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]> www.unc.edu/~unclng/gasaway.htm
QUESTION: An academic librarian asks who (or what types of organizations) can apply the fair use principle. Fair use tends to be a defense for educational institutions. Can it apply to non-educational nonprofits?
ANSWER: Every person and business may claim fair use, not just nonprofit educational institutions. The U.S. Supreme Court has said that even for-profit entities may claim fair use. Courts are less likely to find that the use is a fair use when the infringer is a for-profit business, however. Nonprofit corporations are more likely to be found to be fair users than are for-profit ones.
True, many of the fair use cases that are publicized in the library press deal with nonprofit educational institutions, but there are many, many other fair use cases, even in the commercial sector, in which courts find fair use.
QUESTION: A retired university faculty member is dealing with the republication of two of his books, collections of stories of war dating from the days of Arthur of Britain. The first two that will be republished deal with World War II, with other volumes to follow. The publisher has asked for a reasonable number of photographs to accompany the volumes. The author wants to use photographs produced by the United States and the Great Britain during World War II, and a couple are of German origin — both labeled “bild-archiv.” Are all U.S. and U.K. government-produced photos of World War II in the public domain?
ANSWER: For photographs produced by the U.S. Government, its agencies and employees, the works are in the public domain. See 17 U.S.C. section 105. Another issue is whether wartime photos taken by soldiers are government works. If the soldier’s actual job was to take photographs for the War Department or any other federal agency, those would be considered government works and be copyright free. If, however, the soldier took the photo on his or her own time, that soldier is the author. Then the question is when that work enters the public domain. Consult my online chart “When Works Pass into the Public Domain” to help determine whether individual photographs taken by soldiers are in the public domain. http://www.unc.edu/~unclng/public-d.htm
Government copyright is more complicated for the United Kingdom. The British Government has Crown Copyright in works produced by its employees within the scope of their employment. Crown copyright expires 50 years after first publication, so photographs taken during World War II by government employees are now in the public domain.
QUESTION: A corporate librarians asks if she purchases permission from the Copyright Clearance Center to use a figure from a published article, does she also need to secure author permission separately or does CCC handle obtaining permission?
Answer: There are two possibilities for figures in published articles. (1) The author of the article actually created the figure and therefore, at least initially, owned the copyright because it is a part of the article. The author then likely transferred the copyright to the journal publisher. (2) The figure was first published elsewhere and the author got permission to include it in the published article.
So, in the first instance, the CCC permission is enough, and the figure is just part of the article which the publisher permits the CCC to license. In the second instance, the CCC may be able to acquire permission for the librarian to use the figure.
QUESTION: An academic librarian asks two questions concerning the school’s institutional repository. (1) Does the school need to get permission from all authors on co-authored pieces before putting them into the repository? (2) For students’ works included in the repository, is their permission required?
Answer: (1) It is pretty straightforward that any of the co-authors of an article has the right to give permissions to place the co-authored work in an institutional archive if the authors own the copyright. Permission is not needed from each co-author. Ownership of the copyright is the big issue, however. If the authors have transferred the copyright to a publisher, then the publisher controls whether the work may be placed in an open access repository. Many publishers permit this after an embargo period; other publishers may allow the author(s) to place earlier versions of the article in a repository.
(2) Copyright belongs to the author, and when the author is a student it belongs to that student, not the institution. The only way the institution owns the copyrights in students’ works is to have each student execute a written transfer of copyright to the institution for the work. A faculty member can have the class sign a form at the first of the class which contains a transfer of copyright for student work produced during the class.
QUESTION: A college faculty member inquires about the definition of electronic materials. What is included?
Answer: Typically, “electronic materials” include everything in digital format. Often, teachers and librarians use the term to mean text materials including blogs, but it certainly includes graphics, movies and music in digital form, music, Webpages, etc.
QUESTION: What is the copyright status of Facebook memes?
Answer: The copyright status of a meme depends on the source. Assume it is a photograph with a caption; was the photograph taken by the person who posted it? If so, that person owns the copyright and can post it with no problems. But if it is simply a caption on a photograph taken by someone else, posting it without permission is copyright infringement. In other words, the addition of the caption did not transform the photograph into a new work.
In December 2013, Facebook announced that it was going to post links to more articles and allow fewer things to be posted that had been published elsewhere. It is unclear how well this has worked in practice, however.
QUESTION: A college professor asks about working with a state department of public instruction on a study which ultimately resulted in a book published by a university press. The professor is interested in knowing what her assets in the work are.
Answer: The answer to this question depends on whether the faculty member had a contract with the state agency and what the contract specified concerning ownership of the copyright. It may be that the state agency requires that all works produced and published with its funding be public domain. Or it might permit the individual author to retain the copyright. Assuming that the faculty author owns the copyright, the next question is whether the author transferred the copyright to the university press that published the work. If not, then the author is the owner of the asset. If so, many university presses return the copyright to the author once the book is out of print.