The Future of Copyright: A Longtime Practice That Lies at the Heart of the Library's Mission Is at Stake in an Upcoming Legal Case. Meanwhile, More Libraries Are Creating and Making Available Materials That Are Largely Free of Copyright Restrictions

By Glushko, Robert M. | Information Outlook, October-November 2010 | Go to article overview

The Future of Copyright: A Longtime Practice That Lies at the Heart of the Library's Mission Is at Stake in an Upcoming Legal Case. Meanwhile, More Libraries Are Creating and Making Available Materials That Are Largely Free of Copyright Restrictions


Glushko, Robert M., Information Outlook


Legal issues are of growing concern to librarians, and for good reason. Over the past decade, new technologies, changing business models, and an increasing public awareness of copyright law have made it necessary for information professionals to possess at least a basic understanding of copyright law. Looking ahead, what developments in copyright law should librarians expect to see? What types of issues are we likely to encounter?

I believe that copyright law is in motion in two main areas. First, the courts have been particularly interested in digitization and its relation to sharing and piracy. You can see this not only in the line of file-sharing litigation in the early part of the decade, but also in a series of cases where the courts have tried to define the boundaries of fair use. Second, a case that will soon be argued before the U.S. Supreme Court has the potential to radically redefine the way that libraries interact with their collections.

Sharing and Transformation

The first issue is easier to discuss. After deciding a series of cases that established clear limits on what acceptable sharing looked like--e.g., A&M Records, Inc. v. Napster, Inc. (239 F. 3d 1004 [2001]) and MGM Studios, Inc. v. Grokster, Ltd. (545 U.S. 913 [2005]), in which the Ninth Circuit Court of Appeals and the U.S. Supreme Court, respectively, ruled that the file-sharing service Napster and its conceptual antecedent, Grokster, were unlawful--the courts have begun to expand the space allotted to fair use.

In particular, the courts have appeared especially receptive to a type of fair use known as transformation. Transformative uses are those in which a copyrighted work is significantly altered, either in character or use, to the point where the new use is sufficiently non-threatening to the underlying work and/or sufficiently valuable to society that it is allowable under the law. One example of a transformative use can be found in the case of Kelly v. Arriba Soft, Co. (280 F, 3d 93 [2002] withdrawn; re-filed at 336 F. 3d 811), where the Ninth Circuit recognized that linking, which was arguably infringement, was so necessary to the functioning of the Internet and to Internet searching that it qualified as a fair use. Other examples of this emphasis on transformation are found in Bill Graham Archives v. Dorling Kindersley Limited (448 F. 3d 605 [2006]), where the Second Circuit ruled that shrinking, or "thumbnailing," Grateful Dead concert posters and appending them to a timeline was a fair use, and A.V. Vanderhye v. iParadigms, LLC (562 F. 3d 630 [2009]), where an anti-plagiarism Web site was found not to be infringing the copyrights of authors when it made copies of their papers for the purpose of checking other works for possible plagiarism.

Given this history, it is likely that the courts will continue to see "sharing," or making copyrighted content available without regard to licenses, as unlawful, but that they will also continue to respect the societal benefit gained from allowing users and institutions to make new and transformative uses of existing works. This will affect libraries in several concrete ways.

First, the Napster/Grokster cases should sound a clear warning to any library wishing to engage in large-scale digital distribution. That's not to say that digital lending and electronic reserves are, in and of themselves, problematic, but rather that making digital resources available should be done in a controlled and reasonable fashion. Second, the Arriba/Bill Graham/iParadigms cases suggest that many actions that libraries undertake frequently, such as making displays, creating collections of related works, or making works available to special classes of individuals, may in fact be sufficiently transformative as to be fair uses. It is important to note that libraries and their mission are given special deference by the U.S. Copyright Act, both in Section 108 (which grants libraries special privileges) and also in Section 107, the fair use section, which allows for the non-commercial, educational and transformative uses of copyrighted works often undertaken by libraries. …

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