# The Librarian's Copyright Companion

The Librarian's Copyright Companion
The Librarian's Copyright Companion Second Edition
The Librarian's Copyright Companion Second Edition
by James S. Heller Paul Hellyer Benjamin J. Keele
William S. Hein & Co., Inc. Buffalo, New York 2012
Publisher's Cataloging in Publication
Heller, James S.
The librarian's copyright companion/by James S. Heller, Paul Hellyer, Benjamin J. Keele.—2nd ed.—Buffalo, NY: William S. Hein, 2012.
p. ; cm.
ISBN: 978-0-8377-3872-7 (print)
Revision of the 2004 edition by James S. Heller.
Includes bibliographical references and index.
Summary: The translation from print to digital continues. The Copyright Act has changed a little, but not for the better. This book begins with the premise that copyright exists to promote the dissemination of information, and while creators have certain rights, so do users. This new edition updates every chapter and adds a new chapter on the library as a publisher. Also included is information on recent developments such as Creative Common licenses and the use of digital video (e.g. YouTube) in the classroom.—Publisher.
Contents: General principles—Restrictions on the use of copyrighted materials—Liability for infringement—Fair use (Section 107)—The library exemption (Section 108)—Digital information and software—Licensing—Audiovisual works and non-print media—The library as publisher—Conclusion—Appendixes (resources, texts, guidelines, samples, model policies).
1. Copyright—United States—Handbooks, manuals, etc. 2. Librarians—United States—Handbooks, manuals, etc. 3. Copyright infringement—United States. 4. Fair use (Copyright)—United States—Handbooks, manuals, etc. 5. Library copyright policies—United States—Handbooks, manuals, etc. 6. Copyright and electronic data processing—United States—Handbooks, manuals, etc. 7. Copyright licenses—United States—Handbooks, manuals, etc. 8. Libraries—Special collections—Nonbook materials—United States—Handbooks, manuals, etc. 9. Libraries—Publishing—United States—Handbooks, manuals, etc. I. Hellyer, Paul (Paul Alan) II. Keele, Benjamin J. III. Title.
KF2995 .H45 20122012950442
346.7304/82—dc231211
Copyright 2012 James S. Heller, Paul Hellyer, and Benjamin J. Keele. We encourage readers to employ fair use, the library exemption, and other rights provided by the Copyright Act. For other uses of this work, contact the authors at the College of William & Mary School of Law. Printed in the United States of America ∞ This volume is printed on acid-free paper.
Table of Contents
Preface
A lot has happened since the first edition of The Librarian's Copyright Companion was published in 2004, and a lot hasn't changed.
As for what's new, it's more evolution than revolution. The transition from print to digital continues apace: digital format is the default version for periodicals and journals in many libraries, and YouTube and other digital media are now commonly used in teachers' classrooms. In academia, many libraries have created digital archives or scholarly repositories, and have themselves become publishers. Print reserves have pretty much given way to e-reserves and commercial products like Blackboard. In a decision reached just as this book was going to press, a U.S. District Court in Georgia clarified the meaning of fair use for materials placed in e-reserves. The decision has been viewed as a win for libraries, but may be appealed.
The Copyright Act has changed a little, but not for the better. Efforts to amend the library exemption by the Section 108 Study Group went nowhere after three years of hard work. The fair use (section 107) and the public performance and display exemptions (section 110, which includes the TEACH Act) also remain unchanged. The U.S. Supreme Court continues to affirm anything Congress does that expands the term of copyright (Eldred v. Ashcroft in 2003 and Golan v. Holder in 2012).
What also hasn't changed is the fact that the publishing/copyright owner industry still promotes its views loudly and clearly. A great example is the October 2011 issue of Information Today: The Newspaper for Users and Producers of Digital Information Services, which had as its lead article "Armstrong: the Voice of Copyright." Tracey Armstrong, President and CEO of the Copyright Clearance Center (CCC), is not the voice of ​copyright. Ms. Armstrong may be a voice of copyright representing and advocating for copyright owners, publishers, and other producers of intellectual property, but she is definitely not the voice of copyright.
Here are some excerpts from the Information Today article, followed by our comments:
Armstrong: "We are looking at licenses that can be used on mobile devices, on laptops, on PC's, wherever you are in your enterprise or outside, when you're visiting clients on the road or studying abroad, whatever you're doing."
Us: It's nice to be able to get information anywhere and everywhere. But are you ready to pay for content every time you use it? What about fair use?
Armstrong: "[The CCC is] about access and ease of use and using licensing to help enable that … We're not about locking up content; we're about creating access. Think of us as the keys to creating access to that content through licensing."
Us: Let's call a spade a spade. The Copyright Clearance Center knows that in a digital world you can't keep content behind a locked door. But they would like you to believe that there is a door, that it is locked, and that you need to pay them for the key. The CCC continues to "educate" users about the risk of infringement, and they are effective. Many in the private sector have simply abandoned fair use and just pay royalties through the CCC. They now have their eyes on academic libraries, and you can bet that public libraries are next.
Our book is another voice of copyright, written by three lawyer librarians. We understand that interpreting copyright can be tricky. There's some black, some white, and a lot of gray. When we are confronted with a copyright question we approach it as a lawyer does: (1) what are the facts; (2) what does the Copyright Act say; and (3) are there court decisions addressing facts like these?
The Association of American Publishers, the Copyright Clearance Center, and other rights organizations such as Attributor begin with the premise that if you want to use something, you have to pay for it. We begin with a different premise: copyright exists to promote the dissemination of information, and while creators have certain rights, so do users. There are many situations where users do need permission or pay royalties. ​But there also are many situations where users do not need to ask for permission because the use is permitted under the Copyright Act.
The 2012 edition updates every chapter from the first edition of The Librarian's Copyright Companion, and we add a new chapter on the library as a publisher. You will find information on recent developments such as Creative Commons licenses and the use of digital video (e.g., YouTube) in the classroom. And we continue to believe there is a need to counter the self-serving voices of publishers and copyright owners, and those who do their bidding.
Paul Hellyer is a Reference Librarian at the College of William & Mary’s Wolf Law Library. He has a B.A. and J.D. from UCLA and an M.L.I.S. from San Jose State University.
This work is released under the Creative Commons Attribution 4.0 International license, which allows free use, distribution, and creation of derivatives, so long as the license is unchanged and clearly noted, and the original author is attributed.
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