Minow: What prompted you to create the Fair Use Evaluator?
Brewer: After creating the Digital Slider (on public domain & copyright terms) and the 108 Spinner (covering section 108 – the library and archive exception), it seemed like we were ready to take on creating a tool that could help people to learn more about fair use and become more comfortable making fair use evaluations. One of the primary drivers in creating this tool was to create something that not only would help individuals (or institutions) to make fair use evaluations, but which would also collect and publish for the user the information they provided in support of that use. Because Section 504(c)(2) may provides significant protections for those users who can show they had every reason to believe their use was fair, we felt this functionality could potentially be really useful, both to protect those who make good faith evaluations, as well as to reduce the level of fear many have asserting fair use as an exception.
Minow: How does it work?
Brewer: The tool provides the user with two options: to learn about fair use, or to make a fair use evaluation. Explanatory notes and other information are available as pop-ups throughout. The “educational” section describes the law and provides some of the criteria or circumstances that could be understood as supporting or opposing each of the four fair use factors – Purpose, Nature, Amount and Effect. This is followed by a clear statement of why taking a reductive “checklist” approach to fair use (simply counting up how many criteria favor rather than oppose a fair use, or how many factors favor rather than oppose) is overly simplistic, and should not be considered determinative of the fairness of a use. This is then balanced by detailing the 504(c)(2) protections that are given users under certain circumstances if they document their uses and make informed fair use evaluations.
The “evaluation” section offers the user the opportunity to provide detailed information about their use and how it relates to each of the four fair use factors. If they choose, they can use the tool to pull in relevant criteria, provided in the educational section for each of the factors, and then modify those criteria as appropriate to describe their own use. Upon completing their evaluation, the user is asked to select whether or not they’ve found the use to be a fair one, or if they’re undecided. They can then choose to have the tool create a time-stamped PDF of their evaluation, which they can save to their computer hard drive; print, sign and keep for their records, or share with a colleague or copyright specialist for feedback.
This and the other tools we’ve created (including those mentioned above, as well as the Exceptions for Instructor eTool) are available for institutions to modify (adding their own local copyright information and links; next steps, or other information for users, etc.) under a Creative Commons license. Of course they’re also free to just link to them and use them as is. Our Google Analytics statistics show that these tools get pretty heavy use and are also having the unexpected (and welcome) consequence of steering more people to the Copyright Advisory Network, where they can get help with specific copyright questions from a cadre of specialists.
Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee
Mary Minow is Content Editor for the Stanford Copyright & Fair Use site, which links to the Fair Use Evaluator in its Charts and Tools page