Copyright in the Library Fair Use: Library Copying for Patrons and for Its Own Collection

In addition to reliance upon fair use in the Reserve Room, libraries may also rely upon fair use to make copies for patrons in those circumstances that are not covered by Section 108. Section 108(h) indicates that the copying permitted for patrons does not apply to musical, pictorial, graphic, sculptural and audivisual works (other than news programs). If a patron requests a copy of a videotape such as the musical performance discussed in Fair Use: Reserve Room Operations, Audio, Image and Audiovisual Copies, the library will have to look to the provisions of Section 107 to determine whether the copy can be made.

Libraries may also exercise fair use rights for their own benefit, just as individuals might, for example, to make a copy for the library's collection of a work that is unattainable through normal channels. Arguably, a library might even be able to build a special collection, at least partially through copies made pursuant to the fair use statute in those cases where access to original works is limited. As will be discussed later, the Second Circuit's holding in the Texaco case may affect this right, especially where the copyright owner has made it easy to license the right to make copies.

Copies for patrons not permitted under Section 108.1

It is curious that certain media are excluded from works covered by most of Section 108. The logical conclusion to draw from this is that these excluded media are subject to more restrictions on copying than the media that are not excluded (print, recordings and electronic media). This, ironically, is not the case.

Whereas the library would not be protected under Section 108 for copying a recorded musical performance for a patron, the library would be permitted under Section 107 to make the copy so long as the facts involved in the particular copying request weigh in favor of fair use. This would be exactly the same analysis that the library would apply to a reserve request. It is probably true, however, that in most cases, if the library were to consider the request for a patron copy under Section 108 and were to adhere to the limitations of subsections (d) and (e) of that Section, the resulting copying would also be a fair use under the four fair use factors analysis of Section 107. As discussed below, however, some copying that may go beyond the limits set out in Section 108 (d) and (e) and the "related or concerted" copying limitations of Section 108 (g), would be permitted under Section 107. It appears then that copying music, graphics and audiovisual programs for patrons may actually be subject to fewer restrictions by virtue of its exclusion from Section 108 than it would be if these distinctions were never made.2 The legislature probably did not intend this result but this happens from time to time, especially with statutes that are as complicated and represent as high a degree of compromise as do the library and fair use sections of the copyright law.

The "Rare Book" scenario.

Many librarians may have made a copy of a book that is very hard to find, for example, one that is out of print, or whose publisher has gone out of business, one that is not available through the commonly known trade sources and even quite rarely contained in the collections of other libraries. If the librarian were to look carefully at the requirements of Section 108, she would find that only in the case where her own collection originally contained the book but her copy were damaged, deteriorating, lost or stolen would she be protected by the provisions of Section 108 from liability for infringement in making a copy of the "rare book." The scope of Section 108 archival copying is not really so broad as many think it is.

The recent Texaco decision suggests that to the extent such copying can be characterized as archiving, the domino effect that such a characterization has on the other factors in the fair use analysis, even in the nonprofit context, can undermine a fair use argument. On the other hand, if it is difficult to obtain permission to copy the work, the fourth factor weighs in favor of fair use. The exercise below shows how these two aspects of the scenario play out in analysis under the four factors.

The four fair use factors.

In our case, all of our libraries are part of a nonprofit educational institution and so the nonprofit educational purpose of the copying would be generally favored under the first factor. But Texaco's holding casts doubt upon this heretofore fairly certain determination. If the copying can be described as "archival," at least in some part the first factor would no longer be so strongly supportive of fair use as would otherwise be the case. That determination (the weight of the first factor) may adversely affect the other factors.

Assuming that the work is scholarly, and thus more factual than fanciful, the second factor would weigh in favor of fair use. But, as noted above, copying all of a work will likely weigh against fair use under the third factor according to Texaco, though in the nonprofit educational context, it has been found to be a fair use.

Finally, many facts affect consideration of he fourth factor. The very nature of the rare book means that it is not commercially available and thus the impact on the market for the work would seem to be negligible. But, there may be harm to the market for permission fees.3 These arguments inevitably come into conflict with logic, however. If the use is fair, no permission fees are due; so, how can one logically take such fees into consideration as evidence of harm suffered by the copyright holder when trying to make the determination of whether a use is fair? This is called "assuming your conclusion." The courts have determined that a willingness to charge such fees cannot properly be considered to convert an otherwise fair use into an infringing one.4

These theoretical permission fees are most likely to weigh against fair use where two of the first three factors already weigh against fair use. If the troubling "archiving" moniker has caused the first factor to weigh against fair use, and the use of the entire work would make the third factor also weigh against fair use, it would seem the fair use argument is in peril.5 Nevertheless, where it is difficult or even impossible to get permission to make a copy, the scope of fair use should be sufficient to permit a library to make a copy.

Public distribution of fair use copies.

The library is permitted to make public distributions of its collection under Section 109.6 That section explicitly requires that for the exemption from liability to apply, the copy to be distributed must have been lawfully made. A fair use copy would be lawfully made, but a copy made pursuant to Section 107 must be used only for "fair use purposes" which, in this context, would usually be research, private study or scholarship. Thus, libraries should include with such copies a note about the circumstances that permitted their creation and the implications for their continued use by the patron.

The "Special Collection" scenario.

This circumstance is perhaps carrying the rare book scenario to its logical, and some would say, extreme, conclusion. A library may have need to support a particular field of inquiry and may have acquired quite a collection of literature, both books and periodicals, on the subject. Inevitably, of course, there would be items of interest to users of the special collection that were unavailable for some or all of the reasons discussed above. Although this may seem to push the limits of fair use to the breaking point, especially after Texaco, it must nevertheless be understood that where such materials are not available otherwise (including the possibility of licensing permission to make a copy), and the purpose of the library's copying is nonprofit and educational, and given a prudent policy of acquiring whatever can be acquired through normal channels, a reasonable fair use defense could be made. It would be helpful to document the circumstances that contributed to the decision to rely upon fair use in each case.

Footnotes:

1 For a full discussion of the library's rights under Section 108, see discussion under the various sections of Library Reproduction.

2 Suppose for example that an instructor has directed his students to view the particular videotaped musical performance discussed in Fair Use: Reserve Room Operations, Audio, Image and Audiovisual Copies, that first one, then another and then several more students request that the library make a copy of the tape for them. If audiovisual materials could be analyzed under Section 108, these requests could be sufficient to trigger the library's awareness that it may be "engaged in related or concerted reproduction" which would not be protected under that Section. But, because of the exclusions of Section 108(h), these requests should not be analyzed under Section 108 at all; ironically, these same requests analyzed under Section 107 would not give rise to any caution or concern as the copying permitted pursuant to the four fair use factors is not subject to restrictions like those found in Section 108(g).

3 On occasion one hears the argument that, were those who wish to copy out of print books to ask for permission, publishers would have better information upon which to base their decisions about the economics of taking books out of print and reprinting them. Thus, one hears that when the market impact analysis is undertaken, the requirement that one imagine that the proposed copying were to be widespread requires the corresponding conclusion that the publisher would, as a result, put the book back in print and the librarian would have to buy a copy. In other words, if everyone asked for permission, the publisher would get permission fees, and after a while, he would put the book back in print. So, the publisher is losing some amount of permission fees and the profits he would have made if he had put the book back in print by this practice of everyone copying out of print books.

Fortunately, the courts have been unwilling to base their conclusions about complainant's damages on such speculative hypotheses as these. The more "ifs" and unquantifiable variables there are in the hypothesis, the weaker the conclusion, and this hypothesis contains several iffy propositions: if all requests to make copies were made known to the publisher and if those requests over a certain period of time amounted to some number (different in every case) that made it profitable to some degree acceptable to the publisher to put the book back in print and if the particular publisher views the continuity of such market worth the cost of reprinting, then the book might become available at some time in the future. This would be much too speculative a basis for finding that the fourth factor favors the copyright holder, that there would be harm to the market for the original work by occasionally copying an out of print book.

Consider, however, how "just-in-time" or "books-on-demand" electronic publication has the potential to change this entire discussion!

4 Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975); American Geophysical Union v. Texaco, Inc., 802 F.Supp.1 (S.D.N.Y. 1992).

5 American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2nd Cir. 1994).

6 17 U.S.C. Section 109.

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