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Permissions Optional: On The Digital Horizon - Morgan Dawn Livejournal:The Here And Now
The Here And Now
Permissions Optional: On The Digital Horizon
First up, as Rebecca Tushnet reports, Australia has recommended adopting a fair use exception to their copyright laws. She points out that "one reason to adopt fair use is that it provides greater protection for "musical compositions, new films, art works and fan fiction."

Next: digitization efforts by libraries and museums are gaining greater acceptance worldwide. In the same Australian report several sections focus on the need for libraries and collections to (a) be allowed to scan copyrighted materials,  and (b) to allow less restricted access to those materials (ex: no digital hobbling, forced anti-copying technology or onsite only access with limited days and hours). And last, they argue for the right to preserve material that was "born digitally" (work that was only distributed in electronic format. Think along the lines of the Internet Archive/Wayback Machine): "Aside from ‘legacy’ works—such as old manuscripts and films—libraries and archives must also preserve materials that are ‘born digital’ in the face of ‘technological obsolescence’. Best practice preservation principles in relation to digital material require numerous copies to be made in multiple formats."

This is in line with the positions being adopted by US institutions. Not only do these institutions argue that fair use allows them to scan material for preservation and research purposes, but they also do not need to  conduct a due diligence search for  "orphaned works" (works where the copyright owner has vanished or cannot be determined.

"Because of these significant changes in the copyright landscape over the past seven years, we are convinced that libraries no longer need legislative reform in order to  make appropriate uses of orphan works. However, we understand that other communities may not feel comfortable relying on fair use and may find merit in an approach based on limiting remedies if the user performed a reasonably diligent search for the copyright owner prior to the use....."

They go on to note that the less commercial an item is, the stronger the fair use argument:"....the fair use case for such uses will be even stronger where items to be digitized consist largely of works, such as personal photographs, correspondence, or ephemera,*  whose owners are not exploiting the material commercially and likely could not be located to seek permission for new uses.”  (Library Copyright Alliance, 2013)

*Ephemera interestingly can include both paper items as well as video.  Fanvids would probably fall with the definition of video ephemera.

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