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Copyright and Fair Use: Scholarly Communication Toolkit: Scholarly Publishing from ACRL

Scholarly Publishing

In its more than 350 year history, scholarly publishing has evolved from formal publication of discoveries by elite members of scholarly societies to open dissemination of scholarly research through new technological platforms that is increasingly subject to new and emerging forms of peer review and measured for impact by traditional and alternative metrics.

In the course of scholarly publishing's history, issues have arisen with respect to the economic sustainability of publishing's business model as well as how journals should be evaluated and their impact measured. Libraries have been at the forefront in proposing solutions and developing means for addressing these issues.

Copyright and Libraries

Libraries are creatures of the historical and statutory balance in copyright law. Libraries lend materials based on the First Sale doctrine. Libraries share materials and preserve works under specific provisions for libraries in the Act. Libraries are often the only entities that provide access to the vast majority of copyrighted works that lose market vitality long before the expiration of the copyrights, and are often the only entities that preserve public domain materials. Libraries enable users to access copyrighted and public domain works and to exercise their rights under the exceptions and limitations to creators' rights in the law. The creation of new intellectual property building on the old is stimulated as a result of the existence of libraries. Libraries are places where the public and the proprietary meet. The multiple roles of libraries as social organizations address the balance in the law, and are shaped by it.

From "Libraries as Creatures of Copyright: Why Librarians Care about Intellectual Property and Policy." Carol Henderson, American Library Association.

Fair Use

Fair use is a statutory exception to the copyright holder's bundle of exclusive rights. It allows for the unlicensed (that is, without permission or payment of royalty) use of a copyrighted work where the balance of several factors weighs in favor of such use. Four of these factors are specifically enumerated in the statute. Application of fair use requires a factual analysis of these four factors as applied to the facts of the proposed use. Although no single factor is determinative, recent court decisions reveal that transformative use is an important consideration as is the potential harm to the market for the copyrighted work.

Authors Rights

All authors, whether they are a faculty member publishing a monograph, a grant funded researcher publishing a scholarly article, or a graduate student writing a dissertation, need to be familiar with the basic concepts of copyright and have an awareness of the options for publishing, posting, archiving and distributing their scholarship. Many scholars, including teaching faculty, are not well-versed in these issues and therefore not equipped to educate students who they may be similarly advising. Librarians can fill this gap given their knowledge of copyright and the publication process.