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Copyright in the LibraryLibrary Reproduction: Unsupervised Copying, News Programs, and Contractual Limitations on Acquisitions |
Section 108(f)(1) relieves the library of responsibility for unsupervised patron use of copying equipment located in the library so long as the library displays a notice that making copies may be subject to copyright law. Unlike the form of warning for patrons who request that the library make a copy for them, no particular form of notice that must be placed on or near copy stations is mandated. Following is the form of warning that the University of Texas System suggests in its Policy on Copying Copyrighted Materials. Note that it covers computer reproduction as well as photocopying.
"Copyright Notice"
"Copying, displaying and distributing copyrighted works, may infringe the owner's copyright. The University of Texas System's policy statement on "Fair Use of Copyrighted Materials" can help you determine whether your use of a copyrighted work may be an infringement. Any use of computer or duplicating facilities by students, faculty or staff for infringing use of copyrighted works is subject to appropriate disciplinary action as well as those civil remedies and criminal penalties provided by federal law."
Section 108(f)(3) permits libraries to make a limited number of copies of audiovisual news programs. Unlike other sections of the law that permit copying for patrons, section (f)(3) does not require that the copy become the property of the patron, so the library can retain and lend its copies. Audiovisual news programs include local, regional and national network newscasts, interviews concerning current events and on-the-spot news coverage of news events. The provision was not, however, intended to apply to news-magazines and documentaries.1
Section 108(f) (4) states that nothing in that section affects any contractual obligations "assumed at any time by the library or archives when it obtained a copy or phonorecord in its collection." This is generally understood to mean that libraries can contract away their rights under Section 108 as they might, for example, in acquiring private manuscripts or electronic databases. But, it is not clear whether any contract that limits a library's rights under Section 108 must be made at the time of acquisition of the materials, in order to be effective, or whether commitment to contractual limitations long after acquisition of works is enforceable. This is because the statute uses the words "assumed at any time" to describe the library's contractual obligations and then immediately follows those words with "when it obtained a copy or phonorecord in its collection." So, which is it?
It probably makes more sense to read the statute as requiring that Section 108 rights only yield to contractual obligations assumed at the time of acquisition.
Even if a contract eliminates the library's rights under Section 108, the bigger controversy is whether libraries may contractually eliminate either their own or their patrons' fair use rights. For example, a database license may (i) require the library to prevent patrons from making copies by requiring the library to post a notice that copying is prohibited; (ii) prohibit the library's making a reserve copy or (iii) require that permitted copies include a notice that further copying is prohibited. Would these prohibitions and requirements have any legal effect upon a patron's right to make copies under Section 107? The patron, after all, is not a party to the contract and even a vociferous copyright notice should not unilaterally extinguish a statutory privilege like fair use that embodies a fundamental principal of copyright law.2
Some librarians may feel that compliance with a requirement to restrict fair use copying makes the library an agent of the vendor against its patrons, or at the least, a participant in the dissemination of misinformation if such prohibitions cannot really be enforced.3 Fortunately, libraries can avoid this unwanted result by careful attention to contracts with publishers: be sure that nothing in a contract between a library and an information provider affects a patron's or the library's right of fair use.4
1 Report of the Conference Committee on the new copyright law (H.R. Rep. No. 94-1733, page 73).
2 A quick check of copyright notices, especially on serial publications, would lead most any reader to believe that she had absolutely no right to make any copies at all. But fair use removes any requirement to ask for permission and any liability for infringement. So, a unilateral attempt to exterminate fair use appears to do no more than intimidate.
3 Regarding enforceability, it is important to distinguish
While one sided copyright notices and limits on a third party's rights are not enforceable, the other two may be.
Shrinkwrap licenses have done well in the courts recently (ProCD v. Zeidenberg), but enforcement was on the horizon even without the help of the courts: the draft Uniform Computer and Information Transactions Act would legitimize shrinkwraps in any state that adopts it. This requires the research/library community to step up efforts to affect the terms of shrinkwrap licenses.
Aside from shrinkwraps, parties mutually agree (that is, contract) about many aspects of copyright law every day, but may they agree to waive the right of fair use? Would courts enforce a contract in which a scholar agreed to forego her right to quote from or make a copy of a scholarly article accessed through a university database for the purpose of private study, research or scholarship?
A court could address this issue by interpreting prohibitive language like "may not make, store or transmit copies..." to apply only to infringing copies. In effect the court would read the word "infringing" into the sentence itself.
Following another approach, enforcement would depend on whether "federal preemption" applied. Copyright law is federal law and whenever a state law (like contract law) concerns itself with essentially the same issues as federal law, and the two schemes conflict in some important way, only one can be enforced. In this case the contract described above gives the copyright owner more rights than provided by the federal scheme for protection: federal law says readers do not need permission to quote others' works or make a fair use copy; the contract says the reader does need permission, and permission is denied. The federal law will usually prevail when the state law conflicts with the intent of the federal law or interferes with or hinders important purposes or policies of the federal law. The balance between the rights of users and copyright owners embodied in the fair use principle is certainly an important purpose of copyright law.
Still, the ability to order our lives through contracts is very important too. Which is more important? Would the courts conclude that scholars' and scientists' freedom to use scholarly articles for research purposes without seeking permission is more important than freedom of contract? If so, the court would not enforce state laws supporting a contract that denies fair use. Such a contract would be preempted by the copyright law.
On the other hand, if getting permission is very easy, and permission fees are reasonable, would the courts conclude that a contract that denies fair use might not materially hinder the objectives of copyright law? The Second Circuit's decision in Texaco and the Seventh Circuit's decision in ProCD both suggest this result. But neither of these cases dealt with nonprofit educational fair uses such as scholarly commentary or research copies on University research and academic campuses. Both defendants were commercial enterprises. This important distinction makes it difficult to guess the result if a University or its library were sued by a database supplier over a contract that claimed to eliminate fair uses.
4 Avoid ambiguity as well as express prohibitions. If a contract is unclear about what patrons can do, insert language such as the following to clarify patron rights: "All transmitting, printing or downloading by Authorized Users shall be limited to making single copies of a reasonable number of individual articles or other items from the Materials for their personal, educational, research or scholarly use."
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