Re: settling a dispute

[Kevin L Smith <kevin.l.smith@duke.edu>]

Hi Joe,

I can certainly offer an opinion about this, but it will not 
settle the dispute because in my opinion this is a false choice.

To start with the "opposing view," this would not be a position 
taken regarding fair use, since the practice you describe -- a 
single digital copy for preservation purposes only -- is 
authorized by a separate provision of the Copyright Act, section 
108.  Indeed, section 108 would even allow the digital copy to be 
used within the premises of the library, but not placed on an 
accessible network.  Of course, some librarians, like many other 
people, may use "fair use" to refer to all of the exceptions in 
the Copyright Act, but this is a sloppy way of speaking that 
should not be encouraged.

As for the other extreme, I have to say that in five years of 
working with academic librarians from all over the country on 
copyright issues, I have never talked with anyone who would 
interpret fair use as broadly as you suggest.  That does not mean 
that such librarians don't exist, but I am convinced they are a 
small minority.  Actually, the reality is that librarians are 
often the voice of restraint on college and university campuses, 
trying to discourage practices that others see as educationally 
necessary because the librarian is concerned to interpret 
copyright law responsibly.  So, while the practice you describe 
may happen, my guess is that it is seldom initiated by the 
library or done with the imprimatur of librarians.  In fact, 
there are at least as many librarians who are overly cautious 
regarding copyright as there are copyright "radicals" in the 
library community.

I think most librarians recognize that fair use is a limited and 
highly fact-specific analysis, and try to employ it as such. 
Fair use certainly permits some digitization of works, but that 
would usually be a small percentage of a work for a specific 
purpose.  Where a large percentage of a work, or even the 
entirety, is used, it should be because special circumstances 
(such as a clearly transformative purpose and/or the absence of 
any identifiable rights holder) have been carefully considered in 
order to arrive at the conclusion that fair use is appropriate in 
that specific situation.

Of course, librarians also recognize that access is fundamental 
to their mission and have been very aggressive in creating 
digital resources using public domain works, or those works for 
which they can obtain either rights or permission.

Best,

Kevin L. Smith, M.L.S., J.D.
Scholarly Communications Officer
Perkins Library, Duke University
Durham, NC  27708
919-668-4451
kevin.l.smith@duke.edu
http://library.duke.edu/blogs/scholcomm/