The Librarian's Copyright Companion

by James S. Heller, Paul Hellyer, and Benjamin J. Keele

The
Librarian's
Copyright
Companion

2nd Edition

James S. Heller

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Paul Hellyer

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Benjamin J. Keele

The Librarian's Copyright Companion
Second Edition

The Librarian's Copyright Companion
Second Edition

by
James S. Heller
Paul Hellyer
Benjamin J. Keele

William S. Hein & Co., Inc.
Buffalo, New York
2012

Publisher's Cataloging in Publication

Heller, James S.

The librarian's copyright companion/by James S. Heller, Paul Hellyer, Benjamin J. Keele.—2nd ed.—Buffalo, NY: William S. Hein, 2012.

p. ; cm.

ISBN: 978-0-8377-3872-7 (print)

Revision of the 2004 edition by James S. Heller.

Includes bibliographical references and index.

Summary: The translation from print to digital continues. The Copyright Act has changed a little, but not for the better. This book begins with the premise that copyright exists to promote the dissemination of information, and while creators have certain rights, so do users. This new edition updates every chapter and adds a new chapter on the library as a publisher. Also included is information on recent developments such as Creative Common licenses and the use of digital video (e.g. YouTube) in the classroom.—Publisher.

Contents: General principles—Restrictions on the use of copyrighted materials—Liability for infringement—Fair use (Section 107)—The library exemption (Section 108)—Digital information and software—Licensing—Audiovisual works and non-print media—The library as publisher—Conclusion—Appendixes (resources, texts, guidelines, samples, model policies).

1. Copyright—United States—Handbooks, manuals, etc. 2. Librarians—United States—Handbooks, manuals, etc. 3. Copyright infringement—United States. 4. Fair use (Copyright)—United States—Handbooks, manuals, etc. 5. Library copyright policies—United States—Handbooks, manuals, etc. 6. Copyright and electronic data processing—United States—Handbooks, manuals, etc. 7. Copyright licenses—United States—Handbooks, manuals, etc. 8. Libraries—Special collections—Nonbook materials—United States—Handbooks, manuals, etc. 9. Libraries—Publishing—United States—Handbooks, manuals, etc. I. Hellyer, Paul (Paul Alan) II. Keele, Benjamin J. III. Title.

KF2995 .H45 20122012950442

346.7304/82—dc231211

Copyright 2012 James S. Heller, Paul Hellyer, and Benjamin J. Keele. We encourage readers to employ fair use, the library exemption, and other rights provided by the Copyright Act. For other uses of this work, contact the authors at the College of William & Mary School of Law.
Printed in the United States of America
∞
This volume is printed on acid-free paper.

Dedication

The Librarian's Copyright Companion, Second Edition, is dedicated to the staff of the College of William & Mary's Wolf Law Library.

Table of Contents

Preface		xi
Chapter One. General Principles		1
	Copyright Defined	2
	The Copyright Act	3
	Copyrightable Works	5
	Copyright Notice	7
	Works in the Public Domain	9
	Compilations and Collective Works	13
	Duration of Copyright Protection	16
	International Issues	19
	License Agreements	20
Chapter Two. Restrictions on the Use of Copyrighted Materials		21
	Reproduction (Section 106(1))	22
	Derivative Works (Section 106(2))	23
	Distribution and First Sale Doctrine (Sections 106(3) and 109)	24
	Public Display and Public Performance (Sections 106(4) and 106 (5))	29
	Digital Transmission of Sound Recordings (Section 106(6))	30
	Moral Rights	31
Chapter Three. Liability for Infringement		33
	Remedies and Damages (Section 504)	33
	Institutional Responsibility: Vicarious Liability and Contributory Infringement	35
	Statute of Limitations (Section 507)	37
	Government Immunity	38
Chapter Four. Fair Use (Section 107)		41
	The Four Factors	43
	Fair Use in the For-Profit Sector: The Texaco Case and Beyond	49
	Fair Use in the Educational Sector	56
Chapter Five. The Library Exemption (Section 108)		69
	Qualifying for the Exemption (Section 108(a))	70
	Copying Unpublished Works (Section 108(b))	78
	Replacing Lost, Stolen, Damaged, or Deteriorating Copies of Published Works (Section 108(c))	80
	Articles or Excerpts for Users (Section 108(d))	83
	Out-of-Print and Unavailable Works (Section 108(e))	89
	Library Reproducing Equipment (a.k.a. Photocopiers and Scanners) (Section 108(f)(1) and (2))	91
	Contracts, Licenses, and Fair Use (Section 108(f)(4))	92
	The Section 108(g) Provisos	94
	Preservation and Term Extension (The Return of Sonny Bono) (Section 108(h))	104
	Non-Print Works (Music, Pictures, Graphs, and Sculptural Works) (Section 108(i))	105
	Section 108 and Fair Use (Reprise) (Section 108(f)(4))	106
Chapter Six. Digital Information and Software		107
	Click and Shrinkwrap Licenses (Section 117)	110
	Computer Programs (Section 117)	111
	Single-User and Site Licenses	112
	Downloading	113
	Database Protection (Redux)	113
	The First Sale Doctrine (Reprise) (Section 109)	115
	The Digital Millennium Copyright Act	117
Chapter Seven. Licensing		125
	The License under the Microscope	126
	Permissions	149
Chapter Eight. Audiovisual Works and Non-Print Media		151
	Recording	151
	Public Performance and Display	156
	Performances for Educational Purposes (Section 110(1))	163
	Performances in For-Profit Institutions	166
	Institutional Liability	166
	Guidelines for the Use of Audiovisual Works in Libraries	167
	Distance Education (Section 110(2))	168
	Image Collections	170
Chapter Nine. The Library as Publisher		173
	Permissions	174
	Handling Your Copyrights	180
	Permissions and Open Licenses	181
	Library Publishing May Require Several Layers of Agreements	182
Conclusion		185
Appendix A. Online Copyright Resources		187
Appendix B. Copyright Texts for Librarians: A Selective Bibliography		189
Appendix C. Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals (1976)		191
Appendix D. Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use (1982)		195
Appendix E. CONTU Guidelines on Photocopying under Interlibrary Loan Agreements (1978)		207
Appendix F. Fair Use Guidelines for Electronic Reserve Systems (CONFU) (1996)		211
Appendix G. Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes (1984)		215
Appendix H. Guidelines for Educational Uses of Music (1976)		217
Appendix I. Sample Permission Letter to Copyright Owner		219
Appendix J. American Association of Law Libraries Guidelines on the Fair Use of Copyrighted Works by Law Libraries (2001)		221
Appendix K. American Association of Law Libraries Model Law Firm Copyright Policy (2007)		231
Appendix L. Visual Resources Association Image Collection Guidelines: The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections (2004)		237
Appendix M. Code of Best Practices in Fair Use for Academic and Research Libraries (2012)		241
Appendix N. Sample Law Journal Author Agreement (2011)		267
Appendix O. Selected Provisions from the U.S. Copyright Act (Title 17, United States Code)		273
Appendix P. Copyright Term and the Public Domain in the United States (2012)		311
Table of Cases		317
Index		321

Preface

A lot has happened since the first edition of The Librarian's Copyright Companion was published in 2004, and a lot hasn't changed.

As for what's new, it's more evolution than revolution. The transition from print to digital continues apace: digital format is the default version for periodicals and journals in many libraries, and YouTube and other digital media are now commonly used in teachers' classrooms.^[1] In academia, many libraries have created digital archives or scholarly repositories, and have themselves become publishers. Print reserves have pretty much given way to e-reserves and commercial products like Blackboard. In a decision reached just as this book was going to press, a U.S. District Court in Georgia clarified the meaning of fair use for materials placed in e-reserves. The decision has been viewed as a win for libraries, but may be appealed.

The Copyright Act has changed a little, but not for the better. Efforts to amend the library exemption by the Section 108 Study Group went nowhere after three years of hard work. The fair use (section 107) and the public performance and display exemptions (section 110, which includes the TEACH Act) also remain unchanged. The U.S. Supreme Court continues to affirm anything Congress does that expands the term of copyright (Eldred v. Ashcroft in 2003 and Golan v. Holder in 2012).

What also hasn't changed is the fact that the publishing/copyright owner industry still promotes its views loudly and clearly. A great example is the October 2011 issue of Information Today: The Newspaper for Users and Producers of Digital Information Services, which had as its lead article "Armstrong: the Voice of Copyright." Tracey Armstrong, President and CEO of the Copyright Clearance Center (CCC), is not the voice of copyright. Ms. Armstrong may be a voice of copyright representing and advocating for copyright owners, publishers, and other producers of intellectual property, but she is definitely not the voice of copyright.

Here are some excerpts from the Information Today article, followed by our comments:

Armstrong: "We are looking at licenses that can be used on mobile devices, on laptops, on PC's, wherever you are in your enterprise or outside, when you're visiting clients on the road or studying abroad, whatever you're doing."

Us: It's nice to be able to get information anywhere and everywhere. But are you ready to pay for content every time you use it? What about fair use?

Armstrong: "[The CCC is] about access and ease of use and using licensing to help enable that … We're not about locking up content; we're about creating access. Think of us as the keys to creating access to that content through licensing."

Us: Let's call a spade a spade. The Copyright Clearance Center knows that in a digital world you can't keep content behind a locked door. But they would like you to believe that there is a door, that it is locked, and that you need to pay them for the key. The CCC continues to "educate" users about the risk of infringement, and they are effective. Many in the private sector have simply abandoned fair use and just pay royalties through the CCC. They now have their eyes on academic libraries, and you can bet that public libraries are next.

Our book is another voice of copyright, written by three lawyer librarians. We understand that interpreting copyright can be tricky. There's some black, some white, and a lot of gray. When we are confronted with a copyright question we approach it as a lawyer does: (1) what are the facts; (2) what does the Copyright Act say; and (3) are there court decisions addressing facts like these?

The Association of American Publishers, the Copyright Clearance Center, and other rights organizations such as Attributor begin with the premise that if you want to use something, you have to pay for it. We begin with a different premise: copyright exists to promote the dissemination of information, and while creators have certain rights, so do users. There are many situations where users do need permission or pay royalties. But there also are many situations where users do not need to ask for permission because the use is permitted under the Copyright Act.

The 2012 edition updates every chapter from the first edition of The Librarian's Copyright Companion, and we add a new chapter on the library as a publisher. You will find information on recent developments such as Creative Commons licenses and the use of digital video (e.g., YouTube) in the classroom. And we continue to believe there is a need to counter the self-serving voices of publishers and copyright owners, and those who do their bidding.

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1. YouTube even has its own "copyright center" for owners, users, and educators: http://www.YouTube.com/t/copyright_center.

James S. Heller is Director of the Law Library, Professor of Law, and Professor of Public Policy at the College of William & Mary. He has a B.A. from the University of Michigan, a J.D. from the University of San Diego, and an M.L.S. from the University of California at Berkeley. He has served as President of the American Association of Law Libraries (AALL) and of the Virginia and Southeastern chapters of AALL, and chaired AALL’s Copyright Committee several times.

Paul Hellyer is a Reference Librarian at the College of William & Mary’s Wolf Law Library. He has a B.A. and J.D. from UCLA and an M.L.I.S. from San Jose State University.

Benjamin J. Keele is a Reference Librarian at the College of William & Mary’s Wolf Law Library. He has a B.A. from the University of Nebraska-Lincoln and a J.D. and M.L.S. from Indiana University-Bloomington