Digitization in an Emergency: Fair Use/Fair Dealing and How Libraries Are Adapting to the Pandemic - Association of Research Libraries

"Fortunately, the principle of fair use—a pillar of the US copyright system—provides a crucial safety valve, as does the doctrine of fair dealing in Canada. Research libraries have taken the lead in clarifying and applying fair use and fair dealing to the present crisis. Earlier this month, a broad group of copyright experts from university libraries published a statement on fair use, explaining how, “while legal obligations do not automatically dissolve in the face of a public health crisis,” US copyright law is “well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.” Similarly, several experts on Canadian copyright law posted a detailed analysis of why “the circumstances of the current emergency justify a broad construction of fair-dealing.” What are these fair uses in practice? To begin with, academic libraries are necessarily digitizing more materials in response to specific demands. For example, the University of Georgia Libraries are “providing emergency scanning of print and digital materials from our collections to our faculty and students to ensure that…education and research remain continuous.” Cornell University Library has advised faculty on how to assess “whether fair use permits scanning” of physical materials for online teaching. However, selective scanning is not a comprehensive solution. As the pandemic worsens and shelter-in-place orders proliferate, many libraries have had to send all of their staff home, leaving no one to pull books from the stacks and digitize them. In response to unprecedented exigencies, more systemic solutions may be necessary and fully justifiable under fair use and fair dealing. This includes variants of controlled digital lending (CDL), in which books are scanned and lent in digital form, preserving the same one-to-one scarcity and time limits that would apply to lending their physical copies. Even before the new coronavirus, a growing number of libraries have implemented CDL for select physical collections. For example, MIT used CDL for a collection of works that were inaccessible during the renovation of one of their libraries. The justifications for CDL, both in legal and public interest terms, are at their strongest right now, to allow for continued progress of the arts and sciences while physical library holdings are broadly inaccessible...."