James S. Heller

“ A library or its parent institution may be liable as a contributory infringer if it induces, causes, renders substantial assistance to, or materially contributes to the activity. [9] It doesn’t matter whether the infringer is an employee or someone who walked in off the street. Actual knowledge is not necessary; it is enough if the library should have known that an infringement was taking place. But this doesn’t mean that the library is on the hook if it merely provides patrons with an opportunity to infringe someone’s copyright. ”

“ When a library posts an article for first time in a digital journal, it is publishing. When a library posts online a scanned book article, or image, it is republishing.
When acting as a publisher, a library is often both a user and a creator of copyrightable works. One the one hand, you must find out if anyone has copyright interests in works you want to publish. On the other hand, you must determine how you will manage any copyright interests the library will have. ”

“ Libraries do not always need to acquire public performance licenses when they purchase a film for their collections. If the New York Public Library lends Woody Allen a DVD of the 1940 Marx Brothers’ film Go West so he can watch it at home while eating take-out Chinese food, why can’t he watch it in the library’s viewing room? Indeed, watching a library-owned DVD in a small viewing room seems little different from using a library’s microform reader to read microfiche, or a library computer to access digital information ”

“ Venues for performing and displaying copyright-protected works have greatly expanded. In addition to cable and satellite television, we now have satellite radio and online media providers like YouTube, Hulu, and Netflix. These new media outlets have made public display and performance rights one of the more volatile parts of copyright law. But before we get to the meat of this discussion, it’s important to know that U.S. copyright law does not protect all performances, only public performances. ”

“ Fair use is a user’s right. In fact, the Supreme Court has pointed out that it is fair use that keeps copyright from violating the First Amendment; without fair use and related exceptions, copyright would create an unconstitutional constraint on free expression. Creators, scholars, and other users face new challenges as copyright protects more works for longer periods, with increasingly draconian punishments and narrow, outdated specific exceptions. ”

“ Today, the fact that a work is out-of-print may work for, or against, fair use. That a work is out-of-print may work in favor of the copyright owner because royalties from copying are the only source of income from the work. ”

“ To justify the effort and expense of digital preservation, the works preserved will typically be unique, rare, or, in any event, out-of-commerce, and the library’s activities therefore will not be mere substitutes for acquisition of a new digital copy of the work. Works in obscure, near-obsolete formats present access challenges as well as preservation ones, but the same fair use rationales will apply. Works trapped in decaying and increasingly obscure formats will disappear completely without diligent work from librarians to migrate them to usable formats. ”

“ Think about the print world. You may not, under either fair use or the library exemption, photocopy a copyrighted journal article and send paper copies to an untold number of people without permission. That you can easily distribute digital articles to lots of people via e-mail does not mean that you can do so without infringing. This is true even when an author posts his or her article on the Web. Rather than download the text, send an e-mail message that includes a link. You achieve the same result, but you have not made any copies. Even e-mail messages are copyrightable. ”

“ The legislative history to the Copyright Act says that “a library in a profit-making organization could not evade these obligations by installing reproducing equipment on its premises for unsupervised use by the organization’s staff.” [39] In other words, if an employee in a for-profit organization infringes copyright, both the employee and the institution can be held liable because businesses and corporations are assumed to have control over the actions of their employees. ”

“ Trade and academic publishers regularly rely on fair use to justify the incorporation of third-party material into books they produce. Librarians likewise need fair use to execute their mission on a daily basis.
No group of institutions, no matter how important their cultural function, is immune from the operation of copyright law. Academic and research libraries are not-for-profit institutions, but they still must build collections by buying books and subscribing to journals and databases. ”

“ The more a person would be able to use the abstract instead of the original work, the more likely the abstract would be deemed a derivative work. The longer and more comprehensive the abstract is, the greater the chance it will be considered a derivative work. But even a short abstract still distills the essence of the original work—one which can substitute quite well for the original work—may also be considered a derivative work. ”

“ When library employees create works as part of their duties, the work-for-hire doctrine says that the employer owns the copyright. Employee-created works, such as guides, bibliographies, and the like are owned by the employer absent a policy to the contrary. Although it is not necessary, authors publishing with the library can assign their copyrights to the library. When people donate their personal papers to archives, they can also sign a contract to donate the copyrights over the papers so the archives handle any permissions requests. One way or another, your library will own copyrights. ”

“ The changes from ownership to access through licensing has significant consequences for libraries. Licenses can dilute and even eliminate critical rights for libraries and users, including the first sale doctrine, the library exemption, and fair use. For example, the section 107 fair use exemption permits a library patron, in most circumstances, to copy an article from a journal or a chapter from a book. But a patron may be out of luck if the library subscribes only to the digital version of the journal if the license precludes copying even small parts of articles. ”

“ First, assume that a work is protected by copyright—even if it does not include a copyright notice—unless you know it’s in the public domain. Second, copyright notices that purport to tell you what you may or may not do can’t limit your fair use rights or other rights under the Copyright Act, but they may allow you to do more than the law would otherwise permit. Third, if you agree by contract not to use a work in a particular way, you will abide by the contract. ”

“ Just as libraries have chosen in the past to display their holdings through on-site exhibitions, or through in-house publications ranging from simple newsletters to glossy magazines, they now use the Internet as a tool for making themselves known. ”

“ The Library as Publisher
So far this book has looked at copyright from the perspective of the consumer of copyrighted works. Most of the time, patrons want to use resources in some way—read a book, copy an article, listen to music, or watch a movie. Libraries also need to reproduce resources to preserve them or to fulfill interlibrary loan requests. But what if a library wants to publish original works or republish existing works in new formats?
Digital technologies have increased libraries’ publishing capabilities. ”

“ Over the past few decades, license agreements have been gradually displacing copyright law. Users and owners of copyrighted material have always been free to alter their copyright rights and responsibilities by mutual agreement. Publishers of print and microform sources rarely use license agreements. But digital publishers are compelled to rely on license agreements, partly because their products are more vulnerable to copying and other misuse, and partly because their users sometimes need rights that copyright law doesn’t provide. ”

“ Under the Copyright Act, a collective work is “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” [41] A compilation is “a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” ”

“ Making library materials accessible serves the goals of copyright, not to mention the goals of a just and inclusive society, and has no negative consequence for rights holders who have not entered the market to serve these users. Such uses add value to a work by making it available to communities that would otherwise be excluded, presenting the work in a format the rights holder has not provided and to an audience that the rights holder is not serving. ”

“ This means that if you research a copyright question, you need only use federal sources of law such as the United States Code and decisions from federal courts.
Copyright does not place an author’s work in a lockbox. The primary purpose of copyright is not to compensate creators. The U.S. Supreme Court has stated, many times, that copyright is a means to a greater societal end: the dissemination and promotion of knowledge. [10] As librarians, we promote the dissemination of knowledge. ”

“ The lesson from Texaco is not that fair use doesn’t exist in the corporate sector, but instead that there are limits as to what libraries and employees of an organization may do.
Let’s take a closer look at fair use in the for-profit sector. We need to recognize first that there are different types of for-profit entities, and that they are not all created equal under copyright law. Two of the earliest infringement lawsuits against corporations for internal copying were orchestrated by the Association of American Publishers in the early 1980s. ”

“ Congress tried to appease the library and academic communities with a tiny bone: During the last twenty years of copyright of a published work, a library or archives, or a non-profit educational institution that functions as a library or archives, may copy, distribute, display, or perform a work—in either facsimile or digital form—for preservation, scholarship, or research if (a) the work is not subject to normal commercial exploitation, and (b) a copy cannot be obtained at a reasonable price. ”

“ Performances permitted under section 110 (1) may not be open to others, such as students’ friends or the general public. Although performances must take place in a classroom or a similar place devoted to instruction, any room that can function as a classroom, including the library, may be used.
In a perfect world, everyone who is entitled to attend a section 110 (1) performance would be able to see and hear it at the time and place it happens, and every performance would take place in a classroom. In other words, every showing would fit literally, and perfectly, within the exemption. ”

“ In the end, there is no exact answer as to how much copying is permitted under section 108. Even non-profit academic libraries that arguably have “gold club” status cannot make copies for faculty or students, or use document delivery, in quantities such that the copying substitutes for needed subscriptions or purchases. Because section 108 really is a fair use—like provision that permits a library to, in effect, act as an agent for the person who needs a copy, the answer to the question “How much may I copy?” depends on the facts. ”

“ Before you publish something, make sure you are not infringing a copyright owner’s rights. For works that are being published for the first time, this is relatively easy. If your library publishes a journal and an author submits an article, she wants you to publish it. Just ask her to sign a copyright permission form authorizing you to reproduce and distribute her work in any possible formats, including new formats that arise as technology advances. Many libraries that publish journals have author agreements on their sites you can look to for examples. ”

“ If you are copying an entire issue of a periodical, you may need to secure permission from whoever holds copyright in the articles, as well as from whoever owns copyright in the issue as a whole.
Copying from newsletters is even more problematic, and copying entire issues of newsletters is particularly frowned upon. A library should not subscribe to only one copy of a newsletter and use it to make additional copies for others in the organization. Neither should an individual subscribe to a newsletter and make copies for his or her friends or professional colleagues. ”

“ Subject to some limitations, a copyright is the exclusive ownership of and right to make use of an original literary, musical, or artistic work for a specified period of time.
Copyright is one part of what is called “intellectual property”, which also includes patents, trademarks, and trade secrets. Like copyrighted materials, patents and trademarks are protected by federal law. Patents apply to useful inventions (such as drugs or computer chips) , while trademarks are names or logos used to market goods or services (such as Coca-Cola or Kleenex) . ”