- The document discusses copyright law and fair use guidelines for libraries. It reviews the four factors of fair use and provides examples of how to analyze whether a use is fair or not. - Section 109, known as the "first sale doctrine," allows libraries to lend, give away, resell, or destroy lawfully acquired physical copies of works. However, this does not apply to digital works which are licensed rather than owned. - When it comes to ebooks, libraries must understand the license terms that come with digital content collections, and advocate for a "digital first sale doctrine" and recognition of ebooks as a form of property.

1. Jill H-W • p. 1
Jill Hurst-Wahl
Hurst@HurstAssociates.com
@Jill_HW
UNDERSTANDING AND DEFENDING
COPYRIGHT IN YOUR LIBRARY:
AN INTRODUCTION
PART 2

2. Jill H-W • p. 2
Agenda
• Quick review of Part 1
• Using the Four Factors of Fair Use
• Overview of Section 109: Effect of transfer of
particular copy or phonorecord
• eBooks, Licensing and Copyright
• Resources
• We didn’t discuss Section108: Reproduction by
libraries and archives
• Answering your questions

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Remember
We are focused primarily
on U.S. copyright law.
Please set aside what you
think is in the law and learn
what the law actually
contains.

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What was in Part 1?
• Discussed:
• What is copyrightable
• Title 17, Sections 102-105
• Original work, fixed in a tangible medium
• The rights of the creator (or copyright holder)
• Title 17, Sections106 and 106A
• Reproduce, create derivative works, distribute, perform, display
• The length of copyright protection
• Title 17, Chapter 3
• In general, life of the creator/copyright owner plus 70 years
• Assessed an item’s copyright status
• Introduced the public domain
• A work in the public domain is free of copyright protection
• In general, works produced before 1923 are in the public domain
• Introduced Fair Use
• Title 17, Section 107

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WHAT IS FAIR USE?
(TITLE 17, SECTION 107)
The entire section on Fair Use, a limitation on the
exclusive rights of the copyright owner, is on the next
four slides!

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Limitations on exclusive rights: Fair use
“Notwithstanding the provisions of sections
106 [Exclusive rights in copyrighted works] and
106A [Rights of certain authors to attribution
and integrity]…

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Fair Use (continued): Purposes
“…fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or
by any other means specified by that section, for
purposes such as criticism, comment, news
reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is
not an infringement of copyright. In determining
whether the use made of a work in any particular
case is a fair use the factors to be considered
shall include—

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Fair Use (continued): The Four Factors
(1) the purpose and character of the use,
including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a
whole; and
(4) the effect of the use upon the potential market
for or value of the copyrighted work.

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Fair Use (continued): Unpublished works
“The fact that a work is unpublished shall not
itself bar a finding of fair use if such finding is
made upon consideration of all the above factors.”

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• Fair Use is the broadest limitation to
the rights of the copyright owner.
• Fair use is relevant only if the work is
protected by copyright.
• Fair Use is flexible.
• It is highly fact sensitive.
• If your use is not “fair,” another
statutory exception to the rights of
owner may work in your favor.
• You can always ask the copyright
owner for permission to use a work.
That is it!

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The good news: You do not seek permission. Rather you
use the Four Factors to determine if you believe your use
is fair. This evaluation is normal and occurs every day.
The concern: The copyright owner may discover your use
and disagree with your Fair Use determination. That person
may ask you to discontinue your use. If you disagree and
neither party is willing to negotiate, then a lawsuit may
occur. The final arbiter would be a judge; however court
cases rarely occur because people negotiate. Libraries are
rarely, rarely taken to court.
With Fair Use…

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TO JUDGE IF A USE IS FAIR,
USE THE FOUR FACTORS
No…nothing is automatically fair.
Let’s work through four examples.

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Example 1: Patron wants to make multiple
copies of a recent political news article to
distribute on the street

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The purpose and
character of the use
Activism
Publicity
Marketing
Unclear
The nature of the
copyrighted work
Non-fiction Favors fair use
The amount and
substantiality
Entire article Opposes fair use
The effect of the use Replaces a sale of the
work OR licensing of the
work
Numerous copies made
Opposes fair use
Example 1: Patron wants to make multiple
copies of a recent political news article to
distribute on the street

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Example 2: Manager copies 30-page
chapter on homelessness for people to
read before staff development day

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The purpose and
character of the use
Training
Prof. development
Non-profit?
May favor fair use
The nature of the
copyrighted work
Non-fiction Favors fair use
The amount and
substantiality
Entire chapter
30 pages out of a 150
page book
Opposes fair use
The effect of the use Replaces a sale of the
work OR licensing of the
work
Numerous copies made
Opposes fair use
Example 2: Manager copies 30-page
chapter on homelessness for people to
read before staff development day

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Example 3: Marketing manager uses a large portion of
a photo found on the Internet on a poster which will be
distributed in the community

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The purpose and
character of the use
Marketing
Promotion
Opposes fair use
The nature of the
copyrighted work
Creative Favors fair use
The amount and
substantiality
Portion used is nearly
the entire photo
Opposes fair use
The effect of the use Replaces licensing of
the work
Numerous copies made
Could be seen as
replacing the original
work
Opposes fair use
Example 3: Marketing manager uses a large portion of
a photo found on the Internet on a poster which will be
distributed in the community

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Example 4: Staff use 1-2 sentence quotes from
popular fiction books on displays around the
library

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The purpose and
character of the use
Marketing
Promotion
Opposes fair use
The nature of the
copyrighted work
Creative Favors fair use
The amount and
substantiality
Small amounts
Not the “heart of the
work”
Favors fair use
The effect of the use Does not replace the
original work
No effect on the market
Favors fair use
Example 4: Staff use 1-2 sentence quotes from
popular fiction books on displays around the
library

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SECTION 109
Limitations on exclusive rights:
Effect of transfer of particular copy or phonorecord
“The First Sale Doctrine”

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Our culture is build
around owning property

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Includes…
Subsection (a): “the owner of a particular [physical]
copy or phonorecord lawfully made under this
title…is entitled, without the authority of the
copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord.”
Subsection (b): Ability for the rental, lease, or
lending of a phonorecord for nonprofit purposes
by a nonprofit library or nonprofit educational
institution.

24. Jill H-W • p. 24
Includes…and…
Subsection (c): “is entitled, without the authority of
the copyright owner, to display that copy publicly,
either directly or by the projection of no more than
one image at a time, to viewers present at the
place where the copy is located.”

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Yes you (and the library) can…
• Lend
• Give away
• Re-sell
• Destroy
…lawfully acquired copy (e.g., book, periodical, record).

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But there is no digital first sale doctrine
• Section 109 doesn’t apply to digital works.
• We don’t buy digital works; we license them.
• A license limits what can be done with the work.
• The license “sits on top” of copyright, and limits
what the user can do.
• The Digital Millennium Copyright Act (DMCA)
restricts our ability to circumvent any protections
placed on a digital work.

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EBOOKS, COPYRIGHT &
LICENSES

28. Jill H-W • p. 28
Ebooks do not fit into Section 109
• We talk about ownership of digital assets in the
same way as physical assets, however…
• Section 109 is about physical property, not digital.
• Ebooks are licensed.
• The ebook vendor gives us the ability to license
an ebook if we agree to specific terms, e.g.:
• Limits to number of simultaneous users
• Limit to the length of the “loan”
• Limit to the number of loans per license
• Inability to keep or archive an ebook

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The good news
• We have had to wrestle with definitions for ebooks,
lending, owning, copying, etc.
• Publishers and libraries have argued over and
developed contractual arrangements for ebook
lending.
• There is a growing understanding that a digital first
sale doctrine is needed, because our lives
increasingly revolve around digital content.
• How we think about digital content as property is
evolving.
• This area is changing rapidly, if not in practice then at
least in understanding.

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• Advocating with the Copyright Office and the U.S.
Congress for a digital first sale doctrine.
• Working with copyright owners, publishers and
distributors to recognize ebooks as property.
Where we need to do more work

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• Understand the contract options available for
your library for its ebook collections.
• What is in the contract?
• What aspects of the license are not meeting the
needs of your community?
• Where can you negotiate or renegotiate?
• Recognize if your library is willing to take a
difficult stand in terms of ebook licensing.
• For example, only obtain ebooks which are
licensed to function like physical books.
What you can do

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RESOURCES

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• U.S. Copyright Law, Title 17
• U.S. Copyright Law: Limitations on exclusive rights:
Reproduction for blind or other people with disabilities
(Section 121)
• U.S. Copyright Basics (Circular 1)
• Copyright in Derivative Works and Compilations (Circ. 14)
• Duration of Copyright (Circular 15)
• Reproduction of Copyrighted Works by Educators and
• Librarians (Circular 21)
• Digital Millennium Copyright Act Summary
Resources – U.S. Law

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• Crews, K.D. (2018) Copyright Law for Librarians and
Educators: Creative Strategies and Practical Solutions
• Columbia Univ. Libraries. Fair Use Checklist
• Cornell Univ. Library. Copyright Term and the Public
Domain in the United States
• Copyright Clearance Center. Interlibrary Loan: Copyright
Guidelines and Best Practices
Resources – Other, page 1

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• Creative Commons
• A global nonprofit organization that enables sharing and
reuse of creativity and knowledge through the provision
of free legal tools.
• Faden, E. A Fair(y) Use Tale (video)
• “…humorous, yet informative, review of copyright
principles delivered through the words of the very
folks we can thank for nearly endless copyright
terms.”
• RUSA/ALA. Interlibrary Loan Code for the United States
Resources – Other, page 2

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WE DIDN’T DISCUSS
SECTION 108
Limitations on exclusive rights:
Reproduction by libraries and archives

37. Jill H-W • p. 37
Section 108
• Outlines conditions which a library or archive must meet in order to
use the provisions outlined within.
• “the collections of the library or archives are (i) open to the public, or
(ii) available not only to researchers affiliated with the library or
archives or with the institution of which it is a part, but also to other
persons doing research in a specialized field”
• It is not an automatic carte blanche for libraries and archives in terms
of producing copies.
• It governs:
• Replacement copies
• Copies made to preserve the original or for security
• Copies made in response to a user request (including interlibrary
loan)
• The need to place copyright warnings on photocopiers
• …and other conditions/situations

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ANSWERING YOUR
QUESTIONS

39. Jill H-W • p. 39
• Clarify the question.
• What is the real question?
• Get the details.
• You need to seek answers or advice which fit the real
question.
• Does your institution have a copyright attorney or
advisor?
• Look for answers in a Copyright.gov circular or the law
itself (Title17).
• Research the question and look for an answer from a
respected copyright authority.
• Remember that the answer (or advice) fits only that
specific situation.
How can you answer copyright
questions? Consider:

40. Jill H-W • p. 40
Copyright vs. Trademark vs. Patent
• Patent – “The right conferred by the patent grant is, in the
language of the statute and of the grant itself, ‘the right to
exclude others from making, using, offering for sale, or
selling’ the invention in the United States or ‘importing’ the
invention into the United States. What is granted is not the
right to make, use, offer for sale, sell or import, but the right
to exclude others from making, using, offering for sale,
selling or importing the invention.” USPTO
• Trademark – “A trademark is a word, name, symbol, or
device that is used in trade with goods to indicate the
source of the goods and to distinguish them from the goods
of others. A servicemark is the same as a trademark except
that it identifies and distinguishes the source of a service
rather than a product.” USPTO

41. Jill H-W • p. 41
Each country’s laws governs how works are used
in that country, in regards to copyright. For
example, U.S. law governs how we use works in
the U.S.
Do our US copyright laws apply to all works in
the world? Or do each country's laws govern
how we in the US can use the works?

42. Jill H-W • p. 42
“Translations of works in the public domain—
are they protected by copyright?”
Circular 14 says: To be copyrightable, a derivative work
must incorporate some or all of a preexisting “work”
and add new original copyrightable authorship to that
work. The derivative work right is often referred to as the
adaptation right. The following are examples of the many
different types of derivative works:
• A motion picture based on a play or novel
• A translation of an novel written in English into another
language [Producing a translation requires original work.]
• A revision of a previously published book
• A sculpture based on a drawing
• A drawing based on a photograph
• A lithograph based on a painting
• …see circular for more information…

43. Jill H-W • p. 43
Why aren’t our notes of your workshop
derivative of your copyrighted material?
This is why I think you own the copyright to your notes:
• Your notes are your original work in fixed form.
• Your notes are what you want to remember from the
workshop and may not be what I actually said.
• Your notes may incorporate thoughts that were not
covered in my workshop.
• Your notes may be wrong.
Article of interest:
Do Students Have Copyright to Their Own Notes?

44. Jill H-W • p. 44
With regards to the duration of copyright:
what of corporate copyrights
(Thinking of Disney, of course)
Section 302(c) says:
“Anonymous Works, Pseudonymous Works, and
Works Made for Hire.—In the case of an
anonymous work, a pseudonymous work, or a
work made for hire, the copyright endures for a
term of 95 years from the year of its first
publication, or a term of 120 years from the
year of its creation, whichever expires first.”

45. Jill H-W • p. 45
If a work has two authors, when will it
pass into the public domain?
Section 302(b) says:
“Joint Works.—In the case of a joint work
prepared by two or more authors who did not
work for hire, the copyright endures for a term
consisting of the life of the last surviving author
and 70 years after such last surviving
author’s death.”

46. Jill H-W • p. 46
I am a musician. If I cover someone
else's work in a coffee shop, is that indeed
still a breaking of copyright law?
• Yes, if the venue does not have a license for the
music performed within the establishment.
• What is your or the venue’s risk of being caught?
• Video, YouTube, Facebook live
• Someone with a grudge
• Perhaps there is no risk?
Articles of interest:
Copyright and Your Band: Cover Songs (Part One)
Copyright and Your Band: Cover Songs (Part Two)

47. Jill H-W • p. 47
A favorite book of mine, published in 1972, no
longer in print, author deceased - not yet 70 years
- how can I find out who holds the copyright?
1. Who published the book?
• Is that publisher still in business?
• If yes, can you contact them and ask who now holds
the rights? (It could be them.)
• If no, what the publisher purchased by someone
else?
• If yes, can you contact them and ask about the
rights?
• If no, is there any trail about what happened to the
publisher’s works?
2. What do you want to do with the book? Does that use
fit under Fair Use?

48. Jill H-W • p. 48
Agreement on Guidelines for Classroom
Copying in Not-for-profit Educational
Institutions with Respect to Books and
Periodicals
• Circular 21, pp. 6-7
• Guidelines not law
• May be implemented in a strict or restrictive way
• Better to understand what is in the law itself, than
to rely solely on guidelines.

49. Jill H-W • p. 49
Time for questions?