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.