Working Paper

Copyright Law, Libraries, and Universities

Overview, Recent Developments, and Future Issues

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  Fair Use of Unpublished Works.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.

• Universities and research libraries are caught in a copyright squeeze. Recent court decisions against Kinko's Copies and Texaco have challenged whether simple photocopying for personal research and classroom use may pass a fair use test. Expanding technologies and the availability of copyrighted works on videotape and in electronic databases raise questions about the applicability of copyright rules at all. Libraries are on the front line of these copyright dilemmas as they face daily questions about protecting the rights of copyright owners and providing optimal access by patrons to the library resources. Universities are also home to numerous different activities that stir copyright concerns.
• This report will survey recent developments in copyright law that affect universities and research libraries. Part I of this report is a summary of copyright basics, with a focus on ownership of copyrights, fair use, and library reproduction rights. Part II is a brief examination of recent cases and legislation with significant potential effects on research libraries and universities. Part III is a projection of future copyright concerns that do not yet figure in judicial decisions or legislation. With respect to these issues, institutions can begin their advance planning and perhaps exert their influence on the shape of future law.
• The objectives of this report are to inform, to give a brief roadmap through some of the most troublesome issues, and to stimulate discussion regarding effective strategies and improved responses to copyright problems. One fundamental difficulty of the latest copyright dilemmas has been the tendency of many observers to assert that some court rulings have a greater effect on universities and libraries than the decisions would actually justify. Another difficulty has been the willingness of some university or library officials to accept those misleading analyses. The institutions are often ill-equipped to resist the threats of litigation. Accepting restrictive positions on copyright issues are often an expedient way to address a difficult issue with a minimal exposure to liability. A better understanding of copyright can allow libraries and universities to identify opportunities and strategies for action that they may pursue under copyright law, 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)�the 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.

• Section 108 does not apply to every activity in every library. Its provisions apply only to libraries that are open to the public, or at least open to researchers not affiliated with the institution. Most university libraries probably meet that standard. The rights of Section 108 also apply only if "the reproduction or distribution is made without any purpose of direct or indirect commercial advantage. . . ." The legislative history to the 1976 Act, however, indicates that Section 108 can have some application even in libraries operated by for-profit institutions.[5] The rights of reproduction also do not extend to all types of copyrighted works. Many of the rights 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. . . ." (See Section 108(h)).
• Section 108 is generally not regarded as the source of rights for reserve operations. Reserve room copies are made pursuant to fair use law; reserve rooms may be located in libraries, but they function as an extension of classroom teaching. 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. Multiple copies are often essential for effective reserves.
• Librarians are no doubt familiar with the "Five-Year Reports" that Section 108 originally required. The U.S. Copyright Office sponsored the studies in order to report every five years to Congress on the effects of Section 108. Congress received reports in 1983 and 1988, and in 1992 it repealed the requirement of further studies.[6]

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.

• In April 1991 the Federal District Court in New York City ruled that Kinko's Graphics Corporation had exceeded its rights of fair use when it photocopied "anthologies" or "course packs" of textbook chapters for use at local universities.[7] The court determined that nearly every factor in the fair use equation worked against Kinko's. The court was particularly influenced by the profit motive behind the Kinko's operation; it was unpersuaded that the copying--at least in the hands of Kinko's--was for educational purposes.
• The case renewed fears at many colleges and universities that fair use was coming to an end. In fact, the court noted repeatedly that the peculiar facts of this case led to the finding of copyright infringement: the copying was conducted for profit; the copies were from textbook chapters; the copies competed for potential sales of those textbooks; and the amount copied from each book was substantial. Copying of other materials or under other circumstances may not be an infringement.
• The court also refused to apply the strict prohibition against anthologies set forth in the so-called "Classroom Guidelines" on photocopying for classroom and research needs. Most academicians have seen the guidelines; they establish rigorous word limits on copying. Those guidelines emerged from discussions among interest groups leading to passage of the 1976 Copyright Act, and they received congressional endorsement as a reasonable interpretation of "minimal" fair use rights.[8] Most research universities use the guidelines as official institutional policy. The publishers urged the court to ban all anthologies, as the Guidelines suggest, but the court declined, preferring to evaluate the fair use of each item in the photocopied collection.
• Thus, 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. On the other hand, the case makes clear that common practices at many campuses are potentially subject to copyright scrutiny. An entirely non-profit education purpose cannot sanction all uses.

2. Texaco and Photocopying for Personal Research Use.

• A second case seems to have surrounded the university from the other side. In July 1992 the same Federal District Court--although a different judge--ruled that an employee of Texaco had infringed the copyright held by a journal publisher when he made individual copies of articles, notes, and letters to the editor solely for his own research purposes.[9] Once again, the economic circumstances played a significant role in the outcome. The court was greatly influenced by these findings: the copying was ultimately intended to promote Texaco's commercial purposes; the copies were of the full "works," and not merely excerpts; and the copies had a harmful effect on the potential market value of the copyrighted work.
• That last point is perhaps the most important aspect of the case. The decision is an significant endorsement of the Copyright Clearance Center; the court reasoned that the relatively easy availability of permissions through the CCC reduced the scope of fair use rights. In recent years, the CCC has successfully negotiated annual license agreements with many corporations, including several in the oil industry. With one fee, the company receives permission to photocopy materials from all publications registered with the CCC. According to the Texaco decision, the CCC's program not only establishes evidence of a publication's economic value, but it also can displace fair use. If permissions are easily forthcoming through the CCC, then fair use is of lessened importance for fulfilling research objectives. That decision from the court is both stunning and foreboding, although it is still limited to fair use in the profit sector.
• As with the Kinko's case, the facts in the Texaco decision can be distinguished from the circumstances generally occurring on campus. In particular, copying on campus typically is without a profit motive, and copyright licensing programs are not yet well established in the university community. But the case does show that a court may be willing to construe even individual copying for research needs as a copyright infringement. The case is an open invitation for the CCC to extend its programs to more types of organizations, including research libraries and universities. Indeed, the CCC has completed a pilot program involving several universities, and it is discussed more fully in Part III of this report.
• Libraries and universities must be careful not to read either the Kinko's case or the Texaco case more broadly than necessary. Each case should compel a reexamination of photocopying practices, but each case offers a tempting lure for cautious administrators. In particular, in order to avoid potential liabilities, Kinko's seems to suggest that all photocopies in anthologies require permission. Texaco similarly suggests that individual research copying is either banned or constrained, or that every institution must now participate in all CCC licensing programs. These conclusions might help fend off litigation, but they are also serious misreadings of the cases and are detrimental sacrifices of fair use privileges that the law still preserves for most research libraries and universities.
• Attorneys for ARL have prepared a more detailed analysis of the Texaco decision and its effects on fair use and library copying rights. Please refer to that analysis for further information.

3. Fair Use of Unpublished Works.

• Recent cases from the Second Circuit Court of Appeals involving author J.D. Salinger and Scientology founder L. Ron Hubbard have established an extremely narrow right of fair use with respect to unpublished works, particularly correspondence, journals, diaries, and other materials that are commonly housed in library collections and used in writing history and biography.[10] These cases do not diminish the specific rights to copy unpublished works under Section 108. Instead, they have limited rights to quote from--or even to paraphrase--the unpublished works.
• Two developments may alleviate this confining construct of fair use. First, a 1991 decision from the Second Circuit allowed a biographer to reprint brief excerpts from the journals and letters of author Richard Wright.[11] Second, both houses of Congress have passed bills that attempt to assure the survival of fair use for unpublished works.[12] Neither of these developments is an enormous expansion of user rights, and the unpublished nature of a work can still be a factor that limits fair use.
• Libraries that retain manuscript collections should be prepared for regular questions from patrons about their rights to quote from unpublished works. Such fair use issues may be described in the institution's copyright policy statement. The uncertainty of this law can also be addressed when libraries acquire manuscript collections. The donor or seller may own the copyrights to materials in the collection, because the donor either is the author or obtained the rights from the author. The acquiring library should routinely seek to obtain possession of the copyrights as well as possession of the materials themselves. If the donor is unable or unwilling to transfer the copyrights, the library should carefully document the copyright owner's name and address and encourage the owner to seek advice on maintaining or managing the copyright and providing for its clear and orderly transfer upon future sale or upon the owner's death. Users of the manuscript collections will likely need to obtain the owner's permission for even common quoting, and the availability of such information at the library will significantly expedite the researcher's quest.
• Libraries must also prepare for the steady transfer of unpublished works to the public domain, a process that will begin on January 1, 2003. The previous rule was that unpublished works enjoyed copyright protection in perpetuity. Thus, the diaries and letters of even the most prominent individuals were subject to copyright restrictions without expiration. Congress abolished that rule with passage of the 1976 Act and subjected unpublished works to the duration limits of all copyrights: generally the life of the author, plus fifty years. Rather than immediately assigning centuries of protected works to the public domain, the law postpones operation of the new rule until 2003.[13] In that year, the unpublished writings of authors who died more than fifty years before will be available for use without copyright limitations. Each year, new materials written by authors who lived a year longer will come available. In only ten years this new rule will have a significant effect on the acquisition and use of new manuscript 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.

• In 1989 the United States joined the Berne Convention, a multinational treaty providing for the mutual protection of copyrights originally secured under each country's laws. Thus, a copyright obtained under U.S. law can enjoy protection in many other countries. In order to join and conform to Berne, Congress amended the U.S. Copyright Act in several respects. One significant change for libraries and universities was the elimination of the requirement to include a copyright notice on copyrighted works. The requirement had been relaxed in the original 1976 Act, but now the familiar copyright notice--usually the "C" in a circle, name, and year--is not required at all. Registration of the work also has been optional since passage of the 1976 Act.
• With neither notice nor registration required, users must now assume that all copyrightable works are in fact protected by copyright. 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. In addition, the absence of these formalities may also make certain information about the works difficult to obtain. Catalog librarians frequently rely on the copyright notice, for example, when establishing the date of a work.

6. Elimination of Eleventh Amendment Immunity for State Institutions.

• In the late 1980s a few courts ruled that copyright lawsuits could not be brought against state universities. The result was virtual immunity for hundreds of institutions across the country. This peculiar situation did not last long. The Eleventh Amendment to the U.S. Constitution precludes states from being sued for monetary damages in federal courts. The purpose of the Eleventh Amendment is to protect state coffers from the powerful authority of the federal government. But federal law also specifies that all infringement actions brought under the Copyright Act must be filed in federal court.
• In one notable case, a software producer sued UCLA, alleging infringement of it copyrighted programs. The federal district court dismissed the case against UCLA; the state university could not be held liable in federal court. The Court of Appeals affirmed that decision, and the U.S. Supreme Court refused to hear the case. The immunity of UCLA and other state institutions was established.[15] In earlier, unrelated cases, the Supreme Court had allowed cases to proceed against states in federal courts if Congress explicitly manifested its intent to abrogate the Eleventh Amendment immunity with respect to the particular law in question. In 1990 Congress amended the Copyright Act to make that explicit statement of intent. The immunity of state universities is now gone.[16] State and private institutions are now subject to the same copyright rules.

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.

• The fair use of computer software is the greatest unknown of greatest significance to libraries and universities. Congress in no way limited the fair use statute to certain media, but the traditional rules of fair use often do not seem relevant to software. For example, one factor in the fair use analysis is the amount of the work copied, but software is seldom of any utility unless it is copied in full. Nevertheless, many fair use possibilities remain: non-simultaneous use of a single software package at more than location; displays of program sequences at training sessions; or reverse engineering of protected software. The possibilities for fair use applications are numerous, but they are also far from settled.
• 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.[17] Librarians must take the initiative and accept that challenge. The failure to act and the failure to identify and preserve user opportunities will leave a vacuum for other interest groups--with potentially contradictory objectives--to give shape to understanding this crucial aspect of copyright.

2. Increased Reliance on License Terms.

• 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 result is an inconsistent application of rules and the possible acceptance of restrictions that exceed the law's requirements. Contracts or "licenses" are inevitably diverse. In the software trade, sellers frequently draft agreements that are intended to be binding on purchasers. Those agreements often include restrictions on the using, copying, lending, or selling the work. An institution that purchases many different software packages from many different suppliers will likely be subject to a multitude of diverse rules. The complexity alone can inhibit exploration of user rights.
• Another consequence of relying on licenses is that they often include new restrictions that reach beyond the owner's privileges under copyright law. Until future statutes or court rulings clarify rights, no one can state with certainty whether a user is allowed to carry a program from one computer to another. The principles of fair use offer a good argument to support the lawfulness of transporting the disk. Yet many licenses prohibit exactly that activity. When libraries and universities acquire their collections they should recognize that licenses are subject to negotiation. They should review the terms and critically examine their potential effects on fulfilling institutional objectives. They should also resist entering into agreements that expressly or implicitly limit rights established under law.
• In this context, the need to pursue innovative guidelines for fair use of software becomes of increasing importance. Fair use and license agreements are not simply substitutes for one another. Instead, a clearer understanding of fair use opportunities can be a crucial step toward negotiating improved agreements.

3. Participation in Collective Licensing Arrangements.

• As described above, the Texaco case has given new visibility to the Copyright Clearance Center as a means of obtaining permission for copying--even copying for individual research needs. Although most attention has focused on the CCC, other agencies offer similar or complementary programs. For example, the National Association of College Stores, the Association of American Publishers, and University Microfilms--among other organizations--have established systems for granting copyright permissions or supplying copies of articles and books with clearance from copyright owners.
• 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. Six colleges and universities participated in the study, and the CCC collected data on the types and quantities of materials copied for various purposes. The CCC has yet to issue a full public report on the study, and it has yet to offer a long-term license agreement for colleges and universities. But the anticipated agreement has certain deficiencies. For example, it is not expected to include the making of "anthologies" for classroom use; it may not cover reserve room copies; the CCC does not represent all publishers and copyright owners; and the CCC does not define any scope of fair use that does not require permission or payment of fees.[18]
• Collective administration--whether through the CCC or another agency--offers many valuable benefits to libraries and universities. It can expedite the permission process and grant security from many potential infringement claims. While the temptation and impetus to participate is growing, participants should scrutinize any forthcoming "blanket license" and recognize its limitations. In its expected form, the CCC's license would not embrace all needs at the library or university, leaving the institution to continue the burdensome task of defining fair use and seeking individual permissions for much copying.

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.

• Changes in the law and the increased litigation of copyright issues have motivated many librarians to review their existing copyright policy statements. The objective of such a review 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. The Kinko's and Texaco cases, for example, are sending a signal of shrinking fair use, but a careful analysis of those decisions will show that fair use is alive and well, and it continues to offer significant benefits, particularly for non- profit educational purposes.
• The growing complexity of the law also demonstrates that "simple solutions" are often no solution at all. Many standard form policies, particularly the Classroom Guidelines, are questionable responses to a flexible law that should address diverse circumstances. In 1982 the American Library Association offered an alternative model policy for photocopying. Although it may need a fresh review, it demonstrates that different interpretations of fair use are available, and some interpretations are better suited to the library's or university's objectives.[19]

2. Coordinating Responses to Copyright Issues.

• The most meaningful resolution of copyright issues will result from a coordinated effort. Diverse members of the library staff and university community must work together to share their needs and perspectives and to devise standards that reflect actual demands and that garner widespread support. Librarians must seek guidance from faculty, administrators, and legal counsel when they formulate policies. A widely accepted set of standards also needs support from outside the library and university communities. When the Office of Technology Assessment recommended development of guidelines for software, it rightly urged diverse groups to meet--including software producers, educators, and members of the public at large. Moreover, it recommended that the U.S. Copyright Office take charge of the process. Endorsements from diverging interest groups and from the central government agency would no doubt give enormous credibility to any resulting guidelines. Librarians and university officials must be sure to find or create a prominent role in any such proceedings.

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, April�17, 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