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CLR's Statement on the Fair Use Doctrine

 

The Council on Library Resources'
Statement on the Fair Use Doctrine

Creativity is the hallmark of American scholarship. This has been understood by legislators and policy makers over time, and current copyright laws are specific in their intent to "promote the progress of science andthe useful arts." High quality and innovative research in the United States has depended on a free flow of information; universities have relied on their libraries to create and manage effective open networks of information resources.

The proposed revisions to the Copyright Law which have grown out of the report on the Working Group on Intellectual Property Rights, chaired by Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks may have the opposite effect. [ Footnote 1 ] The underlying premise of the Working Group is that the marketplace alone will function as the best mechanism for realizing the potential of the National Information Infrastructure. The report emphasizes the economics of copyright over the accessibility of copyrighted works.

The report concludes that the current copyright law is basically adequate for the digital environment. From an educational and research perspective, this conclusion is fraught with difficulties. If implemented, the proposed policy would give the public fewer rights of access to digital information than they currently possess with print information, In current copyright law, there is a clear distinction between public and private uses of in-print information because of "fair use" provisions. [ Footnote 2 ] The market defines public access and uses of information, whereas fair use defines private access and uses. But in the proposed policy, the private use of information on the National Information Infrastructure is sharply curtailed (e.g., to an individual's own use or for educational purposes only). Paul David and Dominique Foray, eminent science and technology specialists, have pointed out that open and public distribution determines the economic performance of innovative information systems. Only with openness can research findings be independently replicated, results be quickly generalized, and excessive duplication of research be carefully avoided. [ Footnote 3 ]

The report of the Working Group, however, concentrates on the theme that copyright is an economic right of owners to be exploited. Digital technology makes it possible for creators of information to be compensated for each transmission of that information, and the report focuses on taking advantage of that capability for the economic benefit of information creators.

The report is virtually silent on the issue of fair use. From our perspective, one that has kept a watchful eye on the world of libraries for the past four decades, the Council on Library Resources believes that the Working Group's report has emphasized transmission rights over educational concerns. It is those educational concerns that up to now have been better addressed by the fair use doctrine.

We, the Directors of the Council on Library Resources, believe that the doctrine of fair use is so critically important to the educational and research framework of this country that we urge explicit statements about its importance be made in any future copyright legislation or revisions to current laws.

It is not our intent to avoid marketplace involvement. The educational and library communities also have a vital stake in the creation of an efficient marketplace for publishers in electronic media. We depend on them for quality control, distribution, and investment. We believe, however, that no market can be successful if it is founded on conflict between buyers and sellers. But we are also mindful of the importance of an open distribution system for research and education, and the extent to which market failures result in knowledge being used at a fraction of its potential for productivity. [ Footnote 4 ]

Our call for further exploration of the economic consequences of the proposed copyright revisions is based on our fundamental belief that:

  • any diminution in the current fair use provision will have a significantly adverse effect on scholarly communication in the United States.
  • replacing fair use with exclusive distribution rights will reduce the public's access to copyrighted materials resulting in damage to our nation's research and educational enterprises.
  • the transmission. of information by electronic systems can improve distance learning and collaboration in research only if persons who engage in these important enterprises can afford to have free and ready access to needed information.
  • the present law allows libraries to reproduce and distribute one copy of a published work for research or preservation purposes. This principle should be retained whether the distribution is made by paper or by electronic means. If all information and knowledge transfer is commercialized, the long-standing ability of libraries to serve a public good will be diminished and our nation's research and educational programs will be similarly depreciated.
The fair use doctrine, as we know it today, has evolved over several centuries. It is not enough for government officials to say in public meetings that the doctrine should be retained. In any proposed legislation, that statement should be made explicitly and steps should be taken to show how fair use would be made operational in the digital environment. Before Congress drafts new law, we urge that answers be found to the following questions:
1. What is the economic value of research and education conducted by institutions of higher learning? How will the proposed legislation affect this sector of the economy?

2. What will be the economic impact of the proposed policy on the cost of funded research?

3. How much more would college students pay for their educations if fair use did not exist?

4. How much will the proposed transmission right add to the cost of distance education?
We believe that the potential for damage to our educational institutions and to our citizenry at large is sufficiently great for Congress to ensure that hearings on revisions of the copyright law should take into account the questions we have posed and should provide the necessary answers that will protect the public interest. Every American's right to access open information ("fair use") will expand our nation's boundaries of knowledge leading to a more creative and productive society.

February 7, 1996

Footnotes

1 Bruce A. Lehman, Chair, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (Washington, D.C.: Information Infrastructure Task Force, September 1995).

2 The fair use provision of the Copyright Act permits reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

3 Paul A. David and Dominique Foray, "Information Distribution and the Growth of Economically Valuable Knowledge: A Rationale for Technological Infrastructure Policies," in M. Teubal, et al., Technological Infrastructure Policy (Dordrecht and London: Kluwer Academic Publishers, Fall 1995), p. 87.

4 David and Foray, p. 92.

Council on Library Resources

1400 16th Street, N.W. Suite 715 Washington, D C. 200362217 Telephone 202 939 3370 Fax 202 939 3499

Deanna B. Marcum, President

Board of Directors:

William N. Hubbard, Jr., Chairman

William O. Baker Christine L. Borgman Harvey Brooks Jerry D. Campbell Charles D. Churchwell Samuel DuBois Cook Martin M. Cummings Billy E. Frye Elizabeth T Kennan Herman Liebaers Peter Lyman Marilyn Gell Mason Dan Tonkery Sidney Verba