ARL, Center for Social Media, PIJIP to Prepare Code of Best Practices in Fair Use for Academic and Research Libraries The Association of Research Libraries, working with the Center for Social Media at American University, and the Program on Information Justice and Intellectual Property in American University’s Washington College of Law, is preparing a code of best practices in fair use for academic and research libraries. The project will have three phases: o A research phase, in which the project team will conduct interviews with research and academic librarians to discover how they use materials and the problems they face due to questions or uncertainty about fair use; o The development and publication of a code of best practices; and o Extensive outreach to promote broad adoption of the code by research and academic librarians throughout the U.S. The project is based on prior codes of best practices in fair use developed in several communities of practice, facilitated by American University professors Peter Jaszi and Patricia Aufderheide, who are part of the project team. ARL Law and Policy Fellow Brandon Butler will be coordinating the project with Prudence Adler, ARL’s Associate Executive Director. For libraries, the doctrine of fair use is the most important limitation on the rights of copyright owners. It protects libraries and their patrons from liability when they reproduce copyrighted works for purposes such as scholarship, research, teaching, news reporting, and criticism. Fair use also serves an important “gapfiller” function, for example protecting new uses as they arise alongside new technologies. Unlike some previous attempts to reduce uncertainty in the application of fair use, this project will equip librarians with processes and conceptual tools they need to make their own fair use judgments based on their particular circumstances. One-size-fits-all “rules” that purport to draw bright lines (how many words or how many minutes constitute a “fair use”) have no basis in the law and cut short the important analysis that should take place when fair use decisions are made. The project team is confident that a code of best practices that describes key concepts and values derived from the law and actual librarian practice will better serve research and academic librarians, and will in turn benefit the patrons and the educational institutions they serve. The project will be undertaken between April 2010 and March 2013. If you have any questions about the project, or if you would like to participate in the research phase, please contact fairuseproject@arl.org. Institutional Scope of Practices to be Considered The Project will focus on four areas in which research and academic libraries and librarians face new challenges and responsibilities. Libraries are being asked to fulfill a variety of new or extended functions – and to perform familiar ones in new ways. Each of the following descriptions highlights the value of developing a shared understanding of how the copyright doctrine of fair use supports a current or developing practice. • Supporting scholarship. How far can research and academic libraries and librarians go in assisting faculty and students to access collection material for use in their papers, books, theses, and dissertations? How should they host scholarly products such as electronic theses and dissertations? Under what circumstances can librarians and libraries undertake projects designed to digitize specific analog collection materials to provide greater access for scholars? Under what circumstances can material in library collections be shared with other institutions in support of scholarship? Assisting scholars in these and other challenging contexts raises a host of concerns about how conventional copyright doctrines, such as fair use, apply in this new environment of scholarly production. • Providing access to teaching and learning materials. How should research and academic libraries deal with requests to make material available through electronic reserves, Blackboard-type course sites, instructors’ personal course sites, or by other means? With electronic access as the predominant mode of access in academic and research libraries, tensions have arisen with some publishers concerning the appropriate scope of these operations and practices. As a result, some in the research library community are uncertain regarding what is permissible and how to utilize popular technologies and software in the best interests of the academy. • Preserving copyrighted resources. To what extent does fair use authorize digital preservation activities that do not fall clearly within the scope of section 108 of the Copyright Act, for instance mass digitization, Web archiving, or digital preservation? More and more resources—public domain, copyrighted, and licensed—are available in digital format (either born digital or digitized), and libraries have approached preservation of these resources in several ways given rapid technological and organizational change. With the scale of resources requiring preservation, the development of best practices that would evolve to meet the needs of libraries preserving at-risk works would greatly assist libraries in tackling this pressing problem. • Promoting access for persons with disabilities. What can research and academic libraries do to assure the timely delivery of text and other resources to the blind and other print-disabled persons? Currently, approximately five percent of published books are available in accessible formats for the visually impaired. Current law (primarily section 121 of the Copyright Act, known as the “Chafee Amendment”), although vastly better than that available in many foreign countries, is not adequate to libraries’ missions. It is therefore important to explore how fair use might support accessibility services beyond those literally authorized in section 121. New digitization efforts should assist in making these resources available, but providing libraries with additional leverage through a code of best practices for digitizing and providing access to needed works would greatly improve access to copyrighted works by persons with disabilities. The Association of Research Libraries (ARL) is a nonprofit organization of 124 research libraries in North America. Its mission is to influence the changing environment of scholarly communication and the public policies that affect research libraries and the diverse communities they serve. ARL pursues this mission by advancing the goals of its member research libraries, providing leadership in public and information policy to the scholarly and higher education communities, fostering the exchange of ideas and expertise, facilitating the emergence of new roles for research libraries, and shaping a future environment that leverages its interests with those of allied organizations. ARL is on the Web at http://www.arl.org/. The Center for Social Media, led by Professor Patricia Aufderheide, showcases and analyzes media for social justice, civil society, and democracy, and the public environment that nurtures them. The center is a project of the School of Communication, led by Dean Larry Kirkman, at American University in Washington, D.C. The Center for Social Media is on the Web at http://www.centerforsocialmedia.org/. The Washington College of Law Program on Information Justice and Intellectual Property (PIJIP) works to advance access to information for teachers, students, artists, programmers, bloggers, inventors, scientists, doctors, patients, and others who depend on it to make essential cultural and economic contributions to society. PIJIP seeks to assure that their voices are heard and interests are recognized. PIJIP accomplishes this through projects they undertake that deal with intellectual property issues across the world, by hosting events emphasizing its values, and through the advancement of information via news articles, blog entries and a Web site, http://www.wcl.american.edu/pijip/.