Hi Rachel. Thanks for taking the time for this interview. I’m thinking that some people might be interested in knowing more about you and more about this class that you’re teaching for Library Juice Academy: Exploring Fair Use.
First question is, what qualifies you to teach a class on fair use, given that it’s a subject that a lot of librarians know about? What is your background for teaching this?
Early in my career I became really interested in the ways in which copyright, as it has evolved, can come into conflict with core librarian values around access to information and the freedom to read. Though copyright, and especially fair use, is squarely within our balliwick, I feel that librarians too often defer to individuals with legal training rather than feeling empowered to value their own expertise and knowledge of professional norms within our communities of practice. It was from this perspective that I started presenting regionally about copyright issues. Later, I was fortunate to work with copyright expert, Carrie Russell, on her copyright class for ACRL. I helped her develop a version of the class and served as her teaching assistant several times and, ultimately, took over teaching the class. In my work, I serve as the copyright librarian for my college. In all of my teaching, presenting, and one-on-one counseling around copyright, my main goal is to help people think clearly about the copyright issues involved in their particular situations and not get bogged down in fear and uncertainty. For several years, I also led a great discussion group locally where librarians, lawyers, artists, computer programmers, authors, and others came together to talk about copyright.
Okay, good. So, who will want to take this course and what can they expect to get out of it?
I’ve tried to develop the course in such a way that it will be useful to people with a broad range of experience with and knowledge of fair use issues. When I imagine the participants in the class, I imagine a healthy mix of the following:
- people whose jobs require them to make fair use analyses or to provide fair use counseling and who feel some combination of fear and uncertainty about it and are looking for specific answers or help with specific scenarios
- people who get excited about information policy and about discussing copyright and want to engage with like-minded colleagues
- people who are generally knowledgeable about copyright and fair use but who feel like they haven’t been able to keep up with all the latest developments (eg. the ARL best practices document, the GSU ruling, the HathiTrust ruling, etc)
- people who are interested in advocacy around fair use
I’ve tried to design the course so that all of these people will get what they need out of it. Often librarians learn about fair use as part of a general class or presentation about copyright. By taking fair use as our subject for the full four week class, we have the opportunity to explore the doctrine more fully. One thing that I think participants will find especially valuable about my approach is that I really start from the historical and philosophical roots of the fair use doctrine. Too often fair use is taught fairly mechanistically and librarians are left feeling that they can’t confidently transfer the knowledge that they gained in purely scenario-based sessions to the specific cases that arise in their work. It is my hope that participants in this class will leave the class feeling confident and excited about their ability to conduct a fair use analysis, to discuss copyright with patrons, colleagues, and administrators, and to advocate for fair use practices that align with the original purposes of the doctrine and our own professional values.
What are some possible situations where librarians may find that they need to give advice about a fair use analysis? I think some new librarians haven’t encountered it yet, and some librarians probably haven’t been providing information about it where it may be needed.
Great question! I’m often surprised how many opportunities to talk about fair use arise when your community knows you have some expertise and are happy to have those conversations. Before I talk about specific situations that come up, I want to talk a little bit about the word “advice”. One thing that comes up whenever I teach about copyright is the concern that librarians have about providing advice that could be construed as legal counsel. While I don’t want to minimize that concern, it is absolutely the case that there is a lot of expertise that we can offer without coming anywhere near giving legal advice.
I work in an academic library, and have for most of my career, so many of the situations that come up in my work involve teaching and research. For instance, instructors will talk with me about questions they have about posting materials to their course websites or learning management systems. Instructors often have questions about converting material from one format to another. Both faculty and students regularly approach me regarding inclusion of copyrighted materials in books, research papers, dissertations and theses, and other course-related papers and projects. Also within the academic world, we deal with fair use issues around electronic reserves. Lots of the situations that come up, though, aren’t specific to the academic environment. Fair use can come into play when copyrighted materials are used in displays (both physical and digital), institutional/digital repositories, on websites and handouts, or in performances or programs.
Basically, anytime a patron or a colleague wants to do something with copyrighted material, there is the potential that fair use is going to be a component of the discussion. Knowing fair use inside and out allows you have some fascinating and useful conversations instead of just pointing people to some checklist or guideline.
What are some misconceptions that you find librarians often have about fair use?
You would be amazed by some of the misconceptions I have heard over the years. I think most misconceptions I hear have to do with conflations of local policies or guidelines with the actual law. For instance, I’ll often talk to librarians and library staff who have some set percentage of a work in mind that they believe is always fair and any more than that is never fair. Of course, no percentages are specified in the law and, in fact, there are times when using 100% of a work is perfectly fair and times where using very small portions is not fair. Most people laboring under the belief that there is some prescribed percentage do so because they worked somewhere that had a policy that laid out a percentage. The one that has driven me the most crazy over the years is the “first semester free” practice that so many academic libraries use in their reserves operations. That is, library staff will place a reading on reserve without seeking permission the first time an instructor wants to use it but in subsequent semesters they will automatically ask for permission. This is wrong on so many levels and yet it is a fairly common practice. We’ll talk about this one at length in class! Finally, there are a lot of what I would call “first factor misconceptions”. That is, there are those who believe that any educational use can be presumed to be fair and that any commercial use is automatically unfair. Again, I think these beliefs come out of a desire to reduce complexity but it is simply the case that fair use is a four factor test and all four factors matter and must be considered.
Finally, to give people a foretaste of what they will get in your class, what are a few of the specific points of information or interest that you will cover which they may not have heard a lot about in a campus presentation on fair use? Or, beyond that, what will they learn that will give them confidence regarding fair use that they didn’t have previously?
Well, as I mentioned earlier, I think one real benefit that participants in my class will get is just the opportunity to explore fair use in depth for four weeks. Many people encounter fair use as just one part of an hour-long session on copyright. The structure of this class allows the content a lot of “breathing room”. Participants will have time to reflect on their learning in a way that isn’t always possible in a shorter, in-person session. I also really try to present the information in a way that discourages “checklist thinking” when it comes to fair use. Checklists have their place, and we’ll talk about that, but the beauty and power of the doctrine comes from the fact that it is not a checklist that can be applied mechanically. Instead, if we understand the historical and philosophical origins of the doctrine and we understand something of the ways that the courts have interpreted it, we can approach fair use analyses with nuance! Finally, I think participants will find a curriculum that situates fair use within our values and professional practices. I want participants to feel, after taking my class, that they aren’t somehow trespassing on the lawyers’ territory when they talk about fair use but that they are very much on home turf!
Sounds like a great class. Thanks for doing the interview and for being an instructor for Library Juice Academy.