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Association of College & Research Libraries

ALA Statement Draft: Fair use in the electronic age: Serving the public interest

Draft statement: Send your comments to ALA in Washington

The primary objective of copyright is not to reward the labor of authors, but ‘[t]o pro- mote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages oth- ers to build freely upon the ideas and informa- tion conveyed by a work. . . . This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”—Justice Sandra Day O’Connor.¹

The genius of United States copyright law is that, in conformance with its constitutional foun- dation, it balances the intellectual property in- terests of authors, publishers, and copyright owners with society’s need for the free ex- change of ideas. Taken together, fair use and other public rights to utilize copyrighted works, as confirmed in the Copyright Act of 1976, con- stitute indispensable legal doctrines for promot- ing the dissemination of knowledge, while en- suring authors, publishers, and copyright owners appropriate protection of their creative works and economic investments.

The fair use provision of the Copyright Act allows reproduction and other uses of copy- righted works under certain conditions for purposes such as criti- cism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or re- search. Additional provisions of the law allow uses specifi- cally permitted by Congress to further educational and li- brary activities. The preservation and continuation of these balanced rights in an electronic environ- ment as well as in tra- ditional formats are essential to the free flow of information and to the development of an information infrastructure that serves the public interest.

A long-standing principle is that copyright exists for the public good. The benefits of the new technologies should flow to the public as well as to copyright proprietors. As more information becomes available only in electronic formats, the public’s legitimate right to use copyrighted material must be protected. In order for copyright truly to serve its purpose of “promoting progress,” the public’s right of fair use must continue in the electronic era, and these lawful uses of copyrighted works must be allowed without individual transaction fees.

Without infringing copyright, the public has a right to expect:

• to read, listen to, or view publicly marketed copyrighted material privately, on site, or remotely;

• to browse through publicly marketed copyrighted material;

• to experiment with variations of copyrighted material for fair use purposes, while preserving the integrity of the original;

• to make a first generation copy for personal use of an article or other small part of a publicly marketed copyrighted work or a work in a library’s collection for such purpose as study, scholarship, or research; and

• to make transitory copies if ephemeral or incidental to a lawful use and if retained only temporarily.

Without infringing copyright, nonprofit libraries and other Section 108 libraries, on behalf of their clientele, should be able:

• to use electronic technologies to preserve copyrighted materials in their collections;

• to provide copyrighted materials as part of electronic reserve room service;

• to provide copyrighted materials as part of electronic interlibrary loan service; and

• to avoid liability, after posting appropriate copyright notices, for the unsupervised actions of their users.

Users, libraries, and educational institutions have a right to expect:

• that the terms of licenses will not restrict fair use or lawful library or educational uses;

• that U.S. government works and other public domain materials will be readily available without restrictions and at a government price not exceeding the marginal cost of dissemination; and

• that rights of use for nonprofit education apply in face-to-face teaching and in transmittal or broadcast to remote locations where educational institutions of the future must increasingly reach their students.

Prepared by representatives of ALA, the American Association of Law Librarians, the Association of Academic Health Sciences Library Directors, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association.

Notes

1. Feist Publications, Inc. v Rural Telephone Service Co., 499 US 340, 349 (1991).