTM, are suing to prevent Public.Resource.Org, a small, but mighty nonprofit organization, from posting reference standards (such as building codes) online. Many agency regulations incorporate reference standards developed by private organizations, such as ASTM. Although these standards have the force and effect of law once they are incorporated in agency regulations, they are not printed in the Federal Register or the Code of Federal Regulations and they can often be difficult for the public to access. ASTM sells hard copies and digital versions, and makes their standards available for free online in “read-only” mode. Public.Resource.org—an organization devoted to making laws and other government documents available to the public—purchased physical copies of the plaintiffs’ standards and scanned and digitized copies to make them freely available online to the public. All of these standards have been incorporated by reference into federal law. ASTM and other standard development organizations sued Public.Resource Org for copyright infringement.

The district court concluded that such standards as incorporated into the law are protectable by copyright. On appeal, the D.C. Circuit Court of Appeals reversed and remanded, sidestepped addressing whether the standards retain copyright after incorporation by reference into law, and instead instructed the lower court to analyze the Public.Resource Org’s use of the standards (e.g. posting them online) primarily through the lens of fair use. The court recognized that there is a spectrum of incorporated standards that ranges from those that “impose legally binding requirements” to those that “serve as mere references but have no direct legal effect.” This wide variation created difficulties in determining which standards are actually “the law.” This conclusion led to the court’s sole focus on Public.Resource Org’s fair use defense. In March 2022, the lower court issued an opinion that would allow Public.Resource Org to reproduce 184 standards under fair use, partially reproduce one standard, and deny reproduction of 32 standards that were found to differ in substantive ways from those incorporated by law. ASTM appealed the case to the D.C. Circuit, where it is currently pending.

Performing this analysis through a fair use lens precludes a more important discussion about copyrightability and public access to the law. As argued in the Library Futures, et. al. amicus brief in support of Public.Resource.org, when a law-making entity incorporates a standard by reference into a rule or regulation, the contents of the whole of that publication must be freely and fully accessible by the public. No one can own the law, and because fair use is only relevant for copyrighted works and not those in the public domain, it should not be the primary analysis here.

By framing the case through a fair use analysis, the court also avoids grappling with a broader question: what constitutes reasonable access to the law? Arguably, ASTM’s “online reading rooms” are not a sufficient substitute for unrestricted access to the law, because they are not actually “free.” In order to obtain access, ASTM requires users to register with their personal information, and agree to a voluminous, multi-part privacy policy and a nearly 1000-word contract that restricts users from transmitting the documents or performing simple cut and paste tasks. This scenario brings to mind an exchange about access in The Hitchhiker’s Guide to the Galaxy:

“But the plans were on display…”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well, the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice, didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display on the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.’”

 –Douglas Adams, The Hitchhiker’s Guide to the Galaxy

Judge Katsas, in his concurrence in ASTM v. Public.Resource.Org,  echoed a similar idea, noting that “access to the law cannot be conditioned on the consent of a private party, just as it cannot be conditioned on the ability to read fine print posted on high walls.”

Ironically, the fair use analyses in AWF v. Goldsmith and ASTM v. Public.Resource.Org should be swapped: rather than centering on the works themselves, the Warhol Court should be centering on the use of the works at issue; and, rather than centering on Public.Resource.Org’s use of the standards, the court should be centering on the copyrightability of the standards themselves.  

These cases illustrate the important point that, despite how much we love fair use, before we jump to its analysis we should ask: “Is it copyrightable in the first place?” and “Is there a better lens through which to look at this case?”

Juliya Ziskina is a Policy Fellow at Library Futures and an attorney in New York City. While she was a law student, Juliya co-founded and led a successful initiative for an institutional open access policy at the University of Washington.

Fair Use Week 2023 (10th Anniversary): Day Four With Guest Expert Dave Hansen

I am delighted to host our first post of Day Four of the 10th Anniversary of Fair Use Week with a write up from Dave Hansen, copyright expert and Executive Director Authors Alliance. Dave winds us through the complex relationship between licensing language and fair use in “How to Evade Fair Use in Two Easy Steps.”  -Kyle K. Courtney

How to Evade Fair Use in Two Easy Steps

by David R. Hansen

Fair use is an essential part of the Copyright Act’s careful balance—on the one hand protecting rightsholders’ interests, while on the other “[permitting and requiring] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” The Supreme Court has explained that fair use is a core part of what makes the Copyright Act compatible with the First Amendment guarantees of free expression. “First Amendment protections are ‘embodied . . . ’ in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.”

Fair use is what has allowed biographers to quote critically from originals when writing their own works, even when the copyrights are owned by the rich and powerful, as in cases involving L. Ron Hubbard and Howard Hughes. It’s what allows researchers to write and quote from unpublished manuscripts for literary criticism, as in this case about scholarly use of an unpublished work by Marjorie Kinnan Rawlings Baskin. It’s also what has allowed libraries to provide copies of books to blind readers, conduct research across texts, and make preservation copies. It allows reuse of images in support of news and political commentary, supports researchers who use tools like Google Image Search, and allows artists to use source materials to create transformative new works, such as parody.

Two easy steps to evade fair use

Given its importance, it may surprise you to learn that fair use is remarkably easy to evade. Savvy copyright owners do it all the time.  It takes just two easy steps.

First, you need to write a contract, specifically a “license” for the use of your work. In it, you dictate the terms on which you provide access to your work. You can impose almost any restrictions you like. Sometimes, contracts will restrict certain classes of uses: “you cannot reproduce this content for commercial use” or “you may download one copy of this work for personal consultation; you cannot reproduce or share any part of this work in whole or in part in any form, or share in any form with the public.”

Other contractual terms guard against specific threats. For example, Disney once brought (and won) an infringement suit over its movie trailers, which Disney would license to websites only if they agreed that the website “may not be derogatory to or critical of the entertainment industry or of [Disney] (and its officers, directors, agents, employees, affiliates, divisions and subsidiaries) or of any motion picture produced or distributed by [Disney].”

The key here is that you can essentially rewrite the rules, and forbid those aspects of fair use that you disapprove of. Want to make sure critics can’t use your words against you? Just say they can’t. Want to make sure libraries don’t make preservation copies without paying you first? Want to make sure that instructors of college classes can only use excerpts of your book—even very small excerpts—if they pay every single time? It’s your prerogative.

Second, you need to make sure that everyone who gains access to your work is bound by your license. This sounds hard, but with online distribution, it’s actually pretty easy.

In the world of print copies, this was difficult because copies had a way of traveling beyond the control of the original purchaser. The “first sale” doctrine meant that buyers of copies could freely transfer those copies to third-party buyers (e.g., someone who buys a book at a used book store, or who borrows a book from a library) or give them away. So, even if you got the original buyer to agree to your terms, those downstream users didn’t have to. But there is no widespread acceptance of a buyer’s “digital first sale.” So, buyers can’t just transfer the copies they purchase to downstream users. Everyone who wants access to the digital copy must agree to the license. All you have to do is make sure that your materials are distributed exclusively on digital platforms that are subject to your terms, and you’re all set.

That’s it. Two easy steps and you’ve practically eliminated fair use. For any use you haven’t already authorized, you can just say no, require them to pay whatever you want, or just refuse to grant access. And if they don’t comply, at a minimum you’ve got at a slam-dunk breach of contract claim.

Is it seriously that easy?

Unfortunately, this two-step approach–sometimes known as “contractual override”–reflects the prevailing wisdom and practice of many copyright owners. It is widely used online, by parties ranging from massive corporations such as Amazon or Netflix to small publishers and news outlets. And though it hasn’t been completely tested in the courts, when it has come up, the licensors have mostly prevailed. Because U.S. law so venerates “freedom of contract,” it has been difficult for policymakers or the courts to address the problem of rightsholders forbidding lawful fair uses under the terms of their licenses.

How did we get to this point? This is not a new or unexpected problem. You can look back to 1993, when law professor Jane Ginsburg  foresaw this state of affairs just as the possibilities of the internet were coming into view:

“In the digital environment posited here, contract protection may not be the fragile creature presumed in prior intellectual property preemption decisions. If access to works could be obtained only through the information provider (directly or through an authorized online distributor), and if copying could be electronically tracked or prevented, no ‘third parties’ to the contract would exist. When ‘we’re all connected,’ no functional difference may exist between a contract and a property right. At that point, it becomes necessary to consider whether limitations incorporated in the copyright law should be imported to its contractual substitute.”

Numerous others in the legal community soon made similar observations, such as Julie Cohen, Niva Elkin-Koren, and Andrew Shapiro, among others, who also wrote about aspects of this then-new challenge.

How to Protect Fair Use from Contractual Override

A handful of efforts to address this problem have been mounted in Congress. In 2003 and 2005, representative Zoe Lofgren introduced a bill appropriate called the BALANCE Act (“Benefit Authors without Limiting Advancement or Net Consumer Expectations”), which addressed both the unavailability of “first sale” in the digital environment and contractual override of fair use. The proposed legislation provided that “[w]hen a digital work is distributed to the public subject to nonnegotiable license terms, such terms shall not be enforceable under the common laws or statutes of any State to the extent that they restrict or limit any of the limitations on exclusive rights under this title.” The BALANCE Act was never passed however, and hasn’t been revisited in Congress since 2005.

Recent actions in other jurisdictions to address similar issues may provide renewed legislative interest and guidance on possible models to adopt. For example, in 2014, the UK passed legislation that limits contractual override of user rights—providing specifically that “to the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.” This language has been applied in the UK to exceptions that allow for making copies for persons with print and other disabilities, research and teaching, and text and data-mining. Similarly, the EU’s recent Copyright in the Digital Single Market Directive contains similar protections for copyright exceptions, as does Singapore’s recent Copyright Bill. So far, though, there has been no indication of real interest from Congress in the United States.

It’s also possible that states could craft legislation. There has recently been a surge of interest in bills in a number of states that are aimed at protecting libraries’ ability to license books on reasonable terms (bills that Authors Alliance generally supports). These bills also go beyond what fair use protects—seeking to, for example, ensure that libraries have broad access to ebooks on “reasonable terms,” and addressing problems of major publishers simply refusing to license books to libraries. Maryland was the first state to actually pass such a law, but it was struck down as preempted by federal copyright law in AAP v. Frosh. The court concluded that because federal copyright law dictates the scope of rights governing public distribution of works, it was impermissible for the state of Maryland to interject its own rules about the scope of the publishers’ distribution rights.

It’s possible that state legislation that is more narrowly tailored—e.g., a state law that focused solely on protecting fair use—would not suffer the same fate as the Maryland law. In fact, the reasoning of the Maryland e-lending case would seem to support such a state law, since a state law protecting fair use would be maintaining, rather than altering, the balance of rights as defined by federal law.

Legal Strategies in Court

It’s also possible that the courts could intervene, though to date they have mostly declined to do so. It seems to me there are two or three viable ways for judicial intervention to be effective:

First, Courts could conclude that contracts (created under and governed by state law) are preempted by federal copyright law, which is what defines the scope of copyright’s exclusive rights.  The Constitution provides that federal law supersedes conflicting state law, and Congress has provided specific instructions on how such preemption should apply, stating that “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 . . .  are governed exclusively” by federal copyright law. Those exclusive rights of copyright owners are explicitly defined as being “subject to” the limitations including fair use, so it would make some sense for courts to view state law expansions of those rights as being in conflict with and therefore preempted by federal copyright law.

However, there are several negative precedents indicating that this approach may not work. Take Bowers v. Baystate, for example, a Federal Circuit case involving two competing computer aided design (CAD) software companies. Bowers contended that Baystate violated the terms of use on its software by reverse-engineer its product in violation of a clause explicitly prohibiting such use. Baystate contended that such reverse engineering was protected by fair use and that contract terms to the contrary should be preempted as inconsistent with federal law. The Federal Circuit, observing that as a general matter “most courts to examine this issue have found that the Copyright Act does not preempt contractual constraints on copyrighted articles,” concluded that “private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act. . . . [A] state can permit parties to contract away a fair use defense or to agree not to engage in uses of copyrighted material that are permitted by the copyright law, if the contract is freely negotiated.”

Other courts addressing state contract law and other state law limitations on fair use (e.g,. this California right of publicity case) have largely followed the same approach. One notable exception to is Vault Corp. v. Quaid Software, Ltd., in which the Fifth Circuit invalidated a Louisiana law that permitted contracts to prohibit reverse engineering, even though federal law provides a specific exception (Section 117) that allows for such reverse engineering. Although not directly addressing fair use, the court’s holding could apply equally to state law contractual restrictions on fair use. The issue has not directly reached the Supreme Court, though there is a case, Genius v. Google, currently pending on a Petition for Certiorari that asks the Court to weigh in on the broader question of when federal law preempts contracts under state law.

Second, courts could conclude that the state common law (the body of law made up of legal principles established by courts over the years) on contracts does not permit contractual restrictions on fair use. This could come in a few different forms. One option might be for courts to consider more seriously the question of whether a valid contract is actually created in the first place, particularly in situations where users have no meaningful opportunity to negotiate terms and little ability to even understand what restrictions they are agreeing to. For years, following the lead of the Seventh Circuit Court of Appeals in ProCD v. Zeidenberg, courts have been willing to accept that a valid agreement is formed even in situations with “shrinkwrap” or “browsewrap” licenses. But, despite ongoing criticism of this approach by many, the approach has prevailed. Courts might also take more seriously the public policy implications of fair use evasion more directly, by invoking traditional rules for contract interpretation that hold terms unenforceable when they violate public policy—e.g., agreements to commit a crime, or a tort, or restraint of trade. To date, however, I’m unaware of any such cases directly applying these principles to contracts that restrict fair use, though there is a large body of case law and this may merit more research.

Third, the courts could apply existing or new equitable doctrines, such as “copyright misuse” or a yet-to-be-defined right of “fair breach” protect users of copyrighted works from overenforcement of contracts that limit fair use. A term first coined by Professor Jane Ginsburg, is for the courts to develop their own remedy—a “fair breach.” She observes that, as with the current licensing environment online, at some point “it becomes necessary to consider whether limitations incorporated in the copyright law should be imported to its contractual substitute. With respect to libraries and their users, one should inquire whether some kind of fair use exception is appropriate. This might take the form of a judge-made right of ‘fair breach,’ or legislatively imposed mandatory library-user rights.”

This idea of “fair breach” has drawn little attention since Ginsburg first identified its need and coined the term, but it merits further attention. “Fair breach” may have some similarity to the existing doctrine of copyright misuse, which could have some application to contracts that restrict fair use. A judge-made doctrine borrowed from the patent law doctrine of patent misuse, copyright misuse has been mostly applied to situations where copyright owners have attempted to exercise their rights to unfairly stifle competition. The primary question with copyright misuse is “whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright.” If copyright misuse is found, the copyright isn’t invalidated, but courts have held that the owners’ copyright cannot be enforced to exclude the harmed party’s use. The Supreme Court has yet to acknowledge the existence of this doctrine, but numerous appellate courts have recognized it over the last thirty years.

A handful of cases suggest that extension of copyright misuse to fair-use limiting contracts could be effective. For example, in Assessment Technologies of Wi, LLC v. Wiredata, the Seventh Circuit Court of Appeals held that Assessment Technologies’ attempt to restrict access to data that was not copyrighted fell within the copyright misuse doctrine’s core focus: “preventing copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly.”  Video Pipeline, Inc. v Buena Vista Home Entertainment, Inc., also gives some encouragement. Video Pipeline brought a declaratory judgment action seeking a judgment that its use of video trailers from Disney and others was not copyright infringement. Among the defenses it cited was copyright misuse on the part of Disney. To support its copyright misuse argument, Video Pipeline pointed to the license term I mentioned at the beginning of this blog post, which prohibited disparaging Disney or the entertainment industry. The court ultimately declined to find that those terms constituted copyright misuse, because the contract had a narrow focus and limited application: “we nonetheless cannot conclude on this record that the agreements are likely to interfere with creative expression to such a degree that they affect in any significant way the policy interest in increasing the public store of creative activity. The licensing agreements do not, for instance, interfere with the licensee’s opportunity to express such criticism on other web sites or elsewhere.” However, the court suggested that the outcome could have been different if the restrictions were more far-reaching


Contractual override of fair use poses a real threat to free expression, especially given the increasing limits on distribution of copyrighted works online. Almost all online platforms that distribute copyrighted works impose restrictions that inhibit fair use to some degree. It takes just two easy steps. Thankfully, there are some plausible routes forward for improving the law to protect authors and others who rely on fair use to create new works and share knowledge with the world. There is also some reason for optimism due to renewed interest in the issue among scholars and organizations such as the Association of Research Libraries, which issued a report on contractual override for libraries, and is co-hosting a symposium with Washington College of Law at American University on the subject with perspectives from around the world.

Dave Hansen is the Executive Director of Authors Alliance, a non-profit organization that works to advance the interests of authors who want to serve the public good by sharing their creations broadly.  Before leading Author’s Alliance, he was the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries.

Fair Use Week 2023 (10th Anniversary): Day Three With Guest Expert Carla Myers

Our second post of Day Three of the 10th Anniversary of Fair Use Week with a write up from Carla Myers, fair use expert and creator of the Kraemer Copyright Conference (now also celebrating 10 years this summer!) Join Carla as she explores the critical relationship between library reserve systems and fair use. -Kyle K. Courtney

Fair’s fair! Celebrating the Ongoing Impact of Fair Use on Course Reserve Services

by Carla Myers

At 175 words, the fair use statute is fairly short, especially when compared with other sections of U.S. copyright law. It’s impact on libraries and academia is tremendous though, especially when it comes to course reserve services, which play a critical role in connecting instructors and students with required and supplementary learning materials used for teaching, research, and the creation of new scholarship.

While physical works such as books and DVD’s are circulated via print reserves under the first sale doctrine, copies of protected works library staff make and circulate via reserve services are almost always made available under the auspices of fair use. For example, an instructor may wish to have students read a selection from a book in preparation for an in-class discussion. Working through the four factors of fair use, library staff decide that their photocopying of the selection would be considered fair under the law and circulate it to students.

During the heyday of print reserve services in the 1980’s and 1990’s it was not uncommon for libraries to make hundreds of readings available this way. With the emergence of electronic reserve services in the late 1990’s and early 2000’s, many of these readings shifted format, with PDF’s replacing photocopies and students bring able to engage with the readings any time of day from any place they had an internet connection. Later, technology emerged that allowed libraries to make film and music available to students and instructors via media reserve services. No matter the format, several key factors remained the same in fair use evaluations for works instructors were looking to make available via reserve services.

The purpose and character of the use…

The first factor of fair use will weigh heavily in the library’s favor when works are being made available via reserves for educational purposes that support the teaching and learning mission of the institution.

The nature of the copyrighted work…

While more creative works generally receive greater protection than fact based works, a variety of works many legitimately be used for teaching and, as such, the use of works of fiction, popular movies, etc. would not necessarily weigh against a finding of fair use.

The amount and substantiality of the portion used…

The third factor places no limits on the amount of a work that can be reused and be considered fair. There are numerous cases where the courts have found that the reuse of 100% of a work to be fair, and others where the reuse of small portions of a work have been found to be infringing. Here, a use is more likely to be considered fair if the instructor requests and the library makes available only as much of the work needed to effectively teach the lesson or illustrate a point.

The effect of the use upon the potential market…

When considering the fourth factor, staff will likely wish to determine if a license can be obtained for the excerpt the instructor is looking to make available via print, electronic, or media reserve and factor its availability (or lack of availability) into their analysis.

Though it took almost twelve years to reach its conclusion, the Georgia State electronic reserves case confirmed that fair use, when thoughtfully exercised, can be used by libraries providing reserve services to their campus communities. In 2008, Cambridge University Press, Oxford University Press, and Sage Publications, with financial backing from the Copyright Clearance Center and the Association of American Publishers, filed suit against Georgia State University (GSU), claiming they had infringed copyright by posting selections from books they published to their library’s electronic reserves system and requesting, among other things, an injunction from the court to force GSU to stop making them available. The case was litigated over twelve years, and in 2020 GSU was declared to be the prevailing party. Of the original 99 claims of infringement put forward by the publishers, the judge ruled that 89 were fair uses. I encourage readers to review the opinions in this case as they provide interesting insights into conducting fair use analyses. They can be found alongside articles and resources summarizing the case on this LibGuide developed by Laura Burtle, Associate Dean for the Georgia State University Library.

Now Controlled Digital Lending (CDL) provides libraries with an opportunity to expand reserve services even farther by circulating full digital copies of works “in place of a physical one in a controlled manner.”[1] This an exciting development in general, but especially for those students enrolled in online degree programs as it can allow them to fully engage with the library’s print collection in a timely manner, whereas before they often had to rely on books traveling to them via the mail though home delivery services offered by libraries. Making course materials available via CDL also offers an alternate option for engaging with resources to students whose health and wellbeing may present them from leaving home at times, or who find themselves facing a personal or family emergency that results in unexpected travel away from campus. The legal theory behind CDL includes fair use, building upon the ways in which libraries have exercised this user right to connect patrons with services and resources.

Much of my professional career has been spent supporting reserve services and answering questions about the related copyright issues. I’m excited to share that in the fall of 2022 I published book on this very topic, Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, from Libraries Unlimited (978-1-4408-6203-8). One of the largest chapters is devoted to fair use, and I hope it will be helpful to those working in libraries looking to better understand how to exercise this user right.


When talking about fair use I always encourage folks to stick to the four factors when making their determination, avoiding arbitrary ‘guidelines’ that have nothing to do with the law (e.g., that fair use only allows you to reuse 10% of a work). However, I will tell those working in libraries that when making fair use determinations we also need to remember our mission and ensure we’re not letting fear of litigation prevent us from fully exercising rights granted to us by Congress in copyright law. In the few fair use cases brought against libraries (in which almost all the libraries have been the prevailing party!) the courts have viewed favorable thoughtful applications of fair use that balance the rights granted to creators of copyrightable work under the law and patron needs. There will be times when staff need to say “this request goes beyond the scope of fair use and we can’t make this work available through electronic reserves” though other options almost always exist, such as circulating a physical copy of the work via print reserves under the first sale doctrine. Hopefully, more often, after making a thoughtful fair use determination, library staff will find they can say “this request seem fair and we can make it available via reserve in support of our mission and that of our educational institution.”

Carla Myers serves as Assistant Professor and Coordinator of Scholarly Communications for the Miami University Libraries. Her professional presentations and publications focus on fair use, copyright in the classroom, and library copyright issues

[1] Bailey, L., Courtney, K. K., Hansen, D., Minow, M., Schultz, J., & Wu, M. (2018, September). Position statement on Controlled Digital Lending. https://controlleddigitallending.org/statement

Fair Use Week 2023 (10th Anniversary): Day Three With Guest Expert Sandra Aya Enimil

I am delighted to present the third day of the 10th Anniversary of Fair Use Week with a guest post by copyright expert Sandra Aya Enimil from Yale University. In this post Sandra explores a bit of the pending Warhol decision through the lens of the subjects that may not always have rights in images that contain their likeness. -Kyle K. Courtney

Who Owns My Image? – A Fair Use blog about a Fair Use case (But this blog is not totally about Fair Use)

by Sandra Aya Enimil

It’s Fair Use Week and I was asked to write about a Fair Use topic, which I have done (here and here) for a few years now. This year though, I want to write about an issue that I have been thinking a lot about and it is related (tangentially) to an important Fair Use case on the minds of many. For this Fair Use Week 2023 blog , I am not fully discussing Fair Use, I want to discuss pillars of copyright law, and incredibly the important elements  of fixation and ownership.

Many people are following Warhol v.  Goldsmith, which was heard by the United State Supreme Court in October 2022. The case results from a dispute between the two artists, Andy Warhol and Lynn Goldsmith over a photograph of another artist, Prince.  Goldsmith is the original artist; Warhol received a copy of the image and created variety of colorized and enhanced versions of the image. Warhol, and later his estate, sold originals and prints of his versions of the image.  We now await a decision from the Supreme Court on whether Warhol’s use is Fair Use. There’s no doubt that a determination of what is transformative Fair Use is the main issue at play in this case.

The photo on the left was taken by Lynn Goldsmith and was licensed by Vanity Fair. Vanity Fair provided the image to Andy Warhol who then created the series on the right. The highlighted Warhol image was used in article after Prince’s death.

While I am curious about the forthcoming decision, something about the case had been bugging me and could not articulate it until I viewed a panel presentation from Professor Emily Behzadi about Warhol hosted by Jeffrey Prystowsky at Roger Williams University School of Law. Behzadi spoke about Prince as the subject of the photograph and the center of the controversy, but not one with the power of a copyright.

Her presentation made me recall another panel presentation by Professor John Tehranian on a similar theme:  cultural appropriation. Behzadi and Tehranian discuss race and gender implications regarding copyright authorship and the lack of copyright interest in images in one’s own likeness.  In photography, the person who snaps the photo, paints the portrait, who fixes the image in a tangible means of expression, is the copyright owner. In Warhol, Prince, or a representative, likely signed away his claim for any and all rights in the images taken by Goldsmith. While copyright was probably listed among the disclaimed rights, currently, a subject of a photo would typically never be considered a rights holder of the image unless they took the photo (selfies anyone?).   Goldsmith was and is the rightsholder of the images she took of Prince. The Warhol Foundation is making a Fair Use claim for the creation of the Prince series. Why doesn’t Prince, or now his estate, have any claim?

The interrogation of the assumption that subjects should have no interest in photographs is longstanding. A recent case, Lanier v Harvard, where the descendant of enslaved persons in a photographic collection[1] sought redress for use of the images, continued the conversation about the rights, not just of subjects, but of their descendants.

The descendant, Tamara Lanier, initially brought, among several claims, a copyright property interest claim. This claim was not allowed to move forward due to the issue of authorship and ownership (in June 2022, the Massachusetts Supreme Judicial Court allowed the case to proceed on a claim of emotional distress.). The photos were commissioned by professor and known white supremacist, Louis Agassiz on behalf of Harvard University. Harvard owns the copyright. The subjects, include ancestors of Ms. Lanier, Papa Renty and his daughter, Delia, had no property interest as subjects. Further as enslaved individuals at the time, they had no rights around consent or any other non-copyright rights photographic subjects might expect.

Attorney Josh D. Koskoff, left, Tamara Lanier, and Attorney Ben L. Crump, right. Massachusetts Supreme Judicial Court in Boston, November 2021. Photo by Raquel Coronell Uribe: https://www.thecrimson.com/article/2022/6/24/lanier-supreme-court-remanded/. Edited photographs of Delia and Papa Renty.

There’s also been engagement on social media, fascinatingly, on this issue as well. Consider the Twitter thread below by Dr. John Mason. Mason focuses on the person who is subject of the photograph and their agency, or not, in being photographed.

Actress and model, Emily Ratajkowski, echoed the sentiments of Florence Thompson, wondering why she, as a subject voluntarily or involuntarily, had no rights in images that contain her likeness. As with Prince, Ratajkowski likely signs releases for her commercial work as a model[2] and as a famous person, she is the subject of many photos where no permission is sought. She has even sued by a photographer for reusing an image of herself on her own social media page. Why can’t she have a copyright interest in the images of herself?

So, what is the solution? Should the person in the photo have rights in the image just as the person who created the image? Or perhaps following copyright considerations for oral history interviews, where the interviewee and the interviewer could both contribute copyrightable elements, should there be a joint or split copyright? Should we add a copyright interest for the subject of photos?

Many copyright scholars lament adding more rights to copyright law, arguing that copyright cannot be expected to “do it all.” In 1865, the category of photography was added to works that could be copyrightable[2] in the United States.[3] Forty years later audio-visual works (like motion pictures and films) were added. We have continued to add categories and refined definitions of author/creatorship, why not add another thing, a right for persons who appear in copyrighted works?

I can hear my copyright colleagues and researchers screaming at their laptops, “how is that going to work!?” I have no idea, how does any of this work?[4] But I do know, if a copyright interest for subjects in copyrighted works were added, Fair Use could apply to those copyrighted works.

Sandra Aya Enimil (she/her) is the Program Director for Scholarly Communication and Information Policy at Yale University Library. At Yale, Sandra provides strategic insight on licensing, scholarly communication, Open Access, copyright, and publishing issues. She is the Chair of the License Review Steering Committee and provides consultation on licenses of all types for the library. Sandra also provides information and resources on openness, Open Access, using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the library and across campus. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property. 

This blog is cross posted on the Conversations on Copyright at Yale Library Blog: https://campuspress.yale.edu/copyrightconversations/

[1] Carrie Mae Weems appropriated the images of enslaved people from the Harvard Archives in her artwork. Harvard later threatened a lawsuit, Ms. Weems felt her use was a Fair Use said she welcomed Harvard to continue the conversation in the courts. Harvard acquired the artwork. https://legalleft.org/wp-content/uploads/sites/11/2014/07/Murray.pdf

[2] Ratajkowski disputes signing a license for a photoshoot for a certain magazine, the photographer has since released multiple books using photos that were not used for the magazine. Ratajkowski considers those photos to be unauthorized use of her likeness

[3] There was a lot of debate about the creativity involved in mid-19th century photographs.

[4] In Burrow-Giles Lithographic Co. v. Sarony (1884), the Supreme Court confirmed that the U.S. Congress had the right to extend copyright protection to include photography: https://www.law.cornell.edu/supremecourt/text/111/53

[5] Basically we made up these laws, why not make up a few more?


Fair Use Week 2023 (10th Anniversary): Day Two With Guest Expert Brandon Butler

Avoiding Copyright Literalism and the Fairness of Computer-Generated Works

by Brandon Butler

The last six months or so have seen the seemingly sudden appearance of several startlingly powerful tools that create complex new textual and visual works in response to relatively simple prompts. You probably know at least a couple by name: chatGPT (for text) and Stable Diffusion (for images) are the ones that seem to have taken over my social feeds. These tools are creating a buzz in part because the works they generate are of sufficient quality that they could pass for or replace the work of humans, at least in some contexts. This raises a laundry list of policy questions, some as old as the story of John Henry (will machines put humans out of work?), others as 21st Century as data sovereignty (how can nations govern data pertaining to their citizens when it flows seamlessly around the globe?).

In copyright world – including in some the inevitable raft of lawsuits – the question has been put more narrowly: do these computer tools violate the copyrights of the works that are used to “train” them? Lots of smart people have opined on this already, so I don’t want to go too deeply down this rabbit hole myself. The technical legal answer I favor is straightforward, and the very short version is that there’s no meaningful difference between these tools and the other “non-consumptive”/computational uses that courts have already blessed as fair use many times over. These uses are fair because precedent pretty clearly says they are. Maybe I’m being too glib about the technical legal answer, but in any case, I want to answer a different question.

Why should we embrace this (IMO) fact about the law, that fair use generally protects tools like chatGPT and Stable Diffusion against copyright liability? Even if we have legitimate concerns about the impacts of these technologies, we should recognize these are not copyright concerns and stand by fair use and the robots’ right to read. I think the answer is rooted in copyright’s purpose, and the corresponding limits in its scope.

In a nutshell, my argument is this: The exclusive rights in copyright law are not well-tailored to the law’s public interest purpose. Applied broadly and literally (I’ll call this “copyright literalism”), the exclusive rights in the law threaten to chill uses that benefit the public and that do not result in the kind of unfair competition that copyright was meant to prevent. Fair use exists in part to shield legitimate uses from copyright literalism and contain copyright to its intended domain. The application of copyright’s exclusive rights to computer-generated works is copyright literalism par excellence—it punishes literal copying even though the final result is non-infringing and the putative harm to the copyright holder (the creation of new *non-infringing* works that are cheaper and easier to produce) is not the kind of harm that copyright exists to prevent.

(NB: I realize that in some cases these technologies can be tricked into reproducing their training materials, and of course in these cases the outputs likely are infringing. I’m addressing here the argument that computer-generated works that are the result of a process involving “training” with in-copyright works are per se infringing.)

Copyright is for the public

Article I, Section 8, clause 8 of the US Constitution gives congress the power to create copyrights (and patents). Crucially, the clause specifies the purpose of this power: “to promote the progress of Science and the useful Arts.” Granting copyrights “for limited times” (a term of 14 years at the time that clause was written) is a means to an end, which ideally congress and the courts should bear in mind as they consider how to modify or apply the law.

Congressional action has not always been guided by this principle (witness the extension of copyright term by more than a century despite little evidence of any public benefit, but courts, especially the Supreme Court, acknowledge copyright’s public interest purpose all the time. For example, here’s Justice Kagan in Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1986 (2016):

“[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works.”

And Justice O’Connor in one of my personal favorites, Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340, 349 (1991):

“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’”

And Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975):

“[P]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”

And Fox Film Corp. v. Doyal, 286 U. S. 123, 127 (1932):

“The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.”

The consequences of all this for fair use become clear in a pair of Supreme Court cases that enshrine fair use (alongside the idea/expression dichotomy) as a core, constitutionally-mandated element of the copyright law.

Public Interest Safety Valve(s)

Two cases sought to challenge the unprecedented expansion of copyright’s length and strength at the end of the 20th century. Eldred v. Ashcroft challenged the retroactive addition of 20 years to existing copyright terms, then Golan v. Holder challenged the restoration of copyright for works that had previously entered the public domain. In both cases the challengers argued that the law had intruded impermissibly on the public’s constitutional interests by starving the public domain, but in both cases the Supreme Court declined to second guess congress’s judgment.

To soften these blows to the public’s constitutional interest in copyright, the Court highlighted in Eldred (and reiterated in *Golan*) the presence of two key “First Amendment accommodations” in the law: fair use and the idea/expression dichotomy (the principle that copyright does not protect abstract ideas, only particular creative expressions). These doctrines ensure that even during the term of copyright, the public has some leeway to use copyright-encumbered works.

This is important because the literal scope of the exclusive rights in copyright are breathtakingly broad – reproduction, distribution, adaptation – there is hardly anything you can do with a copyrighted work that doesn’t involve one of these activities, especially in a digital context. And copyright infringement is what’s called a “strict liability” offense—there is no requirement that the alleged infringer have a bad intent in engaging in any of these acts. If not for fair use (and the body of other limitations and exceptions, including the idea/expression dichotomy), copyright would be a breathtakingly powerful private right to control others’ engagement with culture and knowledge.

Google v. Oracle, Copyright, and Competition

One more thread bears surfacing in this conversation: the role of copyright and fair use in fostering competition. The Supreme Court emphasized this role in its most recent fair use opinion, Google v. Oracle. In that case, Justice Breyer describes fair use’s role in the context of software copyrights:

fair use can play an important role in determining the lawful scope of a computer program copyright… It can distinguish between expressive and functional features of computer code where those features are mixed. It can focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products. In a word, it can carry out its basic purpose of providing a context-based check that can help to keep a copyright monopoly within its lawful bounds.

As examples of how fair use has played this role in the past, Justice Breyer cited cases like Sony v. Connectix and Sega v. Accolade, cases where software engineers made copies of protected works in a process that resulted in the development of new, non-infringing software. Yes, these cases say, there is literal copying involved in this process, but the end result (and the only thing offered to the public in competition with the works that were copied “behind the curtain”) is something new and non-infringing – exactly the kind of creativity copyright is meant to promote, not discourage. So, fair use acts as a context-based check on the otherwise overly broad literal scope of copyright’s exclusive rights, shielding these intermediate, back-room, pro-competitive copies from liability and enabling the creation of valuable new works.

Similarly, in the Oracle case, Justice Breyer held that Google had created a valuable new work in the Android mobile operating system, and that the use of elements of Oracle’s Java language to enable programmers to interact more easily with Android was fair.

Pulling it all together: computer-generated works and copyright literalism

If you’re with me so far, you’ve seen

1. That copyright is for the public, and it grants rights to authors only as a means to the end of public enrichment
2. That copyright’s exclusive rights are so broad on their face that they increasingly (and, in a digital age, inevitably) apply to uses that don’t harm, and in many cases affirmatively advance, copyright’s public purpose.
3. That fair use is one of the most important safeguards against this outcome, and in particular,
4. That fair use applies where literal copying happens “behind the scenes” as part of a process whose result advances the purpose of copyright, as in reverse engineering, in the search engine cases, and in Oracle.

It shouldn’t be hard to see, then, why copyright law should be positively disposed toward the application of fair use to enable the creation of tools that generate new, non-infringing works. Yes, there is literal copying involved in “training” these computer tools, but the end result is increased production of new creative works, the very public benefit that copyright is meant to encourage. These back end uses should not be cognizable as violations of copyright. The alternative is to turn copyright on its head, discouraging the creation of new works in order to vindicate a private monopoly.

Mandatory chatGPT post-script: I asked the robot “What is the purpose of copyright?” Here is its answer – not bad!

The purpose of copyright is to provide legal protection and exclusive rights to creators and owners of original works of authorship, such as literary, artistic, musical, and other creative works. The aim of copyright is to encourage and reward creativity and innovation by giving creators the exclusive right to control the use and distribution of their works for a limited time.

Copyright gives creators the ability to prevent others from reproducing, distributing, performing, displaying, or creating derivative works based on their original works without their permission. By providing this protection, copyright allows creators to benefit financially from their works and to control the use and distribution of their works.

In addition to providing financial benefits for creators, copyright also helps to promote cultural and educational development by ensuring that creators have the incentive and means to produce new works. Copyright law also helps to ensure that creators receive recognition for their works and that their works are not misrepresented or misused in ways that could harm their reputation or integrity.

Brandon Butler is Director of Information Policy at University of Virginia. There he focuses on intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He was previously a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2023 (10th Anniversary): Day Two With Guest Expert Prof. Pia Hunter

The 10th Anniversary of Fair Use Week continues with a guest post by fair use expert and Fair Use Week Founders Award Winner Prof. Pia Hunter. Join her in a review of the whirlwind years of library pandemic closures, and how fair use, and the programs that explicitly utilized fair use, were critical in maintaining access to educational materials. -Kyle K. Courtney

Libraries, Instruction, and the COVID-19 Lockdown

by Pia Hunter

The onset of the COVID-19 lockdown in March 2020 stalled the services of many industries that operated in a strictly face-to-face environment. Early media reports suggested that the lockdown would be short term, but as weeks stretched into months, many businesses remained shuttered, and schools that customarily held face-to-face classroom instruction made an emergency switch to online learning. Libraries, which some have perceived as mere depositories for print materials, emerged as digital leaders and one of the most prepared industries to serve communities in a digital environment. When some educators struggled to adopt online learning models and provide students and teachers with access to books and media, libraries quickly filled the demand with digital content that users could access remotely.

Although libraries’ swift response to the COVID-19 lockdown appeared sudden to some, libraries have been modernizing their services to meet a range of users’ digital needs for decades, and the fair use doctrine has long supported that transformation. Physical access to library materials is not always possible, and in recent years, more public libraries have embraced the use of e-books and streaming media. Academic libraries have a teaching, learning, and research mission to support the scholarly activities of students and faculty. These libraries have created services that employ fair use to support online learning programs that were established well before the COVID -19 pandemic.

One question that has emerged frequently these past three years, is how? How have libraries provided access to copyrighted materials for remote users? How were students able to access copyrighted materials at the height of the pandemic? When we think of a classroom, most of us consider a traditional space with walls and students together in one room. The logistics for students to access library materials from their homes seemed insurmountable to some because the copyright laws surrounding how students and teachers can gain remote access is complex. Section 110(1) sets a generous standard for how content may be used, but it only applies to face-to-face instruction. Section 110(2), the TEACH Act, allows the digital transmission of copyrighted materials, but only under limited circumstances and the requirements are difficult for many educational institutions to achieve. With these competing sections of the Copyright Act, what was the solution?

Fair use, Section 107, which has long been the hero of the Copyright Act by allowing libraries to advance their services and provide remote access to users under certain conditions. During the pandemic, the HathiTrust (a digital repository from college and university libraries) created an Emergency Temporary Access Service to help its member institutions provide access to its faculty and students. This initiative was successful because fair use is flexible enough to cover different types of use. Some public domain titles were available in their entirety, and in other instances, users could view brief excerpts of copyrighted text online for limited periods of time.

The HathiTrust is a consortium of several academic libraries and could allow its member institutions to use the HathiTrust Collection, but it could not share access with the public. Therefore, K-12 students still needed access to library materials, and many public libraries could not provide digital access to print titles. This was especially true for school libraries which have mostly physical collections.

Internet Archive to the Rescue

The Internet Archive, a 501(c)(3) non-profit, “is building a digital library of Internet sites and other cultural artifacts in digital form.” Since 1996, the Internet Archive (IA) has been archiving websites, digitizing titles, and preserving our cultural memory. And on March 26, 2020, an NPR headline proclaimed, “’National Emergency Library’ Lends A Hand — And Lots Of Books! — During Pandemic.” Two days prior, the IA launched its National Emergency Library, which temporarily offered unlimited simultaneous access to its collection of 1.4 million digitized books. The goal was to provide reading and research materials to users whose K–12, public, and academic libraries had been suddenly closed due to the COVID-19 pandemic.

Many of the works were under copyright protection, and a collection of authors and publishers several authors argued that National Emergency Library was a copyright infringement because it allowed access to millions of titles, some of which were popular fiction materials and not scholarly in nature. This assertion is flawed because scholarship is inclusive, and the study of culture and society encompasses a myriad of content. Educators’ selection of materials for instruction is, and should be, unrestricted, and any external assertions of what material has scholarly relevance is overreach.

The IA typically operates under a standard virtual lending model, i.e., one user could borrow a single electronic copy of a text at a time, and once it was returned, another user could borrow the title. However, when many libraries closed due to the pandemic, the IA implemented the “National Emergency Library” to ensure that students, teachers, and researchers could continue to their work. This is not a dismissal of the publishers’ concerns, but libraries cannot be held to a 20th century standard of copyright law while trying to provide 21st century access to its communities. The publishers fail to consider that the IA’s National Emergency Library was created to support Emergency Remote Teaching under exigent circumstances for many educators who had little, if any, remote teaching experience.

Although the IA had announced their intention to end the emergency access by June 30, 2020, they ended the program two weeks early when publishers Hachette, Penguin Random House, Wiley, and HarperCollins announced that they would sue the IA for copyright infringement. On June 1, 2020, the publishers and several authors filed a complaint in the United States District Court for the Southern District of New York. But this case, Hachette v. Internet Archive, is not about the expanded access IA provided during the pandemic. It is a challenge to how we can use materials in a digital age and how fair use supports our right to do so. 

Many businesses suffered financial losses during the pandemic, but any argument that publishers lost millions in revenue because of the IA Emergency Library is unreasonable. Of course, authors and publishers should be compensated for their work, and they were, because libraries, including IA, already bought these books. And, in fact, libraries buy titles constantly and are the publishing industry’s best and most reliable customers. So, why can’t libraries make effective use the titles they have already purchased? Hachette v. Internet Archive invites the question of how many times and in how many formats do publishers expect libraries to buy the same title?

Yes, Section 106 of the Copyright Act of 1976 provides concrete protection for the authors’ ownership and control their work. But Section 107 tells us that fair use is not only an exception, but a right to information – one that has served many users for decades and allowed education to continue through one of the most extraordinary circumstances in modern society. Imagine a world where students could not use sections of copyrighted works in their papers or practice a piece of music without seeking permission from the rights holder? How sad would virtual spaces have been if teachers and librarians were unable to read stories to children online without gaining permission from the copyright holder? Without fair use, learning opportunities and creativity will fade, and on the 10th anniversary of Fair Use Week, we are reminded of our duty to protect it.

Pia Hunter is a Teaching Associate Professor and Associate Director for Research and Instruction at University of Illinois College of Law working out of the Law Library. Prior to joining the law library faculty, she served as Visiting Assistant Professor and Copyright and Reserve Services Librarian at the University of Illinois at Chicago (UIC) where she researched and developed best practices for copyright and fair use for instruction for the UIC campus.

Fair Use Week 2023 (10th Anniversary): Day One With Guest Expert Kenneth D. Crews

I am delighted to kick off the 10th Anniversary of Fair Use Week with a guest post by expert colleague and long-time friend to Fair Use Week, the international copyright authority Kenneth D. Crews. Join him in an exploration of the “many breeds of fair use”  -Kyle K. Courtney


The Many Breeds of Fair Use

Kenneth D. Crews

Surely everyone reading this post has grappled with the uncertainty of fair use.  You know the feeling – finding only a blurred landscape when you just want focused details.  It is time to confront the pesky truth we too often avoid fair use is a beast of many breeds.  You cannot see fair use clearly because many disparate versions fill the scene simultaneously.  You might be hoping to spot one confident creature standing firmly on four legs, when fair use is actually a busy menagerie of friendly and wild species.

Deciding fair use cases begins with those sturdy four factors in the statute.  I have had the privilege through more than three decades to work with the factors from various perspectives and as applied to diverse needs and circumstances.  I have counseled authors and publishers in quest of the border between infringement and permission.  I have advised innovators scraping content from the internet.  I have evaluated music clips in video productions.  I have guided parties using copyrighted materials in the heat of a tense election campaign.  I have given green lights and cautionary guidance, and I have needed to gracefully break the news when my evaluation may not be what someone is hoping to hear.  The fair use analysis is never the same, producing a diversity of forms.

Breed #1: The Two Parties

The fundamental variety of fair use reflects the two parties confronting one another: the copyright owner and the user.  Even in cases that seem to be about the similar facts, these leading parties bring their own experiences, values, and priorities.  An advocate of fair use may be building a business or trying to write a better history book.  The critic of fair use may be trying to optimize revenue or seek to protect private documents or retain control of how or when they are used.  Either party may be driven by strong philosophical views on the level of protection and use that copyright law ought to support.  As a result, each analysis and each conclusion can be distinct – even when the facts look like the same beast.

These two leading parties usually absorb most of the attention.  Indeed, the four factors are fundamentally about those two parties.  The user’s purpose is at the center of the first factor, and the user’s decisions and actions shape the third factor.  The copyright owner’s economic interests are the salient feature of the fourth factor, and the author or copyright owner is usually the party that defines the nature of the work in the second factor.  This two-party breed is as diverse as we can imagine the different facts, but this breed is also the version that is most likely to be played out in a court of law.

Breed #2: Community Interest

The two leading parties may well give birth to a flock of fair use offspring, but sometimes it takes a whole barnyard to raise then right.  To speak of just two parties is to overly simplify a complex matter and to miss the potential nuance of the law’s application.  Most important, many fair use decisions have immediate and profound consequences for the wider community, far beyond the interests of just two parties.  This is the “community breed.”

Different works and different situations affect the public in different ways.  When HathiTrust is allowed to build a vast collection of digitized books, the public benefits from the new way of identifying and accessing books.  When an author can use pictures and quotations in a biography, the public benefits from the new publication with the added content that adds depth and character.

Fair use also has its limits, because enable authors to protect their creative work can also foster benefits far beyond the owner and user who are engaged in the fair use debate at hand.  No factor in the statute is explicitly or primarily about the public or anybody else, but courts do take the public interest under consideration as they apply the factors.  Infusing the evaluation with the public interest can change the genetics and the legal outcome.


Breed #3: The Good Faith Determination

The law of fair use may center on the for factors, but the U.S. Copyright Act includes a protection for the benefit of educational institutions, libraries, and archives that can eliminate statutory damages – one of the most significant financial infringement risks – if the court determines that the user believed, and had reasonable grounds to believe, that the use was within fair use.  This is yet another breed of fair use because it is an evaluation that gains legal recognition and offers significant protection for the user.  In most any application, the case will be based on the four factors, but the law adds new variables that establish the good faith effort.  This application of the law applies explicitly when the use is not fair, but nevertheless if offers such extensive protection that it may well bring any copyright clash to a quick resolution.


Breed #4: The Worthy Risk

Any decision about fair use has some element of risk.  The previous Breed #3 that is based on the user’s belief about fair use is necessarily built on calculation, evaluation, and the vagaries of the user’s subjective state of mind.  This Breed #4 dares to explore opportunities on a distant range with little traditional guidance.  It is exercised when needs and circumstances are innovative and untested by law, or where existing legal precedent offers little relevant support and clarification.  This is the breed of fair use that occurs in the laboratories of creativity, in the debates and decisions of corporate boards, and in the privileged explorations with legal counsel.

This breed may not itself have the force of law, but every court ruling begins with someone choosing to venture into the unknown.  Picture the boardroom years ago as Google executives decided to build a collection of millions of digitized books.  Imagine the lively conversations when rap artists and their production company chose to release a provocative parody of the “Pretty Woman” song, knowing that the copyright owner has already objected.  Consider just the common questions about fair use and online education, where the legal questions remain unresolved, but the need to expand programming is intense.

This breed is no less legally grounded than the others.  The analysis still begins with the best available understanding of the four factors in the statute, and that is exactly where any good fair use decision is based.  But this breed must compensate for the lack of laws with deeper consideration of additional variables.  This fair use determination relies heavily on considering closely and sizing up those two leading parties: the owner and the user.

This breed of fair use complements unknowns in the law with evaluations of needs, risks, and practical circumstances.  Consider the user’s perspective:  Is fair use critical to my project?  Is my planned use extensive or only incidental?  Can my use of the copyrighted content be taken down, removed, or replaced easily if necessary?  Does my use extend into other countries where fair use may not exist?  Think as well about the copyright owner:  Is the owner positioned to bring expensive legal action?  Are the copyrighted works central to the owner’s business and interests?  Is a license available to meet the needs?  Does the owner have a record of aggressive protection?  Are the copyrights registered?  Sometimes these variables will make us cautious; at other times, we may well conclude that the risks are modest and worthy of taking on.

The Roundup

Have no doubt, fair use is essential for the effective operation of the copyright act.  Without fair use and other exceptions, copyright would be an oppressive force, inhibiting the growth of knowledge and the expansion of creativity.  Even with fair use, copyright law is an open range for debating reasonable perspectives and the meaning of the four factors in the fair use statute.  Looking out on that range, we can understand how the many breeds of fair use are not unsettling and confusing.  They are instead an essential way of understanding the role and structure of the law in order to serve widely ranging needs and conditions.  You are not seeing blurred law, but instead you are recognizing the flock of fair use fauna sharing the diverse ecosystem of copyright law.

Kenneth D. Crews is an author and attorney at Gipson Hoffman & Pancione in Los Angeles, specializing in copyright law.  He founded the copyright offices at Indiana University and Columbia University, and he is the author of Copyright Law for Librarians and Educators (4th edition, 2020).

Fair Use Week 2022: Day Five With Guest Expert Sandra Aya Enimil

Our final day of the 9th Annual Fair Use Week closes with an important post by Sandra Aya Enimil from Yale University, exploring the critical relationship between fair use and equitable access. – Kyle K. Courtney

Equitable Access and Fair Use

by Sandra Aya Enimil

Working in an academic library, brings many opportunities to interact with librarians, faculty, staff, and students working on amazing research and projects that have local, national, and international impact. One of the most important elements of librarianship is making sure that there is equitable access to content for people who want to use our materials for their scholarship, study, and research. In our increasingly digital world, many institutions of higher education preemptively provide web-based materials equitably to all. Some have done so in response to consent decrees.

Consent decrees (under provisions from the Americans with Disabilities Act) compel universities to create policies and procedures, and to dedicate resources to ensure that disabled members of a campus have access that is equitable to that of non-disabled members. Beyond the web, in many instances, general accessibility to library materials is done well and seamlessly. For persons with disabilities, however, it’s often not so seamless. Access is limited to certain content and sometimes has one or more steps before material becomes accessible for their needs. There is a myriad of reasons for this.

In the United States, libraries are bound under copyright law which provides a mechanism for library operations and the ability to loan and make available purchased or acquired content. For example, U.S. copyright law allows libraries, under section 108, to provide digitized copies for research and private study. Under section 121 digitized copies of published literary and musical works for persons with disabilities.

Broadly speaking, U.S. copyright law provides academic institutions with the authority to create accessible copies of in-copyright works.  Academic librarians often partner with other parts of the institution: information technology, student/staff disability offices to provide support for persons with disabilities. While these partnerships are necessary to verify need and to fulfil accessibility requests for the person waiting to receive the material, it is an extra layer of bureaucracy, time, and effort that non-disabled persons do not have to manage. Additionally, section 121 only allows access for specific types of published content. Why does it matter how many steps a student/researcher with disabilities needs to take to eventually get access? It matter because it often means an extra layer of planning and a lack of serendipity in performing research.

How does fair use fit it into this environment? And how does fair use make access more equitable for persons with disabilities? There are compelling arguments that the fair use provision and Section 121 make it possible to create and distribute accessible materials to qualified users, and to retain and share accessible texts in secure repositories for use in serving future qualifying requests. There is also broad discretion to develop systems to support creating and distributing these texts in accordance with the law and their institutional capacity. Individual academic institutions can also create their own systems and workflow to address the needs of eligible persons.  Or academic institutions can rely on systems like HathiTrust to provide this content. Eligible researchers can use Hathi’s search feature to access millions of volumes of works that have been digitized. The researchers do have to register to receive access, but once that happens, they may search the corpus of content freely and hopefully many of those serendipitous research moments happen.

While section 121 is narrow in scope, fair use expands the type of content that may be made accessible. Fair use allows libraries to make audio-visual works, including films accessible to researchers with audio and visual disabilities by adding captions and audio description. Other works excluded from Section 121 include unpublished works, choreography, pictorial, and sculptural works. The ability to create, distribute, and retain accessible versions of these types of content also relies on fair use. Section 107 and 121 permit an essential workflow. This workflow starts with a request from a student or researcher with a disability. It involves an accommodation specific to the needs of the requestor (remediation) and delivery of an accessible version to the researcher. Finally, it ends with deposit of the remediated version in a secure repository for appropriate future use (including future remediation) in the service of other requestors with disabilities.

Someday, these barriers to persons with disabilities won’t exist and there won’t be extra steps needed to receive the same content as non-disabled folks. But we are not there yet. And while fair use alone does not solve all the issues that make equity difficult for researchers with disabilities, it does provide an expanded scholarly universe beyond narrow provisions. And, hopefully, this provides the ability to dive down a research rabbit hole and happen upon just the thing you need.

Sandra Aya Enimil (she/her) is the Copyright Librarian and Contracting Specialist at Yale University Library. At Yale, Sandra is the Chair of the License Review Team and provides consultation on licenses of all types for the Yale Library. Sandra also provides information and resources on using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the Yale Library and across campus. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property. 

This blog is cross posted on the Conversations on Copyright at Yale Library Blog: https://campuspress.yale.edu/copyrightconversations/