This document provides an overview of copyright law as it relates to libraries. It discusses how copyright law has evolved over time from early traditions to the modern system of exclusive rights granted to creators. The document outlines the key aspects of U.S. copyright law, including the types of works protected, exclusive rights, and exceptions and limitations such as fair use. It notes the complexity of interpreting copyright law and balancing the interests of creators and users. The document advises librarians to carefully analyze questions around permission, fair use, and risk when deciding how to use or provide access to copyrighted content.

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Copyright & TodayCopyright & Today’’s Libraries:s Libraries:
how did this get so complicated?how did this get so complicated?
Jon CavicchiJon Cavicchi
Professor & IP LibrarianProfessor & IP Librarian
Presented 2008Presented 2008
Selectively Updated 2016Selectively Updated 2016

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My BackgroundMy Background
IP Librarian & Professor of ResearchIP Librarian & Professor of Research
Master of Laws - Intellectual PropertyMaster of Laws - Intellectual Property
Supervised the drafting of CopyrightSupervised the drafting of Copyright
Policies and ProceduresPolicies and Procedures
Content producer of popular IP web siteContent producer of popular IP web site

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Is copyright aIs copyright a ““big dealbig deal”” forfor
Libraries?Libraries?
Carrot and the stickCarrot and the stick
– search shows Libraries are notsearch shows Libraries are not
receiving desist letters or beingreceiving desist letters or being
suedsued
– Librarians proactiveLibrarians proactive
professional associations spend largeprofessional associations spend large
sums to protect educate members onsums to protect educate members on
the law and to lobby to keepthe law and to lobby to keep
legislation friendly to libraries andlegislation friendly to libraries and
information accessible to the publicinformation accessible to the public

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Copyright trials are rareCopyright trials are rare
According to Table C-4 in
"Judicial Business of the US
Courts," only 20 copyright
cases that terminated in 2015
went to jury.
Percent reaching trial 0.7%

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A few brushes with copyrightA few brushes with copyright
policepolice
Georgia State copyright case (Cambridge University Press et al.
v. Patton et al.) involves the use of copyrighted materials in e-
reserves in higher education, but the impact of the case and its
potential results may be far more reaching.
Gettsburg College in Pa. sued over coursepack copying
Anston County Community College in NC paid $18,000
damages for software copying in settlement after a suit was filed
Disney sued elementary school for painting mural
Indiana AV Network Library Services - rotating collection of
audio cassette books called "Books-on-Tape" - received a
"cease and desist" letter explaining that term is copyrighted

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Special librarians...Special librarians...
Check out theCheck out the TexacoTexaco case…case…

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Jon -donJon -don’’t tell them its OK tot tell them its OK to
infringe because they woninfringe because they won ’’t gett get
caught !caught !
APAAPA
– sharing decreases subscriptions and drivessharing decreases subscriptions and drives
prices upprices up
– copying drives prices upcopying drives prices up
– quality control costsquality control costs
– publishers need revenue streamspublishers need revenue streams
– publishers need revenue to reinvest andpublishers need revenue to reinvest and
develop subsidiary usesdevelop subsidiary uses

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They wonThey won’’t sue librariest sue libraries
but they wonbut they won’’t concede int concede in
negotiating legislation andnegotiating legislation and
guidelinesguidelines
– Robert L. Oakley,Robert L. Oakley, Growing Pains :Growing Pains :
Adapting Copyright for Libraries,Adapting Copyright for Libraries,
Education, and SocietyEducation, and Society , Rothman & Co,, Rothman & Co,
Littleton, CO 1997Littleton, CO 1997

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Is the copyright law...Is the copyright law...
Accommodation ofAccommodation of
interests?interests?
Protection of capitalProtection of capital
structure?structure?

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Give not into temptation...Give not into temptation...
Copying is quicker and cheaper thanCopying is quicker and cheaper than
– tackling the copyright law learningtackling the copyright law learning
curve?curve?
– drafting policies and procedures?drafting policies and procedures?
– clearing copyright use?clearing copyright use?
– keeping records?keeping records?
Statutory damages up to $100,000Statutory damages up to $100,000
Premise of copyright is consistent withPremise of copyright is consistent with
missing and goals of librarianship -missing and goals of librarianship - ““toto
serve social interests and the publicserve social interests and the public
welfare by encouraging learning, freewelfare by encouraging learning, free
speech and the advancement ofspeech and the advancement of

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TodayToday’’s Libraries in NHs Libraries in NH
PublicPublic
SchoolSchool
College & UniversityCollege & University
Some little to no technologySome little to no technology
Some fullySome fully ““wiredwired”” with extensivewith extensive
electronic collectionselectronic collections

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Diversity of library settings -Diversity of library settings -
SLASLA
Business / CorporateBusiness / Corporate
EducationalEducational
GovernmentalGovernmental
LawLaw
MuseumsMuseums
PublicPublic
ResearchResearch

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Scenarios differ but we allScenarios differ but we all
AcquireAcquire
PreservePreserve
OrganizeOrganize
Make availableMake available
CopyCopy
DistributeDistribute
LendLend
PerformPerform
DisplayDisplay

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The content of othersThe content of others
Most of the time protectedMost of the time protected
by lawby law

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Some copyright challenges forSome copyright challenges for
todaytoday’’s librariess libraries
Potential mass copying of electronicPotential mass copying of electronic
contentcontent
Preservation copying - digital format lifePreservation copying - digital format life
is 15-20 yearsis 15-20 years
Unsupported digital formatsUnsupported digital formats
Digital resource sharingDigital resource sharing
– consortiaconsortia
– ILLILL
– cooperative collection developmentcooperative collection development
plansplans
Library as ISPLibrary as ISP

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Copyright has come a longCopyright has come a long
wayway
Based on English lawBased on English law
Tradition of proprietary right in artisticTradition of proprietary right in artistic
and intellectual labor developed overand intellectual labor developed over
many centuriesmany centuries
St. Columba copies Psalter of St.St. Columba copies Psalter of St.
Fennian (600s)Fennian (600s)
– Irish King Diarmait arbitratesIrish King Diarmait arbitrates
– ““To every calf her cow, to every book itsTo every calf her cow, to every book its
copycopy””

18. ©
Need for organized law ofNeed for organized law of
copyrightcopyright
Craxton introduces printing press in 1476Craxton introduces printing press in 1476
Patronage & royal prerogativePatronage & royal prerogative
censor seditious literaturecensor seditious literature
Monopoly by Stationers CompanyMonopoly by Stationers Company
Statute of Anne in 1710 provided literaryStatute of Anne in 1710 provided literary
work was property of authorwork was property of author
Transition of author as gentleman andTransition of author as gentleman and
scholar to proprietorscholar to proprietor

19. ©
U.S. Copyright lawsU.S. Copyright laws
Pre-Constitution all colonies passed lawPre-Constitution all colonies passed law
protecting creative worksprotecting creative works
Article I, clause 8, section 8Article I, clause 8, section 8
– ““The Congress shall have the power…toThe Congress shall have the power…to
promote the progress of science and usefulpromote the progress of science and useful
arts…by securing for limited times toarts…by securing for limited times to
authors and inventors the exclusive rightsauthors and inventors the exclusive rights
to their respective writings and discoveriesto their respective writings and discoveries””

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Dueling public policiesDueling public policies
Promote creativity by granting exclusivePromote creativity by granting exclusive
rightsrights
Enhance the use of the public fund ofEnhance the use of the public fund of
knowledgeknowledge
Creators clash with users?Creators clash with users?
That which is a financial detriment to anThat which is a financial detriment to an
author a detriment to the public?author a detriment to the public?

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Copyright law became purelyCopyright law became purely
FederalFederal
U.S. Copyright ActsU.S. Copyright Acts
– 17901790
– 18311831
– 18701870
– 19091909
– 19761976
1976 Act is the current law amended1976 Act is the current law amended
many times in the last two decadesmany times in the last two decades

22. ©
CopyrightCopyright ““lawlaw”” : 3 branches: 3 branches
of governmentof government
ConstitutionConstitution
Copyright ActCopyright Act
Federal RegulationsFederal Regulations
Copyright Compendium IICopyright Compendium II
Appellate court decisions interpretingAppellate court decisions interpreting
the three above authoritiesthe three above authorities

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Many interpretationsMany interpretations

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The long tail of litigation?The long tail of litigation?
TEACH Act 2002 passed almost 15TEACH Act 2002 passed almost 15
years agoyears ago
No interpretive casesNo interpretive cases
““The TEACH Act is too new to haveThe TEACH Act is too new to have
been judicially interpreted, and case lawbeen judicially interpreted, and case law
may be long in coming.”may be long in coming.”
Raymond T. Nimmer & Holly K. Towle,Raymond T. Nimmer & Holly K. Towle, TheThe
Law of Electronic Commercial TransactionsLaw of Electronic Commercial Transactions
(Pratt, Last updated August 2016)(Pratt, Last updated August 2016)

25. ©
““OfficialOfficial”” Guidelines are notGuidelines are not
the lawthe law
Legislative history to the 1976 ActLegislative history to the 1976 Act
– GuidelinesGuidelines
– Copyright Office CircularsCopyright Office Circulars
– CONTUCONTU
– CONFUCONFU
You may be obligated to follow them byYou may be obligated to follow them by
agreementagreement
““Safe harbors?Safe harbors?”” - have courts made- have courts made
them maximum guidelines?them maximum guidelines?

26. ©
DonDon’’t forget Model Policiest forget Model Policies
Example - ALA Model PoliciesExample - ALA Model Policies
Code of Best Practices in Fair Use forCode of Best Practices in Fair Use for
the Visual Artsthe Visual Arts
Not the lawNot the law
May adopt and be bound by themMay adopt and be bound by them
– within institutionwithin institution
– by agreementby agreement

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Oh no, there are internationalOh no, there are international
rules too?rules too?
U.S. is a party to conventions andU.S. is a party to conventions and
treatiestreaties
move to harmonize U.S. lawmove to harmonize U.S. law
– e.g. Digital Millenium Copyright Acte.g. Digital Millenium Copyright Act
implements World Intellectual Propertyimplements World Intellectual Property
legislationlegislation

28. ©

29. ©
How do I figure this all out?How do I figure this all out?
Black ListBlack List
– clearly prohibited by law or court decisionclearly prohibited by law or court decision
in your Circuitin your Circuit
Grey ListGrey List
– no clear lawno clear law
– Guidelines allowGuidelines allow
White listWhite list
– clearly allowed by law or court decision inclearly allowed by law or court decision in
your Circuityour Circuit

30. ©

31. ©
Copyright ActCopyright Act

32. ©

33. ©
When white is black and blackWhen white is black and black
is whiteis white
Contracts may control what you can doContracts may control what you can do
– a license or agreement may limit whata license or agreement may limit what
is lawful and allow what is prohibitedis lawful and allow what is prohibited
– Contract preemption: an issue toContract preemption: an issue to
watchwatch
SeeSee Ass'n for Info. Media & Equip.Ass'n for Info. Media & Equip.
v. Regents of the Univ. of Cal.v. Regents of the Univ. of Cal., No., No.
CV 10-9378 CBM, slip op. at 9-10CV 10-9378 CBM, slip op. at 9-10
(C.D. Cal. Oct. 3, 2011).(C.D. Cal. Oct. 3, 2011).

34. ©
Copyright 101Copyright 101
Statutory definition of copyrightableStatutory definition of copyrightable
works isworks is
– ““original works of authorship fixed in anyoriginal works of authorship fixed in any
tangible medium of expression, now knowtangible medium of expression, now know
or later developed, from which they can beor later developed, from which they can be
perceived, reproduced or otherwiseperceived, reproduced or otherwise
communicated…communicated…””

35. ©
Including, but not limited to,Including, but not limited to,
Literary worksLiterary works
musical worksmusical works
dramatic worksdramatic works
pantomimes and choreographic workspantomimes and choreographic works
pictorial, graphic and sculptural workspictorial, graphic and sculptural works
sound recordingssound recordings
architectural worksarchitectural works

36. ©
5 exclusive rights to exploit5 exclusive rights to exploit
work for profitwork for profit
ReproductionReproduction
DistributionDistribution
AdaptionAdaption
PerformancePerformance
DisplayDisplay

37. ©
““Bundle of rightsBundle of rights”” devisabledevisable
Owner may split these rights many,Owner may split these rights many,
many, many ways and timesmany, many ways and times
– formatformat
– durationduration
– type of usetype of use
– geographic area of usegeographic area of use

38. ©
Questions to ask when youQuestions to ask when you
want to use or allow use ofwant to use or allow use of
contentcontent

39. ©
Do I have an agreement that allows meDo I have an agreement that allows me
to use this?to use this?
Is the item the subject of copyrightIs the item the subject of copyright
protection?protection?
Does the law exclude the item fromDoes the law exclude the item from
protection (e.g. federal publications)?protection (e.g. federal publications)?
Has the item passed into the publicHas the item passed into the public
domain?domain?

40. ©
Is the ownerIs the owner’’s right limited or excluded bys right limited or excluded by
the Act? (17 U.S.C. 107 - 118)?the Act? (17 U.S.C. 107 - 118)?
Who wants to use the content?Who wants to use the content?
What does the user want to do with theWhat does the user want to do with the
content?content?
Who owns the right that matches the use?Who owns the right that matches the use?

41. ©
How much content is needed?How much content is needed?
Has the content been requested orHas the content been requested or
used on prior occasions?used on prior occasions?
What is the effect on the revenue of theWhat is the effect on the revenue of the
copyright holder?copyright holder?
Does the Library charge for the copy?Does the Library charge for the copy?
If so, how are the revenues used?If so, how are the revenues used?

42. ©
What about the creative rightWhat about the creative right
of the content creator?of the content creator?
Generally, no moral rightsGenerally, no moral rights
in the U.S.in the U.S.
W.I.P.O. looking atW.I.P.O. looking at
copyright as a human rightcopyright as a human right

43. ©
If you conclude you have noIf you conclude you have no
right to use so far, the finalright to use so far, the final
step is to applystep is to apply
The Doctrine of Fair UseThe Doctrine of Fair Use
– enacted to provide the widestenacted to provide the widest
exploitation of copyrighted worksexploitation of copyrighted works

44. ©
Four prong testFour prong test
Purpose and character of the usePurpose and character of the use
– commercial orcommercial or
– nonprofit educational purposesnonprofit educational purposes
nature of copyrighted worknature of copyrighted work
amount & substantiability of portionamount & substantiability of portion
used in relation to the wholeused in relation to the whole
effect upon potential market or value ofeffect upon potential market or value of
workwork

45. ©
Tell me librarian, do you feelTell me librarian, do you feel
lucky?lucky?
May be used to get around black listMay be used to get around black list
Balancing testBalancing test
Look to way judges in Circuit apply theLook to way judges in Circuit apply the
testtest
If you are wrong you may be liable forIf you are wrong you may be liable for
statutory damages and paying thestatutory damages and paying the
ownerowner’’s attorney feess attorney fees

46. ©
Risk toleranceRisk tolerance
Beyond fair use, permission,Beyond fair use, permission,
license…license…
– negotiatenegotiate
– accept riskaccept risk
– get insuranceget insurance
Coverage Under The ComprehensiveCoverage Under The Comprehensive
(or Commercial) General Liability Policy(or Commercial) General Liability Policy
Direct coverageDirect coverage

47. ©
Wow, we librarians with a lotWow, we librarians with a lot
of stuffof stuff
print textprint text
photosphotos
drawingsdrawings
art worksart works
mapsmaps
slidesslides
transparanciestransparancies
audio tapesaudio tapes
phonorecordsphonorecords
CD-ROMCD-ROM
videotapesvideotapes
videocassettesvideocassettes
filmsfilms
film stripsfilm strips
AV packsAV packs
multimediamultimedia
softwaresoftware
databasesdatabases

48. ©
Subject of use mattersSubject of use matters
For purposes of copying, Copyright ActFor purposes of copying, Copyright Act
isis ““technology neutraltechnology neutral””
Formats treated differently by the ActFormats treated differently by the Act
Need to synthesize several sections ofNeed to synthesize several sections of
law along with other authoritieslaw along with other authorities
Some section of act are format neutralSome section of act are format neutral
Act is long as the march of technologyAct is long as the march of technology
creates new needs for protectioncreates new needs for protection

49. ©
Exception to the exclusiveException to the exclusive
right to reproduceright to reproduce
Libraries and ArchivesLibraries and Archives

50. ©
17 USC 10817 USC 108
Provides a special, limited safeProvides a special, limited safe
harbor for public libraries, publicharbor for public libraries, public
archives and their employees whoarchives and their employees who
reproduce and distributereproduce and distribute
copyrighted works forcopyrighted works for
noncommercial purposesnoncommercial purposes
PRIMARILY COVERS PRINTPRIMARILY COVERS PRINT
WORKSWORKS

51. ©

52. ©
8 sections…many subsections...8 sections…many subsections...
4 pages of fine print4 pages of fine print
108(a) - no more than one copy108(a) - no more than one copy
108(b) - Archival Reproduction of Unpublished108(b) - Archival Reproduction of Unpublished
WorksWorks
108(C) - Reproduction to Replace Lost or108(C) - Reproduction to Replace Lost or
Damaged WorksDamaged Works
108(d) - Articles or small excerpts108(d) - Articles or small excerpts
108(e) - entire works108(e) - entire works
108(f) - Unsupervised Reproduction108(f) - Unsupervised Reproduction
EquipmentEquipment
108(g) - Systematic Reproduction108(g) - Systematic Reproduction

53. ©
Section 108(a) -limitationsSection 108(a) -limitations
no more than one copyno more than one copy
reproduction and distribution isreproduction and distribution is
made without direct or indirectmade without direct or indirect
commercial advantagecommercial advantage
The collection is either open toThe collection is either open to
the public or to researchers doingthe public or to researchers doing
research in the same field.research in the same field.
(ILL)(ILL)
The reproduction and distributionThe reproduction and distribution
of the work contains a notice ofof the work contains a notice of

54. ©
Section 108(b) - ArchivalSection 108(b) - Archival
Reproduction of UnpublishedReproduction of Unpublished
WorksWorks
The purpose of suchThe purpose of such
duplication of anduplication of an
unpublished work is forunpublished work is for
preservation and securitypreservation and security
or for deposit for researchor for deposit for research
in another library.....in another library.....

55. ©
Section 108(C) - ReproductionSection 108(C) - Reproduction
to Replace Lost or Damagedto Replace Lost or Damaged
WorksWorks
The purpose of suchThe purpose of such
duplication is to replace aduplication is to replace a
published damaged,published damaged,
deteriorating, lost or stolendeteriorating, lost or stolen
copy…copy…
After the library makes aAfter the library makes a
reasonable effort to determinereasonable effort to determine
that an unused copy cannot bethat an unused copy cannot be

56. ©
REASONABLE EFFORTREASONABLE EFFORT
NORMALLY REQUIRESNORMALLY REQUIRES
– Recourse to commonly knownRecourse to commonly known
U.S. trade source such asU.S. trade source such as
wholesalers, retail bookstores andwholesalers, retail bookstores and
jobbersjobbers
– Contacting the copyright owner orContacting the copyright owner or
publisherpublisher
– Using an authorized reproducingUsing an authorized reproducing
serviceservice

57. ©
FAIR PRICEFAIR PRICE
Association of American PublishersAssociation of American Publishers
definition :definition :
– The suggested retail price if availableThe suggested retail price if available
from the publisherfrom the publisher
– If not so available, the prevailing retailIf not so available, the prevailing retail
priceprice
– The normal price charged by anThe normal price charged by an
authorized reproducing serviceauthorized reproducing service

58. ©
Section 108(d) - Articles orSection 108(d) - Articles or
small excerptssmall excerpts
The user requests no more thanThe user requests no more than
one article or other contributionone article or other contribution
to a collective work or periodicalto a collective work or periodical
issue from the library where theissue from the library where the
user makes the request or fromuser makes the request or from
that of another library if:that of another library if:

59. ©
1.1. The copy becomes theThe copy becomes the
property of the user,property of the user,
2.2. The library has no notice it willThe library has no notice it will
be used for non-section 107be used for non-section 107
purposes, andpurposes, and
3.3. The library displaysThe library displays
prominently where orders areprominently where orders are
placed and on the order form aplaced and on the order form a
warning of copyright inwarning of copyright in
accordance with the Register ofaccordance with the Register of
Copyrights regulation.Copyrights regulation.

60. ©
Photocopy warningPhotocopy warning
The copyright law of the United States (Title 17, UnitedThe copyright law of the United States (Title 17, United
States Code) governs the making of photocopies or otherStates Code) governs the making of photocopies or other
reproductions of copyrighted material. Under certainreproductions of copyrighted material. Under certain
conditions specified in the law, libraries and archives areconditions specified in the law, libraries and archives are
authorized to furnish a photocopy or other reproductions.authorized to furnish a photocopy or other reproductions.
One of these specific conditions is that the photocopy orOne of these specific conditions is that the photocopy or
reproduction is not to bereproduction is not to be “used for any purpose other than“used for any purpose other than
private study, scholarship, or research.” If a user makes aprivate study, scholarship, or research.” If a user makes a
request for, or later uses, a photocopy or reproduction forrequest for, or later uses, a photocopy or reproduction for
purposes in excess of “fair use,” that user may be liable forpurposes in excess of “fair use,” that user may be liable for
copyright infringement. This institution reserves the right tocopyright infringement. This institution reserves the right to
refuse to accept a copying order if, in its judgement,refuse to accept a copying order if, in its judgement,
fulfillment of the order would involve violation of copyrightfulfillment of the order would involve violation of copyright
law.law. 37 C.F.R. Section 201.1437 C.F.R. Section 201.14

61. ©
Includes all types of copyingIncludes all types of copying
The Copyright Act is technology neutral.The Copyright Act is technology neutral.
Section 108 uses the wordSection 108 uses the word ““reproducereproduce”” notnot
““photocopyphotocopy””
Section 101 definition of copies :Section 101 definition of copies :
““...Material objects, other than phonorecords,...Material objects, other than phonorecords,
in which a work is fixed by any method nowin which a work is fixed by any method now
known or later developed, and from whichknown or later developed, and from which
the work can be perceived, reproduced, orthe work can be perceived, reproduced, or
otherwise communicated, either directly orotherwise communicated, either directly or
with the aid of a machine or device.with the aid of a machine or device. ””

62. ©
Section 108(e) - entire worksSection 108(e) - entire works
To an entire work or aTo an entire work or a
substantial part thereof, madesubstantial part thereof, made
from the collection of a libraryfrom the collection of a library
where the user makes thewhere the user makes the
request or from that of anotherrequest or from that of another
library if:library if:

63. ©
1 --The library has firstThe library has first
determined by reasonabledetermined by reasonable
investigation that a copy cannotinvestigation that a copy cannot
be obtained at a fair price,be obtained at a fair price,
2 -The copy becomes the-The copy becomes the
property of the user,property of the user,
3 -The library has no notice that-The library has no notice that
the copy will be used for non-the copy will be used for non-
section 107 purposes, andsection 107 purposes, and
4 -The library displays-The library displays
prominently where orders areprominently where orders are
placed for copies and on theplaced for copies and on the
order form a warning oforder form a warning of
copyright.copyright.

64. ©
Section 108(f) - UnsupervisedSection 108(f) - Unsupervised
Reproduction EquipmentReproduction Equipment
Nothing in this section:Nothing in this section:
Imposes liability on a library forImposes liability on a library for
unsupervised use of reproductionunsupervised use of reproduction
equipment.equipment.
ProvidedProvided: Such equipment displays a: Such equipment displays a
notice that making a photocopy maynotice that making a photocopy may
subject to the copyright law.subject to the copyright law.

65. ©
Section 108(f) - AV NewsSection 108(f) - AV News
ProgramsPrograms
Allows reproduction and distributionAllows reproduction and distribution
of AV news programs if the threeof AV news programs if the three
sections of 108(a) are satisfiedsections of 108(a) are satisfied
– daily newscasts or more?daily newscasts or more?
Affects the rights of fair use underAffects the rights of fair use under
section 107, or any contractualsection 107, or any contractual
obligations assumed at any time byobligations assumed at any time by
the library when it obtained a copythe library when it obtained a copy
of a work in its collections.of a work in its collections.

66. ©
Section 108(g) - SystematicSection 108(g) - Systematic
ReproductionReproduction
The rights of reproduction andThe rights of reproduction and
distribution under this sectiondistribution under this section
extend to:extend to:
The isolated & unrelatedThe isolated & unrelated
reproduction & distribution ofreproduction & distribution of
a single copy ora single copy or
Copies of the same materialCopies of the same material
on separate occasions.on separate occasions.

67. ©
They do not extend where the libraryThey do not extend where the library
or its employees:or its employees:
Is aware of or has substantialIs aware of or has substantial
reason to believe that it isreason to believe that it is
engaging in related orengaging in related or
concerted reproduction ofconcerted reproduction of
multiple copies; ormultiple copies; or
Engages in the systematicEngages in the systematic
reproduction or distribution ofreproduction or distribution of
single or multiple copies ofsingle or multiple copies of
materials described inmaterials described in
subsection (d)subsection (d)

68. ©
ProvidedProvided: Nothing in this clause: Nothing in this clause
prevents a library or archive fromprevents a library or archive from
participating in interlibraryparticipating in interlibrary
arrangements that do not have asarrangements that do not have as
their purpose or effect receipt oftheir purpose or effect receipt of
copies in such aggregate quantitiescopies in such aggregate quantities
as to substitute for a subscription toas to substitute for a subscription to
or purchase of a work.or purchase of a work.

69. ©
Each year, a borrowing library mayEach year, a borrowing library may
make five requests from a periodicalmake five requests from a periodical
title going back five yearstitle going back five years ..
H. R. 94-1733H. R. 94-1733
In the current year 1997In the current year 1997
19961996
19951995 5 times from these volume5 times from these volume
yrsyrs 19941994 the most recent 60 monthsthe most recent 60 months
19931993
19921992

70. ©
– Borrowing library must maintainBorrowing library must maintain
records for three calendarrecords for three calendar
years.years.
– Lending library must requireLending library must require
representation from borrowingrepresentation from borrowing
library that request conforms tolibrary that request conforms to
guidelines.guidelines.
– The guidelines take no positionThe guidelines take no position
on materials older than fiveon materials older than five
years.years.

71. ©
6th request for a title6th request for a title
Tell the user no, come back Jan.1.Tell the user no, come back Jan.1.
Order copy from an authorizedOrder copy from an authorized
document delivery service.document delivery service.
Pay royalties through CCC orPay royalties through CCC or
directly to publisher.directly to publisher.
Enter a subscription to the title.Enter a subscription to the title.
““Once in a blue moon exceptionOnce in a blue moon exception ””::
make the copy.make the copy.

72. ©
ConsortiaConsortia
Section 108(g)(2) Proviso:Section 108(g)(2) Proviso:
““Nothing prevents a library or archives fromNothing prevents a library or archives from
participating in interlibrary arrangementsparticipating in interlibrary arrangements
that do not have as their purpose or effectthat do not have as their purpose or effect
receiving copies in such aggregate quantitiesreceiving copies in such aggregate quantities
as to substitute for subscription to oras to substitute for subscription to or
purchase of a work.purchase of a work.””
¤ Consortia permittedConsortia permitted
¤ But, borrowing must follow ILL guidelinesBut, borrowing must follow ILL guidelines
¤ Effects of intra v. interlibrary loanEffects of intra v. interlibrary loan

73. ©
Section 108(h)Section 108(h)
The rights of this section do notThe rights of this section do not
apply to:apply to:
– A musical workA musical work
– A pictorial, graphic or sculpturalA pictorial, graphic or sculptural
work, orwork, or
– A motion picture or otherA motion picture or other
audiovisual work other than oneaudiovisual work other than one
dealing with the news.dealing with the news.

74. ©
Relationship of fair use to 108Relationship of fair use to 108
Library exceptionsLibrary exceptions
May libraries copy pursuant to fairMay libraries copy pursuant to fair
use section?use section?
– Beyond the provisions of 108 butBeyond the provisions of 108 but
within fair use?within fair use?
If so, how much may be copied?If so, how much may be copied?
Section 108 statesSection 108 states ““nothing in thisnothing in this
section in any way affects the rightsection in any way affects the right
of fair useof fair use””
Back to multi factor fair use test!!!Back to multi factor fair use test!!!

75. ©
Non library exemptionsNon library exemptions
109. Limitations on109. Limitations on
exclusive rights: Effect ofexclusive rights: Effect of
transfer of particular copy ortransfer of particular copy or
phonorecordphonorecord
110. Limitations on110. Limitations on
exclusive rights: Exemptionexclusive rights: Exemption
of certain performances andof certain performances and
displaysdisplays
111. Limitations on111. Limitations on
exclusive rights: Secondaryexclusive rights: Secondary
transmissionstransmissions
112. Limitations on112. Limitations on
exclusive rights: Ephemeralexclusive rights: Ephemeral
recordingsrecordings
113. Scope of exclusive113. Scope of exclusive
rights in pictorial, graphic,rights in pictorial, graphic,
and sculptural worksand sculptural works
114. Scope of exclusive114. Scope of exclusive
rights in sound recordingsrights in sound recordings
115. Scope of exclusive115. Scope of exclusive
rights in non dramaticrights in non dramatic
musical works: Compulsorymusical works: Compulsory
116. Negotiated licenses for116. Negotiated licenses for
public performances by meanspublic performances by means
of coin-operated phonorecordof coin-operated phonorecord
playersplayers
117. Scope of exclusive rights:117. Scope of exclusive rights:
Use in conjunction withUse in conjunction with
computers and similarcomputers and similar
information systemsinformation systems
118. Scope of exclusive rights:118. Scope of exclusive rights:
Use of certain works inUse of certain works in
connection withconnection with
noncommercial broadcastingnoncommercial broadcasting
119. Limitations on exclusive119. Limitations on exclusive
rights: Secondaryrights: Secondary
transmissions of superstationstransmissions of superstations
and network stations forand network stations for
private home viewingprivate home viewing
120. Scope of exclusive rights120. Scope of exclusive rights
in architectural worksin architectural works
121. Limitations on exclusive121. Limitations on exclusive
rights: reproduction for blindrights: reproduction for blind
or other people withor other people with
disabilitiesdisabilities

76. ©
LIBRARY DUPLICATION OFLIBRARY DUPLICATION OF
AUDIOVISUAL ANDAUDIOVISUAL AND
NONPRINT MATERIALSNONPRINT MATERIALS

77. ©
Nonprint WorksNonprint Works
Musical worksMusical works
illustrationsillustrations
photographsphotographs
drawingsdrawings
slidesslides
transparanciestransparancies

78. ©
Audiovisual worksAudiovisual works
AudiotapesAudiotapes
PhonorecordsPhonorecords
filmsfilms
filmstripsfilmstrips
motion picturesmotion pictures
videotapesvideotapes
AV packagesAV packages
multimedia worksmultimedia works

79. ©
Copying and use of audiovisualCopying and use of audiovisual
and musical works in Libraryand musical works in Library
GenerallyGenerally
– same 5 rightssame 5 rights
– excluded from 108 exemptionsexcluded from 108 exemptions
Guidelines for Educational Use of MusicGuidelines for Educational Use of Music
Guidelines for Classroom CopyingGuidelines for Classroom Copying
Sony home videotaping case supportSony home videotaping case support
library copying?library copying?

80. ©
Cassettes, videos, CDsCassettes, videos, CDs
3 reasons to duplicate3 reasons to duplicate
– preservationpreservation
– patron demandpatron demand
– convert formatsconvert formats
““Absent permission from theAbsent permission from the
copyright owner, this duplicationcopyright owner, this duplication
constitutes copyrightconstitutes copyright
infringementinfringement”” GassawayGassaway

81. ©
Performing AV in Libraries -Performing AV in Libraries -
Section 110Section 110
performance or display of a work byperformance or display of a work by
instructors or pupils in the course ofinstructors or pupils in the course of
face-to-face teaching activities of aface-to-face teaching activities of a
nonprofit educational institution, in anonprofit educational institution, in a
classroom or similar place devoted toclassroom or similar place devoted to
instructioninstruction
– library as classroomlibrary as classroom
– not for entertainmentnot for entertainment

82. ©
Computer softwareComputer software
Use by LibrariansUse by Librarians
– same rules apply as other owners ofsame rules apply as other owners of
copiescopies
– Act gives some leewayAct gives some leeway
that such a new copy or adaptation is created as anthat such a new copy or adaptation is created as an
essential step in the utilization of the computer programessential step in the utilization of the computer program
in conjunction with a machine and that it is used in noin conjunction with a machine and that it is used in no
other manner, orother manner, or
that such new copy or adaptation is for archivalthat such new copy or adaptation is for archival
purposes only and that all archival copies are destroyedpurposes only and that all archival copies are destroyed
in the event that continued possession of the computerin the event that continued possession of the computer
program should cease to be rightful.program should cease to be rightful.
License agreementsLicense agreements

83. ©
Loaning Software - Sec. 109Loaning Software - Sec. 109
Generally - no commercial lendingGenerally - no commercial lending
Nonprofit Library ExemptionNonprofit Library Exemption
– Nothing in this subsection shall apply toNothing in this subsection shall apply to
the lending of a computer program forthe lending of a computer program for
nonprofit purposes by a nonprofit library,nonprofit purposes by a nonprofit library,
if each copy of a computer programif each copy of a computer program
which is lent by such library has affixedwhich is lent by such library has affixed
to the packaging containing the programto the packaging containing the program
a warning of copyright in accordancea warning of copyright in accordance
with requirements that the Register ofwith requirements that the Register of
Copyrights shall prescribe by regulation.Copyrights shall prescribe by regulation.

84. ©
DatabasesDatabases
Generally - what is in the database?Generally - what is in the database?
Generally facts are not copyrightableGenerally facts are not copyrightable
Selection and arrangement may giveSelection and arrangement may give
requisite creativityrequisite creativity
Court cases varyCourt cases vary
License agreementsLicense agreements
Subject of legislative effortsSubject of legislative efforts

85. ©
Copyright in ElectronicCopyright in Electronic
EnvironmentEnvironment
How does copyright law apply to
digitized information?
What are the changes in copyright in
the electronic environment?
How do you cope with new formats
different methods of accessing and
storing information?

86. ©
InternetInternet
What does the Internet do to copyright?What does the Internet do to copyright?
– NOTHINGNOTHING
– underlying copyright concepts remain theunderlying copyright concepts remain the
samesame
– massive opportunity to copy and distributemassive opportunity to copy and distribute
– copy made when scanned, loaded, input orcopy made when scanned, loaded, input or
copies to sendcopies to send
– copy made by every person who reads orcopy made by every person who reads or
views the work on the screenviews the work on the screen

87. ©
More opportunities to copyMore opportunities to copy
TextText
photosphotos
graphicsgraphics
audioaudio
videovideo
file transfersfile transfers
push/pull technologypush/pull technology
multimediamultimedia

88. ©
Can the law handle theCan the law handle the
challenge?challenge?
Two methods of protectionTwo methods of protection
–copyright lawcopyright law
–technologytechnology
digital watermarksdigital watermarks
cryptographycryptography

89. ©
Recent developmentsRecent developments
Digital Millenium Copyright ActDigital Millenium Copyright Act
– PURPOSE: Update the current CopyrightPURPOSE: Update the current Copyright
Act for the digital environment and conformAct for the digital environment and conform
U.S. law to the requirements of new WorldU.S. law to the requirements of new World
Intellectual Property Organization (WIPO)Intellectual Property Organization (WIPO)
treaties negotiated in Geneva in Decembertreaties negotiated in Geneva in December
1996.1996.

90. ©
How does it affect Libraries?How does it affect Libraries?
Exempts nonprofit libraries from criminalExempts nonprofit libraries from criminal
penalties and no civil fine when such anpenalties and no civil fine when such an
institution can show that it had no reason to beinstitution can show that it had no reason to be
aware that its actions violated the new lawaware that its actions violated the new law
Updates the current preservation provision ofUpdates the current preservation provision of
the Copyright Act (Sec. 108) to:the Copyright Act (Sec. 108) to:
– expressly permit authorized institutions toexpressly permit authorized institutions to
make up to three, digital preservation copiesmake up to three, digital preservation copies
of an eligible copyrighted workof an eligible copyrighted work
– electronically "loan" those copies to otherelectronically "loan" those copies to other
qualifying institutionsqualifying institutions
– permit preservation, including by digitalpermit preservation, including by digital
means, when the existing format in whichmeans, when the existing format in which
the work has been stored becomesthe work has been stored becomes
obsolete.obsolete.

91. ©
Copyright Term Extension ActCopyright Term Extension Act
PURPOSE: To extend by 20 years thePURPOSE: To extend by 20 years the
length of protection afforded to workslength of protection afforded to works
created by both individuals andcreated by both individuals and
corporate copyright holders.corporate copyright holders.

92. ©
How does it effect libraries?How does it effect libraries?
Includes exception permitting libraries,Includes exception permitting libraries,
archives and nonprofit educational institutionsarchives and nonprofit educational institutions
to treat a copyrighted work in its last (new) 20to treat a copyrighted work in its last (new) 20
years of protection as if it were in the publicyears of protection as if it were in the public
domain for commercial purposes, provideddomain for commercial purposes, provided
thatthat
– a good faith investigation has determineda good faith investigation has determined
that the work is "not subject to normalthat the work is "not subject to normal
commercial exploitation,"commercial exploitation,"
– such use of the work stops if the copyrightsuch use of the work stops if the copyright
owner provides notice to the contraryowner provides notice to the contrary

93. ©
TEACH Act 2002TEACH Act 2002

94. ©

95. ©
Suggested books that focusSuggested books that focus
on Libraries and Copyrighton Libraries and Copyright
Laura N. Gasaway and Sarah K. Wiant,Laura N. Gasaway and Sarah K. Wiant,
Libraries and CopyrightLibraries and Copyright . Washington, DC :. Washington, DC :
Special Libraries Association, 1994Special Libraries Association, 1994
Mary Brandt Jensen,Mary Brandt Jensen, Does Your ProjectDoes Your Project
Have a Copyright Problem, A Decsion-Have a Copyright Problem, A Decsion-
Making Guide for LibrariansMaking Guide for Librarians. Jefferson,. Jefferson,
NC: : McFarland, 1996NC: : McFarland, 1996
Ruth H. Dukelow,Ruth H. Dukelow, Library Copyright GuideLibrary Copyright Guide..
Washington, DC : AECT, 1992Washington, DC : AECT, 1992

96. ©
Suggested Web sitesSuggested Web sites
FPLC IP Mall Copyright Pointer BoxFPLC IP Mall Copyright Pointer Box
– meta site for law, policy and interdisciplinarymeta site for law, policy and interdisciplinary
linkslinks
– http://www.ipmall.fplc.edu/pointbox/pb_6.htmhttp://www.ipmall.fplc.edu/pointbox/pb_6.htm
Stanford Library Copyright GuidelinesStanford Library Copyright Guidelines
– http://fairuse.stanford.edu/library/http://fairuse.stanford.edu/library/
Crash Course in CopyrightCrash Course in Copyright
– http://www.utsystem.edu/OGC/intellectualproperty/cprtindx.htmhttp://www.utsystem.edu/OGC/intellectualproperty/cprtindx.htm

97. ©
Professional associations areProfessional associations are
great resourcegreat resource
For example:For example:
– ALAALA
– AALLAALL
– SLASLA
Publications, journals and WebPublications, journals and Web
sitessites