Photocopies

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.

Many college and university libraries make it a practice to bind and inventory the academic work of their graduates—a tradition that showcases the achievements of the institution, maintains an important bond between the library and the faculty (who often sign the final copy, to signify approval), and allows graduates to cite and showcase their work.  These collections are often honored institutional assets: a neatly reproduced, annually increased, and routinely cataloged series of books occupying a special space in the library.

(When a graduate later becomes famous, they can also pose a persistent and annoying theft risk…but that is not the topic at hand!)

With the dawn of the digital age now at high noon, some college and university libraries are also including these home-grown works in home-grown databases.  This requires a digital infrastructure that not all academic libraries can afford or support, though, so for many, the old-school binding and shelving of graduate work is still the default practice.  Many institutions are now also considering whether or not to digitize their back catalog, and of course are also seeking ways to promote, provide and oversee appropriate patron access to what they have.  

Overall, these “old school” copies can pose an interesting access challenge.  They are generally listed in the library’s catalog, and considered a part of the active collection.  But what rights does the institution have to them?  How is access to them governed by copyright law, which often depends on the distinction between “published” and “unpublished?”  Can they circulate, be accessed via inter-library loan, be reproduced for archival purposes, or be digitized?  How much can the original author—now an alum—control them?

To answer this, I must use the phrase that is the lawyer’s most trusted companion: it depends.

We’ll take the relevant factors in order of appearance:

First, it is important to confirm: the work of a student, even if directed and overseen by a faculty member or faculty committee, is owned by that student.  Student-generated work [1], even if the topic was suggested by someone else, and even if the content is vigorously critiqued by someone else (and then presumably re-written), is an “original work of authorship,” and the moment it is “fixed in a tangible medium of expression,” it is owned by the author (the author).   Of course, the student can sell the ownership, or donate it—but unless that transfer has been recorded in writing, it remains theirs…and then their heir’s…for the life of the author, plus 70 years.[2]

Second, generally, the permission to reproduce the academic work is a creature of a contract between the author (the student) and the institution (the college or university).  This permission can run the range from a completely unlimited license of all the rights of copyright (to reproduce, distribute, perform, display, create derivative works), to a very limited license (to make one hard copy and add it to the catalog).  This permission might be revocable, or irrevocable.  It might be exclusive, or non-exclusive.  It could even make use of Creative Commons licenses to create a very liberal mode of access.  Critically, though…these terms can vary from institution to institution, from year to year, from student to student.  There is no bright line rule.

Third, depending on the extent of the license, and other factors, the thesis or dissertation may, or may not, be “published,” as that term is defined under the Copyright Code. The ability to replicate, digitize, and create archive copies under Section 108 will be governed, in part, by publication status.  Section 108 is a great asset for libraries and archives, often allowing duplication of entire articles and works…but it requires the well-documented alignment of precise factors.  [NOTE: A copyright registration that included the date of publication would take care of this factor.  Some institutions and authors do register these works…and if they are put in the catalog for lending, registration should be effected before circulation begins, since to do otherwise could compromise the author’s rights]. 

Fourth, and finally, the policies of the college or university will govern access, too.  There could even be a day when an aged alum, having lost their treasured copy, may show up demand access to the library’s…only to be told that although they are without a doubt the copyright owner, they have to fill out a form, or renew their card, or wait until the Reference Librarian is back from break, so they can access their work. 

That said, they are the only one who might not have to do a 108 analysis before making a copy!

[1] Work that is actually co-authored by a faculty member and a student is subject to the rules of co-ownership.

[2] As you know, copyright duration varies.  A great breakdown of how to calculate duration is here: https://www.copyright.gov/circs/circ15a.pdf

It’s 2017.  Digital access to academic resources having been a factor in academic life for over 20 years, it would be reasonable to think I would have clear, well-established guidance to give you.

However, as of 2016, the United States was still struggling with Fair Use, and the law doesn’t give us the bright-line rules we are hoping for.   Rather, particularly with regard to textbooks and digital access, recent case law has diminished them.

Very comparable to the circumstances you described is the case Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016).  In Cambridge, a court in Georgia, after trying to use a simpler, equally weighted Fair Use analysis, and relying on the ill-fated “10% standard” of duplication, ruled that when creating digital copies/excerpts of textbooks:

(1) the first factor, purpose and character of the use, weighs in favor of fair use because [a university] is a nonprofit educational institution;

(2) the second factor, the nature of the work, is “of comparatively little weight…particularly because the works at issue are neither fictional nor unpublished;”

(3) the third factor, the amount of work used, must be viewed through the lens of “the impact of market substitution as recognized under factor four, in determining whether the quantity and substantiality . . .of [d]efendants’ unlicensed copying was excessive;” and

(4) the fourth factor, the effect of the use on the potential market for the work, “concern[ed] not the market for Plaintiffs’ original works . . . but rather a market for licenses.”

This case shows that a when it comes to textbooks, while courts will give strong deference to educational institutions, there is no “magic formula” (like 10% of the content) they will apply to ensure Fair Use.  Rather, courts will apply a nuanced analysis that changes from work to work, and from use to use—making general guidance a challenge.

With all that in mind, my answer to the inquiry is:

First, the ability of the student/patron to physically access or check out the book is a great service by your library; with the required copyright notices posted, and no attempt by the library to collude with students in making prohibited copies, you are taking good advantage of section 108’s exemptions of libraries from liability for infringement.  In addition, providing access to textbooks within the structure outlined above is a great incentive for students to visit the library.

Second, your actual question—can my library use digital access to help students who were late registrants or otherwise unable to secure a physical or full digital copy?—requires application of the Fair Use factors on a work-by-work basis, which as we can see, is an increasingly intricate and fact-specific exercise.   You must apply the four factors not just on a work-by-work basis, but while considering the specific purpose of a particular use.

There are also some practical tips that can help you avoid being sued for infringement.

Tip #1: To answer questions like this, I always put myself in the shoes of the potential plaintiff.

· If I were the publisher, would I view the digitized access as cutting into my potential revenues? 

· Is there an easily obtainable license for the excerpt, that the library is just choosing to ignore?

· Can I, as the publisher, easily put a price on the damages? 

All these factors, if the answer is “yes,” can lead to the publisher instructing their lawyer to file suit. 

However, even if all of these are true, I, the publisher, would also ask…did every person who accessed the digital copy already have a copy on back-order (and not return it)?   If they bought my book, and were only using the digitization as a place-holder, I, the publisher, would tell my lawyer to look elsewhere for damages…especially since when I, the publisher lose, I am responsible for the legal fees of the other party (in the Cambridge case, the publisher was told to pay the fees of the university).

Tip #2: It is unfortunate that, like the courts, I can’t give a simple formula for Fair Use.  However, one way you can sometimes get a bit of “free” advice on this is to consult with your institution’s insurance carrier.  It is very likely your institution is insured for copyright infringement, and that they have a list of best practices they would like to ensure you, the insured, are following.  As a professional within the library, it is good to also confirm that this coverage will cover not only the institution, but you as an employee.  That can help you sleep at night.

Tip #3: And finally, if ever an entity notifies you that they are suing you for infringement, notify your insurance carrier right away.  Often times, they can provide counsel, and help you reach a quick, low-stress resolution.

A community library’s role in archiving and creating access to local news is critical, but changing technology, uncertainly of ownership, and costs can make the legal aspects of the process uncertain.  The member’s questions, set out below, are on the forefront of this issue: how do libraries position themselves to preserve and provide access to published local news?  

Section 108 of the Copyright Code was created to balance the rights of copyright owners with the access and preservation of their works, including newspapers.  It allows for the copying of sections, whole works—and in some cases, the creation of multiple copies of whole works—by libraries and archives.  The first question from our member sets the stage for this issue:  

Does Section 108, sub-section (a) give libraries the right to make 1 analog copy of pretty much anything they own?

The answer is to this opening question is: No…Section 108’s application is broad, but it might not apply to your whole collection.  The final paragraph (sub-section “i”) of the law contains some big exceptions: musical works, pictorial, graphic, or sculptural works, or films/AV works (excluding news).   So, while there are certainly limitations to these limitations (mostly for ADA access, as provided for in other parts fo the law), sub-section (i) means that not “all” parts of a collection may be fully copied.  

That being said, exclusive of the exceptions in sub-section (i), under Section 108 (a), ONE copy can be made, so long as the library is open to the public, the copy is not made for commercial gain, and the copyright to the work is attributed—along with a notice that the copy was made per section 108.  This is a critical protection for libraries, library staff, and patrons.  However, the duplication it allows is balanced with the rights of copyright holders…and a careful read shows it was also drafted by congress to support certain actions in the “market place” (i.e. commercial archiving).  This takes us to the next 2 questions.

[Can we] microfilm the newspapers we have on hand?

Answer: Yes.  The creation of one copy of a published newspaper falls squarely under sub-section (a).  

And does sub-section (c) give us the right to make up to 3 more (microfilm) copies, for preservation purposes?

Sub-section (c) is the section that allows for multiple copies to be made under certain circumstances.  Applying the criteria of the sub-section,  I regret to say the answer to this is “no.”  

Rights under sub-section (c) only apply if the original (or copy of the original) is “damaged, deteriorating, lost, or stolen…”—or if they are embodied on an obsolete format, and that after a reasonable effort, an unused replacement can’t be purchased [a format is “obsolete” “if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”].  This formula is not a good fit with a recently published work.

However, in raising the question, the member raised an interesting and practical argument:  It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles, etc.) and "after a reasonable effort" there will be nowhere else from where we can buy a pristine back run "at a fair price" (ie. for less than the price of striking another microfilm).

For a question like this, it is best to go straight to the source: the Library of Congress circulars.  The Circular on section 108 can be found here:  https://www.copyright.gov/circs/circ21.pdf

In relevant part, it states:

Subsection (c) authorizes the reproduction of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. The scope and nature of a reasonable investigation to determine that an unused replacement cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if such owner can be located at the address listed in the copyright registration), or an authorized reproducing service.
[Emphasis added.] 

As can be seen, the delicate nature of newspapers and library capacity issues non-withstanding, proceeding under sub-section (c) without certainly that there is no commercial alternative does not meet the sub-sections’ requirements.  The law is clear: the copies can be made only after the good-faith determination that no commercial alternative exists. 

It is cumbersome, but saving a copy of the paper, and then establishing, on a routine basis, that back copies, digital archives, and third-party microfilm versions of the newspaper are not commercially available, meet sub-section (c)’s commercial determination requirements. This is an essential element of the law and cannot be left out, or there will be no infringement defense under sub-section (c).  

The final question brings this all home: We really just want to start microfilming 2 copies of the paper…. Can we? Or must we enter negotiations with the publisher to secure the right?

Neither sub-section (a) nor (c) require permission from the copyright holder, so libraries do not need to ask the new owner before using the 108 exceptions as set forth above.   However, as the question implies, a library seeking to go beyond what is authorized by the law would need to work with the rights holder.  Hopefully, the publisher can see the value in allowing the two copies to be created, and will agree to an irrevocable license to the library, for the benefit of its patrons.

Short answer: The proposed copying would not be a permitted, duplication or Fair Use without some additional steps consistent with the four Fair Use factors.

Long answer: This is a great question, as it marries the practical consideration of access with the scary question of a liability for infringement.  To answer it, there are a few initial points of priority….

First, it is critical to note that Section 108 (a) of the Copyright Act, which would normally allow for one copy of a work to be provided to fulfill this request, expressly excludes musical works (see Section 108 (i)).

Second:  Because of the Section 108 (a) exclusion, it is important to distinguish: while the patron may have a Fair Use defense if they duplicate the work for the purposes of scholarship, the library, in simply making the copy to provide easier access to a remote patron, might not.  

Third, as plaintiffs can sue “innocent infringers,” careful steps should be taken to ensure the library could not be viewed as a part of the chain of infringement, if the patron ends up not having a valid Fair Use defense for any copy or derivative work they generate.

Fourth, while this scenario does not state the original copy requires archiving, it sounds as if you have a rare and precious copy, so we’ll draw a bit from the law, case law and guidance covering the protection of deteriorating/rare documents.

And now…how do you enable the proposed access, but keep the library safe?   By ensuring 108(c) and the “Fair Use” factors are on your side, whether you send them a scanned copy, or loan a physical copy.   

Digital copy
Informed by the latest case law and guidance, the following steps could help claim Fair Use for providing the proposed copy digitally:

Step 1: As the Code of Best Practices for Fair Use in Academic and Research Libraries (www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices) puts it: “Providing [digital] access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all.”  It is essential to verify that the works, or a licensed copy, are not commercially available.  This is essential for 108(c), too.

Step 2:  It is best if the transformation of format is not an ad hoc effort, but rather is part of an effort to promote a special resource of your library.   Making the digital copy a part of “special collection”—for instance, of rare music scores—will give you a stronger Fair Use defense.

Step 3: Again from the Code: “The Fair Use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.”  In other words, once you have the collection digitized, don’t let it be just that ad hoc project—promote it.

Step 4: Use appropriate technological controls (digital watermarks, etc.) to restrict the access, limit duplication, and ensure proper attribution of materials in the collection.  That way, any eventual copying or derivative work generated by the patron is separate and distinct from the access provided by the library.

Step 5: As with any digital collection, make sure the library has an easily found way for people to register privacy or intellectual property concerns related to digital collections.

Physical copy
What if you just want to provide them with a physical copy?  Following Section 108(c)’s rules for duplicating deteriorating copies, you can generate a copy for preservation purposes, loaning it to them with the expectation that it will be returned.  Just take care that the work is not commercially available, and that the original copy is not available while the preservation copy is out on loan.

[NOTE: 108(c) bars a digital copy made on this basis from leaving your institution.]  

Overall 
The bar on Section 108 (a) applying to musical works makes this a bit more challenging than the usual duplication request, but with some care, access can be provided.

Further, if the patron wants to make a copy of what your library loans them (either digitally, or in hard copy), if their use is as you describe, they may have their own Fair Use defense.  This will mean both the library and the patron can stand on separate, but solid, copyright ground.