Fair Use and Copyright: Librarians

A student is observed at a photocopying machine, apparently duplicating his/her entire nursing textbook. How might a library respond to this?

First, is the following notice posted on all your photocopying machines?

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “Fair Use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

Not only is posting this notice mandatory, but it protects libraries from students photocopying in excess of Fair Use .

Does photocopying an entire textbook violate the principles of Fair Use?

Yes. The student is copying the entire work – not a portion or excerpt. One chapter is generally considered Fair Use . While textbooks are undeniably expensive, this unauthorized duplication undermines and hurts potential profits of textbook publishers.

When can a library make copies of an article or a small excerpt of a larger work for Interlibrary Loan?

Under 17 USCA 108(d), a library may copy an article or a small part of a copyrighted work for Interlibrary Loan if:

• The copy becomes the property of the user.
• The library is not aware that the copy is for any purpose other than private study, scholarship or research.
• The library displays a warning of copyright on its order form, and posts the warning at the place where orders are accepted.

What is the wording of the copyright warning notice?

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

The copyright law allows libraries to make up to three copies of a work for preservation purposes.

Copies can be made for works that are damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, [17 USCA 108(c)] so long as the library has determined that a replacement cannot be obtained at a fair price. A format is considered obsolete if it is no longer manufactured or is not readily available in the commercial marketplace. Such works can be in any format.

Copies can be digital, provided they are not distributed or made available to the public digitally outside of the physical library.

Placement of digital material on an internal intranet is allowed, but loading copies on the library's website where remote users could access it is not permissible. Libraries availing themselves of this exemption must: 1. be open to the public or allow them access from research purposes, 2. not derive any commercial gain, 3. own a legal copy of the original item, and 4. place a notice of copyright on the item.

Section 108 does not allow library staff to make personal copies, but such copies may come under the Fair Use provisions of section 107. There are no prohibitions if material is in the public domain or no one owns the copyright.

House Report 94-1476 notes that the preservation of motion pictures produced before 1942 by making duplicate copies for preservation certainly falls within the scope of Fair Use .

Reproduction of copyrighted videotapes may occur only to replace a work that is lost, stolen or damaged and that cannot otherwise be replaced at a fair price.

One is allowed, under 17 USCA 117, to make a copy of a computer program provided that copy is for archival purposes only or that the copy is necessary in order to run it on current equipment and is used in no other way.

Licenses take precedence over Fair Use and digital locks. Section 108 cannot be used to supersede any contractual obligation.

When preserving web pages/sites, libraries may prepare mirror versions of their websites for backup or preservation purposes, which can be backed up on a server or saved to an external CD. 

A professor requested 6 chapters from an out-of-print book be uploaded to e-reserves. The book is no longer being sold and the copies will be password-protected. Does this use require permission? 

• Establish whether the work is copyright protected and to what extent. The work may be in the public domain or have limited rights reserved.  More>>
• If the work is protected, the use must be evaluated using the four factors of Fair Use. In this case, “substantiality” and “effect on the market” are the two factors that tip the use to potentially being unfair. “Effect on the market*” is often the factor of most concern. 
• Request permission for use if, in your best judgment when applying the "four factors," you believe using the work does not fall under Fair Use.
• Password protection is in compliance with Fair Use and also useful for material that is covered by a copying license stipulating a definitive number of users.

*"Effect on the market" does not only refer to the consumer market for original works. It may also refer to the market for licensing of out of print works. In this case, the effect on licensing opportunities combined with the amount being used suggests that permission should likely be sought.

4 Factors for Fair Use Provision, U.S. Code 107

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.