Fair use and publisher and librarian attitudes (was: Electronic journals and CCC)

[Edward Barrow <edward@copyweb.co.uk>]

This debate has a long history with little agreement on either side, and I
can't help feeling that it's time to move on.

The argument that "fair use rights" exist and should be protected seems to
me to be missing the point.  It is important that licences should cover
the expected uses of the material; it is counterproductive for
rightsholders to insist on terms which prohibit things which users
naturally want to do with their stuff (otherwise they will be honoured
more in the breach, or the licensee will take on an unreasonable policing
burden). If some of those things might be considered "fair use", there is
still no reason to exclude them from the licence; the clarity and
reassurance that both sides will gain from having them written in are well
worth while.

Interlibrary document supply (I refuse to use the word "loan" for
something which is never intended to be returned) does present a
difficulty, however, when licences are drawn with a clear perimeter in
mind. It is perhaps less of a threat than it was in the days of
"subscription rationalisation" by consortia, aiming to use ILDS to fill
the resulting holes in coverage, but the clear threat remains that
non-subscribing institutions could use it to avoid subscribing. Another
concern is that it could undermine commercially-licensed document
delivery, which is a growing market.

Neverthless, the fact that so many institutions require the facility
suggests that publishers would do well to cater for the demand. There are
ways of doing so within the scope of licences, without having to call on
the uncertainty of fair use, with the consent of both rightsholders and
the user community. Again the experience of the UK may prove instructive;
the EASY project, financed by JISC with the support of the Publishers
Association, aims to provide individual articles to users direct from the
servers of participating publishers, at a cost no greater than a library
privilege copy obtained from the British Library. [Interlibrary loan and
document supply in the UK is centralised through the British Library,
which supplies "library privilege" copies to libraries under a specific
provision of UK copyright law, without paying any fee to the copyright
holder]

Edward Barrow
New media copyright consultant
edward@copyweb.co.uk
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