Basic copyright for librarians

by Gretchen McCord, September 2015

What is copyright law about?

U.S. copyright law is founded on the Constitution, which grants Congress the power to "Promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries."  The fundamental purpose of copyright law is to promote the creation and growth of knowledge by both rewarding authors for their contributions to the body of knowledge while ensuring that the public has the right to use that knowledge to build upon and add to the ever-growing body of knowledge.

What is protected?

Almost any original work of authorship exhibiting a "modicum of creativity" may be protected by copyright. Examples of works that usually will not meet this threshold include facts and very brief works, such as titles. Works in any format may be copyrighted—books, movies, web pages, works of art, even works of architecture. Certain categories of works are not protected by copyright, including federal government documents. (Note, however, that not every Government Printing Office publication is written by federal employees; thus some GPO publications may be protected.)

How is a work "copyrighted"?

No formal requirements need be met to protect a work by copyright. A work is protected as soon as it is "fixed in a tangible medium." Although there are benefits to registering a work with the U.S. Copyright Office, registration is not necessary to obtain protection. It is not even necessary to place a copyright notice on a work. Note the important result of this: it may not be possible to tell simply by looking at a work whether it is protected by copyright.  For this reason, especially given our digital environment, it is wise to assume that all works are copyrighted until proven otherwise.

Who owns a copyright?

Authorship of a work, for purposes of copyright law, is not always straightforward. When more than one person creates a work and they both intend their contributions to create a single work, they are considered to be joint authors with equal rights in the work. Under the works-made-for-hire doctrine, when an employee creates a work as part of his duties as an employee, his employer is deemed to own the copyright in the work.  In academia, an exception is often made for faculty members. A work may also be deemed a work-made-for-hire when created by an independent contractor, if both the employer and employee sign a document so stating and the work falls within a list of particular categories of works, including instructional texts, contributions to a collective work, and audiovisual works.

 What rights does a copyright owner have?

Copyright law provides authors with the rights to (1) create reproductions; (2) create derivative works; (3) distribute copies to the public; and (4) publicly perform or display the work. Under the current Copyright Act, the term of this protection is the life of the author plus 70 years. The term for works-made-for-hire is 95 years from first publication. Because the term of protection has been changed many times over the years, it can be very complicated to determine the term of a work published before 1976, the effective date of the current Act. A good source to help with this determination is available at http://www.unc.edu/~unclng/public-d.htm.

What kinds of exemptions are available for libraries?

As a result, in part, of efforts by the American Library Association and other library and educational organizations, several exemptions are carved out of the Copyright Act for certain library activities. These are literally "carve-outs" from a copyright owner’s rights; the copyright owner never has the right to prevent someone from engaging in the following activities.

1. The first sale doctrine

Section 109 of the Copyright Act states that the owner of a particular copy of a work may do whatever she wishes with that one copy without violating the distribution right – sell it, rent it, give it away, or loan it. This doctrine literally allows libraries to be libraries.  It also allows public display of an item in a physical location.

2. Photocopying

Section 108 of the Copyright Act allows libraries to make copies for several purposes, including interlibrary loan, copying by library employees and users, and copying for archival purposes. 

a. Copying by library employees

Section 108 allows a library employee to make and distribute a single copy of a work. To qualify for this exception, the library must be open to the public or accessible to researchers outside of the institution; the copying must not be done for commercial purposes; and copies must include a copyright notice or statement.

b. Interlibrary Loan

Photocopying is allowed under Section 108 for interlibrary loan purposes when the following conditions are met:

• No more than one article from a single journal issue, one "other contribution" to a copyrighted collection, or "a small part of any other copyrighted work" may be copied.
• The copy must become the property of the user.
• The library must have had no notice that the copy will be used for anything other than private study, research, or scholarship.
• The library must prominently display a copyright warning at the place where orders for copies are taken and on forms used to order copies.

The allowances under Section 108 do not apply to situations in which:

• The library or employee is aware that the copying is being done for purposes of “related or concerted reproduction or distribution of multiple copies of the same material;”
• The copying or distribution of single or multiple copies is systematic;
• The copies are intended to act as a replacement for a subscription or purchase by anyone, including another library; or
• Copies or distribution are of a sound recording, pictorial, graphic, sculptural, or audiovisual work (other than those dealing with news).

The National Commission on New Technological Uses of Copyrighted Works created guidelines to help interpret application of the law.  The guidelines state that, for any given periodical as a whole (as opposed to a single issue), no more than five copies of an article published within the previous five years should be made within any calendar year.  For any other work, no more than five copies per year should be made during the entire period for which the work is covered by copyright.

c. Archival photocopying

Section 108 allows archival photocopying of an unpublished work of up to three copies for the purpose of preservation and security or to deposit for research use in another library.  The item being copied must be in the copying library’s collection.  Section 108 also allows photocopying of a published work of up to three copies for the purpose of replacing a copy that is damaged, deteriorating, lost, or stolen.  To qualify for this exception, the library must have determined, after reasonable effort, that an unused replacement cannot be obtained at a fair price. For either category, digital reproductions must not be otherwise distributed or made available to the public outside the library’s premises.

d. Copying by library users

Section 108 relieves libraries and library employees of liability for unsupervised copying by users of library equipment, if the equipment displays a notice stating that making a copy may be subject to copyright law.

What about fair use?

The majority of uses of protected works in which librarians and other educations wish to engage fall outside the scope of the above statutory exemptions. In these cases, one must consider how likely the use is to constitute fair use. Unlike the very specific exemptions described above, fair use is, intentionally, a flexible doctrine that can be applied to any situation. The purpose of fair use is to allow infringing uses when doing so goes further towards promoting the goal of copyright law than would not allowing the use.

Contrary to the impression of many people—librarians and otherwise—not every non-commercial or educational use of a work constitutes a "fair use." Fair use is defined in Section 107 of the Copyright Act and allows an act that actually constitutes copyright infringement. Fair use recognizes that in some circumstances, carrying out the letter of the law violates the spirit of the law. Fair use is judged on a case-by-case basis based on four factors delineated in Section 107:

1. Purpose and character of the use—Non-commercial, educational uses are favored over commercial uses, and transformative uses—those which "alter the work with new expression, meaning or message"—are favored over direct copying.
2. Nature of the copyrighted work—Uses of fact-based works are given more leeway than uses of works of fiction.
3. Amount of the work copied in relation to the work as a whole—a use should generally take the minimum necessary to achieve its purpose. A court also considers whether the use takes "the heart" of the copyrighted work.
4. Effect on the potential marketplace for the copyrighted work—Simply put, this factor considers how much, if any, commercial damage the use potentially creates for the copyrighted work.

Fair use is a rich and complex area of copyright law and beyond the scope of this paper. All librarians are strongly encouraged to learn as much as they can about fair use and how to use it to support and promote the values of the profession and their own responsibilities in their professional jobs.

The preceding is adapted from an article originally published in Texas Library Journal 78:2, 56 (Summer 2002).