Desktop version

Home arrow Law

  • Increase font
  • Decrease font


<<   CONTENTS   >>

Is three paragraphs of a copyrighted work too much to put on a web page?

To answer this question requires a fair use analysis.

(1) What is the purpose of the use? If the text on a password-protected website is restricted to enrolled students in a particular course in a nonprofit educational institution, the purpose of the use is different than if the text is on an open website.

(2) What is the nature of the copyrighted work? Is the work a novel, a poem, a scientific article? How old is the work? Is it still in print?

(3) What percent of the copyrighted work do the three paragraphs represent? If the three paragraphs are from a full-length novel, then they are a very small portion. However, if the work is a poem printed on two pages, three paragraphs represents a fairly substantial portion. Even if the copied paragraphs are a small portion of the copyrighted work, if the copied paragraphs represent the heart of the work, then the amount is too much.

(4) What is the impact of the copying of the three paragraphs on the potential market for or value of the work? Does the use interfere with the sales of the work? Does it destroy the value?

If the three paragraphs are from a mystery novel, and they reveal the "whodunit," then not only do they represent the heart of the work, but using them could also destroy the market for the novel. It is always possible to seek permission from the copyright holder to use the three paragraphs on the web page.

May a library use any material found on the web that does not contain a notice of copyright and incorporate that material into a library web page?

Material that is published on the web is protected by copyright if it is original. After March 1989, there is no longer a requirement that works contain a notice of copyright, so the assumption must be that the work is protected unless it clearly is in the public domain or is a U.S. government document. The library may link to content without permission, but to incorporate that content into another web page requires permission of the copyright owner, unless it passes fair use muster.

How much of a copyrighted video may be copied and put on a web page by a public library?

Only a fair use portion may be posted on a web page without permission. Some companies have produced DVDs containing movie clips for which permissions have been cleared. These are licensed products and include permission to use the clips on a web page. Other royalty collectives may offer licenses in the future. Otherwise, the copyright owner must be contacted for permission to use the video clip.

A library patron downloads an article from the library's online subscription to a journal or database and alters it. He then posts the altered article on a web page. Who is liable, the library or the patron?

The patron normally is liable. If the library's license agreement requires the library to monitor use and certify that no infringement is occurring, the library would be liable, however. Libraries typically do not agree to such monitoring but instead agree to discourage conduct by posting warnings. If the library has agreed to warn patrons, and it does so, then the library has met its obligations.

May a corporate library archive and put its Internet searches on the company intranet? If the library conducts a search and downloads it to a library hard drive, archives it on one company server, and then e-mails the results to a patron, there are now three copies of the material. Is this a problem?

The term "Internet searches" indicates that the search really involves material on the open web or digital products for which the company has a license. For licensed material, the terms of the license agreement control what use may be made of search results. Material on the Internet is copyrighted just as it is in print. Reproducing the material widely and putting it even on an intranet raises copyright concerns. If putting the searches on the intranet means simply repeating the question and then including the URLs where the information was found, this is no problem. It is the reproduction of copyrighted works, such as articles, book chapters, and the like, that raises concern.

Generally, making one copy for a user is permitted under section 108(d) of the Copyright Act, but multiple copying is not. Making works accessible digitally to multiple users within the company counts as multiple copying. If the copies are "transitory" and are destroyed as soon as the patron has received the results, there is no problem. But if the library is indeed making three copies and retaining them, it should seek permission absent a license agreement. An alternative is an Annual Copyright License from the Copyright Clearance Center, which would cover such reproduction, including posting on the intranet.

A medical library plans to post on its intranet site an article from a journal to which it subscribes. The library has obtained written permission from the publisher to do this. What is the proper verbiage to post with the article to indicate that permission has been received? Is "reprinted with permission from the publisher" sufficient?

The suggested language is just fine. If the publisher does not specify that any special wording must be used, the library is free to indicate that permission was received in any way it chooses. Often the wording is just "reprinted by permission." It probably is a good idea to make sure that the publisher's name appears somewhere, either with the permission statement or on the article itself.

A hospital is considering posting on its intranet four articles in PDF format. The library does not have an institutional subscription to the journals, either in print or in electronic format. Further, no copyright royalties have been paid or even contemplated for intranet posting. What alternatives does an institution have to be able to post the articles on the intranet without infringing copyright?

The first step is to check to make sure that there is no institutional license through services such as EBSCOhost and or MD Consult. If there is a license, then the terms of the license control whether the articles may be posted on the intranet. PDF format is really irrelevant since the format does not change the copyright status of the underlying work. Another alternative is to seek permission directly from each publisher, stating the potential use of the article, the length of time it will be posted, the number of potential users, and so forth. The hospital library could also pay royalties directly to the Copyright Clearance Center for the posting of these articles on a per-use basis. The CCC also offers the Annual Copyright License to both for-profit and nonprofit hospitals, which permits intranet posting.

A librarian is delivering a presentation at a professional conference and finds a cartoon on the Internet for which there is no copyright notice or other information. What are the risks and problems if she uses that cartoon in a PowerPoint presentation at the conference? What if either the presenter or the conference organizers publish the presentation on the web, including the cartoon? Suppose that the librarian used the cartoon in the past without knowing that the cartoon was copyrighted?

The fact that the cartoon is found on the Internet does not alter the copyright status of the work in any way. It is a graphic work that in all likelihood is copyrighted. Since there is no longer any requirement of notice in the Copyright Act, the lack of a notice does not affect the status of the work. There is a slight possibility that the cartoon is public domain, but it is unlikely. So, assume that the cartoon is copyrighted.

If there is no identifying information, the first examination the librarian should make is whether the style of the cartoon is such that its authorship can be traced. For example, New Yorker cartoons all have a particular style, and "Far Side" cartoons are readily identifiable as such. Should there be no way to trace copyright ownership from the style, then the librarian should conduct a risk assessment. Using the cartoon creates some risk, but it may be slight depending on how widely the presentation is to be distributed. Including the cartoon in a PowerPoint slide for a live presentation at a conference with no other reproduction could be a fair use and is not as risky as publishing the slides containing the cartoon in print. The risk for publishing them on the web is greater, however. The librarian should evaluate how critical it is to use the work, how widely it will be reproduced and distributed, and how much risk she is willing to assume. The copyright owner is far more likely to learn of the reproduction and display of the cartoon if the presentation is posted on the web thus, the heightened risk.

The final part of this question asks whether past use of a cartoon creates liability. Ignorance of the law is no excuse, and copyright law does not have an intent requirement, so one infringes even if she did not mean to do so. If the infringement occurred during the last three years, the answer is yes since the statute of limitations in the Copyright Act is three years. The owner of a registered copyrighted work may file suit for infringing activity going back three years.

 
<<   CONTENTS   >>

Related topics