Investigative Report - Copyright

LIS 2000
29 November 2011

The Role of Copyright Law in Libraries: Encouraging Compliance by Librarians and

Patrons

I.Executive Summary

This investigative report examines scholarly articles pertaining to the issue of

copyright and its relation to libraries. The discussion begins with definitions of

intellectual property areas and narrows into definitions of US copyright laws. The

discussion begins here because librarians need to understand these laws to best serve their

patrons. Copyright laws are far from perfect, so study groups and roundtables have

gathered to discuss possible recommendations for changing the current laws to better fit

the workings of the library, especially in regards to the library exceptions in Section 108

and orphan works. ILL and reserves are two areas of the library where copyright law

comes into play in the day-to-day of the library. Universities can also create webpages

devoted to copyright policies so their students and faculty can gain a better understanding

of the law. The Google Library Project is a unique case of copyright law and its relation

to digitization. Copyright law differs from country to country, but many countries are

now part of the Berne Convention. The ALA and IFLA are leading organizations in

providing copyright information for libraries and librarians. The conclusion reached is

that librarians must stay up-to-date about copyright laws to avoid violations.

II. Introduction

A student comes up to your desk with a journal, and asks if you can make a copy

for her to consult while writing her research paper. Another patron asks if you can send

him a PDF of an article the library only has a digital copy of. What are your answers as a

librarian? These are the questions that librarians must face in the struggle to comply with

copyright laws while providing patrons with the information they need. Copyright law is

confusing at best and incomprehensible at its worst. Librarians have a responsibility to

their patrons to help them comply with copyright law while using the library‟s resources.

This can take the form of warnings on copiers or instructional sessions purely about

copyright policies. Libraries should have copyright policies in place that their staff can

understand and follow. With the extension of copyright terms, copyright will continue to

be relevant to librarians in the coming years.

III. Definitions, Key Points, and Relevancy

Intellectual property can be defined as “creations of the mind: inventions, literary

and artistic works, symbols, names, images, and designs used in commerce” (WIPO).

Under the umbrella of intellectual property are four sub-categories: patents, trademarks,

trade secrets, and copyright. A patent is “an exclusive right granted for an invention,

which is a product or a process that provides a new way of doing something, or offers a

new technical solution to a problem” and “provides protection for the invention to the

owner of the patent for a limited period” (WIPO). An example would be a patent for a

cell phone design. A trademark is “a distinctive sign which identifies certain goods or

services as those produced or provided by a specific person or enterprise” (WIPO). One

of the most easily recognized trademarks is the golden arches of McDonalds. A trade

secret is “protected information which is not generally known among, or readily

accessible to, persons that normally deal with the kind of information in question”

(WIPO). The formula for Coca-Cola is perhaps one of the most famous trade secrets in

popular culture. Copyright is “a legal term describing rights given to creators for their

literacy and artistic works” (WIPO). Copyright is for “original works of authorship which

are fixed in a tangible medium of expression” and “covers both published and

unpublished works” (Currier).

While the sub-categories of intellectual property can be relatively easy to

differentiate, the trouble comes within the definition of copyright. The nuances and

confusing wording of copyright law causes no end of problems for people trying to

understand and abide by the law. Copyright has been relevant in the U.S. since the

country‟s inception and is based in the Constitution. Section 8 of Article I states that

“Congress shall have the power…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” (National Archives). There are two ideas inherent

in this power: that copyright will both promote the advancement of culture and give

rewards to creators as incentives to continue the progression of knowledge. While the

Constitution‟s part in copyright hasn‟t been amended, U.S. copyright laws have changed

over the life of the country. The laws begin with the Copyright Act of 1790, which gave a

fourteen-year term with a fourteen-year renewal and only “covered maps, charts, and

books” (Currier). The Copyright Act of 1909 doubled the length of both the term and

renewal. The current law is the Copyright Act of 1976, Title 17 U.S. Code. This was

“enacted in part to address technological advances” (Currier). Significant changes

included lengthening copyright term to the life of the author plus fifty years and making

registration and renewal no longer requirements (Currier).

The Copyright Act of 1976 was amended in 1998 with the Sonny Bono Copyright

Term Extension Act (CTEA), which “extends the duration of copyright…to the life of the

author plus seventy years, and in the case of works for hire and those under a corporate

ownership,…ninety-five years or one hundred twenty years” (Butler 310). The Digital

Millennium Copyright Act (DMCA), also in 1998, was passed to create rules for the

newly prevalent digital world. The DMCA has many facets that make it hard to define,

but two sections stick out in terms of relevancy for libraries and archives. The WIPO

Copyright Treaties section states that “[C]opyright owners [can] impose technological

controls and other restrictions on the use of their works” (Butler 310). The Online Service

Provider Liability section states that OSPs “may not be held liable for copyright

infringement committed by those using their online services” (Butler 311). One of the

newest copyright laws, the Technology, Education, and Copyright Harmonization

(TEACH) Act of 2002, “gives institutional users (faculty, staff, and students) more rights

to use and borrow materials for use in distance education than those previously provided

under the 1976 copyright law” (Butler 311). While the TEACH Act doesn‟t affect

libraries directly, it certainly affects the communities that academic libraries in particular

serve, especially with the rise of online classes being offered at increasing numbers of

universities.

Two sections of the Copyright Right Act of 1976 are particularly relevant to

libraries: Sections 107 and 108. Section 107 deals with the issue of fair use in relation to

reproducing copyrighted works. There are four factors that determine how much can be

borrowed from a copyrighted work: “purpose and character of use, nature of the work,

part being copied, and work‟s marketability” (Butler 308). Figuring out whether or not

the part you want to copy fulfills all four of these factors is the tricky issue. While the

trickiness might make you want to just copy anything regardless, it is important to

remember that “these four factors must all be in place for a portion of an item to be

considered to fall under fair use restrictions” (Butler 308). Otherwise, the reproduction

would be copyright infringement. Purpose and character of use concerns the intentions of

person who wants the copied item. Educational or nonprofit reasons tend to be compliant

with fair use. The nature of the work concerns what the work actually is that the person

wants to copy. Nonfiction and published tend to be viable for fair use. The part being

copied is about the amount copied. A violation of fair use would be to copy the heart of

the work. The work‟s marketability deals with the whether or not the copied portion

would negatively affect the work‟s sales. Section 108 is about the library exceptions for

copying done in libraries and by librarians during their work. Section 108 is “largely the

result of the photocopy technology that emerged in the 1960s” (McBride 365). McBride

summarized Section 108 in “Copying By Libraries in the United States: Reviewing

Section 108 of the US Copyright Laws” and his summary is included in Appendix A for

reference.

When copyright owners can‟t be found, we run into the issue of orphan works.

Orphan works can be defined as works “where the owner of a copyrighted work cannot

be identified and located by someone who wishes to make use of the work in a manner

that requires permission of the copyright owner” (McBride 67). The number of orphan

works is increasing because of changes in the Copyright Act of 1976. The extension of

the copyright term as well as the automatic granting of copyright protection when a work

is created “combine to create a large number of orphan works, because it can be difficult

to locate the heirs thirty, fifty, or more years after an author‟s death” (McBride 68). The

problem with orphan works lies with possible copyright infringement if the author or

copyright holder turns up.

While the number of orphan works has increased, the public domain has

decreased due to the same reasons. The public domain covers works that can be used by

everyone because the work isn‟t protected by copyright. This could be due to a copyright

expiration. Public domain works are considered to be those that were published before

1923. The public domain is shrinking because of the CTEA. Public domain works have

been particularly popular in recent years because of authors‟ abilities to use them to

create derivative works, leading to the publishing of books such as Pride and Prejudice

and Zombies.

So what do the convoluted copyright laws have to do with libraries? Libraries

serve as portals to various forms of knowledge for the people. Books, journals, magazines,

etc. are all copyrighted. There is a bit of a paradox for libraries and their materials:

libraries give free access to copyrighted materials, which by nature are not free. The

materials librarians must help their patrons utilize are copyrighted. Librarians are

responsible for the access to these copyrighted materials and, because of this

responsibility, librarians must remain well informed about copyright laws. Librarians

have to be careful not to commit copyright infringement when reproducing things like

articles for students. Librarians will always be dealing closely with a vast array of

copyrighted materials and must be conscientious of how they provide access for their

patrons.

IV. Problems and Solutions

Problems with Section 108 have come to light in the recent years, as digital means

of reproduction have increased. In subsection (a), exceptions are applied to only public

libraries and archives. Now digital libraries are on the rise; where do they fit in? Section

108 doesn‟t take into account purely virtual libraries or archives. While DCMA made

strides with digital preservation, subsections (b) and (c) restrict libraries in terms of

making digital copies of print works to keeping the copies in the physical library. This is

a problem today because “restriction to in-building use is not how libraries function today”

(Gasaway 1340). These subsections also restrict the library in the number of digital

copies that can be made. Three copies is not feasible in the digital environment; not only

are many copies required to actually create a digital copy, but also copies are made every

time someone views the digital version. This limitation “actually reflects national

microfilm standards and simply is not workable for the digital world” (Gasaway 1341).

Subsection (i) excludes music, art, and film from the exceptions of Section 108. This

exclusion doesn‟t make sense, as it “constitutes an arbitrary and inequitable distinction

between textual and non-textual content” (McBride 371).

A Study Group from the National Copyright Office convened to discuss issues

with Section 108 and to make suggestions for change. For preservation copies, “the

copyright restriction should be removed” because it‟s “unknown exactly how many

copies may be needed to preserve a particular work in digital form” (Gasaway1345).

Digital copies should be marked as preservation-only so publishers know that a particular

copy was made specifically for preservation reasons. An exception for preservation-only

copies of published works should be made so that “at-risk works would be preserved

when they are received by a library without waiting for a triggering event such as

deterioration of the work” (Gasaway 1346). This would ensure that works are preserved

for society‟s sake and that they won‟t be lost by waiting until damage occurs to make a

copy. In the same vein, “the triggers for replacement copies-lost, damaged, deteriorating,

stolen, or obsolete-likely should be expanded to include „fragile‟ since many analog

formats are inherently fragile” (Gasaway 1347). This would also make sure that works

are replaced before damage occurs that would render the information unusable. However,

publishers are more concerned with what patrons do with their access to digital copies.

On-site only access removes one of the major benefits of digital works. To sidestep

ignoring the advantages of digital technology, libraries could give off-site access by

“apply[ing] technological protection measures (TPMs) to digitized copies and [requiring]

users to agree to certain conditions via click-through agreements” (Gasaway 1349).

Overall, the Study Group recommends “reorganizing the sections…with internal

headings such as „preservation‟ and „copies for users‟” and “that any statutory

amendments be reconsidered every five years to evaluate how well they are working and

whether any further changes are needed” (Gasaway 1355).

Orphan works can cause many problems, which is why the Copyright Office

assembled several roundtables to discuss the issue and to make recommendations. A

main problem inherent with orphan works is difficulty in finding copyright owners.

These difficulties could be: “

• Inadequate identifying information on a copy of the work itself;

• Inadequate information about copyright ownership because of a change of

ownership or a change in the circumstances of the   owner;

• Limitations of existing copyright ownership information sources;   and

• Difficulties researching copyright information” (McBride 72).

So what about when someone wants to utilize an orphan work? There can be problems

with the use of an orphan work, including: “

Uses by subsequent creators who add some degree of their own expression

to existing works to create a derivative work;

Large-scale „access‟ uses where users primarily wish to bring large

quantities of works to the public, usually via the Internet;

„Enthusiast‟ or hobbyist uses, which usually involve specialized or niche

works, and also appear frequently to involve posting works on the

Internet; and

Private uses among a limited number of people” (McBride 72).

Several suggestions were made to address the issue of orphan works. First, “a

standard for a reasonably diligent search for the copyright owner” should be determined

(McBride 73). This would ensure that everyone knew how long a search was acceptable

before using the work without knowledge of the copyright owner. When a copyright

owner can‟t be found, users should “make it as clear as possible to the public that the

work is the product of another author, and that the copyright in the work is owned by

another” (McBride 74). If the owner is discovered later, monetary liability should be

limited to “the amount the user would have paid to the owner had they engaged in

negotiations before the infringing use commenced” (McBride 75). The goal is to get these

recommendations into law so that “the uncertainty of expensive litigation, always

looming in the future because of the lack of acquiring permissions that are impossible to

obtain, would no longer block the use of thousands of published and unpublished works”

(McBride 76).

Libraries have this responsibility to ensure that copyright law is upheld within

their institutions by both their staff and patrons. However, copyright law is extremely

confusing. How can people follow laws they don‟t understand? Part of the library‟s role

in regards to copyright law is educating the people it serves to prevent infringements.

One method libraries are using now is specifically hiring someone well versed in

copyright law “to assure that copyright compliancy is followed with electronic reserves,

faculty online information, and other related areas” (Schlipp 18). These copyright

specialists can be educators for the patrons by giving instructional sessions on copyright

to students, faculty, and staff. The guidance provided by a copyright librarian can prevent

patrons from resorting to illegal means of using copyrighted materials. Even if a library

can‟t afford to hire a copyright librarian, the library still needs to make copyright policy a

priority. Libraries can use “workshops, seminars, pamphlets, flyers, brochures, and Web

sites” to provide information on copyright (Myers 16). Ensuring compliance is more than

just education, though. Libraries systems should be copyright-friendly and online

databases should have static URLs for users to link to (Myers 16). Butler and Parker

recommend being proactive in regards to copyright compliance. Every library or archive

should have a copyright policy and “all members of the organization need to know what

it says and that they are to follow it” (Butler and Parker 9). Analysis should be performed

to determine the effectiveness of the policy and whether any copyright training is needed.

The policy should also be constantly updated and maintained to ensure proper

compliance with copyright laws. Maintenance is especially important in today‟s digital

environment because changes are constantly being made to the various methods of

disseminating information. Copyright policies should be as mutable as the materials they

cover.

V. Current Models

Interlibrary loan (ILL) and reserves are two areas in a library‟s function that

librarians must take extra care with in terms of complying with copyright law. No library

is going to have every item that its patrons need, which is why ILL is so necessary. Now

libraries have to deal with digital copies as well as print copies. Digital copies make the

job of a librarian much easier; all the librarian has to do is email a PDF to the user.

Copyright guidelines are more difficult to follow with digital copies though. Section 108

works with ILL by setting limits. The law limits the library to “send[ing] only one copy

of one article from a specific journal or periodical title” (Butler 313). The Commission on

New Technological Uses of Copyrighted Works (CONTU) has ILL guidelines that limit

the patron to “up to five copies of articles (but no more) from a specific journal within a

given year” (Butler 313).

Reserves can be tricky for libraries. Print reserves usually fall under fair use

guidelines, but electronic reserves hold the potential for illegal copying and transmitting.

Libraries have to “develop a series of checks and balances to protect [themselves] from

copyright violation and litigation and to protect [their] users as well” (Butler 313). Butler

suggests ways for libraries to perform these checks and the list of what libraries can do is

included in Appendix B.

Some universities have posted copyright guidelines on their websites to educate

their students and faculty. While the universities write these guidelines, it pertains to

those universities‟ libraries as it covers the materials that the libraries lend to the schools‟

patrons. Three good examples of comprehensive copyright information webpages are

those of Cornell University, the University of Texas, and Stanford University. Cornell‟s

“Copyright Information Center” covers guidelines, fair use, library reserves, copyright

issues, and more (Fineberg 241). Through this webpage, Cornell is fulfilling “its legal

and moral obligations to both copyright holders and information users” (Fineberg 241).

This is especially commendable because copyright is often only viewed from the

perspective of the user who wants to avoid expensive litigation, but copyright law also

protects the people who put in the time and ingenuity to write something useful to many.

The University of Texas‟s Office of General Counsel gives links to information about

rules, regulations, copyright policy, fair use, and more (Fineberg 241). Its website also

has an “Ask a Lawyer” section that answers FAQs about copyright materials (Fineberg

241). Stanford University specifically addresses electronic reserves with its webpage

“Fair Use and Copyright Guidelines and Policies” (Fineberg 241).

Google is nothing if not ambitious, and the company has proven that once again

with the inception of its Library Project, with which it plans to “make the full text of all

the world‟s books searchable by anyone with a computer and internet access” (Proskine

216). Google wants to have digital copies of every item in the collections of the Google 5

(the five libraries participating in the project: Stanford University, the University of

Michigan, Harvard University, Oxford University, and the New York Public Library) and

for each item will provide a digital copy to that library (Proskine 216-7). The user will be

able to search all of the materials in Google‟s collection using Google‟s search engine. If

a patron searches for a certain term, Google will return the books that contain the term. If

the book has copyright protection, the user can see “three snippets of text, a count of the

number of times the search term appears in the volume and links to online booksellers

and information about the nearest local library that carries a print version of the book”

(Proskine 218). To comply with the fair use guideline of marketability, Google won‟t

give snippets of reference books. Copyright covers over eighty percent of the Google 5‟s

collections, so Google has implemented a controversial strategy in regards to obtaining

permissions from copyright owners. Google chose to do an opt-out strategy rather than

getting licenses from every copyright holder in the collections. With opting-out,

copyright holders “must notify Google if they do not want their work included in

Google‟s searchable library database” (Proskine 219). This takes the responsibility off

Google and onto the copyright holders. Because of the controversial nature of Google‟s

Library Project with regards to copyright law, there are multiple lawsuits against Google

that question its compliance with copyright law.

VI. Research

Three studies related to copyright will be addressed in this report. The first

pertains to the process of obtaining copyright permission to create digital versions of

published works. The study used Carnegie Mellon University‟s library‟s circulating

collection and selected a random sample of books; letters asking permission to digitize

were sent to the copyright holders. The study obtained permission to digitize for only

24% of the items in CMU‟s collection (George 336). The study concluded “obtaining

permission to digitize copyrighted material is neither a quick nor easy procedure” and

required dedicated staff time as well as an easily accessible database of publisher contact

information (George 339).

Another study looked at copyright statements in digital library collections to see

what kind of information libraries were providing about copyright. This study used the

digital collections of the Digital Library Federation (DLF). Only twelve out of twenty-

nine institutions had a copyright statement. The study concluded “many libraries engaged

in digitization projects are omitting a key tool for copyright education or using it in ways

that undermine users‟ needs for accurate copyright information” (Schlosser 382-3). The

study suggests that libraries should “examine the issues involved and develop a set of

best practices for copyright statements on digital collections” (Schlosser 383).

A third study wanted “to determine to what extent research libraries are applying

copyright policies, the nature of those policies, and the degree to which they differ from

each other and from the law of fair use” (Gould et al. 183). The study sent surveys to the

115 libraries of the American Research Library Association (ARLA). Of the 78 responses,

13 had a university committee for copyright issues, but 44.4% of these had no library

representation (Gould et al. 189). The study concluded “enforcement [of compliance]

should be far more extensive” and the library should be the “starting point for systemic

institutional awareness and reeducation efforts” (Gould et al. 196).

VII. Global View

International copyright is founded in the Berne Convention, which was

established in 1886. The current version is the Paris Revision, which was put into action

in 1974 (Pilch 473). The Berne Convention consists of more than ninety members; the

US joined in 1989 (Butler 74). The Berne Convention “allows nations to adopt their own

limitations and exceptions, subject to certain conditions” (Pilch 474). For members of the

Berne Convention, “works do not need to have a copyright notice attached to be

protected by law” (Butler 74).

The World Intellectual Property Organization (WIPO), an agency of the United

Nations, directs 24 international intellectual property treaties (Butler 76). One such treaty

is the Trade Related Aspects of Intellectual Property Rights (TRIPS), which “addresses

copyright protection of computer programs and codes, sound recordings, and

broadcasting organizations” (Butler 76).

Various individual countries‟ copyright acts are worth mentioning. The European

Union (EU) Database Directive of 1998 “addresses not only the creation, but also the

content of databases” (Butler 75). The EU Directive on Copyright and Related Rights in

the Information Society of 2001 “was made to prohibit the making of copyrighted work

available on the Internet unless [authorized] by the right holder” (Singh 23). The

Australian Copyright Amendment (Digital Agenda) Act of 2000, which amends the

Australian Copyright Act of 1968, covers devices designed to “prevent or inhibit the

infringement of copyright in a work” (Singh 23). In the UK, the Copyright, Designs and

Patents Act (CDPA) of 1988 prohibits storing copyrighted works by electronic means but

the Legal Deposit Libraries Act of 2003 allows electronic copying for research in legal

deposit libraries (Fineberg 240).

VIII. Associations and Publications

The American Library Association (ALA) provides comprehensive information

about copyright on its website. The ALA has links to copyright articles, court cases, fair

use, intellectual property, and more (ALA). The ALA website is a great resource to find

information on copyright that‟s relevant to libraries and librarians today. The

International Federation of Library Associations and Institutions (IFLA) website also has

an entire section devoted to copyright. IFLA provides information on current limitations

and exceptions as well as other copyright resources and the latest news (IFLA).

Both the ALA and IFLA have publications. American Libraries is the magazine

of the ALA and provides information on current issues relevant to American libraries and

librarians. The IFLA Journal covers relevant issues in the international world of libraries,

including intellectual property. The Bureau of National Affairs, Inc. (BNA) has a journal

called the Patent, Trademark & Copyright Journal, which offers “comprehensive news

of the most important intellectual property cases, statutes, trends, and other key

developments in all areas of the law” (BNA).

IX. Conclusion

Copyright continues to be in the forefront of the minds of librarians everywhere.

Libraries are access points to copyrighted materials and librarians must have a working

knowledge of copyright law to best serve their patrons. Maintaining that working

knowledge can be extremely challenging however. Copyright law is so convoluted and

complicated that many people have a hard time understanding all the details. If librarians

have trouble understanding the laws that dictate the materials we work with daily, one

can only imagine the challenge copyright law poses for the general user of the library.

That user might resort to illegal means of using materials to avoid the complications of

the law. Librarians need to not only post notices alerting patrons of the possibilities of

copyright infringement, but should also be actively educating their patrons on copyright.

With the rise of digital technology, the law becomes even more complicated. Librarians

must take extra care to ensure that their institutions are compliant with copyright law

when utilizing electronic resources. As copyright law effects our profession so closely,

we need to continue to have our voices heard about changes that should maybe be

implemented to make the laws easier to follow. Copyright law will continue to change as

the information changes, and librarians will be involved at the heart of the issue.

Appendix A: Overview of Section 108

The following is a summary of Section 108 by Jerry L. McBride found in

“Copying By Libraries in the United States: Reviewing Section 108 of the US Copyright

Laws.”

• Subsection (a) establishes that the exceptions to copyright in § 108 apply
to publicly accessible libraries and archives as long as the copies are not
made for commercial purposes.

• Subsection (b) allows three copies to be made for preservation purposes as
long as any digital copies are not made available to the public outside of
the library.

• Subsection (c) allows the library to make a replacement copy of an item
that is damaged, deteriorating, lost, or stolen if it is out-of-print.

• Subsection (d) allows copies to be made for private study, scholarship, and
research of single articles or small portions of works.

• Subsection (e) allows the library to provide a copy of an entire work for
private study, scholarship, and research for out-of-print items.

• Subsection (f) absolves the library of any liability for copies made on
public copying machines as long as a copyright notice is posted on it and
protects the right of fair use as defined under § 107.

• Subsection (g) allows the library to make only single copies at a time and
for the purpose of interlibrary loan as long as the copying cannot substitute
for a subscription or purchase of a work.

• Subsection (h) allows “orphan works” to be copied in the last twenty years
of copyright for the purpose of preservation or research.

• Subsection (i) states that the provisions of § 108 do not apply to music, art
works, and films.

(McBride 366)

Appendix B: Ways Libraries Can Handle Electronic Reserves

The following is a list of actions libraries must perform to ensure that they are

compliant with copyright law when providing electronic reserves, provided by Rebecca P.

Butler in “Copyright Law and Organizing the Internet.”

Check that the material they put on reserve, which is not owned by them (for
example, it may have been provided by an instructor), has been obtained in a
lawful manner;
Obtain appropriate permissions, if necessary;
Pay royalties as needed;
Follow the fair use guidelines, if no permission has been sought;
Limit access;
Put on reserve as little an amount of the material as is feasible to satisfy   course
and user needs;
Include a reference section and copyright notice from the original work   on the
electronic reserve item;
Keep works on electronic reserve as short a time as possible (for example, one
semester per class);
Avoid putting problem items on electronic reserve;
Limit use of audio and video streaming;
Link to databases, instead of scanning items, if library licenses or subscriptions
permit this;
Remove access to the work once the course is over.

(Butler 313-4)

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