Whitaker Library Copyright Policy
Effective July 25, 2000
I. Introduction, explanation of copyright (back to the top)
A. What is copyright?
Copyright is the author/creator's legally secured right to copy, publish, and sell the substance and form of his literary, artistic, or musical work(s). It is based on the U.S. Constitution, article I, section 8, clause 8: "The Congress shall have Power… To promote the Progress of Science and useful arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This means that except for certain exceptions and exemptions noted below, people wanting to make or use a copy of a work must get permission from the copyright holder to do so.
B. What can be copyrighted?
Almost anything that involves some originality or creativity and is fixed in some tangible medium can be copyrighted. It cannot be a theme, idea, or fact – only the substance or form surrounding those. (102b)
Categories of protectable works are:
- literary works (including databases, software, and web pages);
- musical works;
- dramatic works;
- pantomimes and choreographic works;
- pictorial, graphic and sculptural works (including fine art, graphs, charts, maps, scientific models, and consumer products with designs, like china patterns, dolls, game boards, and fabrics);
- motion picture and other audiovisual works;
- sound recordings;
- and architectural works. (102a)
Note: Notice of copyright is currently NOT REQUIRED. Works should be assumed to be copyrighted unless specifically noted otherwise. (Things published under earlier laws may have required notice; see attached public domain chart.)
C. Who is the copyright holder?
The author/creator of a work is normally the copyright holder, although in many cases, an author is required to turn over some or all rights to a publisher. In those cases, the publisher would be who to contact for permission to copy.
D. What are the rights guaranteed to the copyright holder? (106)
(Note: previous two are often transferred by authors to publishers to allow publishers to publish)
- Adaptation – to prepare derivative works (translation, musical arrangement, dramatization, etc)
- Digital performance of sound recordings
(Note: previous six rights are listed in section 106 of law – run for the whole term of copyright)
(Note: next two rights are listed in section 106A, pertain only to works of visual art (painting, drawing, sculpture or photo – not film), and only pertain during the life of the author.)
- Attribution – keep the artist's name with the work
- Integrity – not altering the work, or right to demand the artist's name taken off if item has been altered. (Or not including name on something artist did not create.)
E. How long are works copyrighted? When do works enter the public domain?
Under the current law, the term of copyright is life + 70 years for a personal author (if a work has more than one author, use the last death date); or 95 years from publication or 120 years from creation (whichever is greater) for a corporate author. For works published earlier under earlier laws, see the attached public domain chart. (http://www.unc.edu/~unclng/public-d.htm) Note: this term refers only to the six main rights. Two other rights pertaining to visual art works (attribution and integrity) are only for the life of the artist. Once the copyright term is over, works enter the "public domain," and may be copied in whole or part without permission or paying royalties.
II. Exceptions to Copyright Law: Fair Use and the Library Exemption (back to the top)
A. What is public domain? When do works enter the public domain?
"Public domain" refers to works that are available for copying and use without requiring any permission or payment of royalties, usually because the term of copyright has run out. In addition, some works are automatically in the public domain, particularly those published by the federal government, with the exception of some privatized grant reports, etc. Also, under some earlier laws, copyright notice was required, and if not given, the work was considered to be "dedicated to the public," and in the public domain from the beginning.
The attached public domain chart shows when items reach this stage. (http://www.unc.edu/~unclng/public-d.htm)
B. What is fair use? What determines fair use?
"Fair use" refers to the ability to use copyrighted works without the copyright holder's permission, for "purposes such as criticism, comment, news reporting, teaching, scholarship, or research". This is governed by section 107 of the copyright law, and refers to anyone who wishes to make a copy.
Four factors need to be considered to determine whether a use is "fair:"
- Purpose and character of use – things like scholarship versus commercial use, usefulness of use – i.e. not just for resale.
- Nature of the copyrighted work – facts versus form of expression, entertainment versus scholarly? Some things like standardized tests have no fair use, because they are meant to be consumed.
- Amount and substantiality used – both qualitative and quantitative – "heart of the work"
- Market effect – value of work, and is value diminished by copying?
Guidelines for multiple use classroom copying and reserves also fall under this clause, although classroom copying is not discussed here as it does not fall under library jurisdiction. An "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals" has been formed between educational organizations and publishing organizations to provide equitable guidelines for classroom copying.
C. What is the library exemption?
Section 108 of the copyright law establishes the right of a library or archives to make one copy (except for preservation) and distribute it if:
- No profit is gained (cost-recovery ok)
- The collection is open to public or researchers (including ILL)
- The copy contains notice of copyright.
In addition, a library or archives can make up to three (3) copies (ever) of a(n):
1. Archival/unpublished work if for preservation and security and
a. the work is currently in collection, and
b. the copy does not leave library premises
2. Published work for replacing damaged, stolen, deteriorating, lost works, or obsolete formats if:
a. an unused replacement cannot be obtained at a fair price, and
b. the copy does not leave library premises, and
c. "obsolete format" means that the machine or device necessary to read/use the work is no longer manufactured or reasonably available.
D. First Sale Doctrine
Section 109a of copyright law establishes that if someone has legally acquired a copy of a work, they have the right to further sell/dispose/use/display the work without paying further royalties or seeking permission. This is what allows libraries to circulate materials.
III. Library-specific information (back to the top)
A. Unsupervised Copy Equipment
Libraries are protected from liability of users of unsupervised copy/reproduction equipment provided that a notice regarding copyright is posted, except if library/staff are aware of violations by themselves or users. The notice should be on any machine that can reproduce, including photocopiers, scanners, and microform printers. (Computers and monitors technically reproduce documents and web pages as a condition of their existence, so these could go either way; this has not specifically been addressed.)
Note: There is also a section on copying at the requests of users; this is not addressed here because library staff so seldom do it.
B. Interlibrary Loan
Cooperative lending of copies between libraries is allowed by copyright law provided that it does not include "such aggregate quantities as to substitute for a subscription to or purchase of a work." Congress appointed the National Commission on New Technological Uses of Copyrighted Works (CONTU) to address this issue, among others. Whitaker Library will follow CONTU's guidelines. While they are not law, they carry a great deal of weight because they were congressionally commissioned and published as a report along with the law.
The guidelines include the "suggestion of five," up to five articles published within the last five years from a periodical title may be requested without paying royalties or seeking permission. Upon the request for a sixth article from that title, Whitaker Library staff will check the Copyright Clearance Center (CCC) for royalties required. Any fees required shall be passed back to the requesting patron, who will have the privilege to decline the fees and withdraw the request. At the same time, Whitaker Library may consider the title for addition to its own collection based on evidence of use.
Copying for the purpose of placing a copy on reserve would normally fall under the same guidelines as those for copying for classroom use, as the reserve collection is seen as an extension of the classroom. The "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals" between publishers and education organizations does not specifically address reserves, however, so the American Library Association published the Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use, March, 1982. Generally the factors relating to fair use copying for classroom use would also apply to reserves. In addition, the library should also consider brevity of the work copied, spontaneity (i.e. is there enough time to get permission?), cumulative effects, notice of copyright, and that there should be no charge beyond the cost of copying.
Whitaker Library will use the ALA Library Reserve Guidelines, which are taken from the Model Policy mentioned above. While these are not law, they have never yet been tested in court. By sheer precedence of allowing them to stand for twenty years, publishers seem to have indicated their acceptance of these guidelines. According to the guidelines, one copy of any article, book chapter, or poem may be placed on reserve for the length of the course. In addition, multiple copies may possibly be placed on reserve provided that the following criteria are also considered:
- the amount of copied material to be placed on reserve relative to the total amount of material required for the course
- the number of copies relative to the number of students in the course
- the effect on the market for the work (the library should own the work and will attempt to acquire it.
In NO case should the same copied material be placed on reserve by the same professor more than one time without permission, simply because the placement a second time can no longer be considered a spontaneous decision. In ALL cases, copies placed on reserve should contain a notice of copyright. Whitaker Library will take care of seeking copyright permission for copies placed on reserve beyond a single semester, first by asking the publisher, and secondly by checking the Copyright Clearance Center (CCC) if necessary. However, any charges or royalties required must be paid out of the departmental budget or by the professor. Copies without copyright permission will NOT be placed on reserve.
Note: These reserve guidelines address copies only. Books owned by Whitaker Library or faculty do not pose a problem. In addition, if the copies are of works on which the requesting professor holds the copyright, such as tests or class notes, there is also no problem.
WHEN WORKS PASS INTO THE PUBLIC DOMAIN (back to the top)
Includes material from new Term Extension Act, PL 105-298
DATE OF WORK
Created 1-1-78 or after
When work is fixed in tangible medium of expression
Life + 70 years1
(or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
Published before 1923
In public domain
Published from 1923- 63
When published with notice3
28 years + could be renewed
Published from 1964-77
When published with notice
28 years for first term; now
Created before 1-1-78 but not
1-1-78, the effective date of
Life + 70 years or 12-31-2002,
Created before 1-1-78 but published between then and
1-1-78, the effective date of
Life + 70 years or 12-31-2047
- Term of joint works is measured by life of the longest-lived author.
- Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. § 302(c).
- Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if, e.g., registration was made within five years. 17 U.S.C. § 405.
Notes courtesy of Professor Tom Field, Franklin Pierce Law Center
© LOLLY GASAWAY, 2000 Last updated 10-9-99
ILL Guidelines (back to the top)
The point has been made that the present practice on interlibrary loans and use of photocopies in lieu of loans may be supplemented or even largely replaced by a system in which one or more agencies or institutions, public or private, exist for the specific purpose of providing a central source for photocopies. Of course, these guidelines would not apply to such a situation.
GUIDELINES FOR THE PROVISO OF SUBSECTION 108(g)(2)
1. As used in the proviso of subsection 108(g)(2), the words "…such aggregate quantities as to substitute for a subscription to or purchase of a such work" shall mean:
- with respect to any given periodical (as opposed to any given issue of a periodical), filled requests of a library or archives (a "requesting entity") within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request. These guidelines specifically shall not apply, directly or indirectly, to any request of a requesting entity for a copy or copies of an article or articles published in any issue of a periodical, the publication date of which is more than five years prior to the date when the request is made. These guidelines do not define the meaning, with respect to such a request, of "…such aggregate quantities as to substitute for a subscription to [such periodical]."
- With respect to any other material described in subsection 108(d), (including fiction and poetry), filled requests of a requesting entity within any calendar year for a total of six or more copies or phonorecords of or from any given work (including a collective work) during the entire period when such material shall be protected by copyright.
2. In the event that a requesting entity –
- shall have in force or shall have entered an order for a subscription to a periodical, or
- has within its collection, or shall have entered an order for, a copy or phonorecord of any other copyrighted work, material from either category of which it desires to obtain by copy from another library or archives (the "supplying entity"), because the material to be copied is not reasonably available for use by the requesting entity itself, then the fulfillment of such request shall be treated as though the requesting entity made such copy from its own collection. A library or archives may request a copy or phonorecord from a supplying entity only under those circumstances where the requesting entity would have been able, under the other provisions of § 108, to supply such copy from materials in its own collection.
3. No request for a copy or phonorecord of any material to which these guidelines may apply may be fulfilled by the supplying entity unless such request is accompanied by a representation by the requesting entity that the request was made in conformity with these guidelines.
4. The requesting entity shall maintain records of all requests made by it for copies or phonorecords of any materials to which these guidelines apply and shall maintain records of the fulfillment of such requests, which records shall be retained until the end of the third complete calendar year after end of the calendar year in which the respective request shall have been made.
From Guidelines by CONTU – National Commission on New Technological Uses of Copyrighted Works - appointed by Congress.
Library Reserve Guidelines (back to the top)
At the request of a faculty member, a library may photocopy and place on reserve excerpts from copyrighted works in its collection in accordance with guidelines similar to those governing formal classroom distribution for face-to-face teaching discussed above. This College believes that these guidelines apply to the library reserve shelf to the extent it functions as an extension of classroom readings or reflects an individual student's right to photocopy for his personal scholastic use under the doctrine of fair use. In general, librarians may photocopy materials for reserve room use for the convenience of students both in preparing class assignments and in pursuing informal educational activities which higher education requires, such as advanced independent study and research.
If the request calls for only one copy to be placed on reserve, the library may photocopy an entire article, or an entire chapter from a book, or an entire poem.
The negotiated safe-harbor guidelines for classroom uses are in many ways inappropriate for the college and university level. "Brevity" simply cannot mean the same thing in terms of grade-school readings that it does for more advanced research. Because university professors were not specifically represented in the negotiation of the classroom guidelines, ALA published Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use (the "Model Policy").
In general with respect to classroom uses, the standard guidelines should be followed:
- The distribution of the same photocopied material does not occur every semester.
- Only one copy is distributed for each student.
- The material includes a copyright notice on the first page of the portion of material photocopied.
- The students are not assessed any fee beyond the actual cost of the photocopying.
Requests for multiple copies on reserve should meet the following guidelines:
- The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course taking into account the nature of the course, its subject matter and level, 17 U.S.C. § 107(1) and (3).
- The number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same material, 17 U.S.C. § 107(1) and (3).
- The material should contain a notice of copyright, see, 17 U.S.C. § 401.
The effect of photocopying the material should not be detrimental to the market for the work. (In general, the library should own at least one copy of the work.) 17 U.S.C. § 107(4).
From: ALA Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use, March, 1982.
* Without permission.