Guidelines for fair use in the electronic environment
The National Information Infrastructure Task Force Working Group on Intellectual Property Rights established a Conference on Fair Use ("CONFU") in the fall of 1994, which met monthly for more than two years. Its purpose was to bring together the interested parties (publishers, authors, libraries, etc.) to negotiate fair use guidelines for the use of materials in a variety of contexts: e-reserves, use of image archives, interlibrary loan, distance learning and multimedia.
The draft Electronic Reserve Guidelines were not agreed upon widely; nevertheless, they provide a good framework for thinking about fair use in the reserve context. As is the case with all guidelines, they are not the law, but a statement by certain parties about what they believe would be fair use. As such they represent considerable compromise. The Electronic Reserve Guidelines permit us to place small parts of others' works on reserve for one semester without permission. Thereafter, if the same faculty member requests the same materials for the same class, we should get permission. They also require that only students in the class should have access to the materials. These limitations illustrate the kind of consideration given to the copyright owner's interests.
The four factor fair use test also balances the interests of both the users and the owners of copyrighted works. The analyses set forth in the sections on e-reserves, and sound and video recordings, and photographic image duplication show how fair use achieves balanced results. For example, the easy availability of a license to use a work, or the lack thereof, influences the fourth factor. The scope of fair use is broader for media such as movies, music and images; narrower for text. This scope is implemented in time (the amount of time one may use materials without permission) and in the amount of the materials that can be used. So, continued educational uses of materials for which permission is difficult or impossible to obtain are likely fair uses; continued educational uses of materials for which permission can easily be obtained are less likely fair uses.
One note of caution: Because reserve materials are suggested or required course readings and suggested or required course readings are excepted from the coverage of the provisions of the Digital Millennium Copyright Act ("DMCA") that limit the liability of internet service providers (ISPs), the DMCA ISP provisions do not apply to them. This means that if reserve materials are found to infringe a copyright owner's rights, the library or the university of which it is a part will not be able to take advantage of the special protections set forth in the DMCA, but must rely instead on all the other defenses that are available under the rest of the copyright law, including but not limited to fair use. For more information about the DMCA and ISP liability limitations, please see is your library an internet service provider under the DMCA?
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