Put Your (Hathi) Trust in Fair Use « Copyright on Campus

"Once again, a court has confirmed that libraries may rely upon fair use when digitizing copyrighted works and making them available for new purposes and audiences.  The Second Circuit Court of Appeals issued its opinion yesterday in the Authors Guild’s appeal of the summary judgment rendered in favor of  HathiTrust Digital Library and several of its university library partners.  At issue in the underlying case was the legality of HathiTrust’s digitization of thousands of copyright protected books. Digitization had been done for three purposes: to create a searchable database allowing researchers to identify relevant works through keyword searches; to provide access for those with print disabilities; and to digitally preserve unavailable but still copyrighted titles that were lost, destroyed or deteriorated. Following the district court’s grant of summary judgment in favor of HathiTrust, the Authors Guild appealed. (Click here for my summary of the 2012 judgment in the AG v. HT lawsuit.) The Second Circuit affirmed the district court’s grant of summary judgment in favor of HathiTrust as to full text searching and print disabled access but vacated and remanded as to the issue of preservation. Brian Carver at UC Berkley’s iSchool nicely summed up the decision: 'Today’s decision is an important reaffirmation of the fair use doctrine’s role in enabling transformative uses of copyrighted works that enable the creation of new information-location tools and in the ability of libraries to serve the needs of their print disabled patrons' Going forward, it will be interesting to see what impact this decision has on other pending fair use cases, including the appeal of the copyright infringement lawsuit against Georgia State for its electronic course reserves practices. In its opinion, after providing a nice summary of previous cases that illustrated the application and importance of fair use, the court sets forth its view of the four factors of fair use and their application: Factor One – The purpose and the character of the use. The focus here is on transformative uses; however, the appeals court disagreed with the district court’s characterization of what is a transformative use. The test is not whether there has been added value or utility; rather, the test is whether the new use or purpose allows the work to serve a new and different function while not also merely being a substitute for the original work. Factor Two -The nature of the work. The appeals court continues the precedent of prior adjudications and looks at whether the work is more creative, which is more valued in copyright law, than factual. Factor Three -The amount of the work used. The inquiry here is whether the quantity and value of the materials used is reasonable in relation to the new uses. That is, does the transformational character of the use justify the quantity used? Factor Four – The effect on the market for the original work. The appeals court asserts that this is the single most important element of fair use and that the burden is upon the copyright holder to demonstrate that the secondary use serves as a substitute for the original work."