Fair Use & Free Use: Archives, Art, and Artifacts

How can you make sure copyright and fair use are working for you? This week Harvard Law School is promoting “Fair Use Week” to encourage greater understanding of this aspect of intellectual property law.

Intellectual Property Spectrum

In the United States, our Constitution establishes IP law with the goal:

“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

Get to know these symbols for the IP spectrum, getting to know what these limitations mean for owners and users will help you know your rights:

IP Spectrum

For owners, this IP spectrum ranges from constant vigilance to retain trademark rights to no restrictions with Public Domain works. Creative Commons and was introduced to give owners more options to allow pre-authorized use while retaining some limits.

As a user, how do you make these laws work for you without entering into extended (and possibly expensive) legal agreements? By finding your place in the middle ground (fair use), following the limited requirements of owners using Creative Commons, or verifying free use (public domain).

What are your rights & limitations?

Knowing where you fall on this spectrum can be tricky. Here are two helpful tools for interpreting what limitations you need to observe:

  • The Copyright Clearance Center has a great Fair Use Check List to help explain the four factors of fair use – purpose, nature, amount, and effect.
  • The Public Domain Sherpa can help you interpret limits on more complicated material types, from photos to sound recordings.

Access at Cultural Institutions

Libraries, archives, and museums exist to promote greater understanding and appreciation of the world. These institutions want to promote innovation and creative projects with their collections. Scholars and students do research, visitors come to view their materials for pleasure, and greater access allows more interesting uses.

What limits access from these cultural institutions? The where, the when, the who, and of course, the money. Their locations, hours they are open, the number of staff who organize and set up displays, and of course the funding that supports the rest can all limit access.

What can open up access? Digitized copies of materials are easier to access from any location at any time by anyone with basic computer and internet access. Not every resource can be digitized successfully – and many are limited by copyright.

Copyright and Cultural Collections

But what about materials that are well past any limitation of copyright? In the most recent issue of the Chicago-Kent Journal of Intellectual Property, Amy Hackney Blackwell & Christopher Blackwell look at the ways museums and archives have limited or provided access to their collections in an article titled Hijacking Shared Heritage: Cultural Artifacts and Intellectual Property Rights.

As researchers, the Blackwells worked with manuscripts of Homer’s Iliad, Aristotle’s Constitution of the Athenians and 18th century botanical specimens from the Carolinas. Digitizing these materials and working out permissions for further access allowed them to explore the ways that a culture of hyper ownership, visible in defensive patenting in technology and science, has also reached cultural collections.

Alternative Options with Copyright

Going beyond fair use, many cultural institutions use Creative Commons to open up access to their collections while still retaining rights to require proper attribution or to limit use for non-profit purposes so they can charge fees for specific services or sell high-resolution digitized copies.

Some institutions have been publishing their materials online in open collections that specifically mark them as “copyright free” or part of the public domain.

Two recent examples are the British Library, which released over a million images into Flickr Commons this December, and Getty Publications, which released hundreds of backlist titles into a virtual library last month.

Starting Points for Open Access

Open access journals publish works where anyone can read and use their articles under fair use provisions. Online collections like Hathi Trust and Flickr Commons allow many institutions to make sure their resources are available to as wide an audience as possible.

Did you know that Chicago-Kent Law Library has also been working to make our institutional and archival collections available online too? You can find examples of early law school yearbooks, our full law review archives, lectures, and more at the Scholarly Commons website.

About Emily Barney

Technology Development & Training Librarian
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