RAQs: Recently Asked Questions

Topic: Requirements for public access to SUNY libraries - 7/27/2020
[Submitted from a SUNY Library] (1) What are the requirements for a SUNY library to provide acce...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

[Submitted from a SUNY Library]

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?
(2) Are their specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?
(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?
(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

WNYLRC ATTORNEY'S RESPONSE

This is a deep array of questions, requiring a deep array of answers.

But let’s start with the basics.

There are 64 SUNY campuses, some with more than one library.

What’s cool about these libraries?  They aren’t just collections of books on a campus, but distinct entities within their institutions, governed by the body of laws that apply to all libraries in New York, as well as the law that is SUNY-library specific.

The “SUNY-library specific” law is Education Law 249-a, which states:

The state university trustees and the board of higher education of the city of New York are hereby authorized to establish such rules and regulations as may be necessary and appropriate to make provision for access and use by the residents of the state of the libraries and library facilities of the public institutions of higher education under their respective jurisdictions.

In other words: SUNY and CUNY have libraries, and the boards of SUNY and CUNY can set those libraries’ rules, including the rules governing access.

SUNY’s[1]  board has established “such rules” by, among other things, adopting a policy on “Public Access to SUNY Libraries[2]  which states:

It is the policy of the State University of New York (University) that the public is given access to University libraries insofar as possible. Since implementation of this policy has fiscal and administrative implications, campuses may extend the facilities of their libraries to the public whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.

 

What does this mean for public access to those libraries?

State law gives SUNY broad authority “to establish such rules…for access and use by the residents of the state.” SUNY then uses that authority to develop a policy requiring “that the public is given access to University libraries insofar as possible.”  BUT, after asserting that broad goal, SUNY allows individual campuses to tailor that access based on the “fiscal” and “administrative” considerations of individual institutions.  So while access to the public is the stated goal, the conditions for access are really up to the individual libraries (and the academic leadership they report to).

I tooled around a few SUNY library web sites (I couldn’t resist the Charles B. Sears Law Library at SUNY Buffalo, my alma mater), and each have their own unique conditions for giving the public access.  Some make it easier to find that information than others.  I saw a range of conditions for access…anecdotal evidence that the libraries are using the latitude granted to them by SUNY policy.

And with that background established, I’ll answer the questions.

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?

While the law only goes so far as to “authorize” SUNY to provide for public access, SUNY-wide policy is that “the public is given access to University libraries insofar as possible… whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.”

So my answer to the first question is: based on SUNY policy, public access to a SUNY library must be provided insofar as possible, provided the use by the public doesn’t interfere with the use of the students and faculty, and the burden of public use doesn’t throw off the budget.[3]

(2) Are there specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?

Absolutely, there are requirements and potential repercussions for access to libraries at state institutions.  I could write an entire book on them (and I bet someone has[4]), but here is my quick summary:

  • Requirement: develop budgets, staffing plans, and operational policies that ensure the public is given access to University libraries “insofar as possible.”
  • Requirement: in coordination with Campus Safety or Campus Police, develop a process to address the most serious public patron behavioral concerns. 
  • Requirement: develop a privacy policy regarding the rights students, employees, and public patrons have under CPLR 4509.
  • Repercussion: be ready to address civil rights concerns related to the library’s status as a public institution.

(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?

For readers not familiar with it, “Section 108” is the portion of the Copyright Act, which gives special exemptions from infringement to libraries and archives that are open to the public.

Section 108 does not go into great lengths regarding what the requirement “open to the public” means, but some insight can be gained from how it handles access to special collections closed to the general public; such collections qualify for Section 108’s protection so long as they are open “to other persons doing research in [that] specialized field.”  So it is clear that “open to the public” is not intended to be a carte blanche free-for-all.

The current pandemic and SUNY’s efforts to combat it will certainly impact SUNY libraries’ ability to be “open to the public.”  However, I feel confident writing my conclusion that any institution that temporarily restricts all patron access will not be found to have not meet the requirements of section 108.  And I feel just as confident saying that scheduled visits by appointment—if that is what a SUNY library needs to do to ensure safety—would not cause a 108 concern, either.[5]

That said, I cannot feel the same confidence for any Safety Plan that completely and utterly removes all public access.  Public access, even if severely restricted, must still be a component in order to meet the requirements of 108.

(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

Broadly and boldly speaking: yes.

BUT.

As discussed at the beginning of this answer, the law of the state of New York and the policies of SUNY give a great deal of latitude to libraries on a campus-by-campus basis.  Different campuses exercise this latitude in different ways.  This means that while the library in one SUNY location may be operating per a Safety Plan confirmed by a central coordinator, another library may be given a directive to develop their own. 

Or, as (former[6]) SUNY Chancellor Kristina M. Johnson put it:

We understand that…each of our campuses is a complex ecosystem with regular engagement with their respective surrounding communities.

Within those different plans will be different solutions for the safe operations of different sites.  Some of those plans will call for masks, because masks will be the only way the planned operations will be able to be conducted safely.  Other plans may only include modified operations that may be performed safely without masks.  And of course, any plan requiring a mask will include the proper ADA accommodations information for those who are not able to wear one.

While the country has watched as some people challenge the requirement to wear PPE on the basis of civil rights, a limited requirement to wear a certain type of protective gear for a narrowly tailored purpose with a general application is not likely to be found a violation of the First Amendment. But of course, when it comes to civil rights, the devil is often in the details.  If, for instance, only a certain type of facemask was required, and that facemask type did not work well with a certain body type, or the need to wear a hijab, it is possible that could trigger an ADA or First Amendment claim. The guidance being assembled by the Center for Disease Control and the Occupational Safety and Health Administration takes into account the diversity of bodies and identities that Safety Plans will need to serve. By using properly credentialed resources and thinking through Safety Plans from multiple perspectives, a SUNY library should be positioned to deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety.

Last note

In responding to these questions, I am mindful that general legal services are provided to SUNY institutions through the office of the NY State Attorney General, and many campuses have lawyers on staff. Therefore, to the greatest extent possible, any SUNY library, department, center, school, college or university finalizing a Safety Plan should take care that whenever possible, coordinated guidance from SUNY’s recognized legal advisers is incorporated. (Very often, this will have been done at the level where the institution is planning its emergency response.)  I am always gratified when a SUNY lawyer, or another lawyer, calls me to discuss my work for libraries, and I welcome those calls.[7]

As of this date (June 26, 2020) I have found no publicly accessible model safety plan or guidance from SUNY HQ with regard to the resumption of operations.  Rather, the SUNY page for COVID questions shows that the State University of New York is very much in an assessment and response mode, and the SUNY Library Consortium’s page shows that plans are still in development.[8] I am sure that will change as the situation evolves, and I encourage people to be attentive to that page, and their own administrations, for further specific guidance.   At the same time, since no one knows a library better than the librarians who works at it, I encourage pro-active assessment and formulation of access and safety plans by library leadership, informed by the people who work and study there.

This guidance was assembled directly from available materials, and while not legal advice, it is consistent with published SUNY materials and the law.  I hope it is helpful to SUNY libraries as you consider the continuation of your operations.

Thank you for a great array of thoughtful questions. I wish our SUNY libraries much health and strength for the days ahead.

    



[1] The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.

[2] Found on June 8, 2020 at https://www.suny.edu/sunypp/documents.cfm?doc_id=330 and not to be confused with the “Open Access To State University Libraries” policy found that same day at https://www.suny.edu/sunypp/documents.cfm?doc_id=329.

[3] Having sat through budget meetings of all types as a student leader, journalist, academic administrator, and lawyer, I realize that the words “fiscal” and “mission” can be applied to many divergent ends.  Let’s not go there, this is about the law.

[4] I will ask my paralegal Jill to research this question and alert me if she finds one.  If she does, we’ll update this footnote.  Otherwise, you’ll know we didn’t find one.

[5] I am punting on the very practical consideration of the recent Supreme Court ruling regarding sovereign immunity, which arguably positions SUNY to not be very concerned about qualifying for protection under 108.  I am punting because, as the court put it, I am sure SUNY does not want to be seen as a “serial infringer.”  For more on that, see https://www.scotusblog.com/case-files/cases/allen-v-cooper/

[7] (716) 464-3386

[8] This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.

Tags: Academic Libraries, COVID-19, Emergency Response, Reopening policies, Section 108, Public Access, SUNY

Topic: CONTU Guidelines - 1/16/2020
We were discussing the Rule of 5 of copyright laws and wondered if it was limited by a single loca...
Posted: Thursday, January 16, 2020 Permalink

MEMBER QUESTION

We were discussing the Rule of 5 of copyright laws and wondered if it was limited by a single location or an institution. For example, if a public library has multiple branches can one branch request 5 articles from a single year from a journal and then another branch also requests articles from that same journal and year? Or did the first branch already use the maximum number of copies?

What about universities or hospital systems with multiple campuses and libraries? Thank you!

WNYLRC ATTORNEY'S RESPONSE

Libraryworld: a place where people gather to discuss information, and the best ways to share it with their community.  A place where people are just as likely to discuss the "Rule of Five" as the "Rule of Three."[1]  A place where routine conversation tackles everything from new database technology, to guidelines from the now-obscure "National Commission on New Technological Uses of Copyrighted Works" (CONTU).

But since not everyone in Libraryworld knows about "The Rule of Five," let's give some background.

The "Rule of Five" pertains to guidelines for applying a very small section of 17. U.S.C 108, the law giving libraries and archives special exemptions from copyright infringement.

That's right, Section 108 of the Copyright Act sets out important exemptions from infringement for libraries and archives who are open to the public.  But since the copyright law giveth and the copyright law taketh away, this "very small section" of the law, sub-section (g)(2), cancels those exemptions if a library or archives using them:

engages in the systematic reproduction or distribution of single or multiple copies…of material described in subsection (d)…. [emphasis added]

"Sub-section (d)" creates:

[The right to make and distribute] a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue…[emphasis added][2]

Aha, the right to make copies of "articles" and "contributions to collections!”  Yes, 108 sub-section (d) lets you make those…either for patrons at your own library, patrons at another library, or a requesting institution.  That's a very big, and very important exception to infringement.  It is one of the cornerstones of inter-library loan collaboration. 

But how does (g)(2) limit this important right?  By prohibiting "systematic reproduction or distribution" of the content.  And what does "systematic reproduction or distribution" mean?

The law doesn't say.  And since Section 108 was adopted in 1976,[3] it still hasn't said.

That's where "CONTU" stepped in.[4]

Convened in 1977, CONTU was the "National Commission on New Technological Uses of Copyrighted Works."  In 1978, it issued "Guidelines" that attempted to provide clarity about the meaning of "systematic reproduction or distribution."

This is what they came up with:

[F]illed requests of a library or archives (a “requesting entity”) within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request.

This limitation is called the "Rule of Five," since the requesting entity is limited to five copies of content less than five years old, from the same source. [5]

CONTU tried to give libraries a precise mathematical formula and documentation system for abiding within the protections of 108.  While such a precise formula can be useful, I find it more helpful to think of the "Rule of Five" in the context of another part of Section 108 (g)(2):

That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

In other words: libraries shouldn't use 108 as a replacement for budgeting to purchase a critical magazine or journal needed at a specific location.  They shouldn't collude between institutions to strategically subscribe and then share journals to the detriment of the publisher.  BUT at the same time, when a spontaneous need arises within your area of service, and you have that magazine or journal, don't hesitate to use your network to provide a 108-sanctioned copy.   But once the same place calls you five times in a year about the same source, say "Okay…time for you to get your own subscription."

Although I did not find it in the CONTU/108 commentary, I believe this approach reveals why CONTU's limit on copies is calculated based on the requests of the "requesting entity," and not fulfillments by the lending source.  Just think of it this way: a library or archives should not hesitate to use 108 to fulfill its mission information access.  However, it should take equally great care to show it isn't using 108 to help another library, or a patron, avoid a subscription fee.  By limiting copies from a single source given to another entity to five, CONTU tried to do just that.

Okay, there's some 10,000-foot background on the "Rule of Five."  Now let's focus on the member's two questions:

1. [I]f a public library has multiple branches; can one branch request 5 articles from a single year from a journal and then another branch also requests articles from that same journal and year? Or did the first branch already use the maximum number of copies?

2. What about universities or hospital systems with multiple campuses and libraries?

Let's take a close look at these questions.  In both scenarios, the requested articles are not going to a separate entity (or as 108 and the CONTU guidelines call it, a "requesting entity); rather, the copies are going to branches of the same entity: a branch of a library, a part of a university campus, or a part of a hospital entity.

Because the copies are going to the same entity, as I see it--and insofar as actual authorities like congressional commentary, the Copyright Office, and the courts can guide me--the CONTU Guidelines do not apply to the member's scenarios.[6]  Rather, the limit of a single institution's ability to make copies for itself is defined by the (g)(2)'s more thematic bar on activities that "substitute for a subscription to or purchase of such a work," and of course, the rules of fair use.

How does this play out?  Applying our 108/CONTU background: if a hospital whose library is open to other hospitals[7] has five library suites in different buildings, and wants to put a copy in each suite, it should not apply the "Rule of Five." In fact, this type of example (except they used branch libraries) is cited by the Copyright Office's guidance as exactly not the type of activity 108 was intended to protect![8]  Rather, the hospital would do a "fair use" analysis, or use another part of 108, to make the copies it needs.[9]  Or, if there is no other way, would not make them at all.

Now, with all that said, it is important to note that the entity can make 108/CONTU copies for other "requesting entities" (users, other libraries)…so long as the other 108 criteria applies.  For instance, 108 allows me, and even up to 10 other people (or 20, or 30) to visit your library and make a copy of an article, so long as we are not part of a discernable, coordinated "scheme" like a faculty member sending all their students in to copy the same content.  Because of this, 108 is a powerful tool for information access.  And it's been that way since 1976.

Now, let's stop playing around in the 1970's, and discuss some modern features of this type of "multi-branch" dilemma.

The fact of the matter is, unless the library/university/hospital is purchasing physical copies, at this point in 2020, what might be more relevant than CONTU's "Rule of Five" is the terms of the license from the subscription service the library gains access to the copies through.  Remember, as a general rule, exemptions to copyright infringement do not trump violations of valid negotiated contract terms.  So, if a library gains access to the content through a license that limits the number of copies, it might be that the specific "Terms and Conditions"--not the CONTU Guidelines or basic copyright law--that apply.

This is why careful review of all licenses held by libraries grows more critical, year after year.  It is also why whenever possible, I advise that every license for content should have a clause expressly stating that the terms of the license do not limit the library's rights under Copyright Law Section 107, 108, and 110, and the ADA.

So, where does that leave us on the "Rule of Five?"

There's a brassy phrase people can use to reply when asked "How are you?"

"Five by five," they might say, taking a verbal saunter through (depending on which slang dictionary you use) radio talk, surfer talk, trucker talk, or the characters in a sci-fi/pop culture adventure.

What's "five by five" mean? No one really seems to know.[10]

"Five by five," and "the Rule of Five," have that in common.  Times have changed; has their meaning?

The National Commission on New Technological Uses of Copyrighted Works ("CONTU") issued its guidelines in 1978.  The Commission has not re-convened since then; in fact, in 1992, the section of the law that required periodic assessment of 108's impact on libraries, publishers, and content users was written out of the law.[11]

So here we are, drifting along, applying guidelines from 1978.  Is that "five by five?"  I don't think so.

But I'm glad Libraryworld is keeping the discussion going.



[1] The rule that celebrities die in threes, which when you think about it, is how we all die (if count long enough, and stop counting soon enough).

[2] There are of course some other criteria: there must be no knowledge of a commercial use, and the copy must become the property of the requester.

[3] Act Oct. 19, 1976, P. L. 94-553, Title I, § 101, 90 Stat 2546.

[4] Or, as some have said, stepped in it.

[5] NOTE: this guideline only applies to content within its first five years after publication.

 

[6] While there is some commentary about CONTU in copyright jurisprudence, there is no case law on applying these guidelines, and in any event, they do not have the force of law.

[7] NOTE: being open to outside researchers or patrons is required to even qualify for an exemption under 108.

[8] See Circular 21, page 14, paragraph 3.  When you're done wading this answer, "Circular 21," is that place to further explore the nooks and crannies of this issue.

[9] The very clear case of hospitals using fair use to routinely copy medical journals, Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F.2d 1345, 1973 U.S. Ct. Cl, was determined before 108 was adopted.  Although the medical facilities won that one, I would not advise that be done in this day and age.

[10] My money is on that it mutated from telecommunications.

[11] A Congressional Act of June 26, 1992, deleted former subsection (i) of 17 U.S.C. 108, which read: “Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.”

Tags: Copyright, CONTU, Section 108

Topic: Lawfulness of digitizing VHS commercial movies to DVD - 9/13/2019
We recently purchased equipment that is capable of converting VHS tapes to DVDs that will be used ...
Posted: Friday, September 13, 2019 Permalink

MEMBER QUESTION

We recently purchased equipment that is capable of converting VHS tapes to DVDs that will be used by staff and patrons. We were initially thinking of it being used for home movies, and such, but then a staff member raised the question about the legality of converting commercial (movies, TV shows) VHS tapes to DVDs. Are there copyrighting issues involved? If it's not legal to convert them, what language can we use in our literature to make sure they are aware that it is not allowed, and any penalty that they may incur if they do? (We won't be watching them when they use the equipment.)

Thank you very much for your response!

WNYLRC ATTORNEY'S RESPONSE

VHS-to-digital conversion can open up options for accessibility under the ADA. 

Many people have treasured family memories they need to convert a more accessible format.

A converter can also help with the creation of critical and new works.

This converter will be a really valuable service for your patrons.  But your staff member is right to be cautious.

“Ask the Lawyer” has previously addressed the issue of libraries and patrons making copies under various circumstances (search the “Ask the Lawyer” archives).  In those previous answers, among other things, we reviewed the special rights libraries have to make and convert copies under Section 108 of the Copyright Act, which applies specifically to libraries and archives. 

Those previous answers cover some of the fundamental elements of this question.  They also each include a careful emphasis that patron duplication of audio-visual works (like movies) are mostly excluded[1] from the protections of Section 108, even when the copy is being converted from a medium that is obsolete. 

What does all this mean?  The staffer is absolutely right—commercial movies might be a resource patrons are eager to convert using the library’s equipment. . . And that could create an infringement a concern

Fortunately, Section 108[2] has a remedy for this problem.  So long as the converting machine displays a notice that “The making of a copy may be subject to copyright law,” the library will meet the requirements of 108 to avoid the imposition of liability for unsupervised patron use of the equipment.

The “unsupervised” requirement is critical, here.  If a patron’s use of the equipment is supervised by an employee, or the patron’s behavior makes it obvious that systematic infringement is going on, 108 might not apply[3].

So, a few things to help you be cautious:

1.When setting up the new equipment, select a place where patron privacy can be honored and employees can’t “supervise” the use of the equipment.

2) Posting “The making of a copy may be subject to copyright law” is a requirement to limit the library’s liability for a patron’s “unsupervised” use.

3)  Keep in mind that any obvious copyright violations (like someone stacking an entire collection of BBC miniseries next to the converter and generating multiple DVDs[4] of each one) should be promptly addressed through your patron code of conduct.

Which brings us to the final part of the member’s question: what language, both posted and in a code of conduct, can position a library to observe that last bullet?  Patron codes of conduct generally have copyright infringement sections, but if your library does not, a good start is:

The [NAME] library is committed to maximum content access through the Americans with Disabilities Act, Section 108 of the Copyright Act, Section 110 of the Copyright Act, and Section 107 of the Copyright Act (Fair Use).  However, use of library resources to generate or access copies beyond those rights cannot be supported by our library.  Although patron use of such resources is unsupervised, reproduction equipment such as photocopiers, scanners, 3-D printers, and VHS converters are all marked “The making of a copy may be subject to copyright law.” 

Any observable use of library equipment to access or make multiple copies in violation of copyright, trademark, or patent law is prohibited under this policy and will be addressed as a violation of this Patron Code of Conduct.

Thank you for this insightful question. I hope many weddings, graduation ceremonies, and birthday parties recorded in the 1990s find a new digital life in your library!



[1] What it actually says, relevant to this question, is: The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news….” [except to make a copy when a format is obsolete, AND a copy cannot be obtained for a reasonable price] so long as “any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.”

[2] The law states: “(f)Nothing in this section—(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law[.]”

[3] This time it says: “(g)The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—

(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group….”

I realize this is a lot of footnotes. I’m trying to summarize the situation in the article, but want to provide the footnotes in case any enterprising librarians want to read the law themselves.

[4] A scenario for which I would be hard-pressed to find a Fair Use or ADA justification for.

 

Tags: Copyright, VHS, DVDs, Fair Use, Section 108, Templates

Topic: Inter-library Audio Files - 5/24/2018
More than once we have received requests to provide digital copies of audio files from institution...
Posted: Thursday, May 24, 2018 Permalink

MEMBER QUESTION

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.
Some of the questions raised from this issue: 

  • What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?
  • Does it matter if audio is provided via headphone or open speakers?
  • Does it matter if an entire recording is played vs. an excerpt?
  • Are excerpts of certain duration allowable regardless of securing permissions?
    If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?
  • As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

WNYLRC ATTORNEY'S RESPONSE

This one is tricky.

It’s tricky because it stands on a no-man’s land comprised of fair use, library law, contract, and licensing.  This is a place where libraries boldly go on a routine basis, but lawyers fear to tread.  But we’ll try and parse it out.

To do so, we need to remember some “Considerations”:

Consideration #1: Section 108 (d) of the Copyright Act allows a library to duplicate and distribute, for non-commercial use, a “small part” of an audio recording based on a request of a patron or another library.

Consideration #2:  Section 108 (e) of the Copyright Act allows a library to duplicate and distribute, again for non-commercial use, the entirety of an audio recording based on a request of a patron or another library, IF a replacement copy cannot be purchased for a reasonable price.

Consideration #3: Disappointingly and tragically (but predictably), musical works are excluded from Section 108.  What does that mean?  Here’s an example: a recording of Robert Frost reading a poem may be duplicated under 108...but a recording of that same poem set to music may not. 

Consideration #4: Although Congress legislated that 108 protections don’t apply to musical works, it has also stated[1]:

…it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works. In the case of music, for example, it would be fair use for a scholar doing musicological research to have a library supply a copy of a portion of a score or to reproduce portions of a phonorecord of a work. Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes. [emphasis added]

Which brings us to…

Consideration #5:  A library can make a partial or complete copy if it is a “fair use.”  Fair use is determined on a work-by-work basis, applying the four factors[2] set out in Section 107 of the Copyright Act. 

Consideration #6:  An initial “fair use” can meet the requirements of 107 (say, 10 bars of music contrasted with another in a documentary film), but a subsequent, related use might not (the same 10 bars in an TV ad for the same documentary).

Consideration #7:  None of this matters if the copy is coming from a license (a contract) that imposes greater restrictions a library.

 

Bearing these seven “Considerations” in mind, let’s check out the member’s questions in relation to the scenario they provided:

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.

Question: What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?

Answer: If the work is protected by copyright, and they can’t justify a fair use, they need a license to play the audio at their exhibition.  As the member points out, if the library providing the copy is not also the rights holder, the requesting party needs to work with that third party for permission to play the copy in public (unless it is a fair use).

But that is a secondary consideration for the library who might be providing the copy.  Remember “Consideration #6:” the initial basis for the request could be allowed under 107 or 108, even if a latter use in not allowed. Combine that with what we established in “Consideration #4:” Congress knew that subsequent uses might not be legitimate.  So, to protect libraries, and to protect the sharing of knowledge for purposes of scholarship and creativity, they made it very clear: if the first basis for the copy is legitimate, and the providing library has no knowledge of plans for infringing uses, the providing library will not be liable for infringement.

This is hard, because librarians are both helpful, and tend to be relentless gatherers of information.  If a patron requests a copy and discloses an infringing use for that copy, it cannot legally be provided.  This is true even if the requester subsequently gets a license (since there is no guarantee the license would retroactively extend to the providing library), although at that point, any damage claim would likely be moot. 

Question: Does it matter if audio is provided via headphone or open speakers?

Answer: The number of speakers (headphone or otherwise), the location of the devices, the size of the audience, and the capacity of the venue matter can all matter to an analysis of fair use.  But again, unless the exhibition is the only reason for the request, that information should not impact a providing library’s 108 or 107 analysis, unless the precise use is disclosed as part of the immediate basis of the request.

Question: Does it matter if an entire recording is played vs. an excerpt?

Answer: If the requesting institution is relying on a fair use defense, absolutely, yes.  The amount of the work used is one of the four factors.

Question: Are excerpts of certain duration allowable regardless of securing permissions?

Answer: Recent case law[3] shows that even the tiniest duration can be infringement, if fair use factors are not met.  But don’t let that stop you from providing a 107 copy!  If the fair use factors are met, it is conceivable that a person could use the entire work.  There is no set formula; fair use can only be assessed on a work-by-work basis.

If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?

This is not a binary question, it is an algorithm.  Here we go:

  • The holding institution should try to ascertain if the work is still protected by copyright.  As the member points out, this depends on dates and publication status.  If it is still protected…
  • The holding institution should establish what type of copy it is providing: 108(d), 108(d) or 107. 
  • If it’s a 108 (d) copy, the institution should document that the 108 (a) and (d) factors are met, and if they are, may copy a “small part” (but remember, 108 doesn’t apply to a musical work).
  • If it’s a108 (e) copy, the institution should document that the 108 (a) and (e) factors are met, and if they are, may copy the entire work (by now, you surely remember that 108 doesn’t apply to a musical work).
  • If it’s a 107 (fair use) copy, after applying the factors, only copy what’s justified; when in doubt, seek legal advice.  This is tough to give guidance on, because “fair use” can only be assessed on a case-by-case basis.  For the example provided, there is no clear answer.  Sometimes, even if the access to the work is free, the use isn’t “fair,” while sometimes, even if money is charged, the fair use factors are met.  So if you go down the 107 road, be sure to get information relevant to the factors, stick to the use at hand (not potential later uses), and apply the factors.  This is true for both commercially released recordings and for archival, unpublished recordings (although publication status is part of the second fair use factor).

Question: As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

Answer: As quoted above, it was the intent of Congress that a library not be liable for subsequent unlawful use.

For a 107 copy, this starts and ends with the library’s assessment of the fair use for the copy at the time of the request.  Your forms should solicit information only about the immediate need for the copy, and assess if the request is within your institution’s comfort zone.  Your forms should not ask about prospective future uses, which may be beyond your control, nor should you feel any obligation to police the use, which is impossible.

 

Here is food for thought: forms should promote making a 108 copy whenever possible.  108 protection, while narrower, is far less subject to debate; 108 factors are clear and easy to document.  “Fair use,” on the other hand, is often in the eye of the beholder.  Judges must not only apply four factors of analysis, but as recent case law has recently re-affirmed[4], the four factors are not so much weighed, as considered in relation to each other.  It’s a tough analysis that unfortunately inspires erring on the side of caution.  So use 108 whenever it can apply.

A lot of questions, a lot of answers, and a lot of food for thought.  This is a rapidly evolving area of law, so check back in on this issue in a year or so.  The Copyright Office, various library organizations, and Congress all know that the law isn’t quite up to the challenge of technology (108 still uses the word “phonorecord,” which my Spellcheck actually refuses to recognize), so this complex web will continue to evolve. 

And in the meantime, if someone requests a copy of audio by Anthony Barré, use it as an excuse to read Estate of Anthony Barré and Angel Barré v. Carter, et al.  (a/k/a Beyoncé and Jay-Z), because it’s a good illustration of why this response is so very, very convoluted!



[1] House Report 94-1476.

[2] The factors are:

(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.

[3] Estate of Anthony Barré and Angel Barré v. Carter, et al. No. 17-1057 (E.D. Lou. July 25, 2017).  In this case, pop star Beyoncé used very small clips from Anthony Barré’s recorded spoken word performances in the song “Formation;” the court ruled that while the amount of Barré’s work used very small, and was but a small part of the song, the overall factors did not make the use fair.

[4] Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016)

 

Tags: Copyright, Fair Use, Music, Section 108

Topic: Re-printing instructional materials for classroom use - 3/9/2018
A teacher would like to reprint a student workbook we can no longer find in print. We tried to get...
Posted: Friday, March 9, 2018 Permalink

MEMBER QUESTION

A teacher would like to reprint a student workbook we can no longer find in print. We tried to get permission from the company that bought the publisher out, but they said they couldn’t help. At this point, can we prove that we have made a good faith effort to receive permission?

WNYLRC ATTORNEY'S RESPONSE

It is frustrating to know just the right resource for a class—and be unable to access enough classroom copies. 

Just as vexing is going the extra mile to seek permission to make your own…only to be told that you’ve reached a dead end.

And yet, class must go on.  We tried to ask…now can we just make those copies?

Unfortunately, a “good faith effort to receive permission” is not a defense from liability for copyright infringement.   Further, introducing evidence of the “good faith effort” to doing things the right way might work against a defendant, since it might limit their ability to claim they are an “innocent infringer” (someone who has no basis to know they are infringing, or made a reasonable but erroneous assumption of fair use). 

Of course, there are some exceptions to this rule.  If the purpose of the copies is to enable commentary and criticism, excerpts sufficient to illustrate the instructor’s point (and no more) may be duplicated.  And a library making an archival or preservation copy under §108 of the Copyright Act might duplicate the entire book (once, but not for classroom use).  But copies for students, whether or not they are sold, do not fall into these categories.

The best solution in this situation may be to find a stalwart staff member who likes to play detective, who can hopefully track down the actual copyright owner.  This can sometimes be determined on copyright.gov, can sometimes be determined from author’s websites, and can sometimes only be distilled by triangulating the information from about five different sources. 

And sometimes, even after a herculean effort, the answer cannot be found.  But no matter what, unauthorized duplication of copyright-protected work without permission can lead to liability and damages…and a defendant showing they tried to ask for permission before doing the copying might make things worse.

Tags: Copyright, Textbooks, Photocopies, Academic Libraries, Fair Use, Section 108

Topic: Providing copies of newspaper puzzles for patrons - 8/1/2017
MEMBER QUESTION Patrons have suggested we provide photocopies of the daily crossword puzzles out...
Posted: Tuesday, August 1, 2017 Permalink

MEMBER QUESTION

MEMBER QUESTION

Patrons have suggested we provide photocopies of the daily crossword puzzles out of the newspaper because of other patrons doing the puzzle out of the library's current newspaper, thus ruining it for everyone else. We are told that some libraries provide this service, but we are concerned about the legality. Can you please advise us?

Topic: Providing copies of newspaper puzzles for patrons
Date Submitted: July 28, 2017

WNYLRC ATTORNEY'S RESPONSE

WNYLRC ATTORNEY’S RESPONSE

I would say, “This is quite the puzzle,” but fortunately, Section 108 of the U.S. Copyright Code makes this an easily solved dilemma.

But first, I have to commend you for being cautious, since the situation is absolutely governed by copyright.  The puzzles, jumbles and other games in newspapers are what newspaper syndicates call “features.”  In a 1970 case[1], a "feature" was described as: “a literary or artistic creation prepared for publication in newspapers.” The court recited: “Comic strips are features; crossword puzzles are features; gossip columns are features; columns of information and opinion…are features [emphasis added].”  So in fact, your situation brings what we could call a “double copyright” concern: both the newspaper, and the crossword feature itself, can be infringed. 

However, per Section 108, your library is allowed to make one copy of a published article from a newspaper, so long as:

  • The copy becomes the property of the user, whose use is private and not for commercial gain;
  • There is a copyright notice on the copy (most crosswords already have this)
  • Your library has the required postings about duplication, and meets the usual Section 108 requirements (see   WNYLRC’s new  Section 108 Resources for a complete list).
  • Your staff does not become aware or have “substantial reason to believe” that it is “engaging in the related or concerted reproduction or distribution of multiple copies.”  (17 U.S.C. 108 (g)(1))[2]

How can this solution play out in a busy library? I advise making one copy as you describe, and making it available with a notice such as:

As a courtesy to fellow patrons, please let staff know if you would like a copy of the crossword.  The original version in the newspaper should not be written on.” 

Since Section 108[3] is the key to making the copy, and it requires that the copy be made for a patron, I advise against making several copies in advance.  However, to make sure the newspaper stays accessible throughout the day, making a temporary master copy to work from is okay….so long as those copies aren’t later compiled/used for something that goes beyond 108’s reach.

Hopefully, this will create satisfied crossword aficionados, serene newspaper readers, and peace in the periodical section!

[1] United States v. Chicago Tribune-New York News Syndicate, Inc.

[2] In other words…if it becomes clear that the local crossword club is using your library to make the copies for its annual competition, the copying is no longer allowed.

[3] It is worth noting that the Library of Congress considers crossword puzzles to be “games” that are to be registered as “textual works,” since Section 108 does not extend to pictorial or graphic works.

 

Tags: Copyright, Newspapers, Photocopies, Section 108

Topic: Legal Request - 6/14/2017
A law practice in is litigating a case.  They have contacted us asking for all relevant mater...
Posted: Wednesday, June 14, 2017 Permalink

MEMBER QUESTION

A law practice in is litigating a case.  They have contacted us asking for all relevant materials.

We have provided considerable materials from our records and archives, however, we have stopped short of providing a full digital copy of a book that might still be under copyright (based on publication date).

If they sent a representative to our archives, we would allow them access to the book.  They would be able to read it and even make their own copies of relevant sections.  I believe this is covered under the "fair use" provisions of the copyright law(?).

However, this is not the case, they want us to send them a full digital copy version of the book and I don't believe this is permissible under "fair use" or any other clause.  What is your understanding?

WNYLRC ATTORNEY'S RESPONSE

Aside from my general admiration of libraries, one of reasons I relish “Ask the Lawyer” is the chance to answer questions that might never otherwise come my way.  This question is one of those!

Could duplication of an entire copy of a work for use in a court case meet the requirements of Fair Use?

Case law says… yes, it could. In a 2003 case[1], a court found that duplicating an entire copy of a plaintiff’s autobiography, so it could be submitted as evidence of his bad character (he admitted to intentional homicide), was a Fair Use.   In 2014, it was found that duplication of extensive content from a blog, introduced as evidence of an alleged ethics violation, was Fair Use[2].  And back in 1982, bootleg copies of erotic films, created to bolster a nuisance claim, were also found to be “fair.”[3]

These cases, and others like them, draw from legislative history and precedent stating that the reproduction of copyright-protected works for litigation or other judicial proceedings


[1] Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), cert. denied 540 U.S. 820

[2] Denison v. Larkin, 64 F. Supp. 3d (N.D. Ill. 2014)

[3] Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982)

often meets the “Fair Use” criteria.  So…the lawyers who have made this request of your archives, if they make this copy, should be able to defend their actions.

That said, Fair Use depends on the complex interaction of four separate “factors” which in this case will largely out of the library’s control.  What if the firm posts the content online?  What if it is used in PR material related to the case?  As a part of the chain of duplication, the library could then be implicated in an action based on a use not previously disclosed to them.

The right of libraries and archives to make whole copies, without worrying if the Fair Use criteria are met, is governed by Section 108 of the Copyright Code.  Section 108 provides a precise formula for making—and providing—one hard copy of a published work:

[T]hat the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

AND

[That] the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price;

AND

[That] the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research.*

Applying these criteria is tough.  While the advantage to be gained from the duplication is unlikely to be a direct “commercial advantage” (although perhaps there will be a commercial benefit to the court case), is the proposed use for litigation “private?”  Can it be determined if another, commercial copy is available? Further, the request that it be in digital format speaks to ease of further duplication, and this part of 108 is not about format-shifting.

The bottom line: unless you are satisfied that this “108 criteria” are met, since the Fair Use factors will be out of your archive’s control, the best bet is just what you suggest: let the attorneys make the copy themselves! 

*NOTE:  Different criteria would apply if this work was unpublished, or if the duplication was for preservation or ADA access purposes.

 

Tags: Copyright, Fair Use, Section 108

Topic: Dissertations - 6/13/2017
We’ve recently had some questions regarding the ability to provide access to dissertations, ...
Posted: Tuesday, June 13, 2017 Permalink

MEMBER QUESTION

We’ve recently had some questions regarding the ability to provide access to dissertations, theses, and other cataloged graduate work.  How does the law govern these questions?

WNYLRC ATTORNEY'S RESPONSE

Many college and university libraries make it a practice to bind and inventory the academic work of their graduates—a tradition that showcases the achievements of the institution, maintains an important bond between the library and the faculty (who often sign the final copy, to signify approval), and allows graduates to cite and showcase their work.  These collections are often honored institutional assets: a neatly reproduced, annually increased, and routinely cataloged series of books occupying a special space in the library.

(When a graduate later becomes famous, they can also pose a persistent and annoying theft risk…but that is not the topic at hand!)

With the dawn of the digital age now at high noon, some college and university libraries are also including these home-grown works in home-grown databases.  This requires a digital infrastructure that not all academic libraries can afford or support, though, so for many, the old-school binding and shelving of graduate work is still the default practice.  Many institutions are now also considering whether or not to digitize their back catalog, and of course are also seeking ways to promote, provide and oversee appropriate patron access to what they have.  

Overall, these “old school” copies can pose an interesting access challenge.  They are generally listed in the library’s catalog, and considered a part of the active collection.  But what rights does the institution have to them?  How is access to them governed by copyright law, which often depends on the distinction between “published” and “unpublished?”  Can they circulate, be accessed via inter-library loan, be reproduced for archival purposes, or be digitized?  How much can the original author—now an alum—control them?

To answer this, I must use the phrase that is the lawyer’s most trusted companion: it depends.

We’ll take the relevant factors in order of appearance:

First, it is important to confirm: the work of a student, even if directed and overseen by a faculty member or faculty committee, is owned by that student.  Student-generated work*, even if the topic was suggested by someone else, and even if the content is vigorously critiqued by someone else (and then presumably re-written), is an “original work of authorship,” and the moment it is “fixed in a tangible medium of expression,” it is owned by the author (the author).   Of course, the student can sell the ownership, or donate it—but unless that transfer has been recorded in writing, it remains theirs…and then their heir’s…for the life of the author, plus 70 years.**

Second, generally, the permission to reproduce the academic work is a creature of a contract between the author (the student) and the institution (the college or university).  This permission can run the range from a completely unlimited license of all the rights of copyright (to reproduce, distribute, perform, display, create derivative works), to a very limited license (to make one hard copy and add it to the catalog).  This permission might be revocable, or irrevocable.  It might be exclusive, or non-exclusive.  It could even make use of Creative Commons licenses to create a very liberal mode of access.  Critically, though…these terms can vary from institution to institution, from year to year, from student to student.  There is no bright line rule.

Third, depending on the extent of the license, and other factors, the thesis or dissertation may, or may not, be “published,” as that term is defined under the Copyright Code. The ability to replicate, digitize, and create archive copies under Section 108 will be governed, in part, by publication status.  Section 108 is a great asset for libraries and archives, often allowing duplication of entire articles and works…but it requires the well-documented alignment of precise factors.  [NOTE: A copyright registration that included the date of publication would take care of this factor.  Some institutions and authors do register these works…and if they are put in the catalog for lending, registration should be effected before circulation begins, since to do otherwise could compromise the author’s rights]. 

Fourth, and finally, the policies of the college or university will govern access, too.  There could even be a day when an aged alum, having lost their treasured copy, may show up demand access to the library’s…only to be told that although they are without a doubt the copyright owner, they have to fill out a form, or renew their card, or wait until the Reference Librarian is back from break, so they can access their work. 

That said, they are the only one who might not have to do a 108 analysis before making a copy!

*Work that is actually co-authored by a faculty member and a student is subject to the rules of co-ownership.

**As you know, copyright duration varies.  A great breakdown of how to calculate duration is here: https://www.copyright.gov/circs/circ15a.pdf

Tags: Copyright, Photocopies, Dissertations and Theses, Section 108, Work-for-Hire, Digitization and Copyright

Topic: Sharing Articles - 3/29/2017
I encountered a situation in which a patron wanted to share an article that I sent to [a not-for-p...
Posted: Wednesday, March 29, 2017 Permalink

MEMBER QUESTION

I encountered a situation in which a patron wanted to share an article that I sent to [a not-for-profit organization’s] educational portal. As it happened, she had a very specific intended audience…which I thought fell within the "Fair Use" doctrine as, in addition to the information being educational, it was to be shared with [only] a small group.

However, it made me wonder how to approach a situation in which intellectual property was to be shared on such an electronic educational forum for the entire [not-for-profit] staff to sign off on having read. Would sharing with all [not-for-profit] staff for educational purposes be acceptable? 

WNYLRC ATTORNEY'S RESPONSE

This is a great question, as it occupies the crossroads of the specific exceptions for libraries and archives in the copyright code, the elements of fair use, and an essential aspect of a library’s mission: dissemination of information. So, I am a bit sorry to say the answer is most likely: NO.

That said, there is a “YES” along the way, and with careful analysis, the two answers can be kept separate.

How is that?  First, you have to see the query as not one question, but two.
 

  •  FIRST QUESTION:  Is a library allowed to provide a copy of an article to a patron? 
     
     ANSWER:  YES. With careful attention to the factors that apply only to libraries and archives (Section 108 of the  Copyright Code), a copy of the article can be provided.
     
  •  SECOND QUESTION: Is it a fair use for the patron to then distribute a digital copy via an access-restricted portal?

    ANSWER:  NO.  Even when the user is a not-for-profit trying to stretch budget dollars and educate its workforce, when a patron is essentially trying to provide broad access but circumvent a licensing fee,* the elements of fair use are not met.

 

LIBRARY COPIES V. FAIR USE

Part of this analysis depends on appreciating the subtle differences between Section 108 (exceptions for libraries and archives), and Section 107 (fair use).

Here is the formula for a library to provide an authorized copy of an article under Section 108:

  • The copy must become the property of the user;
  • The library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and
  •  The library or archives displays a warning of copyright as required by law.

Here are the factors used to analyze fair use under Section 107:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

Note the difference between Section 108’s simpler, formulaic elements (providing a bright-line rule for providing an authorized library copy), versus the complex, inter-connected fair use factors (which most will agree provide anything but a bright line). Commentary on the Copyright Code shows this is a deliberate difference, and the effect is a positive one for libraries: whether or not subsequent patron duplication of a “Section 108 copy” meets the elements of fair use, a section 108 copy is authorized so long as Section 108’s much simpler elements are met.

A library’s provision of an authorized copy does NOT depend on the patron’s subsequent fair use.  Section 108’s provisions stand alone, and on much easier-to-analyze ground.  However, absolutely key to Section 108 is the library’s lack of notice regarding a patron’s intent to use the copy for anything more than private study/scholarship.  

If, during the consultation, the patron discloses intent to use the copy to create their own mass distribution, the use will not qualify under Section 108, and infringement could be found. Just as critically, providing a copy once the library was aware of a further intent to copy could also run afoul of the fourth commitment in the Code of Ethics of the American Library Association: “We respect intellectual property rights and advocate balance between the interests of information users and rights holders.”

Because of this “notice factor,” Section 108 might be easier in theory than it is in practice. Patrons seeking information often use librarians as co-strategists in whatever project they are working on.**  During such quests, a librarian’s awareness of the full extent of patron needs can be helpful, so there is often a discussion of not only what is sought, but why. This type of discussion may lead to better service, but if it leads to notice of a patron’s intent to put an article on an intranet or portal, the librarian can be put in a legally and ethically awkward position. 

So…you are right to be cautious! Thank you for a great question.

*If the article isn’t commercially available, or the article is being parodied or provided as an example of “what not to do”--basically anything other than its simple face value as an educational tool--the fair use analysis would be different. But we’d need the precise factors from the patron.

**There is one other complication worth mentioning on this FAQ forum. For academic or other libraries operating within a larger institution, if the requesting party is simply another part of your organization, Section 108 is more difficult to credibly apply, so caution is needed. 

Tags: Copyright, Fair Use, Remote Learning, Section 108

Topic: Microfilming A Current Newspaper - 2/6/2017
Our local newspaper of record used to microfilm itself (using a third party vendor) for their own ...
Posted: Monday, February 6, 2017 Permalink

MEMBER QUESTION

Our local newspaper of record used to microfilm itself (using a third party vendor) for their own use in their private archives.  I’m not sure what terms they had with the microfilm vendor, but it was relatively inexpensive for the public library to purchase a copy from the microfilming company for daily use.  The newspaper has come under new ownership and longer microfilms itself.  My first question is whether I understand 17 U.S.C. §108 correctly. Does paragraph A give libraries the right to make 1 analog copy of pretty much anything they own? Or, in this case, to microfilm the newspapers we have on hand? And does paragraph C give us the right to make up to 3 more microfilm copies, for preservation purposes? It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles) and after “a reasonable effort” there will be nowhere else from where we can buy a pristine back run “at a fair price”…. Must we enter negotiations with the publisher to secure the right?

WNYLRC ATTORNEY'S RESPONSE

A community library’s role in archiving and creating access to local news is critical, but changing technology, uncertainly of ownership, and costs can make the legal aspects of the process uncertain.  The member’s questions, set out below, are on the forefront of this issue: how do libraries position themselves to preserve and provide access to published local news?  
 
Section 108 of the Copyright Code was created to balance the rights of copyright owners with the access and preservation of their works, including newspapers.  It allows for the copying of sections, whole works—and in some cases, the creation of multiple copies of whole works—by libraries and archives.  The first question from our member sets the stage for this issue:  
 
Does Section 108, sub-section (a) give libraries the right to make 1 analog copy of pretty much anything they own?
 
The answer is to this opening question is: No…Section 108’s application is broad, but it might not apply to your whole collection.  The final paragraph (sub-section “i”) of the law contains some big exceptions: musical works, pictorial, graphic, or sculptural works, or films/AV works (excluding news).   So, while there are certainly limitations to these limitations (mostly for ADA access, as provided for in other parts fo the law), sub-section (i) means that not “all” parts of a collection may be fully copied.  
 
That being said, exclusive of the exceptions in sub-section (i), under Section 108 (a), ONE copy can be made, so long as the library is open to the public, the copy is not made for commercial gain, and the copyright to the work is attributed—along with a notice that the copy was made per section 108.  This is a critical protection for libraries, library staff, and patrons.  However, the duplication it allows is balanced with the rights of copyright holders…and a careful read shows it was also drafted by congress to support certain actions in the “market place” (i.e. commercial archiving).  This takes us to the next 2 questions.
 
 
[Can we] microfilm the newspapers we have on hand?
 
Answer: Yes.  The creation of one copy of a published newspaper falls squarely under sub-section (a).  
 
And does sub-section (c) give us the right to make up to 3 more (microfilm) copies, for preservation purposes?
 
Sub-section (c) is the section that allows for multiple copies to be made under certain circumstances.  Applying the criteria of the sub-section,  I regret to say the answer to this is “no.”  
 
Rights under sub-section (c) only apply if the original (or copy of the original) is “damaged, deteriorating, lost, or stolen…”—or if they are embodied on an obsolete format, and that after a reasonable effort, an unused replacement can’t be purchased [a format is “obsolete” “if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”].  This formula is not a good fit with a recently published work.
 
However, in raising the question, the member raised an interesting and practical argument:  It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles, etc.) and "after a reasonable effort" there will be nowhere else from where we can buy a pristine back run "at a fair price" (ie. for less than the price of striking another microfilm).
 
For a question like this, it is best to go straight to the source: the Library of Congress circulars.  The Circular on section 108 can be found here:  https://www.copyright.gov/circs/circ21.pdf
 
In relevant part, it states:
 
Subsection (c) authorizes the reproduction of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. The scope and nature of a reasonable investigation to determine that an unused replacement cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if such owner can be located at the address listed in the copyright registration), or an authorized reproducing service.

[Emphasis added.] 
 
As can be seen, the delicate nature of newspapers and library capacity issues non-withstanding, proceeding under sub-section (c) without certainly that there is no commercial alternative does not meet the sub-sections’ requirements.  The law is clear: the copies can be made only after the good-faith determination that no commercial alternative exists.  
 
It is cumbersome, but saving a copy of the paper, and then establishing, on a routine basis, that back copies, digital archives, and third-party microfilm versions of the newspaper are not commercially available, meet sub-section (c)’s commercial determination requirements. This is an essential element of the law and cannot be left out, or there will be no infringement defense under sub-section (c).  
 
The final question brings this all home: We really just want to start microfilming 2 copies of the paper…. Can we? Or must we enter negotiations with the publisher to secure the right?
 
Neither sub-section (a) nor (c) require permission from the copyright holder, so libraries do not need to ask the new owner before using the 108 exceptions as set forth above.   However, as the question implies, a library seeking to go beyond what is authorized by the law would need to work with the rights holder.  Hopefully, the publisher can see the value in allowing the two copies to be created, and will agree to an irrevocable license to the library, for the benefit of its patrons.
 

Tags: Copyright, Microfilm, Preservation, Newspapers, Photocopies, Section 108

Topic: Photocopying Music Scores - 11/08/2016
We have a request from a patron from another state for scans or photocopies of music scores that w...
Posted: Tuesday, November 8, 2016 Permalink

MEMBER QUESTION

We have a request from a patron from another state for scans or photocopies of music scores that we own and that are still under copyright. They are rare and only a few libraries have them across the country. The patron does not intend to perform the music, only to study the scores. Is it fair use to copy or scan them for the patron who is writing a doctoral thesis?

WNYLRC ATTORNEY'S RESPONSE

Short answer: The proposed copying would not be a permitted, duplication or Fair Use without some additional steps consistent with the four Fair Use factors.

Long answer: This is a great question, as it marries the practical consideration of access with the scary question of a liability for infringement.  To answer it, there are a few initial points of priority….

First, it is critical to note that Section 108 (a) of the Copyright Act, which would normally allow for one copy of a work to be provided to fulfill this request, expressly excludes musical works (see Section 108 (i)).

Second:  Because of the Section 108 (a) exclusion, it is important to distinguish: while the patron may have a Fair Use defense if they duplicate the work for the purposes of scholarship, the library, in simply making the copy to provide easier access to a remote patron, might not.  

Third, as plaintiffs can sue “innocent infringers,” careful steps should be taken to ensure the library could not be viewed as a part of the chain of infringement, if the patron ends up not having a valid Fair Use defense for any copy or derivative work they generate.

Fourth, while this scenario does not state the original copy requires archiving, it sounds as if you have a rare and precious copy, so we’ll draw a bit from the law, case law and guidance covering the protection of deteriorating/rare documents.

And now…how do you enable the proposed access, but keep the library safe?   By ensuring 108(c) and the “Fair Use” factors are on your side, whether you send them a scanned copy, or loan a physical copy.   

Digital copy
Informed by the latest case law and guidance, the following steps could help claim Fair Use for providing the proposed copy digitally:

Step 1: As the Code of Best Practices for Fair Use in Academic and Research Libraries (www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices) puts it: “Providing [digital] access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all.”  It is essential to verify that the works, or a licensed copy, are not commercially available.  This is essential for 108(c), too.

Step 2:  It is best if the transformation of format is not an ad hoc effort, but rather is part of an effort to promote a special resource of your library.   Making the digital copy a part of “special collection”—for instance, of rare music scores—will give you a stronger Fair Use defense.

Step 3: Again from the Code: “The Fair Use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.”  In other words, once you have the collection digitized, don’t let it be just that ad hoc project—promote it.

Step 4: Use appropriate technological controls (digital watermarks, etc.) to restrict the access, limit duplication, and ensure proper attribution of materials in the collection.  That way, any eventual copying or derivative work generated by the patron is separate and distinct from the access provided by the library.

Step 5: As with any digital collection, make sure the library has an easily found way for people to register privacy or intellectual property concerns related to digital collections.

Physical copy
What if you just want to provide them with a physical copy?  Following Section 108(c)’s rules for duplicating deteriorating copies, you can generate a copy for preservation purposes, loaning it to them with the expectation that it will be returned.  Just take care that the work is not commercially available, and that the original copy is not available while the preservation copy is out on loan.

[NOTE: 108(c) bars a digital copy made on this basis from leaving your institution.]  

Overall 
The bar on Section 108 (a) applying to musical works makes this a bit more challenging than the usual duplication request, but with some care, access can be provided.

Further, if the patron wants to make a copy of what your library loans them (either digitally, or in hard copy), if their use is as you describe, they may have their own Fair Use defense.  This will mean both the library and the patron can stand on separate, but solid, copyright ground. 

Tags: Copyright, Fair Use, Photocopies, Music, Section 108, Work-for-Hire

Topic: Reformatting VHS - 10/17/2016
We are shifting away from VHS here on this campus (along with everywhere else), and have a questio...
Posted: Monday, October 17, 2016 Permalink

MEMBER QUESTION

We are shifting away from VHS here on this campus (along with everywhere else), and have a question from an instructor about transferring a VHS tape to DVD. She's not able to get the tape on DVD or streaming, but knows that it's under copyright. Are there any loopholes to allow for making a digital backup of a VHS tape because VHS is an obsolete medium? Does going through a good-faith effort to find a digital version give some protection or leniency? Should we encourage the instructor to contact PBS or the show's producers to obtain copyright clearance for making a digital copy?

WNYLRC ATTORNEY'S RESPONSE

We’ll start out with the best advice: unless you stand on the legal high ground of a disability accommodation or a crumbling single copy unavailable in the original medium, when it comes to creating a new format of a work, written permission from the copyright owner is always best.  That is the gold standard.  If you have permission, the blood, sweat, and tears (or stress, more likely) of a Fair Use analysis are not needed.

This scenario does not occupy any legal high ground.  For a library in this position—dealing with the increasing rarity of VHS players—there is great guidance out there from the Association of Research Libraries’ “Code of Best Practices in Fair Use” (http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf): Here is what the code has to say on this issue…

Even when libraries retain the originals of preserved items, digital surrogates can spare the original items the wear and tear that access necessarily inflicts. Section 108 of the Copyright Act authorizes some preservation activities, but does not address some of today’s most pressing needs…[including] the transfer to new formats of materials whose original formats (such as VHS magnetic tape) are not yet obsolete (as the term is narrowly defined in section 108(c)) but have become increasingly difficult for contemporary users to consult.

Case law also acknowledges this VHS problem, but gives no relief: “Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.” (University Studios et al v. Corley, U.S. Court of Appeal 2nd Circuit, 2001).  This case is 15 years old, which means a lot has happened in the world of technology, but is still good law.

So the answer is, for now, unless you are making a disability accommodation, or faced with a crumbling copy, there is no iron-clad loophole or clear precedent to allow the proposed conversion to be a “fair use.” 

That said, if you have a deteriorating copy, a good-faith effort to re-purchase it in the original medium will certainly contribute to a fair use defense if you duplicate it to preserve this resource.

To help both you and your institution show that you have gone through this exercise, when you address such questions, I advise that you compose short emails to yourself, documenting the question, process, and conclusion.  A simple:

“Instructor stopped by today and asked if we could convert VHS in the collection to DVD for ease of access.   I let her know we’ll try to purchase a copy on DVD or seek permission of the copyright holder to make a copy on DVD.” 

 OR

 “Instructor stopped by today and asked if we could convert VHS to a format that would allow Deaf student to view closed-captioned version; we are arranging conversion solely to allow reasonable accommodation under the ADA.”

 OR

“Instructor pointed out that VHS tape in collection was not working right.  [Co-worker] and I verified the condition.   As best practices state it is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials, the library will create a back-up copy, UNLESS a fully equivalent digital copy is commercially available at a reasonable cost.  We will of course not provide access to or circulate original and preservation copies simultaneously.”

This July, various news outlets reported that the world’s last manufacturer of VCR’s has cease production.  Please check back on this issue; we’ll update this entry in the FAQ when we have better guidance, which should be coming soon.  Congress is working on new guidelines, and was recently told by the Register of Copyrights, Susan Pallante: “In its current state, Section 108 is replete with references to analog works and fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries.”

 http://www.copyright.gov/laws/testimonies/042915-testimony-pallante.pdf

 

Tags: Copyright, Digitization and Copyright, Fair Use, VHS, Movies, Section 108

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