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Copyright & TodayCopyright & Today’’s Libraries:s Libraries:how did this get so complicated?how did this get so complicated?
Jon CavicchiJon CavicchiProfessor & IP LibrarianProfessor & IP Librarian
Presented 2008Presented 2008Selectively Updated 2016Selectively Updated 2016
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My BackgroundMy Background� IP Librarian & Professor of Research IP Librarian & Professor of Research � Master of Laws - Intellectual PropertyMaster of Laws - Intellectual Property� Supervised the drafting of Copyright Supervised the drafting of Copyright
Policies and ProceduresPolicies and Procedures� Content producer of popular IP web siteContent producer of popular IP web site
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Is copyright a Is copyright a ““big dealbig deal”” for for Libraries?Libraries?
� Carrot and the stickCarrot and the stick– search shows Libraries are not search shows Libraries are not
receiving desist letters or being receiving desist letters or being suedsued
– Librarians proactiveLibrarians proactive� professional associations spend large professional associations spend large
sums to protect educate members on sums to protect educate members on the law and to lobby to keep the law and to lobby to keep legislation friendly to l ibraries and legislation friendly to l ibraries and information accessible to the publicinformation accessible to the public
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Copyright trials are rareCopyright trials are rare
� According to Table C-4 in "Judicial Business of the US Courts," only 20 copyright cases that terminated in 2015 went to jury.
� Percent reaching trial 0.7%
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A few brushes with copyright A few brushes with copyright policepolice
� Georgia State copyright case (Cambridge University Press et al. v. Patton et al.) involves the use of copyrighted materials in e-reserves in higher education, but the impact of the case and its potential results may be far more reaching.
� Gettsburg College in Pa. sued over coursepack copying� Anston County Community College in NC paid $18,000
damages for software copying in settlement after a suit was filed� Disney sued elementary school for painting mural� Indiana AV Network Library Services - rotating collection of
audio cassette books called "Books-on-Tape" - received a "cease and desist" letter explaining that term is copyrighted
©Special librarians...Special librarians...
Check out the Check out the TexacoTexaco case… case…
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Jon -donJon -don ’’t tel l them its OK to t tel l them its OK to infringe because they woninfringe because they won ’’t get t get
caught !caught !
� APAAPA– sharing decreases subscriptions and drives sharing decreases subscriptions and drives
prices upprices up– copying drives prices upcopying drives prices up– quality control costsquality control costs– publishers need revenue streamspublishers need revenue streams– publishers need revenue to reinvest and publishers need revenue to reinvest and
develop subsidiary usesdevelop subsidiary uses
©� They wonThey won ’’t sue l ibraries t sue l ibraries
but they wonbut they won ’’t concede in t concede in negotiating legislation and negotiating legislation and guidelinesguidelines– Robert L. Oakley, Robert L. Oakley, Growing Pains : Growing Pains :
Adapting Copyright for Libraries, Adapting Copyright for Libraries, Education, and SocietyEducation, and Society , Rothman & Co, , Rothman & Co, Littleton, CO 1997Littleton, CO 1997
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Is the copyright law...Is the copyright law...
� Accommodation of Accommodation of interests?interests?
� Protection of capital Protection of capital structure?structure?
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Give not into temptation...Give not into temptation...� Copying is quicker and cheaper thanCopying is quicker and cheaper than
– tackling the copyright law learning tackling the copyright law learning curve?curve?
– draft ing policies and procedures?draft ing policies and procedures?– clearing copyright use?clearing copyright use?– keeping records?keeping records?
� Statutory damages up to $100,000Statutory damages up to $100,000� Premise of copyright is consistent with Premise of copyright is consistent with
missing and goals of l ibrarianship - missing and goals of l ibrarianship - ““to to serve social interests and the public serve social interests and the public welfare by encouraging learning, free welfare by encouraging learning, free speech and the advancement of speech and the advancement of knowledge.knowledge.””
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TodayToday’’s Libraries in NHs Libraries in NH� PublicPublic� SchoolSchool� College & UniversityCollege & University
� Some little to no technologySome little to no technology� Some fully Some fully ““wiredwired”” with extensive with extensive
electronic collectionselectronic collections
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Diversity of library settings - Diversity of library settings - SLASLA
� Business / CorporateBusiness / Corporate� EducationalEducational� GovernmentalGovernmental� LawLaw� Museums Museums � PublicPublic� ResearchResearch
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Scenarios differ but we allScenarios differ but we all� AcquireAcquire� PreservePreserve� OrganizeOrganize� Make availableMake available
� CopyCopy� DistributeDistribute� LendLend� PerformPerform� DisplayDisplay
©� The content of othersThe content of others
� Most of the t ime protected Most of the t ime protected by lawby law
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Some copyright challenges for Some copyright challenges for todaytoday’’s librariess libraries
� Potential mass copying of electronic Potential mass copying of electronic contentcontent
� Preservation copying - digital format l i fe Preservation copying - digital format l i fe is 15-20 yearsis 15-20 years
� Unsupported digital formats Unsupported digital formats � Digital resource sharingDigital resource sharing
– consortia consortia – ILLILL– cooperative collection development cooperative collection development
plansplans� Library as ISPLibrary as ISP
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Copyright has come a long Copyright has come a long wayway
� Based on English lawBased on English law� Tradition of proprietary right in artistic Tradition of proprietary right in artistic
and intellectual labor developed over and intellectual labor developed over many centuriesmany centuries
� St. Columba copies Psalter of St. St. Columba copies Psalter of St. Fennian (600s)Fennian (600s)– Irish King Diarmait arbitratesIrish King Diarmait arbitrates– ““To every calf her cow, to every book its To every calf her cow, to every book its
copycopy””
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Need for organized law of Need for organized law of copyrightcopyright
� Craxton introduces printing press in 1476Craxton introduces printing press in 1476� Patronage & royal prerogativePatronage & royal prerogative� censor seditious literaturecensor seditious literature� Monopoly by Stationers CompanyMonopoly by Stationers Company� Statute of Anne in 1710 provided literary Statute of Anne in 1710 provided literary
work was property of authorwork was property of author� Transition of author as gentleman and Transition of author as gentleman and
scholar to proprietorscholar to proprietor
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U.S. Copyright lawsU.S. Copyright laws� Pre-Constitution all colonies passed law Pre-Constitution all colonies passed law
protecting creative worksprotecting creative works� Article I, clause 8, section 8Article I, clause 8, section 8– ““The Congress shall have the power…to The Congress shall have the power…to
promote the progress of science and useful promote the progress of science and useful arts…by securing for limited times to arts…by securing for limited times to authors and inventors the exclusive rights authors and inventors the exclusive rights to their respective writings and discoveriesto their respective writings and discoveries””
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Dueling public policiesDueling public policies� Promote creativity by granting exclusive Promote creativity by granting exclusive
rights rights � Enhance the use of the public fund of Enhance the use of the public fund of
knowledgeknowledge� Creators clash with users?Creators clash with users?� That which is a financial detriment to an That which is a financial detriment to an
author a detriment to the public?author a detriment to the public?
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Copyright law became purely Copyright law became purely FederalFederal
� U.S. Copyright ActsU.S. Copyright Acts– 17901790– 18311831– 18701870– 19091909– 19761976
� 1976 Act is the current law amended 1976 Act is the current law amended many times in the last two decadesmany times in the last two decades
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Copyright Copyright ““lawlaw”” : 3 branches : 3 branches of government of government
� ConstitutionConstitution� Copyright ActCopyright Act� Federal RegulationsFederal Regulations� Copyright Compendium IICopyright Compendium II� Appellate court decisions interpreting Appellate court decisions interpreting
the three above authoritiesthe three above authorities
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Many interpretationsMany interpretations
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The long tail of litigation?The long tail of litigation?� TEACH Act 2002 passed almost 15 TEACH Act 2002 passed almost 15
years agoyears ago� No interpretive casesNo interpretive cases� ““The TEACH Act is too new to have The TEACH Act is too new to have
been judicially interpreted, and case law been judicially interpreted, and case law may be long in coming.”may be long in coming.”
� Raymond T. Nimmer & Holly K. Towle, Raymond T. Nimmer & Holly K. Towle, The The Law of Electronic Commercial Transactions Law of Electronic Commercial Transactions (Pratt, Last updated August 2016)(Pratt, Last updated August 2016)
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““OfficialOfficial”” Guidelines are not Guidelines are not the lawthe law
� Legislative history to the 1976 ActLegislative history to the 1976 Act– GuidelinesGuidelines– Copyright Office CircularsCopyright Office Circulars– CONTUCONTU– CONFUCONFU
� You may be obligated to follow them by You may be obligated to follow them by agreementagreement
� ““Safe harbors?Safe harbors?”” - have courts made - have courts made them maximum guidelines?them maximum guidelines?
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DonDon’’t forget Model Policiest forget Model Policies� Example - ALA Model PoliciesExample - ALA Model Policies� Code of Best Practices in Fair Use for Code of Best Practices in Fair Use for
the Visual Artsthe Visual Arts� Not the lawNot the law� May adopt and be bound by themMay adopt and be bound by them
– within institutionwithin institution– by agreementby agreement
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Oh no, there are international Oh no, there are international rules too?rules too?
� U.S. is a party to conventions and U.S. is a party to conventions and treatiestreaties
� move to harmonize U.S. law move to harmonize U.S. law – e.g. Digital Millenium Copyright Act e.g. Digital Millenium Copyright Act
implements World Intellectual Property implements World Intellectual Property legislationlegislation
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How do I figure this all out?How do I figure this all out?� Black ListBlack List
– clearly prohibited by law or court decision clearly prohibited by law or court decision in your Circuitin your Circuit
� Grey ListGrey List– no clear lawno clear law– Guidelines allowGuidelines allow
� White listWhite list– clearly allowed by law or court decision in clearly allowed by law or court decision in
your Circuityour Circuit
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Copyright ActCopyright Act
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When white is black and black When white is black and black is whiteis white
� Contracts may control what you can doContracts may control what you can do– a license or agreement may limit what a license or agreement may limit what
is lawful and allow what is prohibitedis lawful and allow what is prohibited– Contract preemption: an issue to Contract preemption: an issue to
watchwatch� See See Ass'n for Info. Media & Equip. Ass'n for Info. Media & Equip.
v. Regents of the Univ. of Cal.v. Regents of the Univ. of Cal., No. , No. CV 10-9378 CBM, slip op. at 9-10 CV 10-9378 CBM, slip op. at 9-10 (C.D. Cal. Oct. 3, 2011).(C.D. Cal. Oct. 3, 2011).
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Copyright 101Copyright 101� Statutory definition of copyrightable Statutory definition of copyrightable
works is works is – ““original works of authorship fixed in any original works of authorship fixed in any
tangible medium of expression, now know tangible medium of expression, now know or later developed, from which they can be or later developed, from which they can be perceived, reproduced or otherwise perceived, reproduced or otherwise communicated…communicated…””
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Including, but not limited to,Including, but not limited to,� Literary worksLiterary works� musical worksmusical works� dramatic worksdramatic works� pantomimes and choreographic workspantomimes and choreographic works� pictorial, graphic and sculptural workspictorial, graphic and sculptural works� sound recordingssound recordings� architectural worksarchitectural works
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5 exclusive rights to exploit 5 exclusive rights to exploit work for profitwork for profit
� ReproductionReproduction� DistributionDistribution� AdaptionAdaption� PerformancePerformance� DisplayDisplay
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““Bundle of rightsBundle of rights”” devisable devisable � Owner may split these rights many, Owner may split these rights many,
many, many ways and timesmany, many ways and times– formatformat– durationduration– type of usetype of use– geographic area of usegeographic area of use
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Questions to ask when you Questions to ask when you want to use or allow use of want to use or allow use of
contentcontent
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� Do I have an agreement that allows me Do I have an agreement that allows me to use this?to use this?
� Is the item the subject of copyright Is the item the subject of copyright protection?protection?
� Does the law exclude the item from Does the law exclude the item from protection (e.g. federal publications)?protection (e.g. federal publications)?
� Has the item passed into the public Has the item passed into the public domain?domain?
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� Is the ownerIs the owner’’s right limited or excluded by s right limited or excluded by the Act? (17 U.S.C. 107 - 118)?the Act? (17 U.S.C. 107 - 118)?
� Who wants to use the content?Who wants to use the content?
� What does the user want to do with the What does the user want to do with the content?content?
� Who owns the right that matches the use?Who owns the right that matches the use?
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� How much content is needed?How much content is needed?
� Has the content been requested or Has the content been requested or used on prior occasions?used on prior occasions?
� What is the effect on the revenue of the What is the effect on the revenue of the copyright holder?copyright holder?
� Does the Library charge for the copy?Does the Library charge for the copy?
� If so, how are the revenues used?If so, how are the revenues used?
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What about the creative right What about the creative right of the content creator?of the content creator?
� Generally, no moral rights Generally, no moral rights in the U.S.in the U.S.
� W.I.P.O. looking at W.I.P.O. looking at copyright as a human rightcopyright as a human right
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If you conclude you have no If you conclude you have no right to use so far, the final right to use so far, the final
step is to apply step is to apply
� The Doctrine of Fair UseThe Doctrine of Fair Use– enacted to provide the widest enacted to provide the widest
exploitation of copyrighted worksexploitation of copyrighted works
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Four prong testFour prong test� Purpose and character of the usePurpose and character of the use
– commercial orcommercial or– nonprofit educational purposesnonprofit educational purposes
� nature of copyrighted worknature of copyrighted work� amount & substantiability of portion amount & substantiability of portion
used in relation to the wholeused in relation to the whole� effect upon potential market or value of effect upon potential market or value of
workwork
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Tell me librarian, do you feel Tell me librarian, do you feel lucky?lucky?
� May be used to get around black listMay be used to get around black list� Balancing testBalancing test� Look to way judges in Circuit apply the Look to way judges in Circuit apply the
testtest� If you are wrong you may be liable for If you are wrong you may be liable for
statutory damages and paying the statutory damages and paying the ownerowner’’s attorney feess attorney fees
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Risk toleranceRisk tolerance
� Beyond fair use, permission, Beyond fair use, permission, l icense…license…– negotiatenegotiate– accept riskaccept risk– get insuranceget insurance
� Coverage Under The Comprehensive Coverage Under The Comprehensive (or Commercial) General Liabil i ty Policy(or Commercial) General Liabil i ty Policy
� Direct coverageDirect coverage
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Wow, we librarians with a lot Wow, we librarians with a lot of stuffof stuff
� print textprint text� photosphotos� drawingsdrawings� art worksart works� mapsmaps� slidesslides� transparanciestransparancies� audio tapesaudio tapes� phonorecordsphonorecords
� CD-ROMCD-ROM� videotapesvideotapes� videocassettesvideocassettes� filmsfilms� film stripsfilm strips� AV packsAV packs� multimediamultimedia� softwaresoftware� databasesdatabases
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Subject of use mattersSubject of use matters� For purposes of copying, Copyright Act For purposes of copying, Copyright Act
is is ““technology neutraltechnology neutral””� Formats treated differently by the ActFormats treated differently by the Act� Need to synthesize several sections of Need to synthesize several sections of
law along with other authoritieslaw along with other authorities� Some section of act are format neutralSome section of act are format neutral� Act is long as the march of technology Act is long as the march of technology
creates new needs for protectioncreates new needs for protection
©Exception to the exclusive Exception to the exclusive
right to reproduceright to reproduce
Libraries and ArchivesLibraries and Archives
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17 USC 10817 USC 108
� Provides a special, limited safe Provides a special, limited safe harbor for public libraries, public harbor for public libraries, public archives and their employees who archives and their employees who reproduce and distribute reproduce and distribute copyrighted works for copyrighted works for noncommercial purposesnoncommercial purposes
� PRIMARILY COVERS PRINT PRIMARILY COVERS PRINT WORKSWORKS
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8 sections…many subsections... 8 sections…many subsections... 4 pages of fine print4 pages of fine print
� 108(a) - no more than one copy108(a) - no more than one copy� 108(b) - Archival Reproduction of Unpublished 108(b) - Archival Reproduction of Unpublished
WorksWorks� 108(C) - Reproduction to Replace Lost or 108(C) - Reproduction to Replace Lost or
Damaged WorksDamaged Works� 108(d) - Articles or small excerpts108(d) - Articles or small excerpts� 108(e) - entire works108(e) - entire works� 108(f) - Unsupervised Reproduction 108(f) - Unsupervised Reproduction
EquipmentEquipment� 108(g) - Systematic Reproduction108(g) - Systematic Reproduction� 108(h) - Rights of this section do not apply 108(h) - Rights of this section do not apply
to...to...
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Section 108(a) -limitationsSection 108(a) -limitations� no more than one copyno more than one copy� reproduction and distribution is reproduction and distribution is
made without direct or indirect made without direct or indirect commercial advantagecommercial advantage
� The collection is either open to The collection is either open to the public or to researchers doing the public or to researchers doing
research in the same field. research in the same field. (ILL)(ILL)
� The reproduction and distribution The reproduction and distribution of the work contains a notice of of the work contains a notice of copyright.copyright.
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Section 108(b) - Archival Section 108(b) - Archival Reproduction of Unpublished Reproduction of Unpublished
WorksWorks
� The purpose of such The purpose of such duplication of an duplication of an unpublished work is for unpublished work is for preservation and security preservation and security or for deposit for research or for deposit for research in another library.....in another library.....
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Section 108(C) - Reproduction Section 108(C) - Reproduction to Replace Lost or Damaged to Replace Lost or Damaged
WorksWorks� The purpose of such The purpose of such
duplication is to replace a duplication is to replace a published damaged, published damaged, deteriorating, lost or stolen deteriorating, lost or stolen copy…copy…
� After the l ibrary makes a After the l ibrary makes a reasonable effort to determine reasonable effort to determine that an unused copy cannot be that an unused copy cannot be obtained at a fair priceobtained at a fair price
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REASONABLE EFFORTREASONABLE EFFORT
� NORMALLY REQUIRESNORMALLY REQUIRES– Recourse to commonly known Recourse to commonly known
U.S. trade source such as U.S. trade source such as wholesalers, retail bookstores and wholesalers, retail bookstores and jobbersjobbers
– Contacting the copyright owner or Contacting the copyright owner or publisherpublisher
– Using an authorized reproducing Using an authorized reproducing serviceservice
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FAIR PRICEFAIR PRICE� Association of American Publishers Association of American Publishers
definition :definition :– The suggested retail price if available The suggested retail price if available
from the publisherfrom the publisher– If not so available, the prevailing retail If not so available, the prevailing retail
priceprice– The normal price charged by an The normal price charged by an
authorized reproducing serviceauthorized reproducing service
©
Section 108(d) - Articles or Section 108(d) - Articles or small excerptssmall excerpts
� The user requests no more than The user requests no more than one article or other contribution one article or other contribution to a collective work or periodical to a collective work or periodical issue from the library where the issue from the library where the user makes the request or from user makes the request or from that of another library if:that of another library if:
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1.1. The copy becomes the The copy becomes the property of the user,property of the user,
2.2. The library has no notice it wil l The library has no notice it wil l be used for non-section 107 be used for non-section 107 purposes, andpurposes, and
3.3. The library displays The library displays prominently where orders are prominently where orders are placed and on the order form a placed and on the order form a warning of copyright in warning of copyright in accordance with the Register of accordance with the Register of Copyrights regulation.Copyrights regulation.
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Photocopy warningPhotocopy warning� The copyright law of the United States (Title 17, United The copyright law of the United States (Title 17, United
States Code) governs the making of photocopies or other States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproductions. authorized to furnish a photocopy or other reproductions. One of these specific conditions is that the photocopy or One of these specific conditions is that the photocopy or reproduction is not to be reproduction is not to be “used for any purpose other than “used for any purpose other than private study, scholarship, or research.” If a user makes a private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for purposes in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgement, refuse to accept a copying order if, in its judgement, fulfillment of the order would involve violation of copyright fulfillment of the order would involve violation of copyright law. law. 37 C.F.R. Section 201.1437 C.F.R. Section 201.14
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Includes all types of copyingIncludes all types of copying� The Copyright Act is technology neutral.The Copyright Act is technology neutral.� Section 108 uses the word Section 108 uses the word ““reproducereproduce”” not not
““photocopyphotocopy ””� Section 101 definit ion of copies : Section 101 definit ion of copies : ““...Material objects, other than phonorecords, ...Material objects, other than phonorecords,
in which a work is f ixed by any method now in which a work is f ixed by any method now known or later developed, and from which known or later developed, and from which the work can be perceived, reproduced, or the work can be perceived, reproduced, or otherwise communicated, either directly or otherwise communicated, either directly or with the aid of a machine or device.with the aid of a machine or device. ””
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Section 108(e) - entire worksSection 108(e) - entire works
� To an entire work or a To an entire work or a substantial part thereof, made substantial part thereof, made from the collection of a l ibrary from the collection of a l ibrary where the user makes the where the user makes the request or from that of another request or from that of another l ibrary if:l ibrary if:
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1 --The library has first The library has first determined by reasonable determined by reasonable investigation that a copy cannot investigation that a copy cannot be obtained at a fair price,be obtained at a fair price,
2 -The copy becomes the -The copy becomes the property of the user,property of the user,
3 -The library has no notice that -The library has no notice that the copy wil l be used for non-the copy wil l be used for non-section 107 purposes, andsection 107 purposes, and
4 -The library displays -The library displays prominently where orders are prominently where orders are placed for copies and on the placed for copies and on the order form a warning of order form a warning of copyright.copyright.
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Section 108(f) - Unsupervised Section 108(f) - Unsupervised Reproduction EquipmentReproduction Equipment
Nothing in this section:Nothing in this section:Imposes l iabil i ty on a l ibrary for Imposes l iabil i ty on a l ibrary for unsupervised use of reproduction unsupervised use of reproduction equipment.equipment.
ProvidedProvided : Such equipment displays a : Such equipment displays a notice that making a photocopy may notice that making a photocopy may subject to the copyright law.subject to the copyright law.
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Section 108(f) - AV News Section 108(f) - AV News ProgramsPrograms
� Allows reproduction and distribution Allows reproduction and distribution of AV news programs if the three of AV news programs if the three sections of 108(a) are satisfiedsections of 108(a) are satisfied– daily newscasts or more?daily newscasts or more?
� Affects the rights of fair use under Affects the rights of fair use under section 107, or any contractual section 107, or any contractual obligations assumed at any time by obligations assumed at any time by the l ibrary when it obtained a copy the l ibrary when it obtained a copy of a work in its col lections.of a work in its col lections.
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Section 108(g) - Systematic Section 108(g) - Systematic ReproductionReproduction
The rights of reproduction and The rights of reproduction and distribution under this section distribution under this section extend to:extend to:
� The isolated & unrelated The isolated & unrelated reproduction & distribution of reproduction & distribution of a single copy ora single copy or
� Copies of the same material Copies of the same material on separate occasions.on separate occasions.
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They do not extend where the l ibrary They do not extend where the l ibrary or i ts employees:or i ts employees:
� Is aware of or has substantial Is aware of or has substantial reason to believe that i t is reason to believe that i t is engaging in related or engaging in related or concerted reproduction of concerted reproduction of multiple copies; ormultiple copies; or
� Engages in the systematic Engages in the systematic reproduction or distribution of reproduction or distribution of single or multiple copies of single or multiple copies of materials described in materials described in subsection (d)subsection (d)
©� ProvidedProvided : Nothing in this clause : Nothing in this clause
prevents a l ibrary or archive from prevents a l ibrary or archive from participating in interl ibrary participating in interl ibrary arrangements that do not have as arrangements that do not have as their purpose or effect receipt of their purpose or effect receipt of copies in such aggregate quantit ies copies in such aggregate quantit ies as to substitute for a subscription to as to substitute for a subscription to or purchase of a work.or purchase of a work.
©
Each year, a borrowing l ibrary may Each year, a borrowing l ibrary may make five requests from a periodical make five requests from a periodical t i t le going back five yearstit le going back five years ..
H. R. 94-1733H. R. 94-1733
In the current year 1997In the current year 1997
1996 1996 19951995 5 times from these volume 5 times from these volume
yrsyrs 1994 1994 the most recent 60 months the most recent 60 months 199319931992 1992
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– Borrowing l ibrary must maintain Borrowing l ibrary must maintain records for three calendar records for three calendar years.years.
– Lending l ibrary must require Lending l ibrary must require representation from borrowing representation from borrowing l ibrary that request conforms to l ibrary that request conforms to guidelines.guidelines.
– The guidelines take no position The guidelines take no position on materials older than five on materials older than five years.years.
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6th request for a title6th request for a title� Tell the user no, come back Jan.1.Tell the user no, come back Jan.1.� Order copy from an authorized Order copy from an authorized
document delivery service.document delivery service.� Pay royalt ies through CCC or Pay royalt ies through CCC or
directly to publisher.directly to publisher.� Enter a subscription to the tit le.Enter a subscription to the tit le.� ““Once in a blue moon exceptionOnce in a blue moon exception ””: :
make the copy.make the copy.
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ConsortiaConsortia
Section 108(g)(2) Proviso:Section 108(g)(2) Proviso:““Nothing prevents a l ibrary or archives from Nothing prevents a l ibrary or archives from
participating in interl ibrary arrangements participating in interl ibrary arrangements that do not have as their purpose or effect that do not have as their purpose or effect receiving copies in such aggregate quantit ies receiving copies in such aggregate quantit ies as to substitute for subscription to or as to substitute for subscription to or purchase of a work.purchase of a work. ””
¤ Consort ia permittedConsort ia permitted¤ But, borrowing must follow ILL guidelinesBut, borrowing must follow ILL guidelines¤ Effects of intra v. interl ibrary loanEffects of intra v. interl ibrary loan
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Section 108(h)Section 108(h)
The rights of this section do not The rights of this section do not apply to:apply to:– A musical workA musical work– A pictorial, graphic or sculptural A pictorial, graphic or sculptural
work, orwork, or– A motion picture or other A motion picture or other
audiovisual work other than one audiovisual work other than one dealing with the news.dealing with the news.
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Relationship of fair use to 108 Relationship of fair use to 108 Library exceptionsLibrary exceptions
� May l ibraries copy pursuant to fair May l ibraries copy pursuant to fair use section?use section?– Beyond the provisions of 108 but Beyond the provisions of 108 but
within fair use?within fair use?� I f so, how much may be copied?If so, how much may be copied?� Section 108 states Section 108 states ““nothing in this nothing in this
section in any way affects the right section in any way affects the right of fair useof fair use””
� Back to mult i factor fair use test!! !Back to mult i factor fair use test!! !
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Non library exemptionsNon library exemptions� 109. Limitations on 109. Limitations on
exclusive rights: Effect of exclusive rights: Effect of transfer of particular copy or transfer of particular copy or phonorecord phonorecord
� 110. Limitations on 110. Limitations on exclusive rights: Exemption exclusive rights: Exemption of certain performances and of certain performances and displays displays
� 111. Limitations on 111. Limitations on exclusive rights: Secondary exclusive rights: Secondary transmissions transmissions
� 112. Limitations on 112. Limitations on exclusive rights: Ephemeral exclusive rights: Ephemeral recordings recordings
� 113. Scope of exclusive 113. Scope of exclusive rights in pictorial, graphic, r ights in pictorial, graphic, and sculptural works and sculptural works
� 114. Scope of exclusive 114. Scope of exclusive rights in sound recordings r ights in sound recordings
� 115. Scope of exclusive 115. Scope of exclusive rights in non dramatic rights in non dramatic musical works: Compulsory musical works: Compulsory l icense for making and l icense for making and distributing phonorecordsdistributing phonorecords
� 116. Negotiated l icenses for 116. Negotiated l icenses for public performances by means public performances by means of coin-operated phonorecord of coin-operated phonorecord players players
� 117. Scope of exclusive rights: 117. Scope of exclusive rights: Use in conjunction with Use in conjunction with computers and similar computers and similar information systemsinformation systems
� 118. Scope of exclusive rights: 118. Scope of exclusive rights: Use of certain works in Use of certain works in connection with connection with noncommercial broadcastingnoncommercial broadcasting
� 119. Limitations on exclusive 119. Limitations on exclusive rights: Secondary rights: Secondary transmissions of superstations transmissions of superstations and network stations for and network stations for private home viewing private home viewing
� 120. Scope of exclusive rights 120. Scope of exclusive rights in architectural works in architectural works
� 121. Limitations on exclusive 121. Limitations on exclusive rights: reproduction for bl ind rights: reproduction for bl ind or other people with or other people with disabi l i t ies disabi l i t ies
©LIBRARY DUPLICATION OF LIBRARY DUPLICATION OF
AUDIOVISUAL AND AUDIOVISUAL AND NONPRINT MATERIALSNONPRINT MATERIALS
©
Nonprint WorksNonprint Works� Musical worksMusical works� illustrationsillustrations� photographsphotographs� drawingsdrawings� slidesslides� transparanciestransparancies
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Audiovisual worksAudiovisual works� AudiotapesAudiotapes� PhonorecordsPhonorecords� filmsfilms� filmstripsfilmstrips� motion picturesmotion pictures� videotapesvideotapes� AV packagesAV packages� multimedia worksmultimedia works
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Copying and use of audiovisual Copying and use of audiovisual and musical works in Libraryand musical works in Library
� GenerallyGenerally– same 5 rightssame 5 rights– excluded from 108 exemptionsexcluded from 108 exemptions
� Guidelines for Educational Use of MusicGuidelines for Educational Use of Music� Guidelines for Classroom CopyingGuidelines for Classroom Copying� Sony home videotaping case support Sony home videotaping case support
library copying?library copying?
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Cassettes, videos, CDsCassettes, videos, CDs� 3 reasons to duplicate3 reasons to duplicate
– preservationpreservation– patron demandpatron demand– convert formatsconvert formats
� ““Absent permission from the Absent permission from the copyright owner, this duplication copyright owner, this duplication constitutes copyright constitutes copyright infr ingementinfringement”” Gassaway Gassaway
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Performing AV in Libraries - Performing AV in Libraries - Section 110Section 110
� performance or display of a work by performance or display of a work by instructors or pupils in the course of instructors or pupils in the course of face-to-face teaching activities of a face-to-face teaching activities of a nonprofit educational institution, in a nonprofit educational institution, in a classroom or similar place devoted to classroom or similar place devoted to instructioninstruction– library as classroomlibrary as classroom– not for entertainmentnot for entertainment
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Computer softwareComputer software� Use by LibrariansUse by Librarians
– same rules apply as other owners of same rules apply as other owners of copiescopies
– Act gives some leeway Act gives some leeway � that such a new copy or adaptation is created as an that such a new copy or adaptation is created as an
essential step in the uti l ization of the computer program essential step in the uti l ization of the computer program in conjunction with a machine and that it is used in no in conjunction with a machine and that it is used in no other manner, or other manner, or
� that such new copy or adaptation is for archival that such new copy or adaptation is for archival purposes only and that al l archival copies are destroyed purposes only and that al l archival copies are destroyed in the event that continued possession of the computer in the event that continued possession of the computer program should cease to be rightful.program should cease to be rightful.
� License agreementsLicense agreements
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Loaning Software - Sec. 109Loaning Software - Sec. 109� Generally - no commercial lendingGenerally - no commercial lending� Nonprofit Library ExemptionNonprofit Library Exemption
– Nothing in this subsection shall apply to Nothing in this subsection shall apply to the lending of a computer program for the lending of a computer program for nonprofit purposes by a nonprofit l ibrary, nonprofit purposes by a nonprofit l ibrary, if each copy of a computer program if each copy of a computer program which is lent by such l ibrary has affixed which is lent by such l ibrary has affixed to the packaging containing the program to the packaging containing the program a warning of copyright in accordance a warning of copyright in accordance with requirements that the Register of with requirements that the Register of Copyrights shall prescribe by regulation.Copyrights shall prescribe by regulation.
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DatabasesDatabases� Generally - what is in the database?Generally - what is in the database?� Generally facts are not copyrightableGenerally facts are not copyrightable� Selection and arrangement may give Selection and arrangement may give
requisite creativityrequisite creativity� Court cases varyCourt cases vary� License agreementsLicense agreements� Subject of legislative effortsSubject of legislative efforts
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Copyright in Electronic Copyright in Electronic EnvironmentEnvironment
� How does copyright law apply to digitized information?
� What are the changes in copyright in the electronic environment?
� How do you cope with new formats different methods of accessing and storing information?
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InternetInternet� What does the Internet do to copyright?What does the Internet do to copyright?
– NOTHINGNOTHING– underlying copyright concepts remain the underlying copyright concepts remain the
samesame– massive opportunity to copy and distributemassive opportunity to copy and distribute– copy made when scanned, loaded, input or copy made when scanned, loaded, input or
copies to sendcopies to send– copy made by every person who reads or copy made by every person who reads or
views the work on the screenviews the work on the screen
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More opportunities to copyMore opportunities to copy� TextText� photosphotos� graphicsgraphics� audioaudio� videovideo� file transfersfile transfers� push/pull technologypush/pull technology� multimediamultimedia
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Can the law handle the Can the law handle the challenge?challenge?
� Two methods of protectionTwo methods of protection–copyright lawcopyright law–technologytechnology
� digital watermarksdigital watermarks� cryptographycryptography
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Recent developmentsRecent developments� Digital Millenium Copyright ActDigital Millenium Copyright Act
– PURPOSE: Update the current Copyright PURPOSE: Update the current Copyright Act for the digital environment and conform Act for the digital environment and conform U.S. law to the requirements of new World U.S. law to the requirements of new World Intellectual Property Organization (WIPO) Intellectual Property Organization (WIPO) treaties negotiated in Geneva in December treaties negotiated in Geneva in December 1996. 1996.
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How does it affect Libraries?How does it affect Libraries?� Exempts nonprofit l ibraries from criminal Exempts nonprofit l ibraries from criminal
penalt ies and no civil f ine when such an penalt ies and no civil f ine when such an institution can show that i t had no reason to be institution can show that i t had no reason to be aware that i ts actions violated the new lawaware that i ts actions violated the new law
� Updates the current preservation provision of Updates the current preservation provision of the Copyright Act (Sec. 108) to: the Copyright Act (Sec. 108) to: – expressly permit authorized institutions to expressly permit authorized institutions to
make up to three, digital preservation copies make up to three, digital preservation copies of an eligible copyrighted workof an eligible copyrighted work
– electronically "loan" those copies to other electronically "loan" those copies to other qualifying institutionsqualifying institutions
– permit preservation, including by digital permit preservation, including by digital means, when the existing format in which means, when the existing format in which the work has been stored becomes the work has been stored becomes obsolete.obsolete.
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Copyright Term Extension Act Copyright Term Extension Act � PURPOSE: To extend by 20 years the PURPOSE: To extend by 20 years the
length of protection afforded to works length of protection afforded to works created by both individuals and created by both individuals and corporate copyright holders. corporate copyright holders.
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How does it effect libraries?How does it effect libraries?� Includes exception permitting libraries, Includes exception permitting libraries,
archives and nonprofit educational institutions archives and nonprofit educational institutions to treat a copyrighted work in its last (new) 20 to treat a copyrighted work in its last (new) 20 years of protection as if it were in the public years of protection as if it were in the public domain for commercial purposes, provided domain for commercial purposes, provided thatthat– a good faith investigation has determined a good faith investigation has determined
that the work is "not subject to normal that the work is "not subject to normal commercial exploitation," commercial exploitation,"
– such use of the work stops if the copyright such use of the work stops if the copyright owner provides notice to the contraryowner provides notice to the contrary
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Suggested books that focus Suggested books that focus on Libraries and Copyrighton Libraries and Copyright
� Laura N. Gasaway and Sarah K. Wiant, Laura N. Gasaway and Sarah K. Wiant, Libraries and CopyrightLibraries and Copyright . Washington, DC : . Washington, DC : Special Libraries Association, 1994Special Libraries Association, 1994
� Mary Brandt Jensen, Mary Brandt Jensen, Does Your Project Does Your Project Have a Copyright Problem, A Decsion-Have a Copyright Problem, A Decsion-Making Guide for LibrariansMaking Guide for Librarians. Jefferson, . Jefferson, NC: : McFarland, 1996NC: : McFarland, 1996
� Ruth H. Dukelow, Ruth H. Dukelow, Library Copyright GuideLibrary Copyright Guide. . Washington, DC : AECT, 1992Washington, DC : AECT, 1992
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Suggested Web sitesSuggested Web sites� FPLC IP Mall Copyright Pointer BoxFPLC IP Mall Copyright Pointer Box
– meta site for law, policy and interdisciplinary meta site for law, policy and interdisciplinary linkslinks
– http://www.ipmall.fplc.edu/pointbox/pb_6.htmhttp://www.ipmall.fplc.edu/pointbox/pb_6.htm� Stanford Library Copyright GuidelinesStanford Library Copyright Guidelines
– http://fairuse.stanford.edu/library/http://fairuse.stanford.edu/library/� Crash Course in CopyrightCrash Course in Copyright
– http://www.utsystem.edu/OGC/intellectualproperty/cprtindx.htmhttp://www.utsystem.edu/OGC/intellectualproperty/cprtindx.htm
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Professional associations are Professional associations are great resourcegreat resource
� For example:For example:– ALAALA– AALLAALL– SLASLA
� Publications, journals and Web Publications, journals and Web sitessites
