Linking Our Libraries: Basics: Copyright

LOL Episode 704: copyright

Welcome back to Linking Our Libraries! We are the Central Minnesota Libraries Exchange, and our members are all types of libraries and their staff.

Today’s episode is part of our series on Library Basics. We are working through some of the skills people need in every library. Not everyone is going to school for a Master’s degree in Library Science, and that’s fine. We want to be sure everyone has the skills to be comfortable in a library and to be successful for the community you are serving.

We talk about copyright pretty often, and of course this is important for libraries. People working in all types of libraries are often the ones responsible for advising the rest of their organization on how to best follow federal copyright laws.

And right now, we are in the unusual position of having our school and library buildings open, closed, or in a hybrid situation – with our work moving online. This presents a variety of different copyright situations we need to be considering.

And you may be hearing a variety of contradictory advice. We have been reading a lot of library voices online saying that in an emergency situation, like our current pandemic, it should be okay to use copyright material however we need to. We would be very cautious there, and would not suggest doing that. Federal law does not provide for a “there is a global pandemic happening” exception to copyright laws. So, let’s just play it safe. Let’s follow copyright laws, and let’s encourage our community members to also do it.

The basic rule of copyright is that you cannot use material that someone else has created. And that’s the rule. That means no photocopying articles and giving them out to students. It means no scanning and uploading book chapters to share with a class. It means not using art that you find on the internet. It means not using a digital version of a song you love on your website. It means not downloading an excellent tv show that you didn’t see. No drawing super cute Disney characters on your kid’s birthday cake. A strict interpretation of copyright law means using nothing that someone else created.

So we start there. Anything someone else has created is covered by copyright laws, and you can only admire it from afar, or buy it from the creator or their representatives.

Copyright is federal law. It is not an area where people can “try really hard” and be right. Being super nice, or not even knowing they were breaking the law, does not save people accused of copyright violations. While there are not actual Copyright Police who will throw people into Copyright Jail, there are substantial financial penalties involved for breaking the law. And if publishers of books, movies, music, or art decide it’s worth tracking you down to be sure you are punished and that your library pays a lot of money – they can do just that. Let’s avoid landing in that situation.

What can be copyrighted? “Copyright,protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

And what if you are not sure whether the material you have is even covered by copyright? The laws have changed a lot, so it can be complicated! We really like the website Digital Copyright Slider – an easy-to-use website that lets you look at the age of your material, along with some other information, to see if copyright law applies in your case. We love this resource, because it so helpfully gives you quick guidance on whether or not a work is covered by copyright.Prepare to have you mind blown by the insane levels of complication copyright law entails! 

When in doubt, be conservative. Assume your material is covered by copyright, and proceed accordingly.

You can find all the information about copyright law right where it lives: at Copyright.gov. “The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of Title 17 of the United States Code.” And in case you are wondering if this just just some antiquated law that nobody really pays attention to, here are a few recent updates:

  • Copyright Act of 1976 and all subsequent amendments to copyright law; 
  • the Semiconductor Chip Protection Act of 1984, as amended; 
  • the Vessel Hull Design Protection Act,1988
  • the Marrakesh Treaty Implementation Act and the Orrin G. Hatch–Bob Goodlatte Music Modernization Act, both signed into law in October 2018; 
  • the National Defense Authorization Act for Fiscal Year 2020, 
  • the Satellite Television Community Protection and Promotion Act of 2019, 
  • the Library of Congress Technical Corrections Act of 2019, 
  • the Coronavirus Aid, Relief, and Economic Security Act, signed into law in March 2020

So yes: federal law is not something to take lightly. You might get away with it for a while. Your school might get away with extreme violations of copyright for a while. But the penalties just keep adding up. It really is best to avoid trouble and do the right thing.

If you really want to use something that is copyrighted, your first step may be to ask for permission to use whatever it is. That may be asking the creator directly, asking a publisher, or paying a fee to a service that can give you permission to use it.

But, what if you want it tomorrow?

Well, it’s possible that may fall into an exception to the general rule of copyright law restrictions. Your use might be considered Fair Use, and so would be okay. Maybe. Too many schools and libraries just wave their hands, shriek “FAIR USE!” and assume that magic incantation makes it all fine. Maybe things are fine, but again: be cautious. Move forward carefully. The penalties are high for making a mistake.

Here is the overview of Fair Use, from the Copyright.gov website:

“Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
  • Nature of the copyrighted work
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • Effect of the use upon the potential market for or value of the copyrighted work

The copyright.gov website goes into more detail about each of these factors, so you can balance decisions for yourself. Be conservative, be cautious, use less than you think you can get away with here. Avoiding trouble is so much better for you, for your library, and for your organization, than figuring out how to get out of it!

There is another way to go that might be useful for you in a library. Under the exception in section 108, your library may be okay making a copy of the material.

If no other rules are broken, “...it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, …, or to distribute such copy or phonorecord, under the conditions specified by this section, if—[in addition to any other rules three conditions are met]:

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and

(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

There are, of course, other provisions to this rule, so don’t run out and just start copying everything in your collection! Remember: it’s federal law, so be cautious.

For CMLE members: if you have questions about copyright, or if your teachers or principal are asking you to do things you are not sure about – give us a call. We can’t give specific legal advice, but we can help you work through some of the rules here to ensure you are giving the best advice to your community members.

Now, let’s get to the part of every episode that we love: sharing a book we are reading. We will link to these books on our shownotes pages, and the link will take you to Amazon. You probably know this, but when you click one of our links and then buy anything at all from Amazon, they give us a small percentage of their profits. That support really helps us, and although it’s anonymous so we won’t know it was you – we appreciate you taking the time to help us!

This was a quick overview of the foundations of copyright. We hope you feel like you are part of the larger community! Here are a few takeaways for you:

  • Copyright is federal law, and the penalties for violations are steep
  • Copyright law is current, and continues to grow to meet new needs and demands from copyright owners
  • Fair use is an exception to the general rule – but it is not a all-encompassing as people think
  • You may be able to make copies of your materials and share them with your community, but again – there are tricky rules to be sure you follow.

Come back next week, because we have more information to share about libraries! This is just the beginning, and there are so many other great things to share!