In copyright law there is a common misconception that fair use is relied upon solely by consumers. The reality is that everyone – movie studios, publishers, etc. – uses fair use. This interesting information on copyright came to us from Above the Law in their article, “Fair Use For Me, But Not For Thee.”

Advocates for strong intellectual property rights might oppose fair use when bringing a lawsuit, they are not shy in asserting their own right to fair use. Publishers advocate for strong intellectual property protections and often take a narrow view of fair use.

In cases involving the mass digitization of works to create a searchable database, including making works accessible for those with print disabilities, rightholders argue that fair use did not apply. The Association of American Publishers (AAP) argued that digitization, creation of optical character recognition copies, ingestion into a database, preservation of the works and creation of accessible formats for those who are visually impaired were “unprecedented uses [that] far exceed anything contemplated by Congress as falling within . . . fair use and beyond what any single sitting judge can properly authorize.”

In the end, this argument was rejected by the Second Circuit court, which found that the fair use statute and precedent clearly supported a finding of fair use.

Traditionally, publishers take a dim view of fair use when libraries are creating own searchable database. It’s important for content creators and large rightholders to take a more balanced and nuanced approach to copyright.

Melody K. Smith

Sponsored by Data Harmony, a unit of Access Innovations, the world leader in indexing and making content findable.