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CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES
Copyright law has often been out of sync with reality and never more so than now. Despite attempts to update the law to reflect changes in teaching (the TEACH Act of 2002), library activities (the Section 108 Working Group), and online service provider responsibility (the Digital Millennium Copyright Act of 1998), copyright law still lags behind the rapid advances in technology, digitization, and online distance education tools and applications. Peer-to-peer file sharing of music and movies continues despite every strategy the RIAA can employ, including intense lobbying for stricter laws, widespread educational efforts and messages, and continuous litigation and threats of litigation. While large segments of the population remain undeterred by such efforts, other groups take these actions very seriously often resulting in a significant chilling effect on the entire industry affected.
Many of the activities now being targeted for litigation are standard and accepted practices within the particular field and have been employed for decades. Artists learn their craft by copying the masters and always have. Documentary filmmakers have always inadvertently captured copyrighted images in the backgrounds of their true subjects. Scholars and professionals have always copied articles of interest for their private use from a single circulating journal.
But when these commonplace and accepted practices are singled out and scrutinized under the harsh glare of a lawsuit, the decision-maker, be it judge or jury, may have no idea of what is normal and considered reasonable other than what each party's lawyer says in their brief. How then, to educate the stranger to the industry about what is necessary, commonplace, and nonthreatening?
One very good answer is for a credible, unbiased institute or center of copyright expertise to scientifically study and survey the industry or practice at issue and report its findings in the form of a consensus of what constitutes "best practices". The goal is to provide the decision-maker as well as the participants in the industry with reliable information and guide to what is considered reasonable and lawful activities. There is considerable evidence, in the opinions of many court cases, that courts look to such guidelines for direction. Courts have long referred to the "Classroom Guidelines for Photocopying" included in the legislative history of the 1976 Copyright Act when determining fair use questions.
Such thinking is behind the ground-breaking "Best Practices" guidelines issuing from American University's Center for Media and Social Impact, as well as other associations, particularly those in the library community. Their work is ongoing but to date, the following best practice documents have been well-received:
• Code of Best Practices in Fair Use for Poetry