Working Paper

Copyright Law, Libraries, and Universities

Overview, Recent Developments, and Future Issues

For Presentation To:
Association of Research Libraries
October 1992

Prepared By:

Kenneth D. Crews, J.D., Ph.D.
Associate Professor of Business Law
College of Business
San Jose State University
San Jose, CA 95192-0070

TEL: (408) 924-1342
FAX: (408) 924-3419

For current contact information and publications, see: Indiana University School of Library and Information Science (Oct. 2001)

Copyright 1992 by Kenneth D. Crews. Copying in excess of rights otherwise established under copyright law is permitted, without individual permission or payment of a fee, provided that copies are made or distributed for non-profit purposes and credit is given for the source. Abstracting with credit is permitted.

This paper is intended for information and discussion only. It is not intended to serve as legal advice.

Outline of Contents

Introduction:  "Opportunities to Exercise Fair Use Rights in the Nineties
and Beyond"

Part I:  THE BASICS OF COPYRIGHT
     Fair Use
     Library Reproduction Rights

Part II:  RECENT DEVELOPMENTS
     1.  Kinko's and Photocopying for Classroom Use.
     2.  Texaco and Photocopying for Personal Research Use.
     3.  Fair Use of Unpublished Works.
     4.  Library Circulation of Computer Software.
     5.  Elimination of the Copyright Notice Requirement.
     6.  Elimination of Eleventh Amendment Immunity for State Institutions.

Part III:  FUTURE DEVELOPMENTS
     1.  Guidelines for Fair Use of Computer Software.
     2.  Increased Reliance on License Terms.
     3.  Participation in Collective Licensing Arrangements.

Part IV:  POTENTIAL STRATEGIES AND OPTIONS
     1.  Reevaluation of Copyright Policy Statements.
     2.  Effective Leadership for Emerging Issues.
     3.  Coordinating Responses to Copyright Issues.

Appendix A:  Further Reading
Appendix B:  Text of Sections 107 and 108 of the Copyright Act of 1976

Introduction: "Opportunities to Exercise Fair Use Rights in the Nineties and Beyond"

Findings:

A fundamental difficulty of current copyright dilemmas has been the tendency of many observers to assert that some court rulings have a greater effect on libraries and universities than the decisions would actually justify.

Another difficulty has been the willingness of some officials to accept those misleading analyses.

A better understanding of copyright can allow libraries and universities to identify opportunities and strategies for action that they may pursue, while also minimizing risks of lawsuits.

Part I: THE BASICS OF COPYRIGHT

Findings:

Fair use is both a privilege and source of confusion.

Congress deliberately created an ambiguous fair use statute that gives no exact parameters--fair use depends on the circumstances of each case.

Many uses require a fresh fair use analysis, and they may never produce easy or foolproof answers.

Courts are not insensitive to academic needs, and the fair use statute expressly acknowledges the importance of educational uses.

Section 108 (on reproduction of works by libraries) is generally not regarded as the source of rights for reserve operations; reserve room copies are made pursuant to fair use law. The distinction between Section 108 and 107 for reserve rooms is important. Section 108 provides only for single copies of items, while the fair use statute specifically permits some multiple copies for classroom use, although subject to the four factors of fair use.

The United States has had federal copyright legislation since 1790, when Congress first exercised its constitutional power "to promote the progress of science" by "securing for limited times to authors . . . the exclusive right to their . . . writings. . . ." Only Congress is empowered to make such laws, so the federal statute is the foundation of copyright in this country. Congress last fully revised the law in 1976. The Copyright Act of 1976 gives creators and their assignees exclusive rights to reproduce, distribute, and make most other uses of their original works. Copyright also applies to much more than traditional writings--it protects artwork, sculpture, sound recordings, videotapes, motion pictures, maps, graphs, computer programs, databases, and a host of other original creations. Certain works are exempted from copyright protection. In particular, works of the U.S. government are not copyrightable, but many disagreements arise about the copyrightability of works produced with governmental funding or works that are co- authored with one government employee.

Fair Use

If copyright were merely a set of rights belonging exclusively to owners, we would have to seek permission for every use. But the law also grants a right of "fair use" to the public. Fair use is both a privilege and source of confusion. Nearly everyone will disagree on what is "fair," and no one has a definitive, legally binding "answer." In fact, Congress deliberately created an ambiguous fair use statute that gives no exact parameters--fair use depends on the circumstances of each case. The law offers four factors to consider: (1) the purpose of the use, including a non-profit educational purpose; (2) the nature of the copyrighted work; (3)Ęthe amount of the copying; and (4) the effect of the copying on the potential market for, or value of, the original work. The full text of "Section 107" on fair use appears in Appendix B to this report.

Applying these factors, observers generally agree that most short quotations from published sources in a scholarly work are fair use. Difficult judgement calls surround more complex cases--the longer quotations or copies from distinctive materials, such as standardized survey instruments, questionnaires, videotapes, or computer software. Possible "fair use" examples abound. Many uses require a fresh analysis, and they may never produce easy or foolproof answers. Some of the most difficult questions relate to uses of copyrighted works at universities and their libraries: multiple photocopies for classroom distribution, access to software by multiple users or at multiple locations, use of videotapes or broadcasts of television programs, circulation of tapes or software in libraries, and access to unpublished manuscript collections.

Courts also have provided little guidance on most fair use issues. The fair use of materials for academic purposes is rarely the subject of judicial decisions--the litigation costs and attorneys' fees are prohibitive. Yet courts are not insensitive to academic needs, and the fair use statute expressly acknowledges the importance of educational uses. Developments in the law, however, have been far from strictly favorable to the academe. For example, courts have ruled that a teacher may not draft new arrangements of copyrighted music and distribute copies to a school choir,[1] and an educational television station cannot broadcast a protected motion picture without permission.[2] Another court ruled that the recipient of unpublished letters could not read them to students without the copyright owner's permission.[3] On the other hand, courts often have allowed greater rights of fair use of some materials for writing history or biography.[4]

Library Reproduction Rights

A second source of user rights of particular significance to libraries is "Section 108" of the 1976 Act, which permits copying of materials by libraries pursuant to relatively specific standards. Unlike the fair use statute, Section 108 does not inherently depend on analysis and interpretation for every application. Much of the language of Section 108 can instead have practical meaning for many libraries without resorting to substantial external guidance or elaborate interpretations. Some of the principal activities allowed under Section 108 include the following:

Section 108(b): permits reproductions of unpublished works for preservation or security or for deposit at another library.

Section 108(c): permits reproductions of published works for replacing a damaged, deteriorated, lost, or stolen copy, but only if "an unused replacement cannot be obtained at a fair price."

Section 108(d): permits reproductions of articles, or contributions to collections, or small parts of larger works for a patron's private study, scholarship, or research.

Section 108(e): permits reproductions of entire works for a patron's private study, scholarship, or research, if "a copy . . . cannot be obtained at a fair price."

Section 108(f)(1): exempts libraries and their employees from liability for copying made by patrons on unsupervised machines where appropriate notices are posted.

Each of these provisions includes various additional technical requirements. The full text of Section 108 is therefore reprinted in Appendix B to this report.

Part II: RECENT DEVELOPMENTS

Findings:

Libraries and universities must be careful not to read either the Kinko's case or the Texaco case more broadly than necessary. A careful analysis of these decisions will show that fair use is alive and well, and it continues to offer significant benefits, particularly for non-profit educational purposes.

While the Kinko's case renews concerns about copyright on campus, it also leaves substantial room for fair use to survive, especially when the copying is not conducted for profit. The case also calls into question the reliability of the Classroom Guidelines as a legally meaningful standard.

The Texaco decision is a significant endorsement of the Copyright Clearance Center. If permissions are easily forthcoming through the CCC, then fair use is of lessened importance for fulfilling research objectives--according to this case. That decision from the court is both stunning and foreboding, although it is still limited to fair use in the profit sector.

Recent cases have established an extremely narrow right of fair use with respect to unpublished works. Two developments may alleviate this construct of fair use: a 1991 court decision allowed fair use of journals and letters, and both houses of Congress have passed bills that attempt to assure the survival of fair use for unpublished works.

Libraries must prepare for the steady transfer of unpublished works to the public domain, a process that will begin on January 1, 2003.

An amendment to the Copyright Act specifically allows non- profit libraries to circulate computer software, but libraries should be sure to meet the notice requirements of the new law.

Neither the formal copyright notice nor registration is now required to obtain copyright protection. Therefore, the failure to register or to use the notice no longer puts the work into the public domain, and fair use and other user rights continue to define the limits on copying.

1. Kinko's and Photocopying for Classroom Use.

2. Texaco and Photocopying for Personal Research Use.

3. Fair Use of Unpublished Works.

4. Library Circulation of Computer Software.

In 1990 Congress amended the Copyright Act to proscribe the commercial lending of computer software. The amendment expressly states:

Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.[14]

The purpose of the amendment was clearly to restrict lending of software for profit, but not to eliminate its use in the non-profit educational context. Libraries should review their policies and practices to be sure they conform to the requirements of the new law, and to be sure that they are not more restrictive than the law allows.

5. Elimination of the Copyright Notice Requirement.

6. Elimination of Eleventh Amendment Immunity for State Institutions.

Part III: FUTURE DEVELOPMENTS

Findings:

A 1992 report from the Congressional Office of Technology Assessment recommended that librarians and others participate in developing guidelines on fair use and library use of computer software. Librarians must take the initiative and accept that challenge.

The lack of reliable guidance on the fair use of software and other new media has compelled producers and users alike to rely increasingly on license agreements for delineating rights and obligations.

The increasing reliance on license agreements as replacements for copyright law creates inconsistent rules and many times leads to new restrictions that exceed the law's requirements.

Fair use and license agreements are not simply substitutes for one another.

One of the most significant developments in collective licensing has been the "University Pilot Program" that the CCC conducted in 1990 for a proposed annual license, but the anticipated agreement has certain deficiencies.

1. Guidelines for Fair Use of Computer Software.

2. Increased Reliance on License Terms.

3. Participation in Collective Licensing Arrangements.

Part IV: POTENTIAL STRATEGIES AND OPTIONS

Findings:

The objective of an institutional copyright policy should be not merely to achieve compliance with the latest standards, but also to identify maximum opportunities for the institution to lawfully pursue its informational and academic objectives.

Many standard form policies, particularly the Classroom Guidelines, are questionable responses to a flexible law that should address diverse circumstances.

Members of the library staff and university community must work together to identify their needs and perspectives and to devise standards that reflect actual demands and that garner widespread support.

Librarians must not perceive copyright as strictly an external force directing the range of activities allowed at the institution. Copyright is a set of opportunities, and the librarian's task is to identify maximum opportunities under the law for meeting the needs of scholars and the research community.

Libraries and universities must assume a leadership role in shaping copyright issues as they emerge. Many fair use rights are not well identified, and those voids in the law are invitations for diverse interest groups to propose and negotiate guidelines.

1. Reevaluation of Copyright Policy Statements.

2. Coordinating Responses to Copyright Issues.

3. Effective Leadership for Emerging Issues.

Librarians must not perceive copyright as strictly an external force directing the range of activities allowed at the institution. Copyright is a set of opportunities, and the librarian's task is to identify maximum opportunities under the law for meeting the needs of scholars and the research community. Copyright is also not just a negative force; the law offers protection for new works created by the library or on campus, and owners' rights are an incentive for the creation and dissemination of many new materials. Most of all, libraries and universities must assume a leadership role in shaping copyright issues as they emerge. As described earlier with respect to computer software, many fair use rights are not well identified, and those voids in the law are invitations for diverse interest groups to propose and negotiate guidelines.

EndNotes

[1] Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962).

[2] Rohauer v. Killiam Shows, Inc., 379 F.Supp. 723 (S.D.N.Y. 1974), rev'd on other grounds, 551 F.2d 484 (2d Cir. 1977), cert. denied, 431 U.S. 949 (1977).

[3] Sinkler v. Goldsmith, 623 F.Supp. 727 (D.Ariz. 1985).

[4] See, for example, Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967).

[5] U.S. Congress, House Committee on the Judiciary, Copyright Law Revision: H. Rept. 94- 1476 on S. 22, 94th Cong., 2d Sess., 1976, pp. 74-75.

[6] Copyright Amendments Act of 1992, Pub. L. No. 102-307, Section 301, 106 Stat. 264, 272 (1992).

[7] Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991).

[8] U.S. Congress, House Committee on the Judiciary, Copyright Law Revision: H. Rept. 94-1476 on S. 22, 94th Cong., 2d Sess., 1976, pp. 68-70.

[9] American Geophysical Union v. Texaco Inc., ___ F.Supp. ____ (S.D.N.Y. 1992).

[10] New Era Publications International, ApS v. Henry Holt and Company, Inc., 873 F.2d 576 (2d Cir. 1989), cert. denied, 110 S.Ct. 1168 (1990); Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987).

[11] Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).

[12] S. 1035, 102d Cong., 1st Sess. (1991); H.R. 4412, 102d Cong., 2d Sess. (1992).

[13] Copyright Act of 1976, 17 U.S.C. Section 303 (1988).

[14] Copyright Act of 1976, 17 U.S.C. Section 109(b) (1988), as amended by Computer Software Rental Amendments Act of 1990, Pub. L. No. 101- 650, 104 Stat. 5089 (1990).

[15] BV Engineering v. University of California, Los Angeles, 858 F.2d 1394 (9th Cir. 1988), cert. denied, 489 U.S. 1090 (1989).

[16] Copyright Act of 1976, 17 U.S.C. Section 511 (1988), as amended by Copyright Remedy Clarification Act, Pub. L. 101-553, 104 Stat. 2749 (1990).

[17] U.S. Congress, Office of Technology Assessment, Finding a Balance: Computer Software, Intellectual Property, and the Challenge of Technological Change (Washington, D.C.: Government Printing Office, 1992), 31 & 35.

[18] Jane C. Ginsburg, "Reproduction of Protected Works for University Research or Teaching," Journal of the Copyright Society of the USA. 39 (Spring 1992): 209-211.

[19] Two ARL publications include numerous examples of library and university copyright policies, including policies based on the Classroom Guidelines and the ALA Model Policy. Kenneth D. Crews, University Copyright Policies, SPEC Kit No. 138 (Washington, D.C.: Association of Research Libraries, October 1987); Nancy Kranich, Copyright Policies in ARL Libraries, SPEC Kit No. 102 (Washington, D.C.: Association of Research Libraries, March 1984).

Appendix A

Further Reading

Crews, Kenneth D. Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education. Chicago, IL: The University of Chicago Press, forthcoming 1993.

______ "Federal Court's Ruling Against Photocopy Chain Will Not Destroy 'Fair Use'." Chronicle of Higher Education, AprilĘ17, 1991, p. A48.

______ "Unpublished Manuscripts and the Right of Fair Use: Copyright Law and the Strategic Management of Information Resources." Rare Books & Manuscripts Librarianship 5 (1990): 61-70.

Goldstein, Paul. Copyright: Principles, Law and Practice. 3 vols. Boston, MA: Little, Brown and Co., 1989 (with annual supplements).

Johnston, Donald F. Copyright Handbook. Second edition. New York: R.R. Bowker Co., 1982.

Nimmer, Melville B. and David Nimmer. Nimmer on Copyright. 5 vols. New York: Matthew Bender, 1992 (with periodic supplements).

Patry, William F. The Fair Use Privilege in Copyright Law. Washington, D.C.: Bureau of National Affairs, Inc., 1985.

Patterson, L. Ray and Stanley W. Lindberg. The Nature of Copyright: A Law of Users' Rights. Athens, GA: The University of Georgia Press, 1991.

Strong, William S. The Copyright Book: A Practical Guide. Fourth edition. Cambridge, MA: The MIT Press, 1992.

Appendix B

Text of Sections 107 and 108 of the Copyright Act of 1976

The original document distributed at the Fall meeting of the Association of Research Libraries contained Photocopies of Sections 107 and 108 in this appendix. Electronic copies of these documents are available via anonymous FTP in the FTP archives of the Coalition for Networked Information.

     ftp ftp.cni.org
     login anonymous [send e-mail address as password]
     cd /ARL/fairuse
     get US.Copyright.sec.107.txt
     get US.Copyright.sec.108.txt

[Search all CoOL documents]


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