the last several years, a number of writers in the
library and information communities (including me) have expressed serious
concern about the fate of copyright's fair use doctrine. The impact of
several recent court decisions and the 1998 passage of the Digital Millennium
Copyright Act (DMCA) have served to weaken fair use considerably. Libraries'
increasing reliance on licensed electronic content, including online and
Internet databases, CD-ROM products, e-books, and e-journals, has raised
serious questions as to whether fair use can survive in an electronic climate.
having been an academic librarian for more than 15 years, most of which
has been in law school libraries, I have come to the realization that I
have comparatively little interaction with the fair use doctrine in my
day-to-day library activities. I am most likely to encounter copyright
law in areas such as reference, photocopying, and interlibrary loan (ILL)
service, which are covered by specific copyright rules, not by the fair
use doctrine. My library, like all libraries, also interacts on a daily
basis with copyright's first sale doctrine—whether or not we know it. Another
copyright issue that we may encounter is determining whether or not a particular
item is in the public domain. Lest you begin to breathe a sigh of relief,
however, let me suggest that the same pressures that have weakened the
fair use doctrine are putting equal or greater pressure on these other
copyright law arises from Article I, Section 8 of the U.S. Constitution,
which empowers Congress to pass laws that "(P)romote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Rights to their respective Writings and Discoveries." Congress
has enacted a number of copyright laws that are currently gathered in Title
17 of the United States Code (available online at http://uscode.house.gov/usc.htm).
The major elements of current copyright law are the Copyright Act of 1976
(as amended) and the DMCA.
107: The Fair Use Doctrine
fair use doctrine is located at Title 17, Section 107 of the United States
Code. Fair use arose out of the recognition that in order for there to
be progress in science and the arts, the grant of copyright had to be flexible
enough so that the knowledge protected by copyright could also serve as
the basis of new knowledge. The doctrine provides that certain uses of
copyrighted works for purposes such as "criticism, comment, news reporting,
teaching, scholarship or research" are permitted without requiring permission
from, or payment of royalties to, the copyright holder. The doctrine identifies
four factors that are evaluated in order to determine if a proposed use
of copyrighted material is "fair":
factor is theoretically more important than others, nor is it a matter
of "winning" on a majority of the factors to find a use fair. Courts that
have explored the issue generally look for a use that is "transformative,"
creating something new and different in keeping with the "promotion of
and character of the use
or creative nature of the original work
and substantive value of the work being copied relative to the work as
of the use on the market for, or value of, the copyrighted work
use is designed to be employed by the end-user, such as the patron, for
his or her use of a copyrighted work. To the extent that the library is
not the "end-user" of information, serving primarily as a conduit by which
the user accesses information, the library is not in a position to interact
with fair use. For example, I often put on my professor's hat and access
the library's print and electronic resources in support of my teaching
and scholarly activities (like this article). I make regular trips to the
photocopier with library books and journals, and to the laser printer to
print articles from databases and e-journals. In order for me to legally
make these copies, my use of those documents must fit within fair use.
(For any publishers reading this article, the copying is done in support
of personal research and teaching, limited to single chapters and articles
in a nonprofit environment. Really!) My library, which owns or licenses
these materials, is not a factor in my use.
do often engage in projects in which they are the end-users, and thereby
do need to be concerned about copyright and fair use. Some librarians from
a local public library recently told me about a project that they were
working on to identify old photographs and portraits in their collection.
They were using a variety of sources, including obituaries from the local
newspaper archives, to help them in the process. They ultimately wanted
to publish this project, including information obtained from the obituaries,
on their Web site. In that capacity, the library was the end-user of the
newspaper's obituary data and needed to be compliant with fair use, or
to obtain permission.
108: Copying by Libraries and Archives
let's change the situation a bit so that rather than doing the copying
and printing myself, I had the library staff do it for me. (I'm the boss—isn't
that one of the perks?!) Or, perhaps I am simply Joe Patron, who has called
the library and requested a photocopy of an article or book chapter. Or,
another library is requesting an ILL of the article. In these situations
a library is protected by a separate set of specific rules found at Title
17, Section 108 of the United States Code. Under these rules a library
may make a single copy of an article, on request, for a patron without
violating copyright. Similar rules permit a library to make an archival
copy—which may be in digital form—of a work that is damaged, deteriorated,
lost or stolen, or that requires an obsolete technology to access (e.g.
reel-to-reel tapes, 8-inch floppy disks, microcards, etc.). The same section
also covers copying in support of ILL activities. These rules have some
library got an in-depth education on these rules when we received a fairly
nasty letter from lawyers representing a publication to which we subscribed.
Our law library provided a photocopying service to local attorneys, who
could call and request copies of materials. Our staff would copy and deliver
them to the patrons and charge a small fee. The publication alleged that
we were infringing on its copyrights and threatened litigation if we did
not cease and desist. After researching the issue, we pointed out that
the library met the conditions of Section 108 and that the copying was
permitted. We pointed out that we met the necessary requirements:
must be open to the public.
must be done without any direct or indirect commercial advantage.
or multiple copying is permitted; copies must be given to the patron.
exist on the number of ILL requests that can be made of a certain work.
in our response was the fair use doctrine mentioned. Given that we never
heard back from the publication's lawyers, we concluded that the copying
open to the public.
nonprofit, and the copying was done on a cost-recovery basis.
copied were owned by the library and part of its general collection.
was done at the request of the patron.
single articles were being copied.
became the property of the user.
109: The First Sale Doctrine
course, libraries would be hard-pressed to even exist in the absence of
another provision of copyright law called the first sale doctrine. Located
at Title 17, Section 109 of the United States Code, the doctrine indicates
that once the copyright owner agrees to sell a particular copy of a work,
the copyright owner may not control further resale, rental, lease, or lending
of the copy. Thus, libraries are free to lend their books, pamphlets, magazines,
photographs, audiotapes, compact discs, videotapes, and DVDs to their patrons.
Libraries can sell these items at the annual book sale or on eBay. A library
could conceivably lease a particularly valuable collection to another library,
museum, or private party if it so chose.
in its absence from the first sale doctrine, however, is any mention of
electronic databases, CD-ROMs, or software. The reason for this absence
is both simple and complex, but it boils down to the fact that most software
and databases are licensed rather than sold. In licensing a database or
piece of software, the vendor is only selling the right to use or access
the product for a limited time and under limited circumstances. (A good
parallel would be the distinction between purchasing a car and leasing
a car. You can't sell your leased car to a third person, you must pay extra
if you use the car too much, and you have to give the car back when the
lease is up.) Courts have consistently held that the licensing of software
or databases is not a sale and consequently is not covered by the first
are covered by increasingly complex agreements that dictate a number of
terms and conditions relating to the use of the software or database. I
have a file folder full of such agreements and the legalistic gobbledygook
can be daunting. (And I used to be a lawyer!) These agreements are governed
by both copyright law and contract law, which only adds to the complexity
(and the legal legwork required to keep up with them). However, it is often
these restrictive terms—coupled with the DMCA and other changes in the
copyright law—that weaken the library's fair use and Section 108 rights.
pulled several of our agreements out of the file and reviewed them while
thinking about how the language of the agreements would have affected my
fair use or Section 108 rights in the situations I described earlier. One
database agreement, under the section titled "Copyright and Permitted Use,"
said that, "except where expressly permitted by the Terms and Conditions
the Data may not be copied, distributed, sold, reproduced, licensed, or
dealt with in whole or in part." Imagine this scenario: The Zebulon Pike
(my distant relative who discovered Pike's Peak) Memorial Law Library has
canceled several print journals and subscriptions and instead accesses
them electronically, with the databases covered by the above agreement.
The access is by IP range within the library and is therefore accessible
by in-library patrons and staff. The library operates a service that provides
photocopies of materials on request. So my question is, under this agreement,
can the library provide a printout of an article from the electronic database
to the customer as I would have previously provided a photocopy? The license
indicates that the data may not be copied or distributed. A telephone patron
is not an in-library user, and so is probably not covered by the Terms
and Conditions of the agreement. Section 108 would permit this type of
activity, but the agreement does not. Our library has addressed this agreement
by not providing any nonlibrary access to our databases. Patrons must come
into the library and do their own printing.
licensing agreement from the files also has several sections that cause
concern. The agreement says: "You may utilize the licensed information
for your own internal use only or on behalf of your clients in the normal
course of your business"; "You must restrict access to the licensed information
to your employees who require access in the performance of their employment
duties"; "Licensed information or any part of it may not be used, in any
manner, except as express permitted under this agreement"; and "You may
not sell, assign, disclose, furnish, or redistribute any licensed information
to any other person, firm, corporation, or entity." Put aside for the moment
the basic problems about the business-oriented language about clients and
firms. (We have found this to be fairly typicalof license agreements to
databases that are marketed primarily to corporate or business settings—yet
another difficulty that we must dance around.) Fair use was nowhere to
be seen in the agreement, so did that mean that fair use was not "express(ly)
permitted"? If the library cannot "furnish or redistribute" the information
to "any other person," could my patron make a printout and take it with
him? (Much less have the library make a printout for him as a phone-in
patron.) Is my library responsible for a patron's use or misuse of the
data, whether fair or not?
last question is by no means a casual issue. Among the DMCA's various clauses
is a section known as the "safe harbor" provision. This language provides
that Internet service providers (ISPs) are not responsible for the infringement
or misuse of copyrighted content by end-users, unless they have notice.
This provision was intended to protect AOL, Juno, and CompuServe from being
directly responsible for the actions of their millions of users. However,
if a copyright owner serves notice on the ISP that material is being infringed,
then the ISP is responsible for having the offending material removed,
or it is at risk for a lawsuit.
All of the Steps
my library an ISP? In a different context, an appeals court in California
said that a library that provides public access to the Internet is an ISP.
(The issue was whether a library was responsible for obscene Internet content
that was accessed by a patron. The California court said that provisions
of the Communications Decency Act providing immunity to ISPs for "their
failure to edit, withhold, or restrict access to offensive material" applied
to libraries.) If so, then all of a sudden I may need to be concerned about
the use and misuse of electronic resources by my patrons. If the content
vendor indicates to me that copyrighted data is being misused, the DMCA
indicates that the material must be removed or denied to the patron, or
the library can be sued. I am convinced that in this litigious climate
(and remember, I work at a law school; I know litigious!), the library
is likely to be advised to remove the material regardless of whether the
patron's actions were permitted under fair use or other grounds.
most important response to these agreements has been to pay much more attention
to the language that they use. If a contract uses business language such
as "client" or "firm," we change the language to recognize "patrons" or
"library users." We also try to be very clear about which users are included
and which users are excluded from the agreement. In our university's library
system, for example, many of our agreements limit use of a database to
students, faculty, and staff. Public patrons from outside the university
community are not covered. In response, we are requiring user authentication
before allowing access. We do not hesitate to suggest language or changes
in the license agreements if possible. (Sometimes it is not possible, particularly
in software "shrink-wrap" or "click-wrap" agreements.) We are also paying
greater attention to who actually owns the copyright. If I want to use
an article from The New York Times that I got from LexisNexis, do
I deal with The Times or Lexis in addressing copyright questions?
(When this happened to me, I called Lexis first.)
as they say, is never as simple as it used to be. Fair use and Section
108 rights are not dead at this point, but their breathing is a bit strained
from performing all of this fancy footwork. As more of our libraries transition
to electronic resources, the main impact seems to be in protecting our
patrons' ability to effectively, completely, and legally use these resources,
without incurring copyright or breach of contract liability. It could prove
to be a delicate dance.