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Copyright & Fair Use

Your guide to understanding copyright and fair use

Disclaimer

The following guidelines have no force of law. We believe that everyone should familiarize themselves with the law, and this guide is intended to help you do so, but do not take our word as law. We’re not lawyers, we’re librarians.

How can the library help me to use copyrighted material ethically?

You may have heard that it is fair use to copy only a certain number of pages or a certain percentage of a work. Or maybe someone told you that if you need to use the work sooner than you could possibly expect to obtain permission, then this is fair use. And you included the copyright notice on your copies, so it’s fair use, right? Sorry, no. That was all bad advice.

 

In 2012, the Association of Research Libraries (ARL) published a Code of Best Practices in Fair Use to update librarians on how we can help our users to navigate fair use issues. The arbitrary limitations are gone (such as numbers of pages allowed, which had no basis in law), and in their place are new guidelines based on solid research into how courts decide fair use cases. Those old, often repeated guidelines, intended to be “safe harbors” that would ensure that libraries and their users operated within copyright law, eventually became “outer limits” that were neither legal nor practical.

 

Congress and the courts recognize the importance of libraries in the promotion of “the Progress of Science and useful Arts,” so Section 108 of the Copyright Act is specifically devoted to libraries and archives, and allows us to make and circulate exactly one copy of any copyrighted work, as long as we satisfy three requirements. The reproduction must not be for commercial advantage, it must contain a notice of copyright, and we must be open to the public or to researchers. Libraries and archives can make, but cannot circulate outside of the premises, exactly three copies of works that are unpublished, that have been lost, stolen or damaged, that are deteriorating or exist in an obsolete format or that cannot be obtained at a reasonable price.

 

Furthermore, the ARL has found that it is fair use to:

  • make course-related content available online;
  • use collection materials to publicize library activities and create exhibitions;
  • digitize in order to preserve at-risk or hard-to-access items;
  • reproduce materials in accessible formats and retain those reproductions;
  • create digital collections of archival and special collections materials;
  • make works deposited in institutional repositories publicly available;
  • create databases to facilitate non-consumptive research uses;
  • create topically based collections of websites and other material online.

As mentioned above, we cannot offer you legal advice or any guidelines about what is or is not fair use. We also can’t exercise fair use, ourselves, or avail ourselves of our capabilities under Section 108 unless we own the material.

 

The reason that libraries can lend items (or that used bookstores and garage sales are legal) is because of something called the “first sale doctrine,” which can be found in Section 109 of the Copyright Act. Basically, this section says that once you buy a copy of a protected work, you can dispose of it how you wish, including by lending. And, though it is not legal to rent, lease or lend a sound recording or computer program for profit, it is legal for nonprofit libraries and educational institutions to do so. However, it is not legal to do so with digital content at this time, as a recent case making its way through the appellate courts has denied a right of digital first sale.

 

However, library collections have changed a lot over the years. These days, much of our collection consists of electronic resources that we do not own, but rather license. Our use of these materials is bound by the license agreement between the library and a provider that is usually, itself, a licensee of the rights holders on the copyrighted works that the provider makes available to the library. These licenses are more restrictive than the law. To use these resources in any way other than that stipulated in our license agreement, we would have to seek specific permission from both the electronic resource provider and the copyright holder. It is usually easier to purchase a physical copy if one exists.

The library also cannot help you to break encryption on a DVD or circumvent any other Digital Rights Management (DRM) technologies. We cannot provide hardware or software that allows you to do so, as this is considered “trafficking” (17 U.S.C. § 1201).

 

Circumvention of DRM was made a criminal offense by the Digital Millennium Copyright Act (DMCA), passed along with the Sonny Bono Copyright Term Extension Act in 1998. The DMCA made it illegal to circumvent “access control” technologies, such as your Spotify password, but not “copy control” measures such as Macrovision on a VHS tape. This means that it’s still legal to screen-capture a DVD that you own if the purpose is to exercise fair use. Section 1201 reads, “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” Screen-capture software records the content after it has been lawfully decrypted by a computer’s optical drive that completes the DRM “handshake” between the disc and the player. What remains illegal is breaking the encryption on a DVD in order to make an exact, higher quality copy of a full-length film.

 

The whole issue is extremely confusing. Luckily, the Librarian of Congress is authorized to issue specific and temporary exemptions to the anti-circumvention provisions of the DMCA and does so every three years, with the latest exemptions issued in 2018, including a new exemption for software preservation. Past exemptions, renewed again in 2018, allow for ebooks to be read on screen readers, for personal data to be obtained from implanted medical devices, for cellphones to be “unlocked” in order to use them on another network, for Apple devices to be “jailbroken” and Androids to be “rooted,” for a car’s ECU to be monitored by its owner, for 3D printers to use alternative materials, for video games to be emulated so that they remain playable and for film clips to be used by libraries, educators and documentarians.

 

In 2018, Brigham Young University argued that the last exemption be extended to full-length films and the National Telecommunications and Information Administration agreed. The Copyright Office disagreed, and the Librarian of Congress’ final regulations allow libraries to circumvent DRM for the next three years in the following circumstances:

 

  • To make “short portions” of video content available via online platforms after instituting copyright policies and providing information about copyright to students, faculty and staff and applying “technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform;”
  • To add captions or audio description to video content for accessibility purposes when, “after a reasonable effort,” we have “determined that an accessible version cannot be obtained at a fair price or in a timely manner,” and we store them “in a manner intended to reasonably prevent unauthorized further dissemination of a work;”
  • To preserve, “in a playable form,” video games “that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server” on library premises for no commercial advantage when “the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable gameplay” or the games “are no longer reasonably available in the commercial marketplace;”
  • To preserve software other than video games “that are no longer reasonably available in the commercial marketplace, solely for the purpose of lawful preservation of a computer program, or of digital materials dependent upon a computer program as a condition of access” for use on library premises only;
  • To allow 3D printers to use alternative feedstock.