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When seeking permission to use a copyrighted work for an electronic reserves system, is e-mail permission sufficient?

Yes, an e-mail is considered a "writing." Copies of permissions received to reproduce material for reserves should be maintained either online or in a print file so that they can be retrieved. More difficult is telephone permission. Verbal permission is worth only the paper on which it is printed, that is, none. If permission is obtained over the telephone, one should follow up with a memo sent to the copyright owner summarizing the permission received, and maintain a copy of this in the permissions file. Copies of permissions received via fax also should be retained.

A college library has offered electronic reserves for four years. Should it now revise its e-reserves policies based on the TEACH Act?

An amendment to the Copyright Act of 1976, the TEACH Act revised section 110(2), which deals with distance education. The TEACH Act covers performances and displays in distance education, or that are transmitted in any form in which the course is offered, including online, and online components of face-to-face courses. Nonprofit educational institutions that wish to qualify for the exceptions offered under TEACH must meet a number of requirements. Traditional reserves do not deal with performance or displayinstead, they deal with either putting original copies of books, videos, sound recordings, and journal articles on reserve or the reproduction of materials to support the classroom. These works are reproduced, and because of their nature are not performed or displayed. Works that are typically performed include audiovisual works, musical works, and sound recordings; works that are generally displayed include slides, photographs, charts, and so forth. Thus, for full copies of printed works, the TEACH Act simply does not apply. Therefore, revising the e-reserves policy is not needed for printed works.

For a reserve collection that consists of sound recordings that are streamed, the TEACH Act is applicable since these works are performed. The TEACH Act allows performance of entire nondramatic musical works, but it is unclear whether it covers sound recordings that embody the musical work. It is also possible to rely on fair use for providing access to this material, and relying on fair use may be a better choice. Moreover, many musical works are dramatic, such as opera and musical comedy, and therefore cannot be performed online in their entirety without a license. Images that may be displayed via e-reserves also may be covered by either the TEACH Act or fair use.

Video that is streamed for e-reserves also could fall under the TEACH Act because videos are works that are performed. The TEACH Act does not permit the performance of entire audiovisual works without a license but only a "reasonable and limited portion" of a work. Placing an entire, lawfully acquired DVD on reserve does not implicate TEACH. Copying the entire copyrighted video, however, would constitute an unlawful reproduction. Reproducing a reasonable and limited portion of a performance for e-reserves would be permitted by TEACH if all of the requirements are met. Thus, for streaming music and video and for displaying images, a library may wish to update its e-reserves policy.

A new faculty member at a state college (A) wants to place several articles on reserve in the library for his class. He accessed these articles through full-text databases at the library of the major state university (B) where he is enrolled as a graduate student. The faculty member has asked if he can send a PDF from (B)'s databases to the library staff at (A) to be placed on electronic reserve. In the alternative, may he make paper copies that could then be scanned for e-reserve as long as he signs (A)'s agreement to seek copyright permission?

This database of full-text articles is licensed to (B), and the use is probably restricted to (B)'s own faculty, staff, and students. Although (A)'s new faculty member is a also a student at (B), and therefore has access as a student for his own research and study, duplicating the articles in any format and putting them on either print or e-reserve at (A) is infringement because it is not a lawfully acquired copy for (A).

There is some possibility that (A), as an institution in the state system, is covered under the same license agreement, but it is not definitely so. This is a matter of contract law rather than of copyright. Whether the faculty member makes paper copies from the database or sends a PDF file to (A), the issue is the same. Copying to put articles on reserve in another institution likely violates (B)'s database license agreement and the library at (A) should refuse to accept the copies for reserve unless it has proof that the faculty member actually sought and received permission from the database owner to do so.

An instructor at the college makes extensive use of electronic reserves for her course. This term she accessed an online magazine (for which she has a personal subscription) and found the particular articles she wanted to put on e-reserves as readings. She saved them as PDF files and then asked the library to make them available on e-reserves. If the library does so, is there a copyright problem?

Yes, there is a problem. If the library had a subscription to the print journal and then scanned the article, it would need to follow the usual ALA Reserve Guidelines from the Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use (see unc.edu/~unclng/ALA-modelpolicy. htm). If the articles came from the faculty member's personal subscription to a printed journal, then scanning them for reserve for a one-semester use without permission would be allowed under the Guidelines. If the articles came from a subscription to an online journal that the library maintains, then the library's license agreement for the journal would control whether copying articles in PDF format and putting them on e-reserves is permissible.

Here, however, the subscription to the online journal is a personal subscription, and online journals are almost always licensed products. It is highly unlikely that the click-on license that the faculty member must have executed in order to get access to the magazine would permit such copying and wide availability from a personal subscription. The faculty member should be asked to print out the license from the online journal for the library in order to prove that copying and putting the articles on e-reserves from a personal subscription is permitted. If it is not, then the only alternative is for the faculty member or the library to seek permission from the publisher to include the PDF of the article in the e-reserves system.

For electronic reserves, is impermissible for the library to link to an article in an online database?

Usually yes, but not always. It is the license agreement for the online database that controls whether linking from an e-reserves system is covered under the terms of the license agreement. If it allows linking, then the link should lead to a dialog box where the user has to be authenticated to ensure that access is covered under the license. If the license does not permit such linking, the library may want to renegotiate the license to ensure its ability to link to online sources to which it has access under the terms of the license for e-reserves.

The library has a collection of unpublished letters from the nineteenth century that were written by community members in the town in which the library is located. For a local history course, may the library photocopy the letters and put them on reserve? What about scanning them for electronic reserves?

In all likelihood the letters are in the public domain, but not definitely so. For example, if the author of an 1885 letter lived until 1945, that unpublished letter is still under copyright. Unpublished works that existed as of January 1, 1978, that remained unpublished through the end of 2002 entered the public domain at that point, or life of the author plus 70 years. If the author has been dead for more than 70 years, the letter is in the public domain and the library can do whatever it wants, including putting photocopies on reserve, or scanning and putting the letter in the e-reserve system.

In the example of an author who died in 1945, the letters would be under copyright until 2015. Duplicating the unpublished letters in any format could be done only if the library determines that such reproduction and distribution satisfies the four fair use factors (purpose and character of the use, nature of the copyrighted work, amount and substantiality used, and market effect).

The library has been asked to scan a number of copyrighted images and to put the copies into the electronic reserve system. Is it infringement to duplicate photographs and images for reserve collections?

If the images are copyrighted, then it is important to remember that reproducing a single image is the equivalent of copying an entire book. It may be fair use to reproduce a single image and put it into a reserve system, but reproducing many images from a single work may not be fair use. Limiting access to a single class for a limited time may also be fair use; further, the TEACH Act display portion would apply (i.e., the number of images that would typically be displayed in a face-to-face class). Most libraries that use a significant number of images acquire a license. Many images are not on the web, and it may be possible for the library to create a list of links to the images for the faculty member interested in copies of the images for reserve.

What is the responsibility of a faculty member who learns that her students are reproducing full copies of materials placed on reserve for a course?

Faculty members have a responsibility to not suggest or recommend that their students reproduce full copies of the material that faculty members request be put on reserve for their courses, but there is no policing function that faculty members must perform. Faculty may wish to talk to their classes about copyright and copying, however.

 
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