Chapter 3
Copyright in Libraries
Abstract
This chapter provides an overview of library functions and users, focusing on how and where copyright and other information laws and policies intersect with library services and populations. How librarians provide access, collect, evaluate, instruct, manage, preserve, process, and research in functional areas is described.
Keywords
Acquisitions; Archives; Circulation; Collections; Copyright law; Interlibrary loan; Instruction; Preservation; Reference; ReservesOnce you see all the parts, the whole makes more sense
3.1. Introduction
To say that libraries and copyright are linked is simply to affirm the obvious. Libraries, after all, are filled with copyrighted materials. And, while there are other laws that affect libraries, copyright is so integral to library functions and operations it may be the law that impacts libraries more than any other. From public to technical services and from acquisitions to reference, every area of the library and nearly every job is affected by copyright law in one way or another. Quite simply, “If you work in a library, you probably work with copyrighted material. If you work with copyrighted material, you need to be knowledgeable about the laws governing them” (Bielefield & Cheeseman, 1993, p. 1).
Libraries are document-rich and copyright-laden enterprises. They have as their core jurisdiction the selection, acquisition, organization, storage, management, retrieval, preservation, and use of information. As part of the copyright equation, libraries facilitate exchanges between information creators and information users and often serve as intermediaries between the two (Ferullo, 2011).
3.1.1. Background
In the print and analog world, questions about types of works protected by copyright, the duration of copyright, exclusive rights and infringement, exemptions, and permissions frequently occurred. It was a time when the portions of the law that impacted libraries—Section 108 of the U.S. Copyright Act, for example—were generally accepted and applied with a level of common understanding. During this period, the relationship between copyright and the library was defined more by the environment (academic, public, or for-profit) and the population (students, researchers, teachers) than the format of the work. Carefully constructed guidelines and practices were in place to ensure there was a balance between the rights of users and those of authors, publishers, and copyright owners. Features such as the placement of copyright notices by photocopiers, the numbers of reproductions for classroom use, or interlibrary loan requests were common. Likewise, questions from that era to library staff may have gone something like this:
• If there isn’t enough sheet music for the high school band, is it okay to make copies?
• How about an article from an industry journal—is it okay to photocopy and put in a vertical file for the employees in a small engineering firm to read at their leisure?
• A teacher videotaped a documentary shown on PBS (Public Broadcast System) and offers to donate the tapes to the library. No problem, right?
• “Why do you have the damn machine there if you do not want me to make photocopies?” (Olaka, 2013, p. 127)
In the United States, following the passage of the Copyright Act of 1976, which revised the standards for fair use and reproduction, and as elsewhere in the world, the questions related to copyright became more complex. That complexity has only increased as information in multiple electronic and digital formats becomes available. At the same time as rights holders have mobilized in defense of their property, the audience and means of access has swelled, too (Baldwin, 2014). Now anyone and everyone can, thanks to technology, create, access, utilize, and share information. These activities, along with copying, transmission, display, and performance, are regulated by copyright, and when technology changes “it’s usually the case that copyright has to change too. And it’s rarely pretty” (Doctorow, 2014, p. 145). Because libraries are no longer primarily their legacy print collections, typical questions now encountered by libraries of all sizes and types are more likely to resemble these:
• The library wants to digitize all its videotapes, caption them for hearing-impaired students, and put them on a new video server. When a teacher wants to show one of these videos to her online class, will the students need a special password to view it?
• I’m an educator in a nonprofit educational setting. I should be able to copy and share copyrighted work with my class as long as I remember to cite my source. Right?
• Can I scan the article you printed out for me from database X, and send it to the client?
• Is fanfiction an unauthorized derivative work or fair use (Koulikov, 2012)?
• Can I make a digital copy of this DVD? When is a public performance public? Is the auditorium a classroom? How about a learning management system (LMS) space—is it a classroom? How can the library preserve a born-digital work acquired via a license agreement? What can I do with YouTube (Russell, 2015)?
Copyright specialization has emerged as an area of interest for librarians and parent institutions alike because of the increased growth and complexity of the law and technology. Questions by information consumers about use, protection, and permission of copyright works are the point at which libraries and copyright law and practice intersect.
Indeed,
When you stop and consider the legal and philosophical bases underpinning the core mission of our nation’s libraries, it would, in fact, be pretty bizarre if librarians weren’t extremely interested…in copyright law. Libraries are inextricably intertwined with it; their most basic activities are authorized by copyright law, and they routinely interact with it in meaningful and challenging ways.
This chapter focuses on some of those meaningful and challenging intersections.
3.2. Copyright in Action: Part Two
The wide range and variety of copyright-related activities can be seen throughout the professional literature of librarianship. Consider, for example, the following scenario from an academic library setting in Canada:
Whether a library patron is downloading from the Web, forwarding email, using an online journal collection and printing articles, accessing digital images to be shared with classmates, accessing e-reserve course material, viewing a video or a DVD, or requesting an interlibrary loan for a book, copyright issues surface.
Further anecdotal evidence of the interconnectedness between libraries and copyright was also illustrated by comments from the survey of copyright specialists described in the previous chapter (see Appendix A for the full questionnaire). Question 7 asked interviewees to describe a typical day. Because the replies are both descriptive and informative, many are recorded here in their entirety. Please note that the respondents have different backgrounds and experience, and are at different places in their careers. Their remarks are included here to provide first-hand examples of copyright in action within library settings. Some of the responses included:
1. Dealing with copyright queries (mostly by email), adjudicating on thesis redaction where third party rights involved, attending faculty meetings to brief academic staff, and going through e-resource licenses. –Copyright and licensing advisor, United Kingdom
2. First, check emails for new queries or requests. These will mainly be from academic staff, perhaps with a query or request for digitization…I also keep a watching brief on copyright legislation and licensing developments…I contact publishers to request accessible format texts on behalf of our print impaired students. This involves checking a shared spreadsheet for new requests, writing to the appropriate publishers and tracking the request on my copyright database…I am currently also working on some learning packages to highlight some of our services such as the Digitisation Service or the Media Player which will sit alongside my copyright guidelines. Guidelines are monitored and updated as licensing and legislation changes. –Copyright clearance officer, United Kingdom
3. Days vary greatly but I spend most of my time between license compliance reporting, providing advice and guidance to academics, support staff and occasionally students, dealing with accessible texts and their provision for students with disabilities and meetings. Other regular tasks include updating and drafting guidance docs on our intranet, or providing training workshops for colleagues. –Copyright and licensing advisor, United Kingdom
4. I generally have three to four licenses that I work on every week that are in various states of negotiation. I also field anywhere from one to four copyright questions from librarians, faculty, or students on copyright issues. I review documents and letters that have copyright components, such as asking permission to reproduce material in copyright, deeds of gift, collaborative MOUs [memoranda of understanding], etc. –Licensing and copyright librarian, United States
5. Consult with community ed teacher about copyright for materials printed for class; emailed author of book title for copyright costs; completed course pack form for Phil 101, no changes from last quarter; dealt with rights issue for instructor; consulted with an instructor about digitizing a film; consulted with CopyDup manager about copyright for a class; worked on webpage—share video files; finish copyright binder for reference desk staff, work on info sheet for faculty; meet with library director to discuss end of quarter. –Copyright and instruction librarian, United States
6. I typically work on the reference desk approximately 4 h a day. On a given day, I will also usually teach one or two instruction sessions. I am active on a number of committees locally, regionally, and nationally so I’m always trying to cram committee work into every free moment. Lots of answering emails, lots of filling out Doodle polls for meetings, lots of meetings. –Faculty librarian, United States
7. Responding to copyright/fair use inquiries by email and telephone; providing reference services at our library’s reference desk and by live chat; providing bibliographic instruction in our college’s writing program and in subject-specific areas at professors’ requests; reviewing blogs, RSS feeds, journal articles, cases, etc., to remain up-to-date on current issues; preparing presentations for faculty departments on copyright in the classroom; modifying and creating LibGuides relating to my liaison areas. –Campus copyright librarian, United States
8. On most days, I have at least one meeting, whether it’s one-on-one, departmental, or something at the university level…I typically respond to an average of five copyright “reference” questions a week. Frequently asked questions: (1) open-to-the-public movies being shown, (2) using media materials in courses, and (3) what uses are permitted by our licenses for various publications. Right now, I am involved with selection and implementation of a new ereserves system, assessing our copyright costs and interlibrary loan borrowing patterns from last calendar year and working with university counsel and faculty senate to finally implement an institutional copyright policy. I routinely provide copyright instruction for courses such as our Communication Studies “Freedom of Speech” course and courses in the visual arts. Finally, I help administer our institutional repository and serve as back up for…involvement in an… electronic thesis and dissertation project. –Head, copyright and document services, United States
9. Respond to inquiries about the use of copyrighted content in the institution and advise accordingly. Primarily email, but also telephone and in-person. Plan and prepare for upcoming copyright education sessions (these occur regularly); Liaise with other areas affected by copyright compliance issues (library, bookstore, faculty printing services, learning management system administrators) either as part of routine communication or as part of specific ongoing projects; Research/update knowledge according to what is happening in the media, legal cases, published in the field/literature, and issues discussed in listserv communities; Update/revise written and online information. –Copyright librarian, Canada
10. In my position, I engage in other activities in the library in addition to copyright. It is hard to describe a typical day, because it varies day-to-day and week-to-week. On the copyright side, I engage in educational efforts to raise awareness on campus about copyright: I provide personal consultations (to faculty, students and staff), give presentations (topics I have addressed include copyright, fair use, creative commons, plagiarism), consult with library colleagues on projects (one area of particular concern is copyright in digital projects). I have collaborated with other campus departments, providing copyright presentations as a part of their workshop series…and addressing copyright questions of concern to specific units including disability services, video services, office of student rights and responsibilities, and the online instruction department. I have also worked with instructors, providing copyright presentations for their classes. I developed an online copyright guide, which I maintain and update regularly, and contribute short articles on copyright related topics in the library’s quarterly newsletter. I have also co-taught an extended online workshop on patents and copyright with another librarian…In addition to these campus activities, I have also provided presentations on request to local and regional events including K-12 library/media conferences, and a local public library. –Copyright and scholarly communications librarian, United States
11. Find out whether publisher gave permission to post; licenses—how to keep me in the loop with licenses—what is being purchased, what courses are they being used for? where to store terms of use information; add section to agreement with course authors that would allow us to create transcripts of their lectures (takes too long to seek permission after the fact); continue reviewing Course A: Copyright o.k.? Credit lines o.k.? –Copyright specialist, Canada
12. A typical week often involves 2–3 days of traveling to other institutions to discuss research support as a whole, where copyright rears its head. Last Tuesday: (1) Called an organization representing publishers about a list they wanted me to send out to the copyright librarians concerning database licenses and what is permitted under copyright for each database. (2) Called an organization representing the copyright holders of sound/music productions about a presentation they will giving at an upcoming conference. (3) Called a university lawyer interested in the status of a new contract with an organization representing publishers. (4) Emailed a reminder about another contract we are working on with an organization representing photographers and illustrators. (5) Emailed an author about the status of a book being published within the school. (6) Traveled to another city to meet with a workgroup on research support. –Research support advisor, The Netherlands
As shown, copyright operates on several different levels in library settings, having implications and impacts in myriad ways. The next section provides an overview of library functions and users, focusing on how and where copyright and other information laws and policies intersect with library services and populations.
3.3. Copyright in Library Functions
In libraries, whatever the type, size, or location, every act of selection, organization, preservation, access, and dissemination is impacted in large and small ways by copyright. Similarly, the types of work protected by copyright and handled by libraries are exhaustive and include literary works, musical works, dramatic works, choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound records, architectural works, and more (Hirtle, Hudson, & Kenyon, 2009). While libraries are not the only institutions that deal with materials of this nature, copyright does have a significant bearing on their core functions as well as day-to-day work. At its heart, copyright is the mechanism we use to arrange our relationship to materials in many library functions. According to Neal,
The library remains focused on core services to users: on information acquisition, navigation, dissemination, interpretation, understanding and archiving. This commitment to get, organize, find, deliver, answer, educate, and preserve are central to the library’s intersection with copyright.
In an informal survey conducted in 2010 (Kearns and Rinehart), librarians and archivists were asked to describe in their own words how they viewed their information roles and responsibilities. From 166 responses, eight discernible categories emerged: Access, Collect, Evaluate, Instruct, Manage, Preserve, Process, and Research. These form a framework for discussing the ways in which librarian responsibilities and library function connect with copyright law and practice. Although duties and practices vary by institution, the activities and examples listed and discussed below are intended to provide further evidence of libraries in the copyright equation. These functions are traditionally found in the areas of technical services, special collections and archives, reference and instruction, and access services.
3.3.1. Acquisitions: Collect, Manage
Acquisitions in the library setting can be defined as materials selection, ordering, and receipt. These activities commonly occur through purchase, gift or donation, and exchange. Copyrights are an intangible asset that must be considered, gathered, and secured in the selection and acquisition of materials as well how the material will be used. Deeds of gift may contain conditions with which the library must comply, including how the item or materials can be used; these in turn may have implications for archives, access, security, and privacy.
Acquisition of electronic materials increasingly takes up considerable staff time and resources. Because contract rather than copyright affect acquisition, and because each product governing electronic publications has different terms of use, librarians may be delegated to negotiate, administer, and execute contracts on behalf of their institution that are favorable to both information consumers and information producers. Whether acquiring electronic journals, ebooks, database subscriptions, or image or media collections, significant amounts of personnel and budget resources are part of the acquisition process. Negotiation and acquisition of licenses are tasks that take an enormous toll on personnel and administrative resources (Thompson-Przylucki, 2014).
3.3.2. Archives and Preservation: Access, Organize, Preserve, Select, Store
Archives consist of records, many unpublished or unique, selected for permanent or long-term preservation often based on cultural, historical or evidentiary value. Preservation combines policies, strategies, and actions that ensure access to content and library materials over time.
This function includes the storage, staffing, and policy decisions as well as the techniques and methods of digitizing, protecting, safeguarding, prolonging, and maintaining physical and digital materials in a condition suitable for use. Special collections that may require different levels of access “due to privacy concerns, copyright, and donor agreements” (Underhill & Wade, 2013, p. 62).
In addition to preservation of materials to ensure continued use over time, a great deal of archival work goes into locating authors and other creators, managing permissions, and creating copies through digitization. Before a digital surrogate can be made and access provided to it, these questions must be answered:
• Is the work protected by copyright?
• Does the proposed use require permission, or does it fall under a legal exceptions?
• Are there any other intellectual property (IP) concerns such as privacy or trademarks that need to be addressed?
• How many rights holders are there? What is their contact information?
• What rights does the institution need and for how long (Whalen, 2009, p. 26)?
3.3.3. Cataloging: Describe, Index, Manage, Organize, Process
Using metadata, controlled vocabularies, and descriptive data, knowledge of licensing agreements, and integrated library systems, the cataloging function applies to both physical and digital materials. Other terms frequently used to describe the cataloging function include classification, arrangement, creation and preparation of descriptive data, synthesis, and integration.
It is through the cataloging function that documentation of the intellectual or creative ownership of a work is recorded. Information about open access and public domain may be found in catalog fields and authority records, as well as the duration of copyright terms based on publication dates and life of the author. Catalogers may also create and manage surrogate records in institutional repositories.
3.3.4. Circulation: Access, Disseminate, Share
Checking books and other physical library materials in and out, in other words making them available and releasing them for use, is the basic function of the circulation unit. Other activities may include retrieval, supply and delivery of materials to patrons. Unlike print materials, circulating or loaning electronic library resources such as ebooks or software “is fraught with complications both technical and copyright related (Klinefelter, 2001, p. 181).” Although copyright law may allow lending of these materials, license restrictions may prohibit doing so. Additionally, vendor analytics and digital rights management (DRM) issues may trace, monitor, and record the ways that digital items are circulated or used, raising privacy concerns among patrons and staff.
3.3.5. Collection Development: Collect, Evaluate, Maintain, Manage
Collection development is the process of systematically planning and building useful and balanced print and digital collections that serve the study, teaching, research, recreational, and other needs of library users. This function includes the formulation of selection criteria, planning for resource sharing, and replacement of lost or damaged items along with weeding decisions.
Activities seen in collection development units include appraisal, assessment, evaluation, identification, selection, purging or weeding, and management of print and digital resources. Institutional repositories, permissions, orphan works, electronic theses, and other unpublished works may be part of these activities as well.
Collection development is related to selection and acquisition of library materials. Because complying with copyright law and policy may affect up to 40% of a research library’s budget (Dames, 2013), the collection development function is of significant interest.
3.3.6. Instruction: Access, Disseminate, Share
Teaching, presentation, promotion, or facilitation of information literacy and other library-related skills in a group setting or one-on-one helps users recognize the extent of their information need and how to ethically use information sources. “It is part of every reference and instruction librarian’s charge and province to be able to assist and educate patrons about copyright. In short: every librarian with these duties should consider themselves a copyright librarian (Hickey, 2011, p. 10).
Instruction librarians also model ethical information use in the creation of instructional guides, tutorials, and class presentations. Appropriate citations as well as deep or inline linking to copyrighted works are examples of this modeling behavior. It also the purview of instruction librarians to dispel copyright myths, by clearly and confidently articulating what the law and library policy allow, as well as provide a context for often conflicting copyright advice and information patrons may have received or gleaned over the years (Hickey, 2011).
3.3.7. Interlibrary Loan and Document Delivery: Access, Process, Share
Interlibrary loan (ILL) is the cooperative arrangement among libraries that allows books and other materials from one library to be loaned out to a patron from another library. Document delivery is the provision of published or unpublished documents, generally electronically and sometimes for a fee. It may also refer to the electronic delivery of documents from a library to a patron. Activities may include delivery, digitization, distribution, responding to requests, retrieval, supply, transmitting, and transfer of copyrighted, unpublished, public domain, and open access materials. Like other library functions, ILL and document delivery are similarly affected by licensing terms, trends, and conditions, as well as fair use and other guidelines for use. Section 108 of the U.S. Copyright Act, for example, permits libraries to copy or scan protected works for ILL. It does not, however, allow libraries “to copy all works for all purposes” (Crews, 2012, p. 114). Music, sound recordings, images, and media present particular concerns for ILL units.
3.3.8. Reference: Access, Discover, Evaluate, Learn, Research, Share
“Reference librarians are on the front lines of copyright compliance and information dissemination” (Aulisio, 2013, p. 566). Answering questions, instructing users in the selection and use of appropriate tools and techniques for finding information, and linking copyright material with users are all part of the reference function in libraries. Reference involves the use, recommendation, interpretation, or instruction in the use of print and nonprint material, including databases, bibliographic records, other libraries and institutions, and people both inside and outside the library. Activities may also include consulting; directing users to resources; and finding, guiding, helping, locating, providing, serving, and uniting patrons with an information resource.
Reference librarians are often the ones to explain or defend a law, license, or policy that may be restricting access to a resource, as well as the ones who may offer alternatives or options if the source is not available. Reference librarians are often called upon to explain copyright infringement or how to seek permission for use. Additionally, reference librarians may be the public link or intermediary between the information consumer and the information provider and how information and materials are recorded and made available (or not) to the public.
Furthermore,
The fundamental purpose of the library is providing research support is met through unmediated use of the library as well as the direct assistance of librarians…All of the legal issues of electronic resources that affect the other library services find their final impact at the point where patrons are trying to use the materials …”
3.3.9. Reserves: Access, Manage, Process, Share, Store
In an academic setting, the functions and activities of reserves involve a combination of record creation, material storage, organization, providing access, and managing both print and digital objects representing items that faculty have selected to be used in conjunction with their instructional activities.
Reserves is the process of placing materials such as books, articles, media, and other published and unpublished materials in a separate physical or electronic area for students in classes to use. This activity includes but is not limited to faculty-produced copyrighted works that are reproduced for library reserves and course packs. The process may present unique copyright problems, however.
When libraries attempt to create their own electronic resources, though, by scanning materials, copyright laws govern the limits on what is permissible. If libraries seek to do more than is allowed under copyright, they must seek permission from the copyright holder.
Additionally, faculty cannot assign certain copyrighted material without paying additional fees or passing those fees along to the students. In the United States, for example, Harvard Business Publishing (HBP) is especially stringent about digital reuse of copyright-protected content. Accordingly, and despite fair use, HBP content cannot be reproduced or distributed, whether in print or electronic form, without purchase and permission:
Copyright permission is the authorization to make a photocopy of a purchased, clean copy of our one of our products. Each copyright permission covers a single copy, so you need to purchase one (1) copyright permission for each copy of the item you intend to distribute.
Readers may also be familiar with a recent, and still undecided, copyright and fair use case (Cambridge University Press et al. v. Patton et al.) in which several publishers brought suit against Georgia State University for the use of copyrighted materials in a library e-reserves environment (EDUCAUSE, 2015).
In summary,
When it comes down to it, libraries exist to make the connection between their users and the recorded knowledge and information in the human record that they need and want. Everything we do—building collections, giving access to digital resources, performing reference work, providing a bibliographic architecture, and on and on—is dedicated to that connection.
3.4. Library Environments and Populations
Although libraries are generally, although not universally, favored actors under copyright law (Smith, 2015), the ways that libraries intersect with the copyright laws of their own countries varies widely. A 2014 study by legal expert Kenneth Crews indicates that library exceptions to copyright such as reproduction for private research and study, preservation and replacement of materials, and interlibrary lending and document supply are fundamental to nations around the world. While 153 countries have one or more statutes that constitute a library exception, it is a patchwork of provisions, with most established during the print era (Crews, 2014). Similarly, Shachaf and Rubenstein (2007) compared copyright approaches by libraries in Israel, Russia, and the United States and found that differences in attitudes towards copyright are closely tied to political, technological, social, and economic factors.
Copyright intersects with the populations that libraries serve. Fair use, open access, intellectual property, licenses, rights, permissions, international treaties, and institutional repositories are points at which copyright and libraries also intersect. In addition to supporting researchers and distance education students, libraries also support special populations such as the visually impaired and faculty. In these areas, libraries are increasingly aware and sensitive to copyright law.
These are functions, environments, and populations that are constantly changing. New laws, legislation, agreements, court cases, reform movements, and more are all part of a dynamic ecosystem that affects libraries. However,
Libraries and laws have been around for centuries. The grounds change, the causes change, media of communication change, players change, but the idea of access to information remains the same.
What do copyright and libraries have in common? As it turns out, quite a lot.
3.5. Closing Comments
Because of the nearly universal role that copyright plays in librarianship, it is natural for our patrons and our institutions to look to libraries for information, guidance, assistance, and answers to questions about access and use. When we think about it, it would be odd if they did not. As we have seen, copyrighted materials form the foundation of our collections and library professionals should be able to confidently answer questions about the use of those materials. The populations we support and serve should be able to look to us to understand and make informed decisions related to copyright law and practice. As members of a profession explicitly committed to information access and use, we should be able to articulate the intricate web of interests that exists between information creators, producers, aggregators, intermediaries, and consumers.
At the same time, this is an intersection that is complex and dynamic, and at times volatile. Libraries and users know that the electronic environment raises the possibility and likelihood of copyright infringement, whether intentional or accidental. As a result, institutions are beginning to implement systems to facilitate copyright compliance, such as copyright management offices, copyright instruction programs, and copyright specialist positions (Hirtle et al., 2009). In this environment,
Intelligent and well-educated persons are needed to keep up with the volume of legal material being generated, the increased access to information resources, the complexity of the digital information age, and the impact of information technology (IT) on library services and activities.
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