For Librarians
Because of my past close relationship with the NCSU Libraries as their Scholarly Communication Librarian, the Libraries did not require an FAQ or tutorial per se. I was always in-house, available to answer questions and give workshops either regularly scheduled or impromptu.
Given the NCSU Libraries' historically high level of copyright awareness and my availability to them to answer questions and conduct workshops, this FAQ will focus only on the more difficult questions the Libraries has encountered in the past. Of course, I continue to be available to them for the above services.
While most departments in the library have the capability of generating interesting copyright questions, the ones encountered most frequently of late have emerged from the Special Collections department.
2. Can the library make copies of its Special Collections works for preservation purposes?
7. Are terms and conditions on the Special Collections web site enforceable?
Responses
1. Can the library make reproductions of materials in our Special Collections at the request of individual patrons? Can we charge for this?
If the university holds the copyright to the work, clearly a reproduction for a patron can be made. If the university merely owns the work, but not the copyright, a copy can be made pursuant to several different scenarios. If the work is an article or a small part of a copyrighted work, a copy can be made under Section 108(d), as long as the copy becomes the property of the patron, the library has no notice that the work is being used for other than private research and the copyright warning language is displayed at the order desk or on the online order form. Other general requirements of Section 108 must also be met, such as including the copyright notice (if there is one), not making money fro the copying (but cost-recovery is allowed), and being open to the public and/or researchers in the field. Section 108(d), however, would not cover reproductions of images, which is by far the most frequently requested form of work. In order to reproduce images for patrons, the library must fall back on Section 107, the fair use provision. Most university library Special Collections departments provide copies of works in accordance with this doctrine.
a. There is no information accompanying the work or image or the information is incomplete or leads to a dead end. Does that make this an "orphan work"? How much research does the library have to do in attempting to locate the copyright holder?
Orphan works have been defined by the United States Copyright Office as works where "the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner." In its Report on Orphan Works compiled after voluminous written and oral testimony, the Copyright Office suggested some of the criteria that might be considered as a reasonable search, including
• the amount of identifying information on the copy of the work itself, such as an author's name, copyright notice, or title;
• whether the work had been made available to the public;
• the age of the work, or the dates on which it was created and made available to the public;
• whether information about the work can be found in publicly available records, such as the Copyright Office records or other resources;
• whether the author is still alive, or the corporate copyright owner still exists, and whether a record of any transfer of the copyright exists and is available to the user; and
• the nature and extent of the use, such as whether the use is commercial or noncommercial, and how prominently the work figures into the activity of the user.
The oral and written testimony of libraries and library associations support the notion that most works contained in Special Collections lack sufficient identifying information and would fall within the definition of orphan works. At this point, a copy for the patron is usually made, especially considering the lack of a market to effect.
2. Can the library make copies of its Special Collections works for preservation purposes?
Yes, under Section 108(b) the library can make three copies of an unpublished work in its collection for preservation purposes, with the caveat that if the work is preserved in digital format, it cannot be made available to the public in that format outside the premises of the library. The library can also copy an entire published work under Section 108(c) as long as the work qualifies as damaged, deteriorating, lost, stolen, or in obsolete format, as long as an unused replacement is not available at a fair price. Additionally, the prohibition against make the digital copy available outside the premises applies here as well. These requirements may or may not work for Special Collections depending on the uses it has in mind. If not, the recourse is, once again, fair use.
3. Can the library use Special Collections works in an exhibit in the library? This might include enlarging the works, including them in advertising brochures, outside banners, flyers, and a catalog.
Section 109(c) allows the owner of a particular copy lawfully made under this title, or any person authorized by such owner to, without the authority of the copyright owner, display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. This section, then, would seem to allow the library to present original Special Collections materials in a physical library exhibit. It would not, however, seem to directly authorize the reproduction and enlargement necessary to create banners or flyers or the reproduction inherent in placing the image in a catalog of the exhibit. Presuming that all of these activities are not designed to generate moneys beyond cost-recovery, legal counsel could turn, once again, to a good faith reasonable fair use analysis and legitimately conclude that these activities, particularly with respect to orphan works, were within fair use.
4. The library has incurred significant expense in digitizing its Special Collections materials. Is it permitted to place its own copyright notice on the newly digitized work?
The purpose behind the digitization of Special Collections material is to produce a copy as nearly exact to the original as possible. As such, the copy would lack sufficient originality to qualify for copyright protection. Furthermore, "production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection." Past Pluto Productions v. Dana, 627 F.Supp. 1435, 1441 (S.D.N.Y. 1986) (citing L. Batlin & Son, Inc., 536 F.2d at 491)). Accord, Durham Ind., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980) Although there are some libraries that engage in this practice, it is likely unsupported by the law.
5. The library would like to mount an online exhibit of Special Collections material that it has digitized. This exhibit would be openly available to the public, similar to the onsite library exhibits. Is this ok?
There are no specific exemptions in the Copyright Act that would authorize this activity except for Section 107, fair use. Each potential exhibit would have to be analyzed for specific copyright holders as well as possible trademark issues and issues of invasion of privacy. Having said that, there are dozens and dozens of online Special Collections exhibits all across the country. Undoubtedly, most contain large chunks of orphan works or works authorized by the donor or even works in the public domain, but many do not. You will need to determine best practice standards for your own library.
6. Should the Special Collections homepage or online exhibit sites contain a disclaimer and/or terms and conditions of use?
It couldn't hurt. At the NCSU Libraries, use the following disclaimer on our web site.
7. Are terms and conditions on the Special Collections web site enforceable?
The law concerning the validity or enforceability of click-through (sometimes called click-wraps) licenses is still evolving, although they are more likely to be upheld if the following conditions are present. These conditions were compiled by the Working Group on Electronic Contracting Practices from the Business Law Section of the American Bar Association in 2001. The conditions included: the opportunity to review the terms, the display of the terms, a clear method for acceptance of rejection of terms, an opportunity to correct errors, and the ability to prove assent through maintenance of records.
Terms and conditions that merely reside on a site and that do not require any particular action of assent or rejection are called "browse-wrap" licenses. Are these enforceable? The cases in this area are few, divided, and limited to their facts. Two early cases upholding the enforceability of a browse-wrap agreement involved the unsympathetic practice by one commercial entity of methodically "screen scraping" information from the site of its competitor. On the other hand, a leading case rejected the validity of a browse-wrap agreement where the individual sued was invited by the site in question to download software. The opportunity to download came at a point of the Web page where the otherwise inconspicuous terms and conditions link was not even visible without scrolling.
Analyzing and extrapolating from these cases, the ABA working group has suggested the following practices to increase the likelihood of a browse-wrap agreement's enforceability.
• Provide the user with adequate notice of the existence of the proposed terms,
• Give the user a meaningful opportunity to review the proposed terms,
• Provide the user with adequate notice that taking a specified action (like use of the site) manifests assent to the terms, and
• The user takes the action specified in the notice.
8. Suppose the patron obtains the image from our Special Collections and uses it in an inappropriate way - sells it on e-bay, makes a commercial use, etc. Is the university liable?
This is a fairly common question without a clear answer. Since the university is presumably behaving within the law (no direct infringement), the liability would come in the form of vicarious or contributory liability. It might be difficult for a plaintiff to prevail on a vicarious theory, since the university is not making money from the alleged bad behavior. As for contributory, it is hard to see how we can control the behavior of patrons after they have left with the image. The university has neither the right nor the ability to control in this situation.
9. The patron requesting a copy of some of the Special Collections materials is also requesting permission to publish it or make some other use of the work. Can the library grant permission?
Probably not, under most circumstances. In most cases, the library will be unable to ascertain the copyright holder, but suspects that the university does not hold the copyright. One cannot grant permission if one is not the copyright holder or licensed by the copyright holder to do so. Even if the university is the copyright holder, the library will need to send the patron or his or her request to the individual on campus with the authority to grant permissions to use university held copyrighted materials.
10. Our art and architecture departments have large numbers of 35 mm slides that they have been collecting and using over the years for teaching purposes. They now want the library to digitize these slides and make them available for teaching. Many of the slides were copied out of books but there are no records of which books were used. Can they do it?
This is a very difficult but common question. It isn't always clear that the initial 35 mm slides were lawfully made and no the next step -digitization- is being contemplated. However, it is a common practice and way of teaching in these fields.
First of all, Section 110(2), the TEACH Act , will solve this problem for images being used in online courses but it will not address the notion of a library collection of such images. Section 107, fair use, is the best option in this situation but will require significant analysis of each slide to be placed in the collection. I may also e advisable to purchase those images that are now available in digital form, if possible. Some libraries have opted to create a searchable online index of thumbnails to show what is available in the 35 mm collection, relying on the law resolution of the thumbnail and the transformative nature of the index.
11. The library wants to hire an outside photographer to take pictures to accompany and complement the exhibit of Special Collections materials. What must they do to ensure that the university will hold the copyright to these pictures?
The outside photographer is an independent contractor and will be considered to hold the copyright in his/her photographs, unless a contract that includes a work-for-hire clause is included.
12. Our Special Collections department is beginning an oral histories project. The Special Collection librarian has scripted questions to ask the individuals providing the oral histories. The library wants these recordings to be freely accessible and downloadable. Who is the copyright holder if the library does all the recording?
The library would not be the copyright holder simply because they pushed the record button, even if it were done under the authority of the individual providing the content. The real creator or author here is the person telling the oral history and they would be the copyright holder, absent some kind of copyright assignment to the university. It is also possible that the university would be a joint holder, depending on the originality of the script or questions they provide.