Professional Development

Copyright and the Library

Tuesday, August 26, 2008 2:30 pm

In late July, early August I attended a three week e-learning course hosted by ACRL titled “Copyright and The Library, Part 1: The Basics Including Fair Use.” In addition to discussion board postings and online readings, class members participated in weekly homework and library assessment assignments, audio lectures, and question and answer AIM sessions. I have summarized the basics of the copyright law and sections that pertain to libraries below.

Summary

The copyright law and code is found under Title 17 of the United States Code and is broken into several sections that affect libraries and archives.

  • Section 101: Definitions of terms commonly used throughout copyright law and sections
  • Section 106: Exclusive Rights in Copyrighted Works
  • Section 107: Limitations of Exclusive Rights, Fair Use
  • Section 108: Limitations of Exclusive Rights, Reproductions by Libraries and Archives
  • Section 109: Limitations of Exclusive Rights, Effect of Transfer of Particular Copy or Phonorecord
  • Section 504(a)(b)(c): Remedies for Infringement and Damages

Categories of Works of Authorship include:

  • Literary works (including computer programs)
  • Musical works (non-dramatic)
  • Dramatic works (including music)
  • Pantomimes/Choreographic works
  • Pictorial/graphic/sculptural
  • Motion pictures and other AV materials
  • Sound recordings
  • Architectural works
  • Compilations/collective and derivative works
  • Three requirements for copyright to attach to a work:
  • Must be original
  • Work of Authorship
  • Fixed in a tangible medium

Exclusive Rights:

The owner of a copyright has the exclusive rights to do and authorize the following:

  • Reproduce the copyrighted work in copies or phonorecords
  • Distribute copies or phonorecords to the public by sale or transfer of ownership (by rental, lease, or lending)
  • Prepare derivative works based on the original copyrighted work
  • Perform the copyrighted work (in the case of literary, musical, pantomime, choreographic, motion picture, or any audio-visual work)
  • Display the copyrighted work (in the case of literary, musical, pantomime, choreographic, motion picture, pictorial, graphic, sculptural, or any audio-visual work)
  • Perform the copyrighted work publicly by means of a digital audio transmission (in the case of sound recordings)

Fair Use and the Four Factors:

A copyrighted work may be used without the permission of the copyright holder if its use meets the four factors of Fair Use.The Four Factors, that are mandatory, include:

  1. The purpose of and character of the use of the copyrighted work is non-commercial vs. commercial, substitute/superseding vs. transformative.
    1. Is the use of the copyrighted work for commercial gain, to substitute paying for an original
  2. The nature of the copyrighted work with regards to published/unpublished, thick/thin
    1. Unpublished works are still open to Fair Use but tend to be a little more protected by the Government through Orphan Works rights
    2. Thick/thin argument-if the work is a newspaper that is being used, Fair Use can be applied since the majority of a newspaper issues is factual information with a minor amount of “original work”
  3. The amount and substantiality of the work taken
    1. Quantitative-how much of the copyrighted work is being used
    2. Qualitative-what is being used of the copyrighted work
    3. Will the amount of the work taken impact the quality of the work/will the amount taken impact the market?
  4. The effect of the use of the work on potential markets or the value of the work is evaluated by primary, secondary, derivative and educational markets.
    1. While the use of a copyrighted work may not directly impact the primary market or value, misuse under Fair Use can affect secondary or derivative markets and values.
    2. Infringement of work may not directly affect a journal subscription but its use would affect the secondary market of individual article downloads offered by the journal publisher

Types of Copyright Infringement:

Direct Infringement (Primary Liability)

  • Direct infringement must be established before secondary infringement can be determined
  • “ignorance of the law” is not an excuse in defining direct infringement, but can be used when determining/setting penalties
  • EXAMPLE: the student who knowingly photocopied a copyrighted material.

Contributory Infringement (Secondary Liability)

  • definition based on CONDUCT
  • Definition includes intermediary causes or substantially contributed to the direct infringement OR knows of the infringing nature of the copyrighted material
  • Courts typically examine the guidelines of Fair Use before determining contributory infringement occurred.
  • EXAMPLE: in academic settings, contributory infringers are students pirating movies, illegally downloading audio files, plagiarized text.

Vicarious Infringement (Secondary Liability)

  • Definition based on RELATIONSHIP
  • An intermediary has ability to control the conduct of the direct infringer AND receives direct financial gain from the activity of infringement.
  • EXAMPLE: a faculty member has a student copy book chapters/journal articles for a workbook, then sells that workbook to his/her enrolled students.

Trials:

There are two types of trials for cases of copyright infringement and the type is established by copyright owner.Copyright cases can either be handled as a bench trial by a judge OR a jury trial of peers.

Damages:

Once the Court has determined and identified all actors of infringement and their liability roles, the next step is setting damages.Although you may be identified as a direct, contributory, or vicarious infringer, you can impact the amount or cost of damaged enforced.

Damages

  • Actual financial damages suffered by the copyright holder (any profit made on part of the infringer)
  • Ranges from $750.00 to $30,000.00 per infringing work, NOT per copy

Injunctive Relief

  • Acts a probationary period before monetary damages are enforced; includes cease and desist orders, seizure and destruction of infringing material, and disabling access.
  • If above actions are not taken or enforced, then monetary penalties will be set and imposed.

Fees

  • Instead of damages or injunctive relief, courts may only impose court costs and attorney fees
  • Fees are set at the discretion of the court, not by a jury or prosecutor
  • Typically these fees are NOT cheap

Penalty Enhancement

  • Court can enhance the penalties imposed for “willful violations” and “reckless disregard for the law” meaning ignoring cease and desist orders, infringement notices…etc.
  • Enhancement fees enforced can be as high as $150,000.00

Miscellaneous-ness:

U.S.C. section 507: The statute of limitations for any copyright infringement is 3 years for civil actions and 5 years for criminal actions.Criminal actions are defined as “actual intent” of infringement such as bootlegging movies for profit.

U.S.C. section 408: Before a copyright lawsuit can be filed a work must be registered.However, registration is no longer required under law; it is permissive, not a prerequisite.

U.S.C. section 410(c): A work can be registered within 5 years of publication and the validity of copyright is considered “prima facie” evidence when used in copyright cases.

U.S.C. section 411 and 412: Registration.Although registration of a published work is no longer required, it is a prerequisite to infringement litigation.For unpublished works, registration must occur before infringement AND within 3 months of publication in order to gain statutory damages and/or attorney’s fees.

For additional readings:

Crews, Kenneth and Georgia Harper. “The Immunity Dilemma: Are State Colleges and Universities Still Liable for Copyright Infringements?” Journal of the American Society for Information Science. Vol. 50(1999): 1250-1352.

Burningham, Bradd. “Copyright Premissions: A Pilot Project to Determine Costs, Procedures, and Staffing Requirements.” Journal of Interlibrary Loan, Document Delivery & Information Supply. Vol. 11(2000): 95-111.

Circular 21

One Response to “Copyright and the Library”

  1. This is handy! I would add a note that contract law can trump fair use. It’s possible for a library to sign away the right to fair use if the license agreement is written in a way to spell out permitted uses and copyright law or fair use is not specifically included.


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