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) <[email protected]

QUESTION:  An academic author wants to use a digital image of a painting owned by a museum.  The painting appears to be in the public domain since the painter died in the 16th century.  Is the author required to get permission from the museum to use the image on the dust jacket for the book?

ANSWER: For many years, museums claimed copyright in the photographs of public domain works of art since photographs may be protected by copyright.  After Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), this matter was clarified.  The court held that although some photographs are copyrightable, exact photographic reproductions of public domain works of art lack originality and therefore do not quality for copyright.  Attribution is a benefit to readers to identify the painting, the artist, and specify where the original is housed; this also acknowledges the museum as the owner of the painting.

QUESTION:  An academic librarian has read about the judge’s rejection of the Google Books Settlement 2.0 proposal.  What will happen next?  Are library users disadvantaged by this decision?

ANSWER: In March 2011, Judge Denny Chin for the federal district court, Southern District of New York, rejected what many termed an overreaching settlement proposed by a number of publishers and Google that would have granted Google unprecedented ability to reproduce copyrighted works, index them, and license their use as well as to manage orphan works.  See for the full text of the judge’s order.  Doubtless, scholars would have benefited from the availability of this huge corpus of scanned books, but some copyright owners have pointed out that people would benefit from bank robberies if the proceeds were distributed to those in need.  In other words, both represent a taking of property without compensation, and the argument is that it is justified because of the public good.  Most librarians have mixed feelings about the proposed settlement, recognizing the tremendous benefit the Google Books project would offer to libraries and to scholars.  On the other hand, giving a monopoly to Google for making, storing, and providing access to the digital copies of these works is problematic.

What will happen now is not clear.  Judge Chin highlighted problems in the proposed agreement ranging from the attempt basically to rewrite U.S. copyright law, to the settlement’s opt-out system rather than opt-in for copyright holders, to the monopoly it would create for Google, to the private management of orphan works.  There are several potential next steps, some of which could occur simultaneously.  First, the parties could appeal the judge’s ruling.  Or, the parties could go back to the drawing board for a third time to redraft a settlement agreement.  The litigation challenging Google’s scanning of materials could go forward should settlement prove impossible.  Another potential outcome is that other entities such as the Internet Archive, the proposed Digital Public Library, another nonprofit entity, or a coalition of these organizations create digital libraries of millions of books with similarly excellent search capability, but they do so with permission of the copyright holder.  The settlement rejection could spur Congressional action, especially for orphan works legislation but also for public funding of a national digital books project.  It is too soon to know with certainty what will happen next, however, but these are a few of the possibilities.

QUESTION:  A public library has created a digital archive of local photographs that were donated to the library over the years and has posted them on the Web.  The librarian has been contacted by a member of the community asking for a photograph to be removed from the online display because he is the photographer and owns the copyright.  What should the library do?

ANSWER: A purely legalistic answer would focus solely on whether the individual actually owns the copyright, the date of the photo, whether it had been published, registered for copyright, etc.  The library certainly could take such a stand, research the copyright issue and work with the city or county attorney for a legal solution to the problem.  But there are other serious concerns in addition to copyright ownership.  For example, how important is that particular photograph to the overall collection?  Is it worth causing hard feelings with a member of the community?  Is it possible to work with the individual to ensure that he receives credit as the photographer but get him to grant permission for the photograph to remain online?  The library also may want to make sure that its website asks for copyright holders to come forward so that they may be credited; and the Website should contain a statement that the library will remove any copyrighted photograph from the posted digital archive should the owner object to its inclusion.

QUESTION:  Why do so many journal publishers include in their license agreements restriction on divulging the terms of the license including price of the subscription?

ANSWER: Nondisclosure clauses in licensing agreements are fairly standard legal practice for all types of licenses.  For library subscriptions, the matter has been in the press recently and a number of large academic libraries are refusing to sign such agreements as they come up for renewal.  Cornell University is one such institution, and a document detailing the reasons for its stance is found at:  Many suspect that the reason that publishers require nondisclosure clauses in their licenses is because they make various price deals with different libraries.  In addition to price, there could be other terms that differ for different size institutions, geographical locations, subject emphasis, etc.  The problem, of course, is if there is a nondisclosure clause, one simply cannot know whether there are differences from institution to institution or consortium to consortium.  Further, libraries want to be treated fairly in comparison to other libraries.  Thus, the increasing refusal to sign license renewals that have nondisclosure clauses.

QUESTION:  If the librarian knows that a patron intends to infringe copyright for material checked out to the person, is the library responsible?  What should the librarian do?

ANSWER: If the patron asks whether certain behavior would be infringing, the librarian can supply materials to answer the question but should refrain from practicing law without a license.  Naturally, the library also should refrain from making infringing copies for users.  However, the library is not responsible for the patron’s behavior if the library has posted the required warning where copy requests are received and on the order form for such copies as required under section 108(d) of the Copyright Act and the library has posted notices of copyright on reproduction equipment required by section 108(f)(1).