v22 #6 Questions and Answers – Copyright Column

Column Editor:  Laura N. Gasaway  (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599;  Phone: 919-962-2295;  Fax: 919-962-1193) 

QUESTION:  A public library is interested in scanning business articles from the local newspaper essentially to replace the vertical file.  Would the scanned articles be restricted to in-building use only just as the contents of the traditional vertical file were so restricted?

ANSWER:  Newspaper articles are copyrighted just as are other text works.  Because of the high level of interest in business articles that deal with the local community, it is easy to understand why a library would be interested in scanning them.  Vertical files traditionally consisted of clippings literally torn from the newspaper, but over time, with the development of the photocopier, many libraries began to photocopy articles of interest rather than clipping the original newspaper issues.  While section 108 of the Copyright Act does not mention photocopying for vertical files as an exception to the exclusive rights of the copyright holder, making occasional single photocopies of articles from local newspapers for the vertical file likely would qualify as a fair use.  Scanning in lieu of photocopying may also be fair use, but it also seems a bit more systematic than photocopying. 

A good solution would be to seek blanket permission from the local newspaper to scan business articles and make them available for in-library use as a local resource.  In fact, the newspaper might be willing to expand use beyond the library, so asking the paper could result in even broader permission.

QUESTION:  A campus program that offers online professional development courses to K-12 educators is part of the e-Learning for Educators eight state program and has purchased courses from another online organization.  These courses have pdfs of journal articles embedded into them.  The media and Web librarian asks whether the program can use these pdfs in the courses without getting permission.  The online courses are password protected.  Does the TEACH Act permit using these pdfs?  Or should the program find another source for the journal articles?

ANSWER:  It depends on whether the online organization acquired the rights to the articles for the purchasers of its courses, which seems unlikely.  More probably, the campus should use its own license agreements for these journal articles. 

The first step would be to consult the owner of the courses and inquire about this.  The TEACH Act is not related to this issue, as it involves reproduction of textual material.  The TEACH Act, found in section 110(2) of the Copyright Act exempts certain performances and displays that are transmitted, but it does not relate to the copying of text materials.

QUESTION:  A faculty member brought copies of music CDs that he owns and has asked the library to put them on reserve for his class.  These are not purchased copies of original CDs but rather are reproduced copies.  The library does not own the CDs in question.  The library does not seek to copy or stream the CDs but only to place the copies on reserve.  Is it permissible to put copies of works on reserve that the library does not own?

ANSWER:  Under the old ALA Model Policy on Reserves, either the library or the faculty member should own a copy of the item placed on reserve.  The complicating factor in here is that the faculty member’s copies are not legitimate copies.  If they were, then placing them on reserve for use of the teacher’s class would be no problem.  The fact that the CDs are copied makes it a more difficult issue for the library.  It could be that the faculty member had permission to copy the CDs, but that is not clear.  The library then is faced with a dilemma.  Does it adopt a policy that all works placed on reserve must be owned by the library or permit faculty-owned copies and occasional copies from interlibrary loan on reserve.  Further, if it accepts faculty-owned copies for reserve, must these copies be legitimate copies?

The faculty member likely could stream the portions of the CD that he wanted to use for his class, however.

QUESTION:  A children’s librarian asks whether it infringes copyright to read a book to children during story hour at a public or school library.

ANSWER:  No, it does not infringe copyright.  While common sense does not always provide the answer to a query about copyright, in this instance common sense and the law actually converge.  Reading aloud to children is a time-honored tradition that increases young people’s interest in books and reading.  Section 110(4) of the Copyright Act permits nonprofit performances of nondramatic literary and musical works when there is no payment of fees to performers, promoters, or organizers and where either there is no direct or indirect admission charge, or if there is one, proceeds go to charitable or educational purposes.

QUESTION:  A campus library does not permit textbooks to be placed on reserve.  What about supplemental reading material that is not the main text for the course?  Many of them look like textbooks, but they are not the textbook assigned by the faculty members.  If it’s required reading, does that mean it is a textbook?

ANSWER:  Actually, textbooks can be placed on reserve as long as they are used as a backup copy for a student who may have forgotten to bring hers to the campus that day and not in lieu of the student’s actually purchasing the textbook for a course.  Some libraries have policies against putting textbooks on reserve, however.  Typically, when the term “textbook” is used, it means the assigned text for the course that all students are supposed to buy.  But the term “textbook” is broader than just the assigned textbook.  Certainly, a non-assigned textbook (meaning that it is intended to be assigned to a class, but it was not the assigned textbook for a particular course) can be placed on reserve for supplemental reading, even if it is assigned reading.

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