Copyright

Sometimes, an instructor will try and solve both these problems by removing the book from the syllabus, while keeping a few choice materials on hand from the instructor copy supplied by the publisher. This seems like a win-win: the students have one less book to buy, while the lecture notes, visual aids, and LMS can carry forward the valuable content retained by the instructor. But is this scenario allowed?

The answer lies in the specific product’s license. And while there are countless publishers with every permutation of license, that answer will probably be: NO.

How can this be? Isn’t it Fair Use? Didn’t the institution or instructor already buy the materials?

This is where things get interesting.

First: how can this be? It is a very deliberate tactic by the publisher. Responding to a market resisting expensive textbooks, academic publishers are always developing new ways to incentivize purchasing. One technique is selling student materials “coupled” to instructor-side materials via a license. The license conveys a copy, rights of duplication, and perhaps digital sharing for instructor-side materials, conditioned on a requirement that the textbook be “adopted” (officially required) in the course syllabus. The instructor, who is getting free materials, adds the book, and the contractual requirement is met (until it isn’t).

This approach is some pretty clever lawyering (and marketing), since it uses copyright, often some trademark, and a lot of contract law to give instructors more rights than they have under copyright law (to duplicate, upload, etc)…and then yanks those rights away, if the book is no longer required. The fact that these rights are financially under-written by students is one of the unsung tensions of higher ed.[1]

Second: Fair Use. There are many circumstances in which limited duplication of instructor-side materials could qualify as Fair Use (teaching a course critically analyzing instructor-side materials would be one of them). But simply continuing to use the rights from a license the purchaser has departed from (by no longer adopting the textbook into the syllabus) is not one a Fair Use…it’s just a violation of the contract, and potentially, of copyright. Both could bring penalties; one contractual, and one statutory.

Finally, “First Sale Doctrine”: Some rights to the instructor-side hard copy might be retained under the “First Sale Doctrine,” which allows purchasers to re-sell, read, and retain physical copies once they are in the market.[2] But beware…the license could contain a contractual requirement to return the instructor-side materials when the license is no longer valid (this would be done through a rental or other restricted acquisition provision).

The answer to a question like this is almost always in the specific license from the publisher.[3] Deviation from those terms, unless there is a very clear case of Fair Use, is not wise.

[1] My tone is cynical, but on the flip side, this is how the authors and creators of instructional works get paid. We can discuss the equities of this system another day!

[2] The First Sale Doctrine is taking a beating from the increasing reliance on digital copies. But that is yet another topic, for another day!

[3] Something our member suggested, when posing the scenario. WNYLRC has savvy members.

When digitizing radio broadcasts for online (not-for-profit, academic) access, there are a number of legal issues to consider: intellectual property, contract, privacy, preservation, etc.  But the question focuses on copyright, so this answer does, too. 

And that answer is…yes, including copyright-protected songs[1] in digitized broadcasts poses a risk of an infringement claim--but that risk does not need to trump the basis for preserving the broadcast in the first place.

How does the law help a digital archive strike that balance?  Here are some options:

Option 1: If the copyrighted songs are not important to the broadcast, and can be removed without affecting the integrity of the broadcast, remove them.

If the basis for preserving and providing access to the broadcasts (capturing a moment in time, showing a spirit, confirming an approach) is not served by the presence of the songs, the best legal option might be to remove them, noting the redactions in a manner appropriate to the archive.

That said, I can only imagine a few scenarios where this is this case.  So, next we have…

Option 2: Ask for acknowledgement of Fair Use, and permission

If not onerous, asking the copyright holder to acknowledge the Fair Use of their valid copyright, and to consent to such use in case later rights holders disagree, can be a wise step. 

HOWEVER, as it can alert an owner to a potential claim, this should only be attempted with careful, customized input by an attorney, with due consideration as to how to avoid making an adverse admission, and what the implications could be if the rights to the song are later transferred (since one person’s Fair Use is another person’s rip-off). 

Most importantly, such acknowledgement should only be sought prior to the recordings being posted.  That is because the library, museum, or archive may want to protect their ability to simply claim…

Option 3: Fair Use

Including the songs could be non-infringing if the use meets the requirements of “Fair Use.”[2]  This is a posture taken by many online archives, and with good reason: Fair Use is a creature of both case law, and convention, so for most scholars and librarians, it is important to hold the Fair Use line, letting the world know that this important exception to infringement is alive and well.

That said, a “Fair Use” defense is assessed via a four-factor analysis (see the footnote); in this type of case, each broadcast recording and song would be subject to its own analysis.

While there is no case law directly on point, the recent case of Bouchat v. Baltimore Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013), which involved the use of a proprietary logo during a documentary film, states “[f]air use…protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” [emphasis added].

Using option 3 will require some clear-eyed assessment by the project leaders and institutional decision-makers.  Is the entire song truly necessary to preserve the integrity, spirit and tone of the original?  Does the overall recording transform the song into something different than its original?  Does the manner in which the recording is presented make is difficult for the new version to supplant the market for the original? If not, the library, museum, or archive might want to consider…

Option 4: Fair Use “Lite”

With the Fair Use “Lite” approach, the institution would redact all but the first and last moments of the copyright-protected song (leaving any parts the hosts/guest are talking over) claiming Fair Use for the remaining portions.  This could be done by a fade-in, fade-out technique, or another aural cue that the recording is departing from the original.

If it doesn’t destroy the integrity of the project, “Fair Use Lite” is worth considering, because the smaller the portions of the songs, the stronger your Fair Use claim might be, since factor 3 will weigh more in your favor.  If there is any original dialogue over the song, that, too, can be left, with a claim that the content is “transformative” (factor 1).

If the decision is made to keep the recordings intact, or to use at least part of them, it may be helpful to have the basis for the claim available to the public; something like:

These recordings capture an important moment in time.  The songs played, content shared, and material included in these revealing broadcasts were all selected by the original broadcasters for a reason; these digital versions are valuable because they paint an accurate and complete picture of the sound and feel of the times.

To the extent any proprietary material is present, its inclusion in this larger work is a Fair Use, warranted by the importance of presenting the material as a whole.  Critically, please note that this use is not-for-profit, for educational purposes, and no commercial use of this content is made, nor allowed.  If any content or restriction in this archive concerns any person, please contact NAME, at EMAIL.

And finally: prior to posting any digital archive, if it is an option, an institution should consider registering the copyrights to the MP3 files.  This will position the institution to enforce any restrictions it places on use of the sound recording (like disallowing commercial use)…even if the purpose of the digital archive is to promote access and dissemination of the material!

As more audio content is archived and stored for cultural, historic, and academic purposes, this issue will grow.  I expect we may have some case law directly on point soon.

[1] When confronted with this issue, it is worthwhile to take a close look at the songs involved.  Some pre-1972 sound recordings do not have copyright protection, an issue playing out in what is known as the “Flo & Eddie” line of cases (just look up Floe & Eddie, Inc. v. Sirius XM Radio, Inc., and you’ll see what I mean).  Of course, the underlying musical composition might be protected, even when the recording is not…but the recording may be less protected than you think!

[2] Congress provides a list of four factors that guide the determination of whether a particular use is a fair use. Those factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C.S. § 107. These factors cannot be treated in isolation from one another, but instead must be weighed together, in light of the purposes of copyright. This balancing necessitates a case-by-case analysis in any fair use inquiry. The United States Court of Appeals for the Fourth Circuit's precedents have placed primary focus on the first factor. A finding of fair use is a complete defense to an infringement claim: the fair use of a copyrighted work is not an infringement of copyright. 17 U.S.C.S. § 107.

Branding and trademark questions are some of my favorite “Ask the Lawyer” submissions.  Since GLAM institutions[1] attract innovators and creative professionals, new products and services emerge from them at an impressive rate.  And because the people driving the development tend to have degrees in esoteric areas of the humanities, you get a lot of cool logos and names.

There are a lot of resources out there on how create strong trademark[2], but what most of those resources don’t consider is people developing marks in an inter-institutional, collaborative environment.  So, I’ll take this opportunity to set out a few general questions for you cooperative trailblazers to keep in mind when co-branding your next collection, conference, or information management tool.

#1.  Whose mark is it, anyway?

Any development of a brand (which usually includes some or all of the following: developing a name, generating a logo, registering a domain name, creating a #hashtag and other hallmarks of a social media existence, determining a promotional strategy, and maybe even creating a new corporate entity) should only happen after the parties agree on who will own it.  This agreement should be in writing. 

[Pro tip: if you are at a larger institution, you might want to check with the PR/marketing department before formally taking ownership, or even partial ownership, of a new brand.  Think of it as helping them properly accession something into their collection.]

#2.  How will we (the collaborators) use it?

It is critical that the collaborators on a brand share a general understanding as to how the mark will be used (this is what I refer to above as the “promotional strategy”). 

Every collaborative venture will handle this differently, but the important questions are:

• What is the purpose of the mark?
• What good or services is it associated with?
• To what uses is this mark restricted?  Or…is the mark deliberately unrestricted?
• Who is in charge of the mark on social media?
• Can a collaborator use it in the context of their own venture?
• What media will the mark be used in?
• How, if ever, will the mark be retired?

#3.  How do we protect our mark?

Once the group know who owns it, and how it will be used, it’s important that the underlying copyright supports that strategy.

• Who owns the copyright to the logo design (if it is sufficiently original)?
• Will we register our mark with the U.S. Patent & Trademark Office (“USPTO”)? 
• Who maintains the mark?
• Who monitors the mark?
• Who is in charge if a use departs from the promotional strategy?
• Are there any grant funding terms that effect ownership of the mark?

#Always. Does the mark we’ve picked infringe?

The question of infringement should not drive the creative process, but it should be at the forefront of every branding initiative.

Trademark infringement is established when a plaintiff demonstrates that it owns a protectable mark[3], AND the defendant’s use of that mark is "likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person." Grady v. Nelson, 2014 U.S. Dist. LEXIS 172759, at *17 (D. Colo. Dec. 15, 2014). 

Just like copyright infringement, trademark infringement is not excused by educational or not-for-profit use.   So, at every stage (picking the words, picking a logo, registering the domain, etc.) care to check that your new mark isn’t stepping on an old one is absolutely critical. 

In a collaborative venture, where it is easy to assume that someone else is handling something, proof of this step being taken, in a timely manner, should be clear and well-documented (and preferably reviewed and confirmed by a lawyer with malpractice insurance).

Brand on.

[1] A saucy bit of branding I recently observed, meaning “Galleries, Libraries, Archives, Museums.” 

[2] And I mean a LOT.  Most intellectual property-focused firms or lawyers have a FAQ or helpful article on their website/blog on “how to build a strong brand.”  To be fair to all of them, the link I have provided is to the same type of material, hosted by the American Bar Association.

[3] Not all “protectable trademarks” are registered.  If a mark has been routinely used in commerce, the owners may have “common law” rights.  

Part of the mission of higher education institutions is to bring important, provocative, and enlightening speakers to their communities. Over the years, this results in an impressive roster of authors, artists, professionals, politicians, comedians, dignitaries, and civic leaders, having spoken on campus. Sometimes, all or part of this roster was captured on film, video, or audio recording.

The rights to those recordings—and what can be done with them in the digital age—can present a complicated situation. Each individual recording comes with a suite of considerations that can make a digitization project difficult. But in a scenario like the one posed by the member, critical points of analysis can be assessed, so a way forward is found. Here are those critical points:

Assessment Point #1: Who owns the copyright (to the recording)?

First, it is useful to establish who owns the copyright to the actual recording. Since copyright to a recording vests in the person who created the recording, not the person being recorded (unless it was a selfie), this is sometimes easy to assess. As we say in the biz: “who pushed the ‘record’ button?”

If the recording was made by an employee of the institution, and there was no contractual agreement otherwise, then the copyright to the recording is owned by the institution. If it was recorded by a student who just happened to be there, or a third-party attendee, the school doesn’t own it (which becomes an issue in the subsequent steps). Awareness of this factor is a good starting point for what lies ahead.

If your institution owns the copyrights to the recording, you can skip points #2, #3 and #4, below.

Assessment Point #2: Is this recording part of the library’s collection?

Just because the educational institution owns the physical copy doesn’t mean it is part of the library’s collection. For purposes of numbers 3 and 4, below, if your institution doesn’t own the recording, in order to convert and/or conserve it under Copyright Act Section 108 (the section giving special rights to certain libraries), the original recording must be formally cataloged and included in the library’s collection.

Assessment Point #3: Is the library in a position to convert the copy to a digital medium?

If the copy is formally a part of the library’s collection, and it is on a format considered “obsolete” under section 108 of the Copyright code (so long as the devices are no longer manufactured, VHS is, for example, is considered “obsolete”), the library may convert it to a digital format, and loan it out as provided by the §108. NOTE: this does NOT mean you can include it in an online digital collection, for anyone to access any time, but it takes you one step closer to it!

Assessment Point #4: Does the library need to conserve the copy?

If the original copy is deteriorating, it may be duplicated as set forth in Section 108. NOTE: this also does NOT mean you can include it in an online digital collection, but it makes sure than once you can, your original copy is safe, and backed up for posterity.

Assessment Point #5: Did the institution have any right to record, and/or to use the image of the person who was recorded?

This requires scouring the contracts of the institution. Most speaker contracts these days include terms controlling the right (or not) to make a recording, but, as reflected in the scenario posed by the member, in the past this was not the case. This assessment is critical, especially since at academic institutions, other departments at the institution may want to use the content to promote and celebrate the institution…but in New York, the commercial use of a person’s image, without their written consent, can carry both civil and criminal penalties.

Assessment Point #6: Are there any concerns with trademark?

The risk posed in #5 is increased if the speakers’s name and image is currently being used for purposes of a trademark (like “Maya Angelou” which is protected under Federal Trademark 86978575), or if a trademark was on display during the presentation. This means any arguably commercial use (like selling copies, putting it on the school’s website or catalog, or selling a t-shirt promoting the collection) should only be done in consultation with an attorney.

Assessment Point #7: Are there other copyright concerns?

This is the meat in the sandwich of the member’s scenario. Going through the above steps, even if an institution:

1) owns the recording;

2) includes the recording in the library’s catalog;

3) meets the 108 criteria to convert it from an obsolete format;

4) meets the 108 criteria to make preservation copies;

5) has permission to use the name and likeness of the speaker in any and all formats, for whatever reason, forever;

6) verifies there are no trademarks involved…

…if the speaker read a copyrighted work during the recording, that “performance” of a copyrighted work MIGHT be subject to its own copyright, and thus, bring with it a host of new restrictions, cramping the bounds of your digital usage.

What a pain, right?

Fortunately, there is solution. For any library at an educational institution contemplating digitizing the institution’s recorded guest speakers, if the written record doesn’t reflect clear permission to record and use the content, writing to the original speaker, or the current copyright owners, to ask for permission, may be the best solution. A sample request, with the variables notes in CAPS, is right here[1]:

Dear NAME:

You may recall speaking at INSTITUTION on DATE. During that performance, you read [INSERT TITLE(S)] (hereinafter, the “Works”).

Our on-campus library seeks to include a copy of that performance, recorded on FORMAT, in an online, digital collection to be called TITLE (the “Collection”). We would like to include the recording in an online Collection, so it may be accessed by the public, for purposes of enjoyment and scholarship.

To that end, we ask the following:

1. Are you the sole copyright owner of the Works? Yes No

2. If you are not the owner, do you retain the right to give permission for their reproduction, distribution, performance, and display? Yes No

If you are not the copyright holder, or do not hold the rights, please let us know who does: _____________________________________________________________

If you are the copyright holder, please consider the below requests:

3. Copyright License

May [INSTITUTION] have a non-transferable, irrevocable license to reproduce, duplicate, display, perform, and, by virtue of the recording being part of the Collection, prepare a derivative work of, the Work(s), solely as performed by you and recorded by INSTITUTION on DATE? Yes No

SIGNATURE:_____________________________

DATE:_____________________

Image Release

We would like to use your name and picture to promote the Collection. May [INSTITUTION] use your name and likeness, including but not limited to photos or images of you, the recorded sound of your voice, for the purpose of promoting the Collection in hard copy, on the institution’s website, and via any other medium existing now, or later developed? Yes No

SIGNATURE:_____________________________

PRINT NAME:__________________________________

DATE:_____________________

Thank you for considering this request. I included a self-addressed, stamped envelope, in the hope of a favorable reply.

Of course, the risk of asking is that they say “no”…and that they demand you stop using the recording of the derivative work! That is why in all of this, any contracts should be assessed by an attorney, so the rights of your institution are protected, and any requests for permissions should be carefully considered prior to submitting the request.

So, the answer is (and I appreciate it took a long time to get there!): unless the recording were news coverage—which is assessed under a different array of laws—permission (given either at the time of the arrangement, or many years later) for digital duplication and distribution is required, but can be arranged well after the event.

[1] NOTE: This approach is for educational institutions that were also the original recorders of the work to be digitized, who are seeking a wide degree of latitude on their use. This approach is NOT suggested for digitization efforts involving content generated by third parties at non-educational institutions. It also does not cover recordings of musical works (that would be a whole other answer!).

The lawyer answers:

There is a simple answer to this question, although it stands on a mountain of conflicting law, international disputes regarding IP, and arguments about music rights[1]. 

Section 110 of the Copyright Act allows an entity to have one medium-sized tv (of a kind commonly used in private homes…no JumboTrons), showing a broadcast of anything but songs[2], so long as there is no admission charged, and the programming isn’t re-transmitted (streamed, split for viewing on another device, etc).

The member then took her question to the next logical place…

Taking this a step further, do live streaming of such events accessed via the Internet have such restrictions? i.e. during the recent hurricanes, a public library provided viewing access to live streaming news events to members of the public (public forum). Is such legal? Can a public library "broadcast" internally - for the viewing ability of the public - show television programs, news reports, live streaming videos, etc. 

The lawyer answers….

This is where things get complicated.  There are any number of law review articles, commentaries, and cases debating how copyright law, communications law, and contract law intersect on this issue.  While “streaming” has become a catch-all term for any audiovisual (or audio) work accessible via the internet, the precise technology behind the display plays into the analysis[3].  Further, many news sites require log-in information connected to an individual person to get full access, so the person whose account is associated with an allegedly non-conforming or infringing use could face personal consequences.

The bottom line: an institution would need to exercise caution on a case-by-case basis to re-transmit information, since the 110(5)(a) exception might not apply.  But if the content is on one screen, no admission is charged, and there is no re-transmission, it might be possible.

The member then asked the “Ultimate YouTube” question:

While not, in my opinion the same as showing the news, a television program, etc.....The following is known about YouTube "terms of service": "Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content."

This question highlights exactly what I had to talk about above: that the licensing terms of the websites may bring further restrictions than the copyright law.  That said, here is an important point for libraries, the guardians of information: Section 110 is not the only exception to infringement for the transmission of audiovisual works. Fair Use, in Section 107, and the “Library and Archive Exception, in Section 108, can also apply. 

Of course, every “Fair Use” requires a fact-specific analysis.  But it is certainly possible that a library could aggregate and then re-transmit select streamed information in a way that met both the emergency response needs of the public, and the 107 criteria (although there could still be a risk of a civil claim based on violating the “terms of use” of the site).  The key would be avoiding, generally, wholesale copying/displaying of non-transformative content[4], and making sure no particular staff member is vulnerable to being accused of violating a “terms of use” license.

As to Section 108, the capture and archiving (and perhaps, later, lending/copying) of streamed content goes beyond the scope of this reply, but it’s an issue to keep in mind.  Nowadays, a great amount of valuable content is “born digital,” and the meaningful archiving of such content may fall within a particular library’s mission.  For this, any library should consider exactly what it wants to do, the precise nature of the source material, the precise legal concerns….and develop a strategy to do it. This will only get more important in the decades to come.[5]

[1] Trust me.  It’s a mess.  Just do a search for “Berne” and “homestyle exception” and “WIPO.”

[2] This answer does not address playing audio works, which fall in part under 110, but require different analyses (yes, more than one).

[3] For instance, in the case Joe Hand Productions, Inc., v. Maupin (2016, U.S. District, EDNY), the court assessed a claim based on a saloon owner using a Roku device to display a Mixed Martial Arts fight accessed through his Cablevision account.  The court refused to dismiss the claims for both copyright infringement and violation of the Federal Communications Act.  As of this writing, that case is still in its pre-trial phase.  Of course, the saloon probably pulled in a lot more money for hosting an MMA re-transmission than a library will pull in for providing emergency news access, but the financial rewards of the performance are not the only factor.

[4] I appreciate that during a time of extreme need, when lives are on the line, a cost-benefit analysis might also cause someone to throw caution to the wind and just re-broadcast the content without doing a Fair Use analysis!  I don’t advise that, but I don’t want readers to think I am a heartless legal robot.

[5] Consider the various databases of valuable research/data that have changed format and content due to administrative changes in the federal executive branch, for instance.

LIBRARIAN:  We have that copy Moulin Rouge you wanted!

PATRON:  Thank you!  I am planning to generate a version of it with my commentary over it. 

LIBRARIAN:  How interesting.  Are you planning to get permission, or claim Fair Use?

PATRON:  Um…?

LIBRARIAN:  Perhaps you would be interested in this book on copyright, too.   

It is professionally appropriate for librarians to promote awareness of copyright, trademark, and the other laws that govern the use of content.  But what can happen next can be risky:

PATRON:  Thank you for the copyright book!  I am pretty sure my use will be considered “Fair.”  What do you think?

LIBRARIAN:  I am so glad you found the book helpful.  As to any use of the DVD we provided…that is a question for your lawyer.

Unfortunately, the most attentive librarians are often the closest to this exposure, since they are the most dogged about providing access—exploring the furthest reaches of Fair Use and Section 108 to do it.  However, it also means that the pressure to go one step beyond, and advise the patron about what they intend to do with the materials, may be frequent.  When it occurs, librarians must emphasize the boundary between good service and legal advice.  Here is a formula for that:

I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided. 

In the event any of the service happens in writing, it is helpful to confirm this in writing.  This doesn’t have to read like an official “notice,” but can simply be a nice note:

Hi [NAME].  We were glad to help you find [RESOURCE].  As I mentioned, if you have legal concerns about the material you borrowed, you should consult an attorney.

By that way, I am not suggesting that every patron question needs a disclaimer! But for those areas where librarians are actively applying intellectual property law, or providing access to law-related resources, the boundaries of excellent service and legal advice can blur.  Users, who have a high-trust relationship with their librarians, might not appreciate that boundary. Tightening the focus and emphasizing it protects the patron, protects the institution, and protects the librarian.

This is a lovely idea, but any library considering something like this should get assurance that the work is in the public domain[1], or have permission from the authorized licensor (who is not always the copyright holder), before filming/streaming. 

This is because an audio recording[2] of a copyright-protected book is likely a “derivative work” (a work based on the original[3]) that, without permission, constitutes an infringement. 

A great example of a permitted derivative work is a commercially published audiobook.  Check out the credits on an audiobook listing—they generally recite two copyrights: the first for the original work (used with permission), and the second for the audio recording.  This is how the law both limits and promotes such recording.

A few other legal considerations approach this scenario, but don’t quite apply:

• “Fair Use” would not apply, as the reading would likely use a large portion (if not the entirety) of the work, and the purpose is not transformative, nor for commentary/criticism. The fact that the transmission would be for a worthy goal, consistent with a library’s mission, is likely not enough to make the use Fair--even if the effect on the market would be insubstantial.
• If the recordings were purely for ADA accessibility[4], there could be an argument, but such a project would need to be planned carefully, but that is not the purpose in the example.
• The TEACH Act, which allow academics at TEACH-registered institutions to stream copyrighted content, but that only applies under very precise circumstances.[5]

That said, because a live reading could promote the works featured, I imagine there are publishers who would grant a limited license for such an endeavor.  However, depending on their contract with the author(s), a publisher might not be able to!  In any event, asking permission is a case-by-case exercise.

The good news is that the reading itself, at the physical location of the library, is allowed so long as it meets Section 110 (4)[6] of the Copyright Act (this probably isn’t news to most librarians). 

Very often, attorneys are perceived as throwing cold water on project like this, and hopefully this answer has shown why that is usually our only option.  That said, if there is ever a specific work a library wants to plan an event around (a specific book, etc), it is worth it to investigate the status and licensing posture of that work.  You never know what you’ll find when you check the status, or the ability to get permission, for a specific work.

I wish you all good reading.

[1] No longer protected by copyright…and for that matter, not affixed with a trademark the owner could claim you infringed.

[2] Because it technically “makes a copy” as it goes, streaming is often considered duplication.  If you ever feel like causing a healthy debate, ask three intellectual property attorneys and a U.S. Supreme Court Justice to comment on this line of case law.

[3] Per Section 101 of the Copyright Act: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. [Emphasis added.]

[4] Per Section 110 (8) of the Copyright Act.

[5]Those circumstances are listed in the ALA’s TEACH Act FAQ.

[6] Law linked here.

[Note:  The syllabus, which set out the basis for compiling recipes from a variety of regions and cooking styles, was also provided as part of this analysis.]

At first glance, this looks like a simple “Fair Use” question: is it okay, for use in a class, to copy and compile recipes from different sources and regions?  But this scenario is also a stealth “Section 102” [1] question: what exactly constitutes copyrightable subject matter?

We’ll take the “102 Question” first: is what the instructor duplicated entitled to copyright protection by a potential plaintiff? 

Answer: Since the duplicated materials are very simple recipes, without photos, lengthily narratives, or illustrations, probably not.  Per well-established case law [2], a plain, unadorned recipe, which is effectively a set of instructions with very little creative expression, is not sufficiently original to warrant copyright protection. [3]

We’ll take the Fair Use question next: if any of the recipes do have enough original expression to be protected by copyright (let’s say one has a cool picture of Jacques Pepin in the background), is copying them and compiling them together a Fair Use?

Librarians know, perhaps better than anyone, that Fair Use is a shifting exception to copyright infringement where the purpose, character, amount, and effect of the use all must be weighed to arrive at an answer.  In this case, with the recipes taken from a variety of sources, and arranged to support a compare-and-contrast cooking experience at a not-for-profit educational institution, if only very little from each original source was taken, there is a strong Fair Use argument to be made.  And of course, that argument would only need to be in defense of a claim based on content meeting the requirements of Section 102!

So, back to the original questions: is the posting permissible?  The answer is: most likely, yes!  However, the safest thing for the faculty member and the institution to do, going forward, would be to generate newly typed, bare-bones versions the recipes [4] (it’s one thing to know you’re right, it’s another to not get sued in the first place).  I would also advise they leave any maps, images, or other separately copyrightable materials that can easily be sued on, out, unless they have permission to use them.

And finally, regarding the issue of acknowledgment: unless the original author or publisher used a “Creative Commons” license allowing duplication with attribution, there is no need to attribute the source…if anything, attribution is helpful evidence for a plaintiff, and not particularly helpful to a defendant.  So there is most likely no benefit to crediting the source…although in academia, of course, citation is at the very least a professional courtesy, as well as a gateway to credibility.

[1] 17 U.S.C. Section 102 is the section of the Copyright Code that defines and lists copyrightable subject matter.

[2] Publications International, Limited, v. Meredith Corporation, U.S. Court of Appeals for the 7^th Circuit…a case is worth reading both for its clear explanation of the idea/expression dichotomy, and for the Judge’s commentary on the yogurt-based recipes allegedly infringed by the defendant.

[3] This is why cookbooks often have photos, fun commentary, and a stylized way of giving instructions…the author and publisher are making sure they can protect the work.

[4] This is rather liberating advice to give.  In most cases, I can’t advise generating re-typing versions of a publication to avoid a claim of infringement.  But if you’re just listing “required ingredient and the directions for combining them to achieve final products,” (see the above-cited case) without taking someone’s original narrative, pictures, or other creative elements, and not copying their web site or other digital elements, you’re home free.

You are not wrong in your thinking.  You are protecting your institution.   Further, by educating your faculty, you are helping them educate students.

That said, you are up against a tough issue.  It is one of the strongest copyright myths out there: the strident belief that if a copy is for educational and/or a not-for-profit use, it can’t be an infringement. [1]

Of course, all myths come from somewhere, and the origin of this one is easy to pinpoint: Fair Use—an exemption from infringement—considers educational and commercial factors. 

But librarians and other information professionals know that Fair Use involves additional factors, and requires case-by-case analysis.   To Illustrate this (and helping faculty), many larger higher education institutions maintain excellent, easy-to-use guides. 

Here are some of the better ones I couldn’t presume to improve upon:

NYU

Columbia

Stanford

Harvard

Given the wealth of excellent material out there already, I have nothing new to add, unless you would find posting this short, punchy bit of doggerel helpful:

When it comes to coursepacks, here’s the rule:

Copyright applies in school.

Sure, not-for-profit education

Can help a “Fair Use” designation,

But articles, books, and chapters used

Without a license can get us sued.

Ten percent is no sure guide…

Fair Use factors slip and slide!

So if the work’s not satirized,

Nor juxtaposed, nor criticized--

But copied just to help them learn--

Then I’m afraid we must be stern.

Don’t become some lawyer’s mission!

Let us help you get permission.

(After all…

If someone used your dissertation,

Perhaps you’d want some compensation?)

You have a license from me to post this, if it will help.  Sometimes a short couplet can succeed where charts and paragraphs fail (but maybe leave off that last part). 

I wish you a strong heart, and much support, as you protect and guide your institution.

Comments and shaky poetry © Stephanie Adams (2017)

https://creativecommons.org/licenses/by-nc-sa/4.0/

[1] This is unfortunate, because Fair Use does offer a great deal of protection to academia, as can be seen in the recent case https://www.copyright.gov/fair-use/summaries/cambridgeuniv-becker-11thcir2016.pdf.  But it is not a simple or over-arching protection!

I would say, “This is quite the puzzle,” but fortunately, Section 108 of the U.S. Copyright Code makes this an easily solved dilemma.

But first, I have to commend you for being cautious, since the situation is absolutely governed by copyright.  The puzzles, jumbles and other games in newspapers are what newspaper syndicates call “features.”  In a 1970 case[1], a "feature" was described as: “a literary or artistic creation prepared for publication in newspapers.” The court recited: “Comic strips are features; crossword puzzles are features; gossip columns are features; columns of information and opinion…are features [emphasis added].”  So in fact, your situation brings what we could call a “double copyright” concern: both the newspaper, and the crossword feature itself, can be infringed. 

However, per Section 108, your library is allowed to make one copy of a published article from a newspaper, so long as:

• The copy becomes the property of the user, whose use is private and not for commercial gain;
• There is a copyright notice on the copy (most crosswords already have this)
• Your library has the required postings about duplication, and meets the usual Section 108 requirements (see   WNYLRC’s new  Section 108 Resources for a complete list).
• Your staff does not become aware or have “substantial reason to believe” that it is “engaging in the related or concerted reproduction or distribution of multiple copies.”  (17 U.S.C. 108 (g)(1))[2]

How can this solution play out in a busy library? I advise making one copy as you describe, and making it available with a notice such as:

“As a courtesy to fellow patrons, please let staff know if you would like a copy of the crossword.  The original version in the newspaper should not be written on.” 

Since Section 108[3] is the key to making the copy, and it requires that the copy be made for a patron, I advise against making several copies in advance.  However, to make sure the newspaper stays accessible throughout the day, making a temporary master copy to work from is okay….so long as those copies aren’t later compiled/used for something that goes beyond 108’s reach.

Hopefully, this will create satisfied crossword aficionados, serene newspaper readers, and peace in the periodical section!

[1] * United States v. Chicago Tribune-New York News Syndicate, Inc.

[2] In other words…if it becomes clear that the local crossword club is using your library to make the copies for its annual competition, the copying is no longer allowed.

[3] It is worth noting that the Library of Congress considers crossword puzzles to be “games” that are to be registered as “textual works,” since Section 108 does not extend to pictorial or graphic works.