LIBRARIES AND FAIR USE 1

Libraries and Fair Use: Controversies and Case Studies

Catherine Taylor Howell

University of South Florida

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Dilemmas in Fair Use law lie on the unstable no-man’s-land between the forces that wish

to provide the public with a large variety of accessible media, and those that wish to protect the

rights of creators and the value of their intellectual property. Libraries are at the frontlines of

changing fair use law and feel the tug of both sides because they often wish to promote both

interests. Fair Use is defined in the copyright law in Section 107 which states that “the fair use of

a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including

multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”

(Hirsh 2018, p. 383). Carrie Russel from the August 2003 issue of Library Journal suggests that

“the provisions of fair use are purposefully vague. Fair use can be interpreted to include an

activity not listed in section 107 or to exclude a listed use. The key to fair use is sound

judgement.” This observation only becomes more relevant in 2018. As mass digitization diffuses

physical print copies, and diversity of viewing platforms increases, so too does the definition of

fair use become subject to change and uncertainty. Librarians run into ethical issues when it

comes to dealing with digital copies of copyrighted material, as demonstrated in the Google

Books case, and in the restrictions on sharing and use of eBooks with other libraries as defined in

digital rights management laws.

The Google Books case is an example of how digital copying strains the “sound

judgement” aspect of fair use. In 2005, authors and publishers brought a class action suit to

Google for copyright infringement after Google embarked on a massive project to digitize every

book. Google claimed its actions fell under fair use since it only provided excerpts of the work

for free, and the courts eventually decided in Google’s favor (Hirsh, 2018, p. 386). Although the

Authors Guild appealed the case all the way up to the Supreme Court, the court declined to hear
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the case because it agreed that offering snippets of scanned texts where within fair use (Hirsh,

2028, p. 386).

Libraries, authors, and publishers appreciated the increased visibility Google Books

offered for their works and institutions. Google books essentially launched the acquisition of

digital eBook archives for libraries—it succeeded with its unified global enterprise where

scattered small library institutions could not (Lackie, 2008, p. 38). Another feature of Google

books that is beneficial to libraries is its “Find in a library” feature that links the google searched

book to OCLC WorldCat. From there, the user can then type in their address to find nearby

libraries that have a copy of the book for checkout. This feature increases the usability, access

and visibility of library catalogues. For these reasons, Google Books’ interpretation of fair use

furthers libraries’ goal to promote equal and user-friendly information access.

Despite the benefits that fair use provides for libraries, as demonstrated by Google

Books, there were some concerns about the project regarding protecting intellectual property.

The first and foremost concern was the amount of control and power over information given to

this already powerful corporation. Many did not trust Google to ensure the privacy of

copyrighted information (since Google did not request permission from copyright holders in the

first place), nor to completely delete already scanned copies when authors requested that they not

be in the project (Lackie, 2008, p. 38). Another worry by authors, booksellers and publishers was

the prospect of decreasing print copy value in the face of increased digital copies. The fight

against Google Books and a lenient interpretation of fair use boils down to protecting and

promoting the rights and profits of content creators. “Copyright holders argue that they will not

make their copyrighted works available to the public in digital formats unless the law is revised
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to prevent piracy and protect the marketplace for intellectual property by controlling access and

use” (Russell, 2001).

While fair use generally benefits libraries and information users by leniently interpreting

copyright law to allow for the digitization of copyrighted print material, digital rights

management generally does the opposite. It protects the interests of copyright holders by

allowing them to follow business models that limit digital copying and thus prevent piracy.

Digital rights management is defined as “a system of information technology components and

services, along with corresponding law, policies and business models, which strive to distribute

and control intellectual property and rights” (Russell, 2003, p. 33). There are some aspects of

digital rights management that benefit libraries, including making it “easier to conclude valid

license agreements between single content users and publishers” and making it “possible to

manage the huge number of rights associated with journals” (Boehner, 2008, p. 604). However,

digital rights management also presents challenges to libraries by limiting easy content sharing

between users, platforms, and other libraries.

Because data rights management allows individual copyright holders to dictate what

platform their media can be viewed on, this prevents library users from using their preferred

platform. This is especially problematic with the trend of rapid changes and updates in

technology devices. For example, copyright owners could make libraries buy certain software to

access eBook collections, and it could hinder library patrons from accessing this content if they

did not also have the software (Russell, 2003, p. 33). Restrictions on eBooks can be classed as

“hard restrictions”—where absolutely no access is granted without permission, and “soft

restrictions”—features of the eBook can technically be access but are blocked to many users by

making the software interface unintuitive (Walters, 2014, 88). An example of a soft restriction
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could be an eBook provider intentionally hiding menu options so that library patrons are

discouraged from saving or printing pages; these actions are not illegal, but content providers

want to prevent users from taking these actions anyway.

Soft restrictions could be considered more harmful for patron use of library eBooks even

more than hard restrictions because it could scare users away from electronic sources altogether.

Other restrictions pertain to eBook viewing and downloading. Once purchased or borrowed,

publishers attempt to limit content to “single-user licenses” despite the “multi-user environment”

of the internet (Walters, 2014, p.93). eBooks may be viewable on only one of the patron’s

devices or only on the library computer, and only a portion of the book may be copied or have a

limited number of views. Other copyright restrictions make eBook sharing between libraries

(called interlibrary loan) cumbersome or even impossible. Some eBook providers banned sharing

between libraries, while others require librarians to go through a tedious print and scanning

process to only be able to share just a few chapters (Walters, 2014, p. 90). Digital rights

management puts power into the hands of the license holder while putting the burden of

“demonstrating that publishers’ restrictions on use are contrary to the license terms” (Walters,

2014, p.89).

The two examples of copyright provisions, fair use and digital rights management, show

how copyright law can both promote and hinder library functionality. Google Books prompted a

new era of globally shared digitized print but at the cost of going behind publishers’ backs.

Digital rights management put the power back into copyright holders’ hands but made much

more inconvenient for libraries and patrons to use eBooks. Promoting information creation and

consumption means equally protecting the interests of both content creators and users—a middle

ground in which libraries squarely lie.

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References
Böhner, Dörte. (2008). "Digital rights description as part of digital rights management: a

challenge for libraries", Library Hi Tech, Vol. 26 Issue: 4, pp.598-605,

https://doi.org/10.1108/07378830810920923

Hirsh, S. (2018). Information Services Today: An Introduction. Lanham: Rowman & Littlefield,

[2018]. Retrieved from

http://ezproxy.lib.usf.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&

db=cat00847a&AN=usflc.036391011&site=eds-live

Lackie, R. J. (2008). “From Google Print to Google Book Search: The Controversial Initiative

and Its Impact on Other Remarkable Digitization Projects.” REFERENCE LIBRARIAN,

(101), 35. Retrieved from

http://ezproxy.lib.usf.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&

db=edsbl&AN=RN230079560&site=eds-live

Russell, C. (2003). “Fair use under fire: ALA’s copyright expert gives her take on the challenges

digital rights management presents for end users--and librarians.” Library Journal, (13),

32. Retrieved from

http://ezproxy.lib.usf.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&

db=edsglr&AN=edsgcl.107121458&site=eds-live

Russell, C., & ERIC Clearinghouse on Information and Technology, S. N. (2001). “Libraries in

Today’s Digital Age: The Copyright Controversy.” ERIC Digest. Retrieved from

http://ezproxy.lib.usf.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&

db=eric&AN=ED456862&site=eds-live
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Walters, W. H. . (2014). E-books in academic libraries: Challenges for sharing and use. Journal

of Librarianship & Information Science, 46(2), 85–95. https://doi-

org.ezproxy.lib.usf.edu/10.1177/0961000612470279