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The Librarian's Copyright Companion / by James S William & Mary Law School William & Mary Law School Scholarship Repository Library Staff Publications The Wolf Law Library 2012 The Librarian’s Copyright Companion James S. Heller Paul Hellyer [email protected] Benjamin J. Keele Follow this and additional works at: https://scholarship.law.wm.edu/libpubs Part of the Intellectual Property Law Commons, and the Law Librarianship Commons Repository Citation Heller, James S.; Hellyer, Paul; and Keele, Benjamin J., "The Librarian’s Copyright Companion" (2012). Library Staff Publications. 147. https://scholarship.law.wm.edu/libpubs/147 Copyright c 2012 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/libpubs The Librarian’s Copyright Companion SECOND EDITION The Librarian’s Copyright Companion SECOND EDITION by James S. Heller Paul Hellyer Benjamin J. Keele William S. Hein & Co., Inc. Buffalo, New York 2012 Publisher’s Cataloging in Publication Heller, James S. The librarian's copyright companion / by James S. Heller, Paul Hellyer, Benjamin J. Keele. — 2nd ed. — Buffalo, NY : William S. Hein, 2012. p. ; cm. ISBN: 978-0-8377-3872-7 (print) Revision of the 2004 edition by James S. Heller. Includes bibliographical references and index. Summary: The transition from print to digital continues. The Copyright Act has changed a little, but not for the better. This book begins with the premise that copyright exists to promote the dissemination of information, and while creators have certain rights, so do users. This new edition updates every chapter and adds a new chapter on the library as a publisher. Also included is information on recent developments such as Creative Common licenses and the use of digital video (e.g. YouTube) in the classroom.—Publisher. Contents: General principles — Restrictions on the use of copyrighted materials — Liability for infringement — Fair use (Section 107) — The library exemption (Section 108) — Digital information and software — Licensing — Audiovisual works and non-print media — The library as publisher — Conclusion — Appendixes (resources, texts, guidelines, samples, model policies). 1. Copyright—United States—Handbooks, manuals, etc. 2. Librarians—United States—Handbooks, manuals, etc. 3. Copyright infringement—United States. 4. Fair use (Copyright)—United States—Handbooks, manuals, etc. 5. Library copyright policies—United States—Handbooks, manuals, etc. 6. Copyright and electronic data processing—United States—Handbooks, manuals, etc. 7. Copyright licenses—United States—Handbooks, manuals, etc. 8. Libraries—Special collections—Nonbook materials—United States—Handbooks, manuals, etc. 9. Libraries—Publishing—United States—Handbooks, manuals, etc. I. Hellyer, Paul (Paul Alan) II. Keele, Benjamin J. III. Title. KF2995 .H45 2012 2012950442 346.7304/82—dc23 1211 Copyright 2012 James S. Heller, Paul Hellyer, and Benjamin J. Keele. We encourage readers to employ fair use, the library exemption, and other rights provided by the Copyright Act. For other uses of this work, contact the authors at the College of William & Mary School of Law. Printed in the United States of America This volume is printed on acid-free paper. DEDICATION ED The Librarian’s Copyright Companion, Second Edition, is dedicated to the staff of the College of William & Mary’s Wolf Law Library. TABLE OF CONTENTS ED Preface xi Chapter One. General Principles 1 Copyright Defined 2 The Copyright Act 3 Copyrightable Works 5 Copyright Notice 7 Works in the Public Domain 9 Compilations and Collective Works 13 Duration of Copyright Protection 16 International Issues 19 License Agreements 20 Chapter Two. Restrictions on the Use of Copyrighted Materials 21 Reproduction (Section 106(1)) 22 Derivative Works (Section 106(2)) 23 Distribution and the First Sale Doctrine (Sections 106(3) and 109) 24 Public Display and Public Performance (Sections 106(4) and 106(5)) 29 Digital Transmission of Sound Recordings (Section 106(6)) 30 Moral Rights 31 Chapter Three. Liability for Infringement 33 Remedies and Damages (Section 504) 33 Institutional Responsibility: Vicarious Liability and Contributory Infringement 35 Statute of Limitations (Section 507) 37 Government Immunity 38 vii viii The Librarian’s Copyright Companion Chapter Four. Fair Use (Section 107) 41 The Four Factors 43 Fair Use in the For-Profit Sector: The Texaco Case and Beyond 49 Fair Use in the Educational Sector 56 Chapter Five. The Library Exemption (Section 108) 69 Qualifying for the Exemption (Section 108(a)) 70 Copying Unpublished Works (Section 108(b)) 78 Replacing Lost, Stolen, Damaged, or Deteriorating Copies of Published Works (Section 108(c)) 80 Articles or Excerpts for Users (Section 108(d)) 83 Out-of-Print and Unavailable Works (Section 108(e)) 89 Library Reproducing Equipment (a.k.a. Photocopiers and Scanners) (Section 108(f)(1) and (2)) 91 Contracts, Licenses, and Fair Use (Section 108(f)(4)) 92 The Section 108(g) Provisos 94 Preservation and Term Extension (The Return of Sonny Bono) (Section 108(h)) 104 Non-Print Works (Music, Pictures, Graphs, and Sculptural Works) (Section 108(i)) 105 Section 108 and Fair Use (Reprise) (Section 108(f)(4)) 106 Chapter Six. Digital Information and Software 107 Click and Shrinkwrap Licenses (Section 117) 110 Computer Programs (Section 117) 111 Single-User and Site Licenses 112 Downloading 113 Database Protection (Redux) 113 The First Sale Doctrine (Reprise) (Section 109) 115 The Digital Millennium Copyright Act 117 Chapter Seven. Licensing 125 The License under the Microscope 126 Permissions 149 Chapter Eight. Audiovisual Works and Non-Print Media 151 Recording 151 Public Performance and Display 156 Performances for Educational Purposes (Section 110(1)) 163 Performances in For-Profit Institutions 166 Institutional Liability 166 Guidelines for the Use of Audiovisual Works in Libraries 167 Distance Education (Section 110(2)) 168 Image Collections 170 Table of Contents ix Chapter Nine. The Library as Publisher 173 Permissions 174 Handling Your Copyrights 180 Permissions and Open Licenses 181 Library Publishing May Require Several Layers of Agreements 182 Conclusion 185 Appendix A. Online Copyright Resources 187 Appendix B. Copyright Texts for Librarians: A Selective Bibliography 189 Appendix C. Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals (1976) 191 Appendix D. Model Policy Concerning College and University Photocopying for Classroom, Research, and Library Reserve Use (1982) 195 Appendix E. CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements (1978) 207 Appendix F. Fair Use Guidelines for Electronic Reserve Systems (CONFU) (1996) 211 Appendix G. Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes (1984) 215 Appendix H. Guidelines for Educational Uses of Music (1976) 217 Appendix I. Sample Permission Letter to Copyright Owner 219 Appendix J. American Association of Law Libraries Guidelines on the Fair Use of Copyrighted Works by Law Libraries (2001) 221 Appendix K. American Association of Law Libraries Model Law Firm Copyright Policy (2007) 231 Appendix L. Visual Resources Association Image Collection Guidelines: The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections (2004) 237 Appendix M. Code of Best Practices in Fair Use for Academic and Research Libraries (2012) 241 Appendix N. Sample Law Journal Author Agreement (2011) 267 x The Librarian’s Copyright Companion Appendix O. Selected Provisions from the U.S. Copyright Act (Title 17, United States Code) 273 Appendix P. Copyright Term and the Public Domain in the United States (2012) 311 Table of Cases 317 Index 321 PREFACE ED A lot has happened since the first edition of The Librarian’s Copyright Companion was published in 2004, and a lot hasn’t changed. As for what’s new, it’s more evolution than revolution. The transition from print to digital continues apace: digital format is the default version for periodicals and journals in many libraries, and YouTube and other digi- tal media are now commonly used in teachers’ classrooms.1 In academia, many libraries have created digital archives or scholarly repositories, and have themselves become publishers. Print reserves have pretty much given way to e-reserves and commercial products like Blackboard. In a decision reached just as this book was going to press, a U.S. District Court in Georgia clarified the meaning of fair use for materials placed in e-reserves. The decision has been viewed as a win for libraries, but may be appealed. The Copyright Act has changed a little, but not for the better. Efforts to amend the library exemption by the Section 108 Study Group went nowhere after three years of hard work. The fair use (section 107) and the public performance and display exemptions (section 110, which includes the TEACH Act) also remain unchanged. The U.S. Supreme Court con- tinues to affirm anything Congress does that expands the term of copyright (Eldred v. Ashcroft in 2003 and Golan v. Holder in 2012). What also hasn’t changed is the fact that the publishing/copyright owner industry still promotes its views loudly and clearly. A great example is the October 2011 issue of Information Today: The Newspaper for Users and Producers of Digital Information Services, which had as its lead arti- cle “Armstrong: the Voice of Copyright.” Tracey Armstrong, President and CEO of the Copyright Clearance Center (CCC), is not the voice of 1 YouTube even has its
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