Copyright Law for Librarians and Educators

Creative Strategies and Practical Solutions

Kenneth D. Crews

• Publisher: ALA Editions
• Year: 2020
• Print ISBN:
  9780838916292
• eBook ISBN:
  9780838946916
• Topic: Languages & Linguistics
• Subtopic: Library & Information Science
• Index: Languages & Linguistics

Copyright law never sleeps, making it imperative to keep abreast of the latest developments. Declared "an exemplary text that seals the standards for such books" (Managing Information), this newly revised and updated edition by respected copyright authority Crews offers timely insights and succinct guidance for LIS students, librarians, and educators alike. Readers will

• learn basic copyright definitions and key exceptions for education and library services;
• find information quickly with "key points" sidebars, legislative citations, and cross-references;
• get up to speed on fresh developments, such as how the recently signed Marrakesh Treaty expands access for people with disabilities and why the latest ruling in the Georgia State University case makes developing a fair use policy so important;
• understand the concept of fair use, with fresh interpretations of its many gray areas that will aid decision making;
• learn the current state of affairs regarding mass digitization, Creative Commons, classroom use and distance education, the Digital Millennium Copyright Act, and other important topics;
• receive guidance on setting up on a copyright service at a library, college, or university; and
• find many helpful checklists for navigating copyright in various situations.

This straightforward, easy-to-use guide provides the tools librarians and educators need to take control of their rights and responsibilities as copyright owners and users.

PART I

The Reach of Copyright

THIS SINGLE photograph tells much about the scope and reach of copyright. Architectural works are protected, but only since 1990. Text, art, and the photograph itself are more conventional stuff of copyright protection. Each copyrighted element has a different owner, enjoys a different duration, and is subject to different exceptions. Featured prominently is an exhibition of works by Jeff Koons, who has relied heavily on fair use and the American court system as he integrates existing features into his new and creative art.

CHAPTER 1

THE COPYRIGHT MAP

Changing Needs and Copyright Solutions

THE CHAPTERS OF this book offer a systematic walk through the principles and functioning of copyright law. Although the journey may be rough at times—thanks to a law that does not always follow the most graceful path—the expedition should be intellectually engaging as well as practical. Indeed, working with copyright law in the context of applied situations is less of a quest for “answers” than it is a path that takes you toward a resolution, or at least an informed decision, about individual aspects of copyright.

THE GPS OF COPYRIGHT

No journey is successful without a trail map, and you can easily make strides in the wrong direction. Thinking of this book as a map, you can see that it starts with the fundamental concepts of copyright—the scope of works protected and how you secure that legal protection. It has a few forks in the road, such as the exploration of works that are without protection and in the public domain. The book leads you through the thicket of exceptions, especially fair use. The closing chapters give an overview of special demands along the route when you are working with music, manuscripts, and other works that carry their own challenges.

Now study the map and path from a different perspective. Each step along the way is a copyright discussion—a chapter or more from this book. But as you become more familiar with copyright, you will move quickly to the specific place where you need to focus your energies. Fair use, for example, might in general be an alluring route, but it might not really be the copyright issue at the center of your concern or that really resolves your need. Spotting the right issue is crucial.

Maybe this book is more like GPS than a common map. The navigation system on your mobile phone or car’s control panel can pinpoint your current location and indicate where you might be headed. It can also help you reconsider and get you back to the right road. When the rules of copyright duration draw you deep into the quandaries of foreign publications and presidential proclamations, you might hear that consoling digital voice telling you it is time to recalculate. When the convolutions of music law clash with the intransigence of the law for distance education programs, you might see yourself at something of a dead end. Just as you need a map to take you someplace, you need wise counsel to recalculate a different plan. Like GPS, too, you are always pinpointed right in the center of activity, and you can recalculate when you miss a turn.

THE MOST COMMON QUESTION

Consider one of the most common copyright questions. You, or a colleague, are working on a project that involves the reproduction or other use of a book, film, song, or other work created by someone else. Too often the first copyright question is often simply phrased, Is this fair use? If you take the question at face value and go straight to analyzing fair use, you might quickly find yourself on a steep and rutted road, edged with the briars and thorns of a strangely haunting and alluring law.

On the other hand, by reflecting on the entire copyright trail and planning the trip more systematically from the beginning, you might find various stops along the way that give you a better, more direct, and even easier answer than you would find by starting with fair use. You might determine one of the following:

• ▪ The work in question is not protected by copyright at all. It may be a work of the federal government, or the copyright may have expired.
• ▪ The use is not among the protected rights of the copyright owner. You might, for example, be making a private performance of music, while the owner has rights only with respect to public performances.
• ▪ The intended use is within another statutory exception in the Copyright Act. If you can fit your use within one of the detailed provisions for classroom use, library copying, or backing up software, you will probably find a more satisfactory answer than you will with fair use.

Any one of those possibilities is a clearer and more secure answer than you will likely find with fair use. This book should accordingly help you see the issues and possibilities of copyright unfold systematically as they apply to your real needs. You should also see how the issues change with the growing innovation and complexity of education, research, and technology.

Signs along the hiking trails of the Swiss Alps open a variety of options, each posing its own challenges and rewards.

THIS BOOK AS MAP

That foregoing list of possibilities reflects some of the construct of copyright itself, as well as the basic outline of this book. The book is often conceived as a practical map for applying the law to given situations. The examples in this chapter alone will make that point repeatedly. However, the full map is not always essential, and at times you will want to skip a thorough and systematic route and just get to the major obstacle between you and the end result. Consider this familiar question: Does copyright allow the library to make digital copies of journal articles to give to users for their personal study?

A full copyright map would start at the beginning and consider whether the works are still under copyright protection, whether you have identified the copyright owner, whether the uses potentially infringe, and more. Many libraries might for the sake of efficiency identify the major issue as an application of Section 108 of the Copyright Act on copies for personal study (see Chapter 17). Of all the copyright issues in this example, the Section 108 question possibly offers the greatest level of efficiency in clearing the use of textual materials, such as journal articles. If this library service fits within Section 108, then all other issues are moot. Resolving the Section 108 question can also get you to an end result, whereas resolving the question of copyright duration still leaves the Section 108 matter ahead on the trail.

SPOTTING COPYRIGHT ISSUES

This book is about law, but the real subject is teaching, research, innovation, and other spirited pursuits of educators and librarians. Because these pursuits regularly involve creating and using copyrighted works, the legal issues steadily arise. The issues change and grow with each new variation on each situation. Change the materials you might be using, or change the method or circumstances of their use, and you may well encounter a different set of issues and possibly different outcomes under the law.

Notice that this book is exploring issues and not necessarily problems. Not all copyright questions are problems. In fact, some copyright questions are relatively easy, and many lead to good news. For example, copyright law broadly permits some uses of works in the classroom, and it provides that all works eventually enter the public domain, where they may be freely used. Other questions are tougher, and not all will lead to a satisfactory conclusion. But as someone seeking to enjoy the benefits of the law, you will need to take a little time, learn a bit about the law, and make a determination about whether you are working within the terms and boundaries of the rules. Reading this book should be a great stride in that direction.

Let’s start the journey. Throughout this book you will find a variety of cases, examples, and scenarios intended to reveal the practical application of copyright law in ways that are relevant to educators, librarians, researchers, and others. Before delving deeply into the chapters and details of the rest of the book, a familiar and evolving scenario can provide a meaningful introduction as well as a map through the upcoming chapters.

TAKE ME TO THE MOVIES

Begin the scenario with simple and familiar facts. With each additional fact will come new questions about copyright, and the Issues will highlight key points and lead you to chapters in this book for more information and guidance.

Scenario Installment A

You teach a college course on English literature, and you ask your students to buy and read the book Pride and Prejudice.

One of the curses of copyright is that you start to see issues everywhere. In even the simplest situation you have copyright questions—at this stage you have only issues or questions, not problems. You are proposing nothing that will violate the law, but to get to that conclusion systematically and accurately, you have to sort through a few copyright issues.

ISSUE A1: Is the book protected by copyright?

• ▪ Chapter 4 makes clear that most such original works are protectable under copyright.
• ▪ Chapter 6 surveys the law of copyright duration, and a book that was first published in 1813 is surely in the public domain.

ISSUE A2: Assuming the work were still protected, would buying or reading a copy be a violation of copyright?

• ▪ Chapter 8 surveys the rights of copyright owners, and simply reading a book is not on the list. On the other hand, the legal rights under copyright include the rights of distribution of copies, so the bookstore may be infringing with each sale.
• ▪ Chapter 9 is an overview of exceptions to the rights of owners, and the first sale doctrine is a major limit on the distribution rights, enabling bookstores to sell copies and libraries to check out books and more.

Scenario Installment B

To give your students a different understanding of the story, you would like to show the recent film version of Pride and Prejudice to the entire class.

ISSUE B1: Is the motion picture protected by copyright?

• ▪ Chapter 4 emphasizes that copyright protects an extensive range of materials, including text, sound recording, images, software, and movies.
• ▪ Multiple adaptations generally based on Pride and Prejudice have been turned into motion pictures through the decades. Chapter 6 explains that each of these films, whether produced in 1940 or just r...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Introduction: This Book and the Importance of Copyright
• Part I: The Reach of Copyright
• Part II: Rights of Ownership
• Part III: Fair Use
• Part IV: Focus on Education and Libraries
• Part V: Special Features
• Appendix A. Selected Provisions from the U.S. Copyright Act
• Appendix B. Copyright Checklist: Fair Use
• Appendix C. Copyright Checklist: The TEACH Act and Distance Education
• Appendix D. Copyright Checklist for Libraries: Copies for Preservation or Replacement
• Appendix E. Copyright Checklist for Libraries: Copies for Private Study
• Appendix F. Model Letter for Permission Requests
• About the Author
• Index