I am delighted to kick off the 12th Anniversary of Fair Use Week with a guest post by expert colleague and long-time friend to Fair Use Week, the international copyright authority Kenneth D. Crews. Join him in an exploration of fair use as both an essential and imperfect tool for preservation, allowing libraries, archives, and individuals to digitize and safeguard cultural heritage against disasters like fires, war, and climate change. Kenny Crews argues that it requires proactive action, policy development, and strategic implementation to truly protect our shared history before it is lost. – Kyle K. Courtney
Fair Use, Preservation, and Fires
By Kenneth D. Crews
It’s the beginning of Fair Use Week, and this is no time for the Monday blues. Fair use may give us some frustration, but it also opens great opportunities. For the moment, let’s recognize that fair use is a rare and odd creature. It is essential and irreplaceable, while at the same time sluggish and inadequate. Consider the age-old example: Fair use as the authority for making classroom handouts, whether in paper form or digital. Without fair use, U.S. law offers scant support for reproducing copyrighted works for teaching. Yet even with fair use, teachers struggle over legal interpretations, local policies, and dreadful visions of oppressive and expensive litigation.
We can find similar tensions in many familiar tests of fair use: Music clips captured in documentary films; archival letters excerpted in a biography; and photographs embedded in blogposts. Even the outsized cases – scanning millions of copyrighted works to build search tools or to develop a vast resource to train AI systems – involve struggling and coping and strategic decisions about the meaning of fair use. Whether we are working with fair use in a simple one-off project or depending on it for massive data collections, fair use is a gift and a burden.
That dichotomy is a challenge for fair use in one of its most critical deployments – the ability to make copies of works in libraries and other institutions for the purpose of preservation. The need is straightforward. Libraries, archives, museums and other cultural heritage institutions hold extensive collections of diverse works. In fulfillment of their duty to protect works and make them available to future researchers, many institutions have implemented a program to digitize objects in their collections, with the expectation that the digital facsimile can be used should the original vanish or be destroyed.
Fair use is in some ways the most important copyright provision to support preservation and to protect against casualties of any type. It is powerful, but also limited. Among its virtues, fair use can extend across all media in the collections, and it can be adapted to changing technologies. It might even justify preservation copies before the originals are enduring damage and loss. In these ways, fair use can often go beyond the reach of the specific preservation terms of Section 108 of the U.S. Copyright Act.
However, fair use lacks the details that many users want when they turn to it for reassurance and guidance about the law’s meaning for preservation. Fair use is also only one component of the total preservation enterprise, which requires expert staffing, expensive equipment, and a lot of time. It is never too soon to launch a preservation program. Right now is a good time to develop policies and build a program around the opportunities in copyright law. When we stall and delay, we will discover again that fair use cannot come to anyone’s rescue once the fires are bearing down on your library, archive, museum, or any other institution. Our extensive and unique collections are right now at dire risk.
The fires are hitting our cultural institutions on a regular basis. The national museum in Brazil and a university library in South Africa had massive and irreplaceable losses. The storage facility for early music recordings endured extensive casualties. Nearly the entire town of Lahaina in Hawaii, and its troves of historical records, were wiped out. The disasters go far beyond just fire. Collections in our cultural institutions are right now and around the world at risk from storms, war, political upheaval, rising oceans, and more.
Just last month, my home city of Los Angeles was hit with multiple fires that destroyed some 10,000 structures in just a few days. Some losses were not the usual subject of preservation – houses designed by leading architects and furniture and stained glass in churches. But other losses were exactly within scope of preservation programs that can be built upon fair use and Section 108 of the Copyright Act.
In the Altadena fire, the Theosophical Society lost its entire building, along with its archival records and specialized library. The artist known as Gary Indiana died last fall in New York. His extensive collection of art books found a home in Altadena. The boxes arrived one day; the next day the fire engulfed the entire collection. In the Pacific Palisades, blazes came frightfully close to the Getty museums. Fires did some damage to the cultural centers based in the former homes of the great German authors Thomas Mann and Lion Feuchtwanger. The Palisades was the destination for many German exiles in the last century.
These notable losses are there for us to witness. Hidden from view are the treasures inside the private homes. So far, we can only imagine the artwork and other gems in spacious homes lining the canyons of Pacific Palisades; artifacts and archives of authors and business leaders are gone. Altadena has been home to multiple generations of families for more than a century, and flames took the letters, photographs, and diaries that told their stories. Altadena has a large African-American population, and the families include artists, musicians, authors, and inspired citizens who worked hard to build extraordinary lives. Everyone is part of our shared heritage, and much of the evidence and memory vanished in little more than a day.
Palisades Branch Library
We tend to think of preservation in libraries and archives, and that is the stuff of Section 108. Efforts in Congress and in the World Intellectual Property Organization have sought to encourage better copyright exceptions for preservation. Fair use can fill some gaps and allow for more robust programs. But good preservation also begins at home. We can be active preservationists by digitizing our photos and scanning our early letters and documents – and storing them off-site when possible. In the unlikely event that you might encounter serious clash with a copyright owner, fair use can be your support. Unless we capture copies of our fragile and rare originals, our own cultural heritage may be next to succumb to the conflagration. With fair use and more, we can build on the powerful opportunities that copyright law can provide.
Kenneth D. Crews is a copyright attorney and consultant based in Los Angeles. He established the copyright offices at Columbia University and Indiana University, and he is the author of numerous books and articles on copyright law.