Academic Libraries

[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!

This question starts with 17 USC 108(c), which allows for duplication of “obsolete,” formats, but limits the accessibility of digitized copies “to the premises” of the library. 

The inquiring library set out the other 108(c) factors: the obsolescence of VHS (manufacture stopped in 2016), the lack of commercially available copies, and the published nature of the work.  So as you say, what’s left to determine is:  Does the “premises” of a library in an educational institution include the whole campus?

“Premises” is not defined in the Copyright Code, nor is it commented on in the lawmaking notes (vis-à-vis this question).  I found no case law directly on point.  So we’ll go to the lawyer’s last resort: common sense.

Section 108’s bar on digitized preservation copies leaving the premises of the library is very rigid, and it is likely the boundaries of your library are, too.  If the library has a finite space that is reported in things like strategic plans, accreditation reports, and campus maps, then the “premises” would most likely be deemed to end at the door, not flow throughout the campus.  A quick search on this issue show this is the emerging consensus.  So yes, the DVD’s you make as a result of this format shift are, at first, trapped in your library [1].

This creates a ridiculous conundrum: you need to shift the format so the educational material may be accessed, now that the format is no longer supported.  But in transferring the information to a digital format, you are shackling it to the premises.  How can you provide access?

You have two options:

First, it is important to remember that the shift of format does not necessarily change the license your institution purchased when it first acquired the VHS tapes.  This is a point strongly emphasized in both 108, and the lawmaker notes accompanying it.  If your institution had a license to use the copies for classroom room, directly from the owner/publisher, that license might survive the shift.  That could be determined from the purchase records or license text on the video itself.

Second, the Association of Research Libraries’ “Code of Best Practices in Fair Use for Academic and Research Libraries” was drafted, in part, to address this situation (see page 18).  In the Code, the ARL posits that when a preservation copy is made, further access can be granted under Fair Use.  This does come with limits however: “off-premises access to preservation copies circulated as substitutes for original copies should be limited to authenticated members of a library’s patron community, e.g., students, faculty, staff, affiliated scholars, and other accredited users.”  Further, the Code states that preservation and Fair Use copies should not be accessed simultaneously, and technology controls should be used both label the copy as required by 108, and to restrict further duplication.

This Fair Use solution to your problem has been adopted into the published policies of many institutions (here are a few examples [2]).   As there is no case law on point, I cannot say it is a slam-dunk defense, but I can say that if you adopt your own policy for carefully following this emerging standard practice, and then document that you follow it as you embark on this journey to ensure continued access to educational material you rightfully purchased, you will be in good company if content owners decide to sue for infringement, and recent case law about fair use will likely weigh in your favor.

There is a good deal of writing and advocacy on this issue, and hopefully in another few years, I will have a more definitive answer to give you!

[1] The Section 110 exemption for “classroom use,” requires that the viewed copy be “lawfully made,” and your digital copy, to be “lawfully made,” must stay on site.  So I do not feel safe advising you to use that route…although it is uncharted territory.

[2] http://www.library.unt.edu/policies/copies-printing-and-copyright/applying-copyright-section-108c-unt-media-library-collection

http://www.uccs.edu/Documents/copyright/Copyright%20and%20Video%20in%20Libraries_v2.pdf

http://www.stonehill.edu/library/about-the-library/library-policies/vhs-digitization-procedures/

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.

First question
As you say, a college can show a movie they own, without further licensing, so long as: 

• The institution is a not-for-profit
• The performance of the film is in connection with face-to-face teaching activities, in a classroom or similar place of instruction.
• The copy was legitimately acquired

This is a broad exemption, but it absolutely does not apply to non-instructional, non-classroom showing of movies by student clubs.  Such a showing would require express permission via license.

Of course, if a student club has an academic focus (for instance, Spanish Club) and the film is to be part of an academic experience (for instance, watching the movie in Spanish, to enhance learning), in an academic setting (class room, with a qualified academic instructor) one could argue that the required elements are still met. But the educational purpose must be bona fide…no watching “Deadpool” for entertainment and then having a half-hearted, academically disconnected discussion on modern comic book tropes.  And of course under no circumstances should money be charged.

Second question
The second question is very simple: the cover images of most commercial films are subject to copyright.  Because of that, and because there is no exemption allowing them to be duplicated, unless permission is obtained, the college is well-advised not to allow copies to be displayed to promote the event, and especially should not allow that image to be published on the college website. 

Keeping it off the website is critical.  Even smaller rights holders police the internet for images they own, and insurance companies, facing mandatory statutory damages and attorneys’ fees, will quickly settle claims…something that will eventually lead to higher insurance premiums for your institution.

The best way to promote the licensed showing is to either use the approved promotional material that comes with the license, or generate a version that does not infringe on the content of the original (or the film).