Handbook of Federal Librarianship

VII. Copyright Management in the Federal Library or Information Center

by Kenneth E. Nero and Bonnie Klein

Topics
What is Copyright? | Fair Use Doctrine | Works Protected By Copyright
Works Not Protected | Three Ways of Working with Copyright Issues in a Federal Library
Document Delivery and Inter Library Loan | Electronic Publications
Copyright References for Librarians | Web Sites for Additional Information


As information managers, federal librarians procure published materials in a variety of formats for federal employees and the public to perform their research and enhance their work. Because most of these materials are protected by copyright, federal librarians must educate and appraise agency managers of copyright responsibilities and of the potential risks of copyright violation, called infringement. The following guidelines are intended to serve as a framework for providing direction regarding the reproduction, redistribution, and dissemination of library materials in federal libraries and information centers.

What is Copyright?

The U.S. Constitution, Article 1, Section 8, provides that "The Congress shall have power...To promote the progress of Science and Useful Arts, by Securing for Limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries." The U.S. Copyright Office Circular 1, COPYRIGHT BASICS, states that "Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works." Under the revised and amended Copyright Act of 1976 (17 USC 106 and 106A), creators have the exclusive rights to: 1) reproduce; 2) distribute 3) make derivatives 4) publicly perform 5) publicly display and 6) moral attribution. This protection automatically extends to published or unpublished "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (17 USC 101).

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Fair Use Doctrine

To balance the copyrights of intellectual property owners with the need for using copyrighted materials "to promote the progress of science and useful arts," the doctrine of Fair Use emerged. It allows individuals and information centers, under certain conditions, to reproduce and redistribute information from copyrighted works without the consent of the copyright owners. Although many copyright issues can be subjected to a strict interpretation of copyright law, several areas of the law are less specific and inherently ambiguous, particularly as information technology continues to evolve. Consequently, many issues that arise in this area should be addressed on a case basis by federal library and information center staff and agency general counsels.

Some examples of Fair Use exemptions listed under 17 USC 107 are criticism, comment, news reporting, teaching, scholarship and research. Additionally 17 USC 107 gives four factors used in the legal analysis to determine whether the reproduction of single or multiple copies infringes copyright. These are

Section 107(1) - "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit commercial purposes."
Section 107(2) - "the nature of the copyrighted work."
Section 107(3) - "the effect of the use upon the potential market value for or value of the copyrighted work."

For an authoritative discussion of Fair Use specific to government use, see U.S. Department of Justice Opinion, Government Reproduction of Copyrighted Materials and Fair Use, April 30, 1999

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Works Protected by Copyright:

Books
Periodicals
Newspapers
Photographs
Art
Music
Web Sites
Microform
Films
Videotapes

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Works Not Protected:

Several categories of material are generally not eligible for federal copyright protection. These include among others:

  • Works that have not been fixed in a tangible form of expression, (i.e., choreographic works that have not been scored or recorded, or improvisational speeches or performances that have not been written or recorded).
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
  • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources). Only the expression of the idea is eligible for copyright.

Works in the Public Domain

Works in the public domain may be used by anyone, anywhere, anytime without permission, license or royalty payment. They are publicly available and are not owned or protected by copyright. Be cautioned that "public domain" is not synonymous and should not be confused or used interchangeably to mean "free access," "publicly available," or in government parlance, "public release." For example, the Internet version of the Washington Post is a free access, publicly available copyrighted work. Also be advised that the user is responsible for determining whether a work is in the public domain or is copyrighted. There is no innocent infringement defense. See U.S. Copyright Circular 22, How to Investigate the Copyright Status of a Work.

  • Works in the public domain include

  • Works on which the copyright owner abandons copyright.

  • Works on which the statutory copyright protection expires. With the passage of The Sonny Bono Copyright Term Extension Act (PL 105-298, 27 Oct 98), term limits for published works changed from the life of the author plus 50 years to the life of the author plus 70 years. A number of factors affect the computation of the copyright term. For more detailed information, see the U.S. Copyright Office Circular 15, "Renewal of Copyright"; Circular 15a, "Duration of Copyright"; and Circular 15t, "Extension of Copyright Terms."

  • Works created entirely by an officer or employee of the United States Government as part of that person's official duties are in the public domain and are not protected by the copyright laws of the United States (17 USC 105). Federal laws and Agency policies govern the public release of U.S. Government information. Works cleared for open publication should undergo appropriate security and policy reviews by Agency Public Affairs Offices. These documents may be freely distributed and used for noncommercial, scientific, and educational purposes. Commercial use of documents produced by an Agency might be protected under the U.S. and Foreign Copyright Laws and individual documents might have different copyright conditions that should be noted in those documents, particularly if the government work was created in whole or in part under contract.

The Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulations (DFARS) also addresses copyright ownership for contracted government works. FAR Subpart 27.4 provides copyright guidance for the civilian agencies and NASA, while DFARS Subpart 27.4 provides copyright guidance for DOD (FAR 27.400). Generally, contracted works are not in the public domain. However, the U.S. Government retains an irrevocable, worldwide, nonexclusive, royalty-free license to "use, modify, reproduce, release, perform, display or disclose data within the government without restriction" and to allow others to do so for U.S. Government purposes.

Government documents which contain copyrighted material, such as photographs or reprints of articles written for non-government purposes and used by permission, need a disclaimer or other copyright notice stating what material is not in the public domain. For material which has not been previously published or distributed, a simple statement giving the date and copyright owner will suffice, such as "Copyright 1995 by John Doe." If material has been used previously, a more elaborate credit may be necessary. In general, if specific credit or copyright text is requested by the owner of the copyright, that should be used. If certain rights are reserved, these should be enumerated. For example, "Individual copies of this document may be printed or downloaded by individuals for their own use but not emailed to others."

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Three Ways of Working with Copyright Issues in a Federal Library

There are a variety of sources of of information on copyright issues, but as a rule of thumb, every federal library or information center can:

  • Develop and implement a copyright policy.

  • Be proactive in informing and educating users about copyright. Take an inventory of all copyrighted materials, regardless of format, to determine whether there is any risk of copyright infringement. For example, an inventory of print or electronic subscriptions, along with an assessment of user demand for those materials, will disclose the potential for copyright infringement. Publicize your findings.

  • In accordance with USC 17 108, display a photocopy warning notice near unsupervised photocopying equipment to alert users that reproducing copyright-protected material is subject to the Copyright Laws of the United States. Discourage photocopying the entire contents of publications, especially newsletters, journals, and books, regardless of format.

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Document Delivery and Inter Library Loan

Interlibrary loan activities are subject to copyright restrictions due to the fact that rights to a publications are not purchased or transferred to the requestor. An interpretation of these restrictions was made by the House and Senate subcommittees in 1976 through an interpretation of 17 U.S.C. Section 108 (g)(2). The commission considers the guidelines which follow to be a workable and fair interpretation of the intent of the law.

A few guidelines include:

  • During a calendar year, a library may borrow 5 articles from a periodical title newer than 5 years old.

  • All interlibrary loan requests must bear a symbol of compliance.

  • The requesting library must keep borrowing records for 3 calendar years. Exceptions to this "Rule of 5" include when the title is on order, that issue is missing, the item is at the bindery, or the issue was damaged or not available.

The alternatives include borrowing the entire volume or issue, using a document delivery or full text service which includes copyright fees, obtaining permission from the copyright holder directly or joining a copyright clearinghouse. Libraries that choose not to subscribe to such a service may simply keep track of their borrowing and lending habits and stop borrowing when their need necessitates purchasing the title directly. Most document delivery services factor the cost of copyright permissions into their fee. Back to Topics

Electronic Publications (Internet, CD-Rom)

Critically read and negotiate license agreement. Most electronic publishers forbid subscribers to post their electronic products on bulletin boards. Secure permission to link Web pages if the site is copyrighted.

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Copyright References for Librarians

Case Law
American Geophysical Union v. Texaco, 60 F. 3d 913 (2nd Cir. 1994)
Campbell v. Acuff-Rose Music, 510 US 569 (1994)
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539 (1985)
Television Digest, Inc. v. USTA, 841 F. Supp. 5 (1993)

Statutes
Copyright Act of 1976, Title 17 - United States Code

Articles/Books
Bruwelheide, Janis. (1998). The copyright primer for librarians and educators. 2d ed. Chicago, IL: American Library Association.

Gantz, K. (1986). Guidelines for the permissible photocopying of newsletters and newspapers for corporate use. 41 The Business Lawyer 1327.

Gasaway, L. (1994). Libraries and copyright: a guide to copyright law in the 1990s. Washington, DC: Special Libraries Association.

Growing pains: adapting copyright for librraies, education, and society. (1997) Littleton, CO: F.B. Rothman

Samuelson, P. (1995, April). Copyright and digital libraries. 38 Communications of the ACM 15.

Will, L. (1993, January/February). Do you photocopy? Your firm may be infringing upon the fair use doctrine. 19 Law Practice Management 46.

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Web Sites for Additional Information

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html
http://www.cetus.org/fairindex.html
http://www.loc.gov/copyright
http://www.copyright.com/default.html

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last update 12/30/99