Copyright Policies and the Deciphering of Fair Use in the Creation of Reserves at University Libraries

Copyright Policies and the Deciphering of Fair Use in the Creation of Reserves at University Libraries by Thomas H.P. Gould, Tomas A. Lipinski, and Elizabeth A. Buchanan Available online 23 March 2005

This paper stems from the results of a systematic study of research library policy regarding application and interpretation of copyright law to reserves and electronic reserves. A thorough legal framework is provided from which the study’s results are interpreted, and suggestions for research library compliance are provided.

Thomas H.P. Gould, Advertising and Media Fusion, 219B Kedzie Hall, Kansas State University, Manhattan, KS 66506, USA [email protected]; Tomas A. Lipinski and Elizabeth A. Buchanan, Associate Professors and Co-Directors, Center for Information Policy Research, School of Information Studies, University of Wisconsin-Milwaukee, P.O. Box 413, Milwaukee, Wisconsin, 53201, USA [email protected], [email protected].

INTRODUCTION AND BACKGROUND In August of 1998, an assistant professor at a major Midwest university sent a graduate student to the campus library with instructions to have the library reproduce and place four copies of part of The Mirror Makers on reserve for students in a ‘‘Principles of Advertising’’ class with 190 students. The graduate student shortly returned a bit shaken: the librarian refused to fulfill the reserve request, responding: ‘‘It’s a violation of the Copyright Law.’’ According to the student, the library staff indicated that operating procedures limited copying of any published work to 10% of the total number of pages or 10% of the total number of chapters, whichever was smaller. The professor, somewhat familiar with that law, could not recall any provision specifying any such 10% limit, called the library and was told that it was the library staff’s contention that the 10% rule was law, not policy. The staff was not forthcoming on citing any particular case or section of the law dealing with the limitation. They were also resolute on the rule. In fact, the Copyright Act of 1976 does not contain a single phrase that explicitly proscribes copying in excess of 10%. Likewise, there is nothing in the text of the copyright law (Title 17 of the United States Code) that prevents a university library from setting a policy such as that outlined above. Often these policies incorporate or are modeled after the so-called ‘‘fair use’’ guidelines that do indeed use percentage or other portion limitations on the amount the work that may be reproduced and used in educational settings. For instance, Lipinski1 has advocated the adoption of these guidelines or at least referral to such content as a starting point in institutional policy formulation. Such guidelines offer an identifiable place to begin the institutional policy-formation process, and hopefully, clarify the law and its interpreted policy within libraries for academic researchers and university communities. The limits of use are articulated in such guidelines. However, many institutions begin and end the process there, adopting those guidelines as policy without further analysis. As a result, the use of the guidelines without further consideration, such as evaluation for consistency with developing law over time or match to unique institutional environment and risk assessment, poses its own obvious pitfalls. One size does not fit all. One could argue that none of the existing guidelines have its basis on the legal standards courts have in fact developed,

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either initially, when each was created, and certainly much less since. The law of fair use continues to develop, while the norm of a so-called fair use guideline is static. Moreover, and unlike the statutory copyright law, none has ever been amended. The U.S. Copyright Office has commented on the danger of assuming that the guidelines were maximum standards and on the danger of adopting them wholesale as an end to the policy-making making process instead of as a beginning, as an earlier comment suggests: It is important to stress, however, that they [fair use guidelines] are a floor and not a ceiling; conduct falling outside the guidelines may qualify as fair use as well.2

Crews,3 of course points out, as did our educator in our anecdotal case study suspected, that the guidelines are not always consistent with the law. However, as far as the institution goes, any policy adopted must be followed, that is, monitored for compliance and deviation, corrected, or perhaps even met with formal reprimand or punishment. Thus, it is not surprising that our educator was met with such firmness at the library’s door, even if the condition of admittance (the 10% limit) might not have a basis in law, and as discussed below, might have little to do with the ‘‘guidelines’’ as well. The degree to which such a policy exists at major universities is unknown, but certainly poses an interesting problem for academics seeking to use materials for ‘‘education purposes’’ as articulated in section 107, the fair use provision; it is this section of the copyright law that covers uses for ‘‘teaching (including multiple copies for classroom use), scholarship, or research’’ as one of many possible uses of copyrighted material.

RESEARCH QUESTIONS Given the conditions described above, including obvious uncertainty within the academic library community and professors themselves, and increasing tensions among the law, interpreted guidelines, and university library policy, the purpose of this paper is to determine to what extent research libraries are applying copyright policies, the nature of those policies, and the degree to which they differ from each other and from the law of fair use. This study attempts to answer three questions: 1. How many research libraries impose specific percentage or page limits on photocopying by faculty or staff? 2. What are the scenarios under which the library might photocopy materials or provide photocopied materials on reserve for student use? 3. To what extent is the policy or practice of research libraries at variance with the developing law relating to fair uses of copyrighted material with respect to specific percentage or page limits on photocopying by faculty or staff or materials photocopied or provided on reserve for student use? The paper provides an extensive legal framework from which the copyright laws and fair use guidelines are interpreted and implemented; suggestions for both library and institutional compliance are provided.

RESEARCH METHODOLOGY In the spring of 2003, surveys were sent to the American Research Library Association (ARLA) mailing list of 115 research libraries. The seven parts of the survey asked about

the library’s photocopying policies, copyright policies, staff reactions to various scenarios, personal knowledge regarding the Copyright Act of 1976, as amended, copyright holder rights, peer assessment of staff awareness of copyright law, and administrative standing and library holdings. In addition, the libraries were asked to add any additional comments they felt about the subject not included in the questions. The research was approved as exempt by an institutional review board; respondents were told they would not be identified by name, but that their responses would be used for research purposes. The questions were either yes/no, or a list of items that could be checked for all that applied. Three questions regarding the basis for invoking specific percentage or chapter limits were open ended. Two questions used a five-point Likert scale to assess the awareness of copyright law among faculty, students, and administrators in the opinion of the survey respondent. The mailing list noted the rank or administrative position of the respondent. This information was not deemed as accurate or reliable, so a question was included in the survey regarding the respondent’s rank or administrative role. This decision to not use the mailing list ranks in the results is based on three limitations: 1. The cover letter sent with the survey asked that the ‘‘person responsible for setting copyright policy’’ be given the instrument to complete. 2. The respondent may not, in fact, be the person on the mailing list because of a staffing change or a delegation of the survey to another staff person. 3. The rank or staff position of the respondent by the ARLA may be out of date or inaccurate.

Population Criteria It might have been possible to extend this research to those libraries not members of the ARLA. Lists are available at the American Library Association (ALA) of other libraries not a part of the ARLA. The choice to limit this was simply a matter of economics and a belief that research libraries would be considered leaders in their field or at the least have the potential for more developed institutional response mechanisms regarding the copyright law, i.e., greater opportunity for copyright issues to arise and a parallel likelihood of more personnel resources to assign to those issues. Because of these, a further rationale includes the fact that such institutions might make the administrative cost of compliance efforts worth the riskmanagement benefit, especially in those instances involving new compliance (read ‘‘policy’’) oriented features of the copyright law (e.g., the repeat infringer policy requirement under service provider liability limitation rules of section 512). The ARLA list contained several libraries that were not strictly academic in nature. Libraries, such as the Library of Congress, were on the list and were sent surveys. The researchers felt that these libraries could self-select themselves out of the study. And, not sending surveys to some libraries on the list would introduce sample bias.

Unit of Analysis The units of analysis in this study are the respondents themselves as representatives of their respective libraries. This individual, as noted above, was selected by the university administrator receiving the survey to be the most appropriate

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person to complete the instrument. The survey sample was a population of all members of ARLA.

RELEVANT LITERATURE AND LEGAL STANDARDS: THE LAW OF FAIR USE AND THE NORMS OF THE GUIDELINES While many institutions have adopted copyright policies of some form, it is only with recent legislation that the law actually required such adoption. Further, no statute section governs either reserves or e-reserves, which are growing in popularity. Guidelines exist regarding e-reserves, but do the ereserve guidelines reflect the law? The limitation on the amount of material that may be placed on e-reserve for a particular course is not limited to any particular percentage. Under Fair Use Guidelines for Electronic Reserve Systems,4 ‘‘[t]he total amount of material included in electronic reserve systems for a specific course as a matter of fair use should be a small proportion of the total assigned reading for a particular course.’’ But, as the saying may go, a fair use is a fair use is a fair use. If placing a reading on reserve or e-reserve is a fair use, then it should not matter whether each week’s reading is likewise copied and placed on reserve. There are two related but distinct inquiries at work here under the law of fair use with two or more separate rights of the copy at play. Reproducing the article for example, by photocopying, scanning, or downloading impacts the copyright owner’s exclusive right to reproduce the work. Making the work available in a reserve or e-reserve impacts the exclusive right of the copyright owner to distribute (reserve) and distribute and possibly display as well (e-reserve) the work, respectively. And, it may be that scanning (reproduction) and posting (distribution and display) a particular item is in fact a fair use, but doing so for another item may not be.

‘‘While many institutions have adopted copyright policies of some form, it is only with recent legislation that the law actually required such adoption.’’ But assuming each instance constitutes a fair use, there should be no practical restriction on the fact that every article listed on the course syllabus be judged on its own merit as a fair use. Nothing in the law of fair use suggests that process of inquiry. While ‘‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’’ (see, e.g., Office of Intellectual Property Council) is relevant, it is not a litmus test; moreover, it is only part of the inquiry. But what is the law of fair use and what does the law indicate regarding the portion of the work that may be used for educational or other purposes? Table 1, ‘‘Portion Limitations on the Use of Copyrighted Material as Articulated in the Fair Use Guidelines and in Various Court Cases,’’ summarizes observations made by numerous courts concerning the third fair use factor relating to the portion of the work used. The other three fair use factors are ‘‘(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, . . . and (4) the effect of the use upon the potential market for or

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value of the copyrighted work.’’5 The table also indicates the source (case) and ultimate result, i.e., whether the use was fair or not. In somewhat of a contrast, Table 2, ‘‘Section 1201 Litigation and Dictum Regarding Fair Uses of Copyrighted DVDs,’’ offers excerpts of dictum from several recent cases discussing the fair use of DVD movies and suggest that cutting or clipping from a DVD audiovisual work – a digital to digital reproduction – is not a fair use in any event, regardless of how little or how much is taken. This is also in stark contrast to the ‘‘multimedia’’ guidelines that have been developed for use of motion and other media by either teachers or students in educational works, such as power points, Web sites, et cetera. Importantly, as is demonstrated by both Tables 1 and 2, few if any of the cases have any direct link or reference to either the 10% line in the sand or other amount suggested in the anecdote reported early in this paper, or from the surveyed institutions, or any of the other limits other guidelines offer. Whether a use is fair or not would best be derived from a consideration of all four factors, not just from one; or presented in the alternative, any policy or guideline that offers a portion limitation should do so in light of the other factors of the analysis. A license, however, can authorize such use regardless of a one or multidimensional analysis. Given the legal standards presented above, let us return to the research questions grounding the current study: 1. How many research libraries impose specific percentage or page limits on photocopying by faculty or staff? 2. What are the scenarios under which the library might photocopy materials or provide photocopied materials on reserve for student use? 3. To what extent is the policy or practice of research libraries at variance with the developing law relating to fair uses of copyrighted material with respect to specific percentage or page limits on photocopying by faculty or staff or materials photocopied or provided on reserve for student use? We will now address the survey operationalization and results in light of this legal backdrop.

OPERATIONALIZATION To address the three prevailing research questions, nine points of data were examined: specific limits on photocopying based on copyright interpretation, the basis of this limit, understanding of fair use, use of reserves, understanding of the Copyright Act of 1976 as amended, the existence of a library committee addressing copyright issues, peer assessment of the competency of fellow faculty and administrators in interpreting the Copyright Act of 1976 as amended, the position and length of service of the respondent, and the holdings of the library. For the purposes of this research, the following are reported: ! the existence of set percentages allowed to be photocopied without copyright owner permission; ! the existence of a library committee on copyright procedures; ! a scenario involving three chapters of a book; and ! a scenario involving an in-print journal article.

Table 1 Portion Limitations on the Use of Copyrighted Material as Articulated in the Fair Use Guidelines and in Various Court Cases Source

Limitation

‘‘Fair Use’’ guidelines, various works Agreement on Guidelines on Classroom Copying In Not-For-Profit Educational Institutions with Respect to Books and Periodicals

100% of a single chapter, article, short story, essay or poem, chart, graph, diagram, drawing, cartoon, or picture can be copied for a teacher.

Reprinted in: U.S. Copyright Office, Circular 21, pp. 10–11 (no date). Multiple copying for students: Poetry: 250 words, no more than one complete poem or two excerpts from the same poet. Conditions: no more than 9 instances of copying in a single course, no anthologies or compilations, and insufficient time to make request for permission.

Prose: a complete work of less than 2500 words, an excerpt of 1000 words or 10%, whichever is less, copying form special works limited to no more than 10%. Illustration: one per book or periodical. Consumables, such as tests or workbooks is not allowed.

Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes

100% of an audiovisual work (a program transmitted by television stations for reception by the general public) is allowed.

Reprinted in: U.S. Copyright Office, Circular 21, pp. 26–27 (no date). Conditions: used in classroom within 10 school days irrespective of whether re-broadcast, i.e., program may not be re-recorded and re-used, may not be used to create anthologies or compilations. Guidelines for Educational Uses of Music

100% of a sound recording (single copy), but ‘‘[t]his pertains only Reprinted in: U.S. Copyright Office, Circular 21, pp. 13–14 (no date). to the copyright in the music itself and not to any copyright which may exist in the sound recording.’’ Conditions: sound recording from which copy is made must be owned by the educational institution or educator, use restricted to construction of aural exercises or examinations, may be retained by institution or educator but may not be used to ‘‘create or replace or substitute for anthologies, compilations or collective works.’’ Fair Use Guidelines for Educational Multimedia Reprinted in: Bielefield, A. and Cheeseman, L. (1997). Technology and Copyright Law: A Guidebook for the Library, Research and Teaching Profession, pp. 92–102. Conditions: no more than 2 years of use, restricted in distance education (password or secure access and prevent duplication, or limited use of 15 days) Fair-Use Guidelines for Electronic Reserve Systems Reprinted in: Bielefield, A. and Cheeseman, L. (1997). Technology and Copyright Law: A Guidebook for the Library, Research and Teaching Profession, pp. 194–199.

10% or 3 minutes of an audiovisual work, whichever is less. Prose: lesser of 10% or 1000 words. Poetry: 250 words, but not more than selections 3 from same poet. 10% or 30 seconds of a musical work, whichever is less. 100% of a photograph or illustration, but no more than 6 from the same photographer or artist, or the lesser of 10% or 15 from a collection.

100% of a short item: article, chapter, etc., ‘‘of a customary length and structure as to be a small part’’ of the work. An excerpt (no value given) of a longer item: article, chapter, etc., ‘‘of such length as to constitute a substantial portion’’ of the work.

Conditions: ‘‘total amount of material included . . . should be a small proportion of the total assigned reading for a particular course’’ Text (including photocopying) Mastone-Graham v. Burtchaell, 803 F.2d 1253, (2nd Cir. 1986), cert. denied 481 U.S. 1059 (1987) (Use of interview excerpts from another ‘‘book [that] was essentially factual in nature,’’ is a fair use. The court observed that ‘‘[l]ike the biography, the interview is an invaluable source of material for social scientists, and later use of verbatim quotations within reason is both foreseeable and desirable.’’ Id. at 1264.)

‘‘The first essay in Rachel Weeping was approximately 37,000 words long, and about 7000 of these were direct quotations from the interviews in Pregnant by Mistake. Burtchaell’s book contains 325 pages of text, and the title essay filled 60 pages.’’ Id. at 1257. ‘‘We agree with the district court that Burtchaell’s inclusion of 4.3 percent of the words in Pregnant by Mistake in his own book [Rachel Weeping] is not incompatible with a finding of fair use. . . Nor can it be said that Burtchaell took the heart of Pregnant By Mistake, since Maxtone-Graham’s book consists of narratives by 17 women, and had no identifiable core that could be appropriated.’’ Id. at 1263. (continued on next page)

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Table 1 (continued) Source

Limitation

Basic Books, Inc. Kinko’s v. Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (Reproducing various articles in course packs is not a fair use.)

‘‘There are 12 instances of copyright infringement alleged in this case. The 12 excerpts, which vary in. length from 14 to 110 pages. . .’’ Id. at 1526. For the 12 works, the use constituted: 5%, *18–21%, *22–24%, 16–20%, 8–11%, 8–9%, 7–8%, 6%, 14%, 13–14%, *17–18%, and *25–28% (*‘‘weighs heavily against the defendant’’). Suggesting that less than 5% favors fair use, 10%–15% ‘‘weighs against’’ fair use, and over 15% ‘‘weighs heavily’’ against fair use. On the other hand, the courts seemed to view the percentages as too much in a qualitative context: ‘‘A short piece which dis the heart of’ a work may not be fair use and a longer piece which is pedestrian in nature may be fair use.’’ Id. at 1533. ‘‘This court finds and concludes that the portions copied were critical parts of the books copied, since that is the likely reason the college professors used them in their classes.’’ Id. at 1533. ‘‘In one case Kinko’s copied 110 pages of someone’s work and sold it to 132 students. Even for an out-of-print book, this amount is grossly out of line with accepted fair use principles.’’ Id. at 1533–1534.

Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) (Reproducing various articles in course packs is not a fair use.)

‘‘The amounts used in the case at bar – 8,000 words in the shortest excerpt – far exceed the 1,000 safe harbor. . . [citation to ‘‘classroom’’ guidelines omitted]. The defendants were using as much as 30 percent of one copyrighted work, and in no case did they use less than 5 percent of copyrighted work as a whole. These percentages are not insubstantial.’’ Id. at 1389.

American Geophysical Union, et al. v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994) (Photo-copying of articles by researchers for inclusion in personal office file is not a fair use.)

‘‘Despite Texaco’s claims that we Consider its amount of copying dminisculeT in relation to the entirety of Catalysis, we conclude, as did the District Court, that Texaco has copied entire works. Though this conclusion does not preclude a finding of fair use, it militates against such a finding.’’ Id. at 926.

Consumables (tests) Chicago School Reform Board of Trustees v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003) (Reproducing several tests in a local education newsletter is not a fair use.)

‘‘[T]hough he didn’t obtain any [evidence] in the district court proceedings, to prove that he copied. no more of the tests than he has to do in order to make his criticisms of them intelligible. He insists that he had to copy six tests out of the 22 to 44 tests given in January 1999. . . But he does not explain why, or indicate witnesses or documents that might support such an argument. Granted that he had to quote some of the test questions in order to substantiate his criticisms, why entire tests? Does he think all the questions in all six tests bad? He does not say. What purpose is served by quoting the good questions? Again, no answer.’’ Id. at 629–630.

Musical works Higgins v. Detroit Educational Television Foundation, 4 F. Supp. 2d 701 (E.D. Mich. 1998) (Use of two song excerpts in a 5-minute ‘‘feature’’ segment of a 28-minute teen-targeted public television program entitled Club Connect is a fair use.)

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‘‘There are no absolute rules as to how much of a copyrighted work may be copied . . . the Court finds that the scales tip here in favor of Defendants . . . none of the lyrics are played . . . the two brief 16- and 20-second long excerpts from the song are barely audible . . . an instrumental portion . . . is discernable . . . in the first 16-second segment, plaintiffs song can barely be heard at all the second time it is played . . . Nor does a quantitative approach aid Plaintiff. Defendants used 35 seconds of Plaintiff’s 3-minuteand-35-second musical composition . . . This amounts to 16% of the copyrighted work.’’ Id. at 707–708.

Table 1 (continued) Source

Limitation

Sound recordings Bridgeport Music, Inc. v. Dimension Films, __ F.3d __, 2004 WL 1960167 (6th Cir. 2004) (Two seconds of a three-note, four-second arpeggiated guitar chord riff from the composition and sound recording ‘‘Get Off Your Ass and Jam,’’ George Clinton, Jr. and the Funkadelics sampled with lowered pitch, looped to 16 beats of seven seconds, repeated at five places (0:49, 1:52, 2:29, 3:20, and 3:46) in the rap song ‘‘100 Miles and RunninT’’ is not a fair use. Court rejects use of substantial similarity or de minimis test: ‘‘a sound recording owner has the exclusive right to dsampleT his own recording.’’ Id. at *6.)

‘‘This analysis admittedly raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three note by way of sampling from a sound recording. Why is there no de minimus taking or why should substantial similarity not enter the equation. [footnote omitted]. . . We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value.’’ Id. at *6.

Photographs Nunez v. Caribbean International News Corp. 235 F.3d 18 (1st Cir. 2000) (Reproducing several modeling portfolio photographs in newspaper as part of a story discussing the controversy created by the photographs is a fair use.)

‘‘El Vocero admittedly copied the (Reproducing entire picture; however, to copy any less than that would have made the picture useless to the story. As a result, like the district court, we count this factor as of little consequence to our analysis.’’ Id. at 24. The court concluded that this factor was ‘‘neutral,’’ neither supporting nor weighing against a finding of fair use.

Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2002) (Reproduction of multiple photographs from same artist as part of a Web site thumbnail index is a fair use.)

‘‘[T]he extent of permissible copying varies with the purpose and character of the use. [footnote omitted] If the secondary user only copies as much as in necessary for his or her intended use, then this factor will not weigh against him or her. This factor neither weighs for or against either party because. . .it was reasonable to do so in light of Arriba’s use. . .’’ Id. at 820–821.

Works of art and other images Ringgold v. Black Entertainment Television, Inc., Home Box Office, Inc., 126 F.3d 70 (2d Cir. 1997) (Poster of a work of art that was used as a set decoration for a television program was is not a fair use. ‘‘A five-minute scene of the recital concludes the episode. The ‘‘dChurch PicnicT poster was used as a wall-hanging in the church hall.’’ Id. at 72. ‘‘In the scene, at least some portion of The poster is shown a total of nine times. In some of those instances, the poster is at the center of the screen, although nothing in the dialogue, 820–821 or camera work particularly calls the viewer’s attention to the poster.’’ Id. at 73.)

‘‘The nine sequences in which a portion of the poster is visible range in duration from 1.86 to 4.16 seconds The aggregate duration of all nine sequences is 26.75 seconds.’’ Id. at 73. ‘‘The District Court properly considered the brevity of the intervals in which the poster was observable and the fact that in some segments only a portion of the poster and the nearly full view was not in precise focus. [footnote omitted] Our own view of the episode would incline use to weight the third factor less strongly toward the defendants than did Judge Martin but we are not the fact-finders . . . although the ultimate conclusion is a mixed question of law and fact.’’ Id. at 81.

Ty, Inc. v. Publication International, Ltd., 292F.3d 512 (7th Cir. 2002) (‘‘Ty’s concession That a Beanie Babies collectorsT guide is not a derivative work narrows the issue. . . to whether PIL copied more than it had to in order to produce a marketable collector’s guide.’’ Id. at 521. ‘‘The question is whether it would be unreasonable to conclude, with reference to one Beanie Babies Collector’s Guide, that the use of the photos is a fair use because it is the only way prepare a collectors’ guide.’’ Id. at 522. The appellate court reversed and remanded the case question may contain infringing photographs of Ty’s Beanie Babies, e.g.; ‘‘[a]t one end of the spectrum is For the Love of Beanie Babies. This large-print book with hard shinny covers seems directed at a child audience. All the different Beanie Babies, more than 150 of them, are pictured. Each picture is accompanied by a brief commentary. Some of the commentary seems aimed exclusively at a child (or infantile adult) audience.’’ Id. at 519.)

‘‘But remember that photographs of Beanie Babies are conceded to be derivative works, for which there may be a separate demand that Ty may one day seek to exploit, and so someone who without a license from Ty sold photographs of Beanie Babies would be an infringer of Ty’s or more of the enjoined publications, such as the sculpture copyrights.’’ Id. at 519. ‘‘Ty acknowledges as it must that a collectorTs guide to a series of to copyrighted works is no more derivative work than a book review for further proceedings as some of books in is.’’ Id. at 520.

(continued on next page)

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Table 1 (continued) Source

Limitation

Audiovisual works (screen shot, film, and film clips) Microstar v. Formgen, Inc., 942 F. Supp. 2d 1312 (S.D. Calif. 1996) ‘‘As to the screen scenes, upon application of the four-factor test the court concludes that the totality of the thirty Duke 3D screen scenes (‘‘One of the main issues before this court is the fact that the packaging for Nuke It contains 30 scenes from the Duke 3D game, on the Nuke It packaging is not fair use. Similarly, the court also concludes that the inclusion of Duke 3D screen savers with Nuke depicting such original art work as the Cycloid, Emperor, It is also not a fair use.’’ Id. at 1317. Battlelord, Assault Trooper, Ripper Chaingun, Octabrain, and Enforcer. In addition, a version of Nuke It released in July of 1996 contained 25 screen savers, described as dwallpaper,T that depicted scenes and audiovisual elements from the Duke 3d game.’’ Id. at 1314–1315. Use was not a fair use.) Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191 (3d Cir. 2003), cert. denied 2004 LEXIS 1052 (2/23/04) (Use of Disney scenes in movie trailers is a fair use.)

‘‘As Video Pipeline points out, its previews excerpt only about two minutes from movies that last one and a half to two hours. Quantitatively then, the portion taken is quite small.’’ Id. at 201. As to the qualitative element of the third factor: ‘‘Although the plot, tone, and leading characters are, of course significant aspects of the films, the two-minute dglimpseT provided by the clips is made up only of scenes taken from the first half of the Disney films. Disney has not claimed, for instance, that any of the clips dgive awayT the ending of a movie, or ruin other intended surprises for viewers of the full-length films. Moreover, as advertisements, the clip previews are meant to whet the customer’s appetite, not to sate it; accordingly, they are not designed to reveal the dheartT of the movies. Simply put, we have no reason to believe that the two-minute clips manage in so brief a time, or even intend, to appropriate the dheartT of the movies.’’ Id. at 201.

Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57 (2d Cir. 1980) (Use of film clip from a documentary on Olympic wrestler Dan Gable is not a fair use. ‘‘After Iowa filed this suit alleging copyright infringement in 1975, and following discovery, however, ABC admitted three uses of the film: (1) seven to twelve seconds of Champion were shown on ABC’s pre-Olympic telecast on August 25, 1972; (2) 2 1/2 minutes were used as pat of an ABC report on Gable before his first Olympic wrestling match on August 27; and (3) eight seconds were telecast in connection with Gable’s appearance on ABC’s Superstars program in February 1974, after Iowa had first written the network about its use of Champion during the Olympics.’’ Id. at 59.)

‘‘In discussing the third fair use factor, ABC stresses that it used only 2 1/2 minutes of a 28-minute film, suggesting that such limited copying is insignificant. But ABC actually broadcast approximately eight percent of Champion, some of it on three separate occasions. Obviously, ABC found this footage essential, or at least of some importance, whenever it had occasion to refer to the career of Dan Gable.’’ Id. at 61–62. ‘‘Our conclusion that the fair use defense is unavailable to ABC is bolstered by the equitable considerations. . . We cannot ignore the fact . . . that ABC copied Champion while purporting to assess its value for possible purchase, or that the network repeatedly denied that it had ever use the film.’’ Id. at 62.

Dastar Corporation v. Twentieth Century Fox Film Corporation, 539 U.S. 23, 123 S. Ct. 2041 (2003) (‘‘In 1948 . . . General Dwight D. Eisenhower completed Crusade in Europe, his written account of the allied campaign in Europe during World Was II. Doubleday published the book, registered it with the Copyright Office in of respondent Twentieth Century Fox Film, Corporation (Fox) . . . The television series Consisting of 26 episodes, was first broadcast in 1949. It combined a soundtrack based on a narration of the book with film footage from the United States Army, Navy, and Coast Guard, the British Ministry of Information and Was Office, the National Film Board of Canada, and unidentified dNewsreel Pool CameramanT. . . Fox however, did not renew the copyright on the Crusade television series, which expired in 1977, leaving the television in the public domain.’’ Id. at 2044.)

Federal fair trade law prohibits acts likely to cause confusion as to the ‘‘origin’’ of goods among consumers. The question before the Court was whether Dastar’s failure to attribute its version to the original 1949 series violated this requirement. The Court 1948, and granted exclusive rights to an affiliate characterized the original 26-episode documentary: ‘‘Dastar’s alleged wrongdoing, however, is vastly different: it took a creative work in the public domain—the Crusade television series—copied it, made modification (arguably minor), and produced its very own series of videotapes.’’ Id. at 2046–2047 (emphasis added). The original film ‘‘footage used in the Crusade television series could have been copyrighted, as was copyrighted (as a compilation) the Crusade television series, see 17 U.S.C. § 102(a)(6) even though it included material from the public domain [i.e., the archival film footage?]. Had Fox renewed the copyright in the Crusade television series, it would have had an easy claim of copyright infringement, see § 103(a).’’ Id. at 2049.

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The two scenarios were intended to probe the library’s reaction to specific situations related to fair use, though that term was not used in the questionnaire. Still, the inquiry measures in some way the understanding and application of fair use in the institutional setting, as the adherence to strict portion limitations, percentage or otherwise, generally derives from either a court’s discussion of the third fair use factor or from the so-called copyright guidelines that for the most part also serve as interpretations of fair use. One exception is the CONTU Guidelines on Photocopying and Interlibrary Loan Arrangements, which were developed in order to implement section 108 of the copyright law dealing with reproductions and distributions by library and archives, not section 107 (fair use).6 However, as discussed below the authors conclude that knowledge or at least its practical application is incomplete as a ‘‘how much’’ inquiry is but one of four fair use factors. The respondents’ understanding of fair use was coded based on the ability to identify book and journal situations that might expand privileges beyond that allowed by other areas of copyright law. In the following discussion some of these ‘‘understandings’’ are compared or contrasted with the state of the law as presented in Tables 1 and 2. Among the scenarios presented were the following: ! classroom use; ! material out of print; ! material provided through interlibrary loan; ! permission of author;

Non-Scenario Frequency Results Respondents were asked to report whether they set an upper limit on the percentage of pages that are reproduced without author/publisher (copyright holder) permission. Twenty-one or 36.2% responded that they did impose a specific limit. Table 4 indicates of this 21 or 36.2%, the majority (61.9%) follows the 10% limitation, spanning to nearly 5% limiting reproduction to one chapter. Considering the cases presented in Table 1, these percentage limitations appear arbitrary at best, though in accord with a specific university setting different levels for different institutions could nonetheless represent an acceptable level of riskmanagement; it would still, however, be quite inconsistent across the institutions surveyed. It would also be fair to assume that such determinations, arrived at with input from legal counsel might to an extent be proprietary. Therefore, little explanation is offered or little insight is derived from the percentage thus assigned. Moreover, while guidelines offer limitations on the amount of textual material – save for the multimedia guidelines – few offer specific guidance on the use of entire or substantial portions of other works such as sound recordings or audiovisual works that one might find in a university with a music program, for example. And, and with the increase in distance education (at least as the copyright law broadly defines the concept to include campus or local students that access class content from a course Web site), many universities may desire to place more audiovisual content (VHS, DVD, etc.) on reserve or in virtual library spaces to accommodate the emerging twenty-four-seven model of learning by students.

! permission of publisher/copyright owner; ! out of copyright; ! request is timely; and ! request is isolated (not repeated the next semester). The existence of a library committee addressing copyright issues was coded as yes or no, and the peer assessment of the competency of fellow faculty and administrators in interpreting the Copyright Act of 1976 as Amended was coded from very low to very high on a five-point Likert Scale.

RESULTS AND DISCUSSION Of the 115 surveys sent out, 42 libraries responded after the first mailing. A second mailing to the non-respondents generated 25 more. A third mailing generated 11 more, for an overall total of 78 (68.7% response rate). This is a sound response rate and is more than enough to support the validity of the results. Of the 78 responses, 11 libraries sent a letter explaining why they were opting out of the survey, offering a variety of interesting and compelling reasons. This material will be discussed in further publications. We first present in Table 3 frequencies for the nine points of data identified above (limits based on a set percentage, basis of that limit, existence of library committees addressing copyright issues, peer assessment of copyright act interpretation, respondent staff position and length of service, and library holdings), followed by Table 4, indicating set percentages reported by those using percentages to determine status of requested photocopying within fair use before moving into the scenario results.

‘‘...these percentage limitations [reproduction without author/publisher permission] appear arbitrary at best...’’

Of those responding, 13 reported having a university committee that address copyright issues. Of these, however, 44.4% reported that the library had no representative on the committee. This appears most odd for the obvious reason that it is the library and its staff that is the de facto front line interpreter and enforcer of the policy’s mandates. The lack of a university committee was found to correlate highly ( P b 0.05) to the existence of standards limiting photocopying based on specific percentages or chapter. This suggests that when a committee is involved and actual risk-management considerations occur on a case by case basis, the result is one that is more in tune with the actual or developing law and the fair use test, i.e., a result that looks at all four fair factors or considers other issues, legal (other provisions of the copyright law, license terms and conditions, etc.) or otherwise, in arriving at acceptable uses of copyrighted material in its campus practices. At the very least, it suggests the institution does not default to bright line percentages, whether based on the guidelines, a particular court case, e.g., Basic Books, Inc. v. Kinko’s Graphics Corp., or some other norm operating with the institution or across institutions, such as a standard established by members of a consortia or developed by a professional library or educational organization.

May 2005 189

Table 2 Section 1201 Litigation and Dictum Regarding Fair Uses of Copyrighted DVDs Universal Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). ‘‘Third, the Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format. [footnote omitted] Their examples of the fair uses that they believe others will be prevented from making all involve copying in a digital format those portions of a DVD movie amenable to fair use, a copying that would enable the fair user to manipulate the digitally copied portions.’’ Id. at 459. ‘‘Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original. [footnote omitted] Id. at 459. ‘‘One example is that of a school child who wishes to copy images from a DVD movie to insert into the student’s documentary film. We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original.’’ Id. at 459. ‘‘Although the Appellants insisted at oral argument that they should not be relegated to a dhorse and buggyT technique in making fair use of DVD movies, [footnote omitted] the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use.’’ Id. at 459 (emphasis added). United States v. Elcom Ltd., 203 F.Supp. 2d 1111 (N.D. Cal. 2002). ‘‘The conversion accomplished by the AEBPR program enables a purchaser of an ebook to engage in dfair useT of an ebook without infringing the copyright laws, for example, by allowing the lawful owner of an ebook to read it on another computer, to make a back-up copy or to print the ebook in paper form. The same technology, however, allows a user to engage in copyright infringement by making and distributing unlawful copies.’’ Id. at 1118–1119. ‘‘Fair use of a copyrighted work continues to be permitted as does circumventing use restrictions for the purpose of engaging in a fair use, even though engaging in certain fair uses of digital works may be made more difficult if tools to circumvent use restrictions cannot be readily obtained ‘‘even though engaging in certain fair uses of digital works may be made more difficult if tools to circumvent use restrictions cannot be readily obtained.’’ Id. at 1125. ‘‘For example, nothing the DMCA prevents anyone from quoting from a work or comparing texts for the purpose of study or criticism. It may be that from a technological perspective, the fair user my [sic] find it more difficult to do so—quoting may have to occur the old fashioned way, by hand or by retyping, rather than by dcutting and pastingT from existing digital media. Nevertheless, the fair use is still available. Defendant has cited no authority which guarantees a fair user the right to the most technologically convenient way to engage in fair use.’’ Id. at 1131 (emphasis added). ‘‘[T]o the extent that a publisher has taken a public domain work and made it available in electronic form, and in the course of doing so has also imposed use restrictions on the electronic version, the publisher has not gained any lawfully protected intellectual property interest in the work. The publisher has only gained a technological protection against copying that particular electronic version of the work. The situation is little different than if a publisher printed a new edition of Shakespeare’s plays, but choose to publish the book on paper that was difficult to photocopy.’’ Id. at 1131. ‘‘Publishing the public domain work in an electronic format with technologically imposed restrictions on how that particular copy of the work may be used does not give the publisher any legally enforceable right to the expressive work, even if it allows the publisher to control that particular copy.’’ Id. at 1134. ‘‘[T[here is as yet not generally recognized right to make a copy of a protected work, regardless of its format, for personal noncommercial use. There has certainly been no generally recognized First Amendment right to make back-up copies of electronic works.’’ Id. at 1135. 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085 (N.D. Cal. 2004). ‘‘This Court agrees with the Corley court that the purchase of a DVD does not give to the purchaser that authority of the copyright holder to decrypt CSS.’’ Id. at 1096. ‘‘Fair use is still possible under the DMCA, although such copying will not be as easy, as exact, or as digitally manipulable as plaintiff desires. Furthermore, as both Corley and 321 itself stated, users can copy DVDs, including any of the material on them that is unavailable elsewhere, by non-digital means.’’ Id. at 1102 (emphasis added).

Scenario Frequency Results The scenario results were broken into two groups: those who reported having specific percentage limits and those who did not (Table 5). Of interest are the higher numbers of

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percentage-based libraries who require an assessment of pages, chapters, and make an inquiry of the timeliness and the repeat use of the material. The first two of these (percentage of pages and percentage of chapters) is predictable, as this would be expected to be part of a percentage-

Table 3 Frequencies for Limits Based on a Set Percentage, Basis of that Limit, Existence of Library Committees Addressing Copyright Issues, Peer Assessment of Copyright Act Interpretation, Respondent Staff Position and Length of Service, and Library Holdings Yes

No

Limits based on a set percentage (n = 68)

29.4%

70.6%

University committees addressing copyright (n = 63)

20.6%

79.4%

Library representative on university copyright committee (n = 13)

44.4%

55.6%

Peer assessment of awareness of very copyright act provisions (n = 67)

Very low

Low

Administrators in general

–

High

Very high

16.4

14.9

47.8

14.9

4.5

Library administrators

2.9

4.4

17.6

41.2

32.4

Library staff

1.5

7.4

35.3

44.1

10.3

Faculty in general

13.2

39.7

32.4

5.9

1.5

Students in general

57.4

25.0

5.9

2.9

1.5

Very low

Low

–

High

19.1

20.6

42.6

13.2

0

Peer assessment of familiarity of copyright act provisions (n = 68) Administrators in general

Very high

Library administrators

4.4

5.9

27.9

33.8

23.5

Library staff

4.4

11.8

36.8

39.7

2.9

Faculty in general

23.5

44.1

17.6

4.4

0

Students in general

63.2

19.1

5.9

1.5

0

Basis of limit among those libraries with set percentage (n = 21) Legislation

31.8%

Case Law

4.5%

Other (such as guidelines)

36.3%

Basis unknown by respondent

27.3%

Respondent staff position (n = 57) Library administrator

36.2%

Library holdings director

13.0%

Library reference director

5.8%

University attorney

1.5%

Copyright committee chair

8.7%

Library representative to the copyright committee Other position

2.9% 24.6%

Length of service (n = 57) 0–9.9 years

39.1%

10–19.9 years

18.8%

20+ years

24.6%

Not responding

17.4%

Library holdings (n = 61) 0 to 3 million volumes

49.2%

3.1–6 million volumes

37.7%

6.1–9 million volumes

8.2%

9.1–12 million volumes

3.3%

12.1+ million volumes

1.6%

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Table 4 Set Percentages Reported by those Using Percentages to Determine Status of Requested Photocopying within Fair Use (n = 21) Limited to 10% of chapters or pages

61.9

Limited to 15% of chapters or pages

9.6

Limited to 20% of chapters or pages

9.6

Limited to one chapter

4.8

Limited, but not specified by respondent

19.1

Total does not ad up to 100% due to rounding and the duplicative answers to the question regarding one-chapter limits.

based system. But inconsistency appears in this inquiry as well. Even this ‘‘blind’’ devotion to portion limitations is at variance with both the classroom guidelines and the case law, at least in so far as the case reflects a ‘‘how much’’ approach, i.e., the third fair use factor (‘‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’’). If one were trying to conform to the portion limitations of either guidelines or as derived from the case law, where the cases may suggest any, one would tally and compare the total number of pages copied to the total number of pages of the work and arrive at percentage, e.g., 30 pages of a 300-page book equals 10%, not 3 chapters of a 10chapter book equals 30%, as those three chapters might represent quite varying amounts of the total content. Therefore, making an assessment of the percentage of chapters is at variance with any limits that either the various fair use guidelines or case law suggests. Of course as the case law suggests, that 10% or 30% might represent the heart of work as well, a concept not reflected in the classroom guidelines whatsoever but nonetheless discussed in the case law. That only 4.5% of respondents indicated using case law as the basis for determination is therefore not surprising. Academic libraries would be wise to take notice of emergent case law in particular, not simply the static legislation of the Copyright Act in general. Moreover, in scenario I (chapters), the use of a percentage assessment received the highest response (38.1%) among those institutions using percentage-based inquires. Of course, the ‘‘how much’’ question is just one of the factors in a proper fair use analysis. In fact, the only time the classroom guidelines look at an entire chapter as a unit of measure is for a single chapter copying for a teacher, not for copying, single or multiple, or for either reserve or e-reserve or multiple copying for the classroom. Thus, even under the fair use guidelines chapter copying as a unit of measure is not relevant for reserve/e-reserve calculation and the classroom guidelines cannot be used to support the making reserve or e-reserves.7 Moreover, while the e-reserve guidelines use the term ‘‘chapter’’ as a label, they still require that the relevant inquiry be how much the text of the chapter represents to the entire work: all of the chapter is allowed if it represents ‘‘a customary length and structure as to be a small part’’ or limited to something less than the entire chapter if the length of the chapter is ‘‘of such length as to constitute a substantial portion’’ of the work. The last two inquiries (‘‘spontaneity’’ in the words of the guideline and repeat use) do indeed reflect conditions of the

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classroom guidelines. In addition, for both scenarios, percentage-based libraries were far more likely (28.6% to 15.2% for scenario I (3 chapters of a book), and 28.6% to 13.0% for scenario II (journal article)) to also inquire whether the use of the material was repetitive. The repetitive use criteria is reflected in the classroom guidelines, see Table 1, and commented upon in Marcus v. Rowly, 695 F.2d 1171 (9th Cir. 1983), where a teacher and school district were sued for reproduction (about half of the book Cake Decorating Made Easy). The court observed the item’s repeat (term to term) distribution in concluding that the use was not fair. This concept is not a part of the four part fair use analysis under the statute; however, it may reflect on the equity of the situation (i.e., repeat use as abusive use), an observation which courts do in fact make. For example in Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57 (2d Cir. 1980) (see Table 1) the court observed that ABC’s refusal to even admit its use of the film clip until the discovery stage of the litigation tilted the equities against the defendant. Likewise the ‘‘unclean hands’’ of some defendants can work to foreclose a fair use defense as well. In Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832 (Fed. Cir. 1992), the court concluded that while intermediate and necessary copying of computer object code in order to reverse engineer and understand the unprotected elements or ideas and processes of the program can in some circumstances be a fair use, the copying in this case was not as an Atari attorney obtained a copy of the source code from the U.S. Copyright Office under the false pretense that Atari was a defendant in a copyright case involving the program and that Atari would only use the source code in conjunction with that litigation. However, in Napster A &M Records, Inc. v. Napster, Inc., 239 F. 3d 1004 (9th Cir. 2001) the court did observe that the ‘‘repetitive and exploitative’’ practices of the file-sharers amounted to commercial use; again there was a sense of the inequity of allowing file-sharing to substitute for the purchase of sound recordings by the file-sharers coupled with the magnitude and wantonness of file-sharing behavior. So, too, while spontaneity is a part of the multiple reproduction and distribution provisions of the classroom guidelines and a timeliness concept is also reflected in the Guidelines for Educational Uses of Music (reproduction of sheet music allowed in case of immanent performance as long as replacement copies purchased in due course), this is not a factor in fair use analysis but a creation of the guidelines—as if the guidelines are suggesting that because there is insufficient time to get the proper permissions, the use is somehow transformed into a fair one.

‘‘In light of these observations, research libraries might desire to re-visit their policies.’’ In the area of other requirements, it was interesting that eight of the libraries, six from non-percentage institutions, required an assessment of students in the class. Moreover, in only one case did a library respondent report that all photocopying requests had to be ‘‘cleared by the University Copyright Office.’’ In light of these observations, research libraries might desire to re-visit their policies. Before this can be done, understanding those circumstances where

Table 5 A Comparison of Percentage-based Libraries to those with no Percentage Limits for Photocopying in Two Scenarios Involving Photocopying and Fair Use Percentage-based libraries, n = 21

Not percentage-based libraries, n = 47

0

0

Staff refuses without permission from publisher

33.3

30.4

Staff refuses without permission from author or authors

19.0

15.2

Staff refuses without permission from library legal staff

0

0

Staff refuses without permission from university attorney

0

0

Staff refuses without permission from written release from professor requesting the copies

9.5

6.5

Staff refuses without assessing percentage of pages

33.3

13.0

Staff refuses without assessing percentage of chapters

38.1

13.0

Staff refuses without assessing the request is timely

23.8

13.0

Scenario I: A professor brings three chapters of an in-print book to the library and asks that five copies be made and kept on reserve for student use Staff makes copies for the professor

Staff refuses without assessing the request is not repetitive

28.6

15.2

Other requirements

28.6

41.3

9.5

0

Staff refuses without permission from publisher

33.3

15.3

Staff refuses without permission from author or authors

19.0

8.7

Scenario II: A professor brings an in-print journal article to the library and asks that five copies be made and kept on reserve for student use Staff makes copies for the professor

Staff refuses without permission from library legal staff

0

0

Staff refuses without permission from university attorney

0

0

Staff refuses without permission from written release from professor requesting the copies

4.8

6.5

Staff refuses without accessing percentage of pages

23.8

6.5

Staff refuses without accessing percentage of chapters

23.8

4.4

Staff refuses without accessing the request is timely

23.5

10.9

Staff refuses without accessing the request is not repetitive

28.6

13.0

Other requirements

33.3

43.5

All percentages represent the number of respondents answering in the affirmative.

policy and other outreach is required by the copyright law versus where it is discretionary but nonetheless advisable is helpful. Another critical observation can be made based upon the indicated ‘‘basis’’ of the libraries with ‘‘set percentage’’ limits. It might be considered alarming that nearly a third (27.3%) of the respondents in this category do not know the legal origination of their institution’s percentage-based rule and may also suggest an unacceptable level of unfamiliarity with the copyright law. And, it may also indicate a mechanical ‘‘follow the rule’’ approach rather than an attempt to understand and then learn from the underlying law, and thus be able to apply the existing law to the climate of ever-developing copyright fact-patterns that may emerge.

The largest response, 36.3%, was from libraries that use some source other than the law (statutes or cases), such as the guidelines. This is a problematic decisional basis, at least when made in a vacuum. The reservations the authors submit and the rationale for that caution are expressed elsewhere in this article and are not repeated here. The second largest response, 31.8%, for legislation, also has the potential for problems in application. True, copyright law is federal statutory law, and using the statute, section 107 (the fair use provision), is laudable; nevertheless, its use cannot be made in a vacuum. Reference must also be made into the use of interpretive tools to understand the meaning of the statute and how it is to be applied. The survey does not indicate that the ‘‘legislation’’ respondents might have also considered the legislative history

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or the interpretive congressional reports that might accompany a given section of the copyright law. Some of the most important tools of statutory interpretation for the copyright law are the cases that have developed under its particular provisions. This is especially true in matters of fair use, since this section is purposely vague; it is up to the courts to apply it under given circumstances. It is the courts that discuss, in relation to the third fair use factor, ‘‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole,’’ how much, in a given case, is too much. It is submitted here that one learns most about how to apply fair use to new fact-patterns by reading how courts have applied in the past, or at least good interpretive source or summary of that in literature. Again, to underscore a point made elsewhere, the guidelines are necessarily the best interpretive source of that case law. Yet when one examines the response rate for institutions that set limits based upon the case law, that amount is an unfathomable 4.5%. Frankly, it is hard to understand how an institution can undertake a fair use analysis or establish a fair use photocopying or other reproducing policy without significant reference to the case law. Another more subtle point can be made as well, and explains why using the statute alone is still infirm. Both the guidelines as well as the statute (for the most part) are static concepts. The guidelines to our knowledge are not routinely reviewed for amendment; at least the statutory law is possible to such review. In reality, however, the statutory expression of fair use in section 107 has received little such review. In 1992, Congress added a concluding proviso stating that ‘‘fair use’’ can apply to unpublished works: ‘‘The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors’’ Pub. L. No. 12– 492, 106 Stat. 3145 (1992). This has been the only change to Section 107, since its enactment in 1976. In the words of the House Judiciary Committee, the purpose for the amendment was ‘‘to clarify the intent of Congress that there be no per se rule barring claims of fair use of unpublished works.’’8 As reiterated by the House Report, ‘‘courts are to examine all four statutory factors set forth in Section 107, as well as any other factors deemed relevant in the court’s discretion.’’9 Thus the courts remain the only source of frequent interpretation of fair use; unfortunately, most institutions using percentagebased limits do not consult the courts in copyright decision making. A final but perhaps obvious point is that the person most likely to be the respondent is from the library: 36.2% (library administrator). Other respondents’ positions include the holdings director (13.9%), head of reference (5.8%), and library representative to the institutional copyright committee. Trained legal staff is the responsible person in only 1.5% of the respondents. Other campus positions account for 24.6%. However, the 8.7% copyright committee chair could include a librarian as well. The point is that in most cases (55.9%), the copyright go-to person is a librarian. Notably, it is across a range of possible positions within the library. This underscores again the need for library staff to be well-versed in their understanding of the copyright law in general, and for the purposes of this study, in the law of fair use in particular. That understanding must ultimately derive from sound analysis based on the statute and its interpretation by the courts.

194 The Journal of Academic Librarianship

STATUTORY REQUIREMENTS: COPYRIGHT POLICES AND RELATED INFORMATIONAL MATERIALS What legal obligations and opportunities face libraries in the emerging copyright arena? Academic libraries and institutions may want to consider closely how service providers attain a ‘‘safe harbor’’ provision: Section 512(i)(1)(A) requires that as a general condition of eligibility for the safe harbor provisions (which limit plaintiff’s remedies to injunctive relief only, no monetary damages), a service provider must have ‘‘adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.’’ The ‘‘reasonable implementation’’ suggests that enforcement of the policy be consistent with the ways and means other policies are enforced within the institutional structure.10 The legislative history offers little guidance as to the form and content of the policy or what would constitute appropriate circumstances of implementation. This lack of detail, in light of the complexity of the remainder of section 512 is perplexing, and frustrating, nonetheless. But what level of response or pro-action is required? And should or how can libraries adopt to this model? Do libraries fit into this ‘‘safe harbor?’’ The House Report observed that this does not require a ‘‘should know’’ standard, of active monitoring and investigation: ‘‘the Committee does not intend this provision to undermine the principles of new subsection (l) or the knowledge standard of new subsection (c) by suggesting that a provider must investigate possible infringements, monitor its service, or make difficult judgments as to whether conduct is or is not infringing. However, those who repeatedly or flagrantly abuse their access to the Internet though disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.’’11 As universities do often act as ISPs for their students and faculties/staff, this provision is certainly of import. Institutional and library policy may therefore include postings on all faculty, staff, and student accessible Web pages, distribution of relevant documentation, orientation and training programs, inclusion of such information in employee and student handbooks, and some acknowledgement by patrons, teachers, staff, and students of their awareness of and compliance responsibility with the copyright law. This acknowledgement, in the guise of a signature or click-box indicating ‘‘I agree,’’ at least in form fulfills the statutory requirement that the service provider indeed ‘‘informs subscribers and account holders’’ of the existence of the policy and circumstances under which it will be enforced, i.e., termination of service for repeat infringement in conformity with the statute. Students at university settings may be more familiar than professors and academic staff in this domain, as they are often provided with acceptable use policies in their orientations and registration materials. The time is ripe for institutional libraries to play a prominent role in furthering awareness of the laws governing copyright and fair use guidelines. Under section 110(2)(D)(i), all qualifying educational entities that engage in distance education, i.e., transmit copyrighted materials as part of classroom teaching (this would include an on-campus course that had a Web-based instructional component), must undertake several compliance-

oriented tasks. First, the benefits (allowing public performance and display of copyrighted materials in distance education ‘‘classrooms’’) of section 110(2) are available only if ‘‘the transmitting body or institution—(i) institutes policies regarding copyright.’’ Second, the transmitting body or institution must ensure that it ‘‘provides informational material to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright.’’12

‘‘...all qualifying educational entities that engage in distance education...must undertake several compliance-oriented tasks.’’ Unfortunately, the legislative history does little other than repeat the statutory phrasing: ‘‘First, a transmitting body or institution seeking to invoke the exemption is required to institute policies regarding copyright and to provide information to faculty, students, and relevant staff members that accurately describe and promote compliance with copyright law.’’13 As a result educational institutions are left to their own devices regarding implementation. How much information and how many policies comply with the statutory mandate? A copyright common sense of sorts would also suggest that the policies be monitored and enforced with at least the same level of interest to which other campus policies are subject. A similar attitude might apply to the dissemination of informational materials. Are such items placed where ‘‘faculty, students, and relevant staff members’’ are likely to notice much less read the content? Is the material lost among countless other official notice boards, or placed in prominent places where infringement might occur or where use of copyrighted material is central, like computing facilities, libraries, bookstores? Further, are such items one dimensional? Posters alone, for example? Or is information offered in the form of updates in employee and student newsletters or mailing inserts, included in employee and student handbooks and made part of campus orientations or even seminars for faculty and staff and coursework for students? Second, the policy and informational materials requirement is the responsibility of the institution which suggests that it is not ad hoc but centralized, coordinated, and pervasive, i.e., occurs throughout the institution as it must reach ‘‘faculty, students, and relevant staff members.’’ Those universities in the survey with centralized copyright committees appear to be ahead of the curve in implementing such statutory commands, or at least would find creation, implementation, and review easier when coordinated by a central authority, and can in the language of the Conference Report ‘‘promote an environment of compliance with the law, inform recipients of their responsibilities under copyright law, and decrease the likelihood of unintentional and uninformed acts of infringement.’’ While not made explicit in the statutory language of section 110(2), in contrast to the explicit ‘‘reasonably implemented’’ command of section 512, though nonetheless consistent with section 110(2)’s legislative purpose of creating an ‘‘environment of compliance,’’ it should be apparent that there is an expectation of enforcement once a breech of any policy so

conceived is discovered that the institution respond as it normally would to violations of administrative policy by faculty, staff, and students. It should be noted that the first two compliance requirements of section 110(2)(D), the policies and informational materials, do not restrict the policies instituted and informational materials provided, to those concerning distance education or section 110(2) alone, rather the statute states that polices are instituted ‘‘regarding copyright’’ and informational materials are provided describing and promoting compliance with ‘‘the laws of the United States relating to copyright’’ and not that polices be instituted ‘‘regarding copyright and distance education’’ or informational materials are provided describing and promoting compliance with ‘‘the laws of the United States relating to section 110(2) of the copyright law.’’ There appears to be no indication that the policy and informational materials requirement relates only to copyright issues in distance education; in fact, the plain language of the statute suggests just the opposite.14 Of special concern to universities are the additional safe harbor rules that allow institutions of higher education to gain expanded protection under section 512. The rules, like much of the copyright law, are too complex to review here in detail.15 However, for the purposes relevant to the present discussion, an additional condition of that protection under section 512(e)(1)(C) requires that ‘‘the institution provide to all users of its system or network informational material that accurately describe, and promote compliance with the laws of the United States relating to copyright.’’ The legislative history offers no further articulation of what sort of informational material should be provided only to suggest what could be provided: ‘‘The legislation allows, but does not require, the institutions to use relevant informational materials published by the U.S. Copyright Office in satisfying the condition imposed by paragraph (C).’’16 This is reference to the various copyright circulars available from the Copyright Office Web site, but it could of course include other information in the form of posters, brochures, handouts, and brief articles in various institutional publications, such as newsletters, magazines, etc. In addition, several provisions of the copyright law require that notices warning notices be used in certain circumstances. In summary, the notices include the following: a Section 108 of the copyright law (17 U.S.C. § 108) allows qualifying libraries, such as school libraries including media centers, but not the wider school environs such as the administrative team (section 108 is a library provision not an educator’s provision), to make certain reproductions and distributions of copyrighted material under certain circumstances, such as for preservation and security (for unpublished works) or for ‘‘damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete’’ (for published works), if ‘‘the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.’’ A simple statement, made into an ink-stamp, stating ‘‘This work is protected by the copyright laws of the United States, Title 17, United States Code’’ or ‘‘This work

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may be protected by the copyright laws of the United States, Title 17, United States Code’’ would suffice. a Under 17 U.S.C. § 108(d) and (e), the library may reproduce and distribute copyrighted material under certain circumstances, including interlibrary loan under 108(d), if ‘‘the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.’’ The text of the notice and instructions for its use on signage and copy request forms is prescribed in 37 C.F.R. § 201.14. a Under 17 U.S.C. § 108(f)(1), the school library can be insulated from the infringing acts of its students, but not employees, if it ‘‘displays a notice that the making of a copy may be subject to the copyright law’’ on all equipment capable of reproducing copyrighted works such as photocopiers, computers, scanners, etc. The immunity covers only the unsupervised use of reproducing equipment not that directed by educators or staff. While no specific warning notice is forwarded by the U.S. Copyright Office, the following can be adapted: 37 C.F.R. § 201.14. a Under 17 U.S.C. § 109(b)(2), circulation of software by nonprofit library or educational institutions must include notice of copyright. The text of the notice as well as instructions for its use is prescribed in 37 C.F.R. §201.24, per 109(b)(2). a The final compliance proviso of section 110(2)(D)(i) targets additional outreach to students. The institution must be sure that it ‘‘provides notice to students that materials used in conjunction with the course may be subject to copyright protection.’’ The legislative history adds nothing, repeating verbatim the last proviso of section 110(2)(D)(i). Conference Report, H. Rpt. No. 107–685, 107th Cong., 2nd Sess. 230 (2002) (‘‘Further, the transmitting organization must provide notice to students that materials used in conjunction with the course may be subject to copyright protection.’’) The statute does not provide the form or content of the required copyright notice. It may be that in time the U.S. Copyright might issue a suggested form similar to the section 108 notice required for interlibrary operations in libraries and archives (17 U.S.C. § 108(f)(1) and 37 C.F.R at § 201.14) or that required for the circulation of software under section 109. 17 U.S.C. § 109(b) and 37 C.F.R. § 201.24 until that time a notice similar to the one below could be used; it incorporates language from the federal regulation.

CONCLUSIONS What does the law say about what libraries in particular and their host institutions in general should be doing with respect to copyright policies or other informational outreach regarding the copyright laws of the United States? How are the fair use guidelines, so often touted in academic work, interpreted and implemented in practice? How do these practices conform to the legal requirements actually in place? First, while courts do indeed ask ‘‘how much,’’ this inquiry is merely one of four elements of the fair use analysis. Moreover, because this inquiry is not a simple one of measurement but also considers ‘‘substantiality of the portion used in relation to the

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copyrighted work as a whole,’’ a relatively small amount (e.g., Basic Books, Inc. Kinko’s v. Graphics Corp.) may represent a taking of the ‘‘heart of the work’’ and thus would not favor a fair use. Again, however, this is but one of four factors. Likewise, keeping limits to relatively small amounts and avoiding taking the ‘‘heart of the work’’ may lead a court to conclude that that factor favors a fair use, the other factors may still work against that conclusion. Policies should reflect the complexity of fair use and might actually result in a wider array of uses being deemed fair, at least as far as the educational entity is concerned. Perhaps libraries implementing arbitrary limits have been too severe and restrictive.

‘‘Perhaps libraries implementing arbitrary limits have been too severe and restrictive.’’

Having a reasonable and good faith belief that a use is a fair use can have important consequences should litigation result. Under section 504, subsection (c) states that ‘‘The Court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords.’’17 This is a mandatory damage remission or reduction, and if the nonprofit educational institution, library, or archives qualifies, the court has no choice but to eliminate from consideration the imposition of the variable and deadly statutory damages and is limited to awarding actual damages alone. In cases where the claim of infringement is based upon another of the exclusive rights of the copyright owner such as performance, display, or distribution, section 514(c)(2) provides that ‘‘[I]n a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.’’ Again, having a reasonable belief (grounded in the copyright case law as opposed to assumptions or rationalizations about the law) that a use is fair is a sure way to meet the lesser burden of the later remission provision: ‘‘not aware or no reason to believe that his or her acts constituted infringement.’’ Finally, in light of the attention possible infringing activities have received both in the popular and academic presses and by the copyright industry itself, the goal of copyright compliance is perhaps as important as any in the college and university environment. The responsibilities of enforcing such compliance efforts documented here are without a doubt laudable as well. However, as the discussion here has demonstrated, that enforcement should be far more extensive than a library photocopying or reserve/e-reserve policy (though the survey focused upon that) and extends to the classroom and wider educational environs. The library may be the fundamentally most logical starting point for systemic institutional awareness and reeducation efforts.

The authors hope that this discussion has provided a stimulus for the review of those policies and practices as well as a starting point and some direction for that review.

NOTES AND REFERENCES 1. Tomas A. Lipinski, ‘‘Designing and Using Web-Based Materials in Education: A Web Page Legal Audit-Part I, Intellectual Property Issues, 137,’’ Education Law Reporter 9 (October 14, 1999). 2. U.S. Copyright Office, Report on Copyright and Digital Distance Education (A Report of the Register of Copyrights). Washington, DC: U.S. Government Printing Office, 1999. 3. Kenneth D. Crews, ‘‘The Law of Fair Use and the Illusion of FairUse Guidelines, 62,’’ Ohio State Law Journal 599 (2001). 4. Arlene Bielefield & Lawrence Cheeseman, Technology and Copyright Law: A Guidebook for the Library, Research and the Teaching Profession (New York: Neal Schuman, 1997). 5. 17 U.S.C. § 107. 6. Reprinted in United States Copyright Office, Circular 21: Reproduction of Copyrighted Works by Educators and Librarians 22–23 (1993). 7. Steven J. Melamut, ‘‘Pursuing Fair Use, Law Libraries, and Electronic Reserves, 92,’’Law Library Journal 157 (2000).

8. H. Rpt. No. 102-836, 102nd Cong., 2nd Sess. 1 (1992), reprinted in 1992 U.S. Code Congressional and Administrative News 2553, 2553. 9. (H. rpt. no. 102-836, 102nd cong., 2nd sess. 9 (1992), reprinted in 1992 U.S. Code Congressional and Administrative News 2553, 2561). 10. Jay Dratler Jr., Cyberlaw: Intellectual Property in the Digital Millennium § 6.02[2], at 6-44.11. 11. H.R. Rep. No 551 (Part 2), 105th Cong., 2d Sess. 61 (1998). 12. Section 110(2)(D)(i). 13. Conference Report, H. Rpt. No. 107–685, 107th Cong., 2nd Sess. 231 (2002). 14. Tomas A. Lipinski, Copyright Issues in the Distance Education Classroom, forthcoming (Lanham, Scarecrow Press, p. TBA upon publication, 2004). 15. Tomas A. Lipinski, Legal Issues in the Development and Use of Copyrighted Material in Web-Based Distance Education, in Handbook of American Distance Education, Michael Grahame Moore & William G. Anderson editors 481, 491–493, 481–505 (2003). 16. House (Conference) Report 105–796, 105th Cong., 2d Sess. 75 (1998). 17. 17 U.S.C. § 504(c)(2).

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