Fair Use Issues for Librarians

FAIR USE ISSUES FOR LIBRARIANS

From The Librarian’s Guide to Intellectual Property in the Digital Age: Copyrights, Patents, and Trademarks by Timothy Lee Wherry. Copyright, 2002 by the American Library Association.

In the current environment, librarians are faced with myriad issues concerning materials that are digitized. The best way to explain fair use for librarians is to look at specific examples of situations in which librarians may find themselves. There are several important points to keep in mind. The first point is that although fair use is involved in many library copyright situations, licensing and contract law also come into play because many of the digital products libraries use are purchased through a contractual agreement with a vendor. The second important point is that the Digital Millennium Copyright Act (DMCA) affects librarians if the library is acting as an Internet service provider (ISP). An ISP is an entity that provides the technology that allows users to exchange information electronically or to share files. America Online (AOL), for example, is an ISP. The best way to determine if a library is an ISP is to look at the URL (uniform resource locator). If the Web address is the library itself, the library is the ISP. If the library is only one location on a university or community domain, the library is not the ISP.

The Fair Use List of Factors

The chart shown in figure 3.1 may assist librarians and educators in making decisions on whether fair use is permissible in a given situation. This list may be used for any consideration of fair use, whether it involves digital media or other formats. The list may be considered a balance sheet in that the selection of one favorable item or one unfavorable item does not in itself permit or exclude fair use, but rather points to the pros and cons of a given situation. The final decision still rests in the hands of the educator or librarian.

Passing into the Public Domain

The one sure way to determine whether a work can be used under fair use guidelines is to determine whether the copyright on the work has expired. This is referred to as passing into the public domain. Two issues must be considered when determining whether a work is in the public domain.

FIGURE 3.1

Fair Use Factors

Fair Use Would Be Permitted If the Purpose Is:

Educational

Nonprofit

News

Criticism

Parody or Satire

“Transformative”

Fair Use Would Not Be Permitted If the Purpose Is:

Commercial

For Profit For

Entertainment

Fair Use Would Be Permitted If the Nature of the Work Is:

Published

Nonfiction

Fair Use Would Not Be Permitted If the Nature of the Work Is:

Unpublished

Creative (e.g., music or film)

Fiction Fair Use Would Be Permitted If the Amount Used Is:

Small

Central to the work

Fair Use Would Not Be Permitted If the Amount Used Is:

Large

Not central to the work

Fair Use Would Be Permitted If:

The work is lawfully acquired (i.e., purchased)

There is no way to obtain permission

Few copies are available

There is no impact on profit

No similar product is available

Fair Use Would Not Be Permitted If:

Numerous copies are made

There is repeated use

The profit of the copyrighted work is affected

The work is easily licensed

The work is available on the Internet

First, although a work is very old, the copyright date on the work itself must be checked. For example, Tom Sawyer was published in 1869. Clearly there should be no copyright protection on this work because it is over 130 years old. But there is. Publishers can release a reedited version of a work or a version that is annotated or in paperback or one that has text that makes it different from the original. In this way the reedited or changed book can be copyrighted again with all the contents, including the text that was in the original publication, protected by a new copyright.

The second issue involves determining which of the several copyright laws the work falls under. There have been several major copyright acts in the United States in the past century, each with different periods of protection. The problem is to determine which of the protection periods applies to the work in hand. To make this determination a bit easier, figure 3.2 lists protection periods for works created under each copyright law.

FIGURE 3.2

Copyright Protection Periods

If the work was created:

Before 1923

The term of protection is:

In the public domain If the work was created:

1923–1963

The term of protection is:

28 years plus renewal for 47 years (plus another 20 years provided by the Sonny Bono Act of 1998) making total protection time 95 years. If not renewed, protection expires after 28 years.

If the work was created:

1964–1977

The term of protection is:

28 years plus renewal for 67 years

If the work was created:

1978 and after

The term of protection is:

The life of the author plus 70 years. If a work has multiple authors, the protection under the most recent law (1976) is the life of the longest-living author plus 70 years. If the author is anonymous, or if the work is made for hire, the 1976 law protects the work for 95 years from the year of first publication or 120 years from the year of creation, whichever expires first.