Tag Archives: fair use week

A quick word about an exceptional exception (you should get to know or start to consider using)

As part of the fair use and fair dealing week, IFLA is delighted to welcome Eric Chin, from the General Counsel at the National Library Board of Singapore, to share his views on the importance of making the best use of the flexibilities provided by the fair use and fair dealing provisions.


  1. Your mission as a librarian is to enable teaching, learning and research.  How much you can achieve depends on the extent to which libraries can collect, preserve, give access, present and exhibit library materials.  This in turn depends a lot on copyright laws that govern how library materials can be used.


  1. For example,  one of the exclusive rights of a copyright owner is the right to make a copy.  This impacts your day to day work ranging from the request by a teacher to make a copy of a photograph for a lesson, to whether the much used book that is deteriorating and is out of print (but still in copyright) can be digitised to preserve the content from being totally lost, to whether a video in an obsolete format (but still in copyright) can be migrated to a new digital format;  and to whether the non-profit museum down the road can make a copy of part of a map for an exhibition.


  1. Before we go further, it must be said that there is nothing wrong about the principle that copyright owners have exclusive rights for a period of time as just reward for endeavours and ability and it is beneficial to society because, among other things, it does create incentives for the production of more library materials.  It is not often said but it is not unfair to say that copyright is partly the lifeblood of a librarian’s job!  The question is about how this is balanced against what rights or exceptions there are to also ensure that exclusive rights do not act as unintended and undue barriers to progress in science, in the preservation of heritage and culture and the dissemination of knowledge.


  1. So copyright laws typically include a set of provisions that act as exceptions that will  allow for your mission as a librarian.  I say “typically” because copyright law is territorial in nature and each country has its own set of copyright laws. This means the scope of exceptions can vary (very) widely from country to country.  To see where you stand in the wide spectrum of copyright laws, it is useful to look at this study covering 191 countries: https://www.wipo.int/edocs/mdocs/copyright/en/sccr_35/sccr_35_6.pdf (the Study on Exceptions).


  1. Starting by knowing where you stand allows you to consider if you need to advocate for copyright exceptions that fellow librarians in other parts of the world can already use but you simply cannot.  What you cannot do will have a negative impact on the amount of teaching, learning and research that can be done in your own country. In an ideal world for librarians,  all countries will learn from one another and all will level up until all countries share the most useful exceptions in common. However,  it must sometimes start with ground up advocacy to the right powers that be in our countries, which is partly in our own hands.


  1. Looking at the range of exceptions in each country in the Study on Exceptions, you will see a fair few countries that do not list what is called “fair dealing” or “fair use” (collectively Fair Use) among the exceptions. Fair Use is a general exception that anyone can use and is not a specific exception available only to libraries but libraries can benefit greatly from it.  Each country will of course have an argument to make for its own copyright traditions and doctrine that their society may be comfortable with, but in my own view,  countries that do not have this exception may be missing out on an exceptional exception.


  1. Most library specific exceptions are generally prescriptive in nature with fixed criteria that must be met in an unchanging way in order to become applicable and this oftentimes can make it challenging for us especially in the fast changing digital era. On the other hand,  Fair Use is special because it is normally stated in a flexible way.  Certain broad factors (that are also usually not exhaustive) are set out as matters to be considered in a fair use analysis such as whether there is transformative use (i.e. use of the original library material or part of it in a beneficial way to society that is different from the intended use of the original) and whether the amount of the original library material used is appropriate in the circumstances including bearing in mind whether it would unfairly eat into or destroy the livelihood of the owner of the copyright.  Those who have had the benefit of using Fair Use will know that these broad factors for fair use analysis are such that the law in Fair Use can automatically adjust to new, evolving and challenging situations that you will face in your daily work.


  1. Around the world, in countries that have the Fair Use exception, it has been crucial in allowing for the use of library materials (including copying to an appropriate extent only) for research or study, criticism or review, reporting of news, to support teaching and learning,  to publicise library programmes, to create exhibitions, to preserve at risk items, to enabling use for those who are disabled and to making a record of ephemeral but culturally significant matters posted on the internet.


  1. This short piece cannot hope to set out all the details of what the best practices and exemplars are for Fair Use that gets the balance right between your mission and the rights of creators and publishers,  but urges you, as a librarian, to see where you stand in the spectrum of copyright laws that may be available across the world to support your mission.  As it is Fair Use Week,  and if you are one of those that does not have the benefit of Fair Use or actually do have the benefit of such an exception but have not used it,  go find out about it through the lawyer or other experts supporting your library and see how it can be fairly used.  If you then think it is useful, consider how you can advocate for it to be introduced or used as part of your workplan in the not too distant future.


  1. In the meantime,  it is Fair Use week and time to use those research skills to discover and read more about an exceptional exception that is not a fair weathered friend to librarians!


Eric Chin

General Counsel (and would be librarian and archivist)

National Library Board, Singapore


Note:  The views set out here are personal and do not represent the official view of any organisation I am associated with.


How HathiTrust Emergency Temporary Access Service (ETAS) supports Libraries in pandemic times

By Sara R. Benson, Copyright Librarian, University of Illinois at Urbana Champaign. Check out Sara’s podcast titled Copyright Chat at https://go.illinois.edu/copyrightchat

It’s Fair Use/Fair Dealing week and that means it is once again time to let folks know about exciting developments with the HathiTrust Digital Library. Last year on Fair Use Week I highlighted the ability of researchers to engage with copyright protected materials for text and data mining through the HathiTrust Research Data Capsule. This year, I would like to make readers aware of the HathiTrust Emergency Temporary Access Service or ETAS.

What is the ETAS? It is a portal allowing affiliated libraries to permit their patrons to access in copyright works remotely. Why is the ETAS available? COVID 19 has caused many libraries, such as my own (the University of Illinois at Urbana Champaign Library) to temporarily limit physical access to library materials. Almost half of our collection, however, has been digitized and is available in the HathiTrust corpus. Normally, users can only perform searches for how many times a given term appears in copyright protected works in the HathiTrust corpus. However, due to COVID 19, the ETAS allows users to view (but not download) entire copyright protected works remotely. Libraries participating must have the physical book in their collection and agree not to lend out the physical book. Thus, the book is being lent remotely on a one-to-one ratio to the Library’s physical collection on the basis of fair use. This type of lending is made possible because it is non-commercial, educational in purpose and justified due to the emergency nature of the pandemic virus. As noted by April Hathcock in a public statement created by copyright specialists and available at https://tinyurl.com/tvnty3a, “fair use is made for just these kinds of contingencies.”

So, as you celebrate Fair Use/Fair Dealing week this year, note that the pandemic has brought with it many challenges, but Fair Use has enabled libraries to keep lending their works digitally so that researchers and the public can continue to create, thrive, and produce . . . even during a crisis.

The HathiTrust Digital Library: A Fair Use Story

Sara R. Benson, Copyright Librarian, University of Illinois.

If you are unfamiliar with the work of the HathiTrust Digital Library, fair use week is a great time to familiarize yourself with it.  The HathiTrust Digital Library “is a not-for-profit collaborative of academic and research libraries preserving 17+ million digitized items.”[1]  Essentially, partner libraries digitize volumes of in-copyright and public domain books for preservation and access through the library.  The library makes the works available to the fullest extent possible under United States copyright law.  Thus, for public domain works, the works are fully available to read and access through the digital library.  (The HathiTrust also works with library partners to review works to determine whether they are in-copyright or have fallen into the public domain due to failed formalities).[2]  For in-copyright works, researchers can search to see how many times a particular term is used in the book and on which pages the term is used.  This search feature has been deemed a quintessential fair use by the Second Circuit Court of Appeals[3] and paved the way for the broader Google Books fair use court decision.[4]

Select member affiliated researchers can also engage in text mining with in-copyright books through a special Data Capsule.  This capsule allows researchers to use a secure online environment to engage in research and text mining with the book corpus.

If you are unfamiliar with the HathiTrust Digital Library and the HathiTrust Research Center, fair use week is as good a time as any to get familiar with it.  What are you waiting for?  Dive into the resources available through the HathiTrust and discover a whole new text-mining world!

[1] https://www.hathitrust.org/about.

[2] https://www.hathitrust.org/copyright-review.

[3] Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).

[4] Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

Report on status of Copyright Amendment Bill by Denise Nicholson

Over the past few years, the International Federation of Library Associations and Institutions (IFLA) has been engaged in the reform of copyright laws in South Africa. Indeed, IFLA has submitted on many occasions comments and proposals on draft amendments.

This reform contains ambitious provisions which could have an extremely positive impact on libraries and heritage institutions, enabling the latter to benefit from legal provisions similar to the fair use provision as in the United States. It will also provide a positive example for neighbouring countries.

There is strong opposition, however, from other groups, notably collective management bodies, and from the academic publishing sector, even though.   

Despite the reforms being approved by Parliament, they have yet to be signed by the President, who faces both loud opposition internally, and, more recently, a threat from the US Trade Representative to try and remove South Africa’s Generalized System of Preferences (GSP) trade privileges with the United States.

As part of the week on Fair Use and Fair Dealing, we therefore welcome an update from Denise R. Nicholson, Scholarly Communications Librarian, University of the Witwatersrand, Johannesburg, South Africa.



by Denise Nicholson, BA HDip Libr (UNISA); LLM (WITS) Scholarly Communications Librarian, University of the Witwatersrand, Johannesburg, South Africa


In terms of Section 79 of the Constitution, President Ramaphosa must either sign the Bill within a reasonable period, or, and only if there are constitutionality issues, he must return it to the National Assembly to address those concerns.  The Bill has been on President Ramaphosa’s desk for 10 months (far beyond a ‘reasonable period’).

There has been a lot of support for the Bill internationally, regionally and locally.  However, there has also been strong opposition to the Bill mainly from rights-holders, collecting societies, musicians, some authors and creators (under the umbrella of the Copyright Coalition of South Africa) and international publishing and entertainment conglomerates and collection management organisations.

The International Intellectual Property Alliance (IIPA), a lobby group for 5 large entertainment corporations in America, petitioned the US Government last year to review Generalised System of Preferences (GSP) agreements like AGOA and others with South Africa. They claimed that the exceptions in the Bill are too broad and that American rights-holders would be prejudiced if the Bill is passed. They want the US Trade Representative (USTR) to withdraw the preferential trade benefits that SA currently enjoys.  Apparently, R35 billion in South African exports to the USA are at stake if such a review goes ahead. Ironically, the SA Bill has adopted fair use provisions from the US copyright law, and other provisions enjoyed by other developed countries.  It is also premature for such a review to be considered as the Bill has not been enacted, so there is no possible evidence that American rights-holders’ interests are at stake.  The law would need to be in place for a while before any evidence could be collected in this regard.

In response to the IIPA petition, the US Trade Representative’s Office called for public submissions on this matter and held public hearings on 31 January 2020.  Forty-two submissions were lodged with the USTR. Thirty-two submissions called on the USTR to withdraw its review on trade agreements and the majority supported the Bill, whereas ten submissions opposed the Bill and supported a review of trade agreements.  Stakeholders can still make further submissions until late February 2020.  The Minister of Trade and Industry has met with officials in the US to discuss this matter.   It is not certain whether the USTR will take action in this regard. Asked if she believed South Africa would change the two laws (Copyright Amendment Bill and Performers’ Protection Bill) to meet US concerns, the new US Ambassador to SA, Lana Marks (SA-born) said the laws “must be within every aspect of the Constitution of South Africa”.  The Daily Maverick reports that Marks is confident that South Africa is not going to lose either its GSP or its AGOA access, directly or indirectly.  “It’s not going to happen,” she says, firmly.

Various international and local organisations have written to the President asking him to sign the Bill as a matter of urgency.  BlindSA has written a strong letter to him pointing out he has a constitutional duty to act on the Bill, and that if he does not act by the anniversary of the passing of the Bill by Parliament (i.e. 28 March), then BlindSA will consider taking him to court on this matter.

We hope that the President will act on the Bill soon.

See IFLA’s contribution to the US Trade Representative hearing.