Two recent developments of interest for those interested in copyright law: The Association of Research Libraries (ARL) recently unveiled their new “Code of Best Practices in Fair Use for Academic and Research Libraries,” and the Supreme Court handed down its decision in Golan v. Holder.
The Code is an excellent overview of the position academic and research librarians take with respect to the interaction between their mission and copyright law. It does, however, take a more aspirational than legally pragmatic view of fair use issues. For instance, it states that “[f]air use is a user’s right.” Though it is certainly true that fair use is an important legal doctrine, and close to the core of any analysis of U.S. copyright law, it is not actually a right given to users – it is an exception to a right given to copyright owners, an affirmative defense that may cure an otherwise infringing use. Despite this prescriptive bent, the code is a great, example-based way for nonlawyers to engage with fair use issues.
The decision in Golan upheld the removal of a number of works from the U.S. public domain, the result of lawmaking designed to bring the U.S. into alignment with the requirements of the Berne Convention. Bracewell & Giuliani have published an analysis of the case that sets out a core component of the Court’s holding: First Amendment concerns do not really come into play, in the copyright context, unless either the idea/expression dichotomy or fair use are threatened.
Thus Golan gives Congress broad discretionary power over copyright, enough to cut into the public domain. At the same time, it is a reassurance that the fair use defense is and will remain a central feature of American copyright law. The Code of Best Practices, despite presenting a somewhat idealized notion of fair use, is a proactive step towards intellectual engagement with a legal doctrine, by the professionals that have the greatest stake in its continued viability. As copyright terms extend and the public domain shrinks, a continued – and aggressive – discussion of the contours of fair use will be critical in ensuring that culture remains accessible to all.