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A school takes the position that fair use does not apply to audio podcasts since they are syndicated and are not confined to the classroom. Is this correct?

Actually no. A podcast is simply a way to disseminate a speech or a talk. So, it depends on the podcast content and the copyright owner. The owner may be delighted to have the podcast made public to everyone; on the other hand, the owner may restrict access or require anyone who obtains access to agree to the terms of a license. Fair use does apply to podcasts, but if the work is licensed, the license agreement trumps fair use.

In a government research library, the agency routinely purchases translations of foreign language articles. These foreign articles were published in the open literature. The library now wants to digitize the English translation and put the full text version on its local area network. The translation itself is not copyrighted, but would this be an infringement of the original language copyright? Since the English translation is technically speaking a "government work" would this be considered in the public domain?

Making these translations available on the network equals publication, and the copyright owner's right to prepare derivative works includes making or authorizing translations of their work for publication. Having one copy translated for internal use is not a problem. But this wider distribution on the LAN infringes the exclusive rights of the copyright holder by publishing the article within the agency. Under various treaty obligations, the United States gives foreign works the same protection it provides for works published in this country.

The English translation is not a public domain work because the original work was not a U.S. Government publication. Instead, it is a derivative work that can be published only if authorized by the copyright owner. Making these translations available within the agency requires permission of the copyright holder.

In a corporate information center, most of the research conducted is reactive to staff member requests. All of the information gathered is released to the requestor once the research project has concluded. The information center maintains only a detailed list of citations. If the information located comes from a website, may the information center retain a hard copy of that research material for its files? If so, for how long? The Copyright Clearance Center does not deal with this. How do other corporate information centers handle this?

Material located on a website is copyrighted just like anything else if it is an original work of authorship. It is automatically fixed by being stored on a website. Maintaining a copy of a work that is ephemeral to provide some evidence that it was searched and used seems very reasonable and likely a fair use. Because of the nature of the web, those pages may disappear and the information center will have nothing to document what it has done. There are no guidelines on how long the center may retain the copy; therefore, retain the copy as long as is reasonable to do so. The Internet Archives ( archive.org/) is another excellent source for older (mostly noncommercial) web pages.

To obtain information on what other corporate information centers do, the best source is the Special Libraries Association (sla.org/), and perhaps listservs for libraries in similar industries. For law firms, the American Association of Law Libraries ( aallnet.org/) is an excellent resource.

The library has been asked to scan the school yearbooks onto a CD-ROM to use in the library and then to publish the yearbooks from 1920 to the present on the web. Are there copyright problems with doing this?

If the school owns the copyright, there is no problem at all since it holds the rights to reproduce and distribute the yearbook in any format. Nor is there any difficulty with yearbooks published between 1920 and 1922, since they are in the public domain.

Assume that the yearbook publisher owns the copyright. For yearbooks published from 1923 forward, several additional facts are required in order to answer the question: (1) Did the yearbooks published prior to 1978 contain a notice of copyright? (2) Did the yearbooks published between 1978 and 1988 contain a notice of copyright, and if not, was an effort made to correct this accidental omission of notice? (3) For the period 1923-1963, was the copyright renewed?

For yearbooks published between 1923 and 1963, notice of copyright on the copies was essential; if published without a notice, they entered the public domain. Assuming there was a copyright notice on the yearbooks published between 1923 and 1963, they passed into the public domain after 28 years if the copyright was not renewed. It is most likely that if they were registered for copyright, they were not renewed, so assume that these are also in the public domain.

Yearbooks published from 1964 to date are unlikely to be in the public domain. Those published between 1964 and 1977 also had to be published with notice in order to be protected by copyright. They did not have to be renewed, however, so they were automatically extended 95 years of protection after first publication since they are works of corporate authorship. Those published between 1978 and 1988 were also required to have a notice of copyright or the owner had to make an effort to correct "accidental omission of notice." Notice became optional in March 1989. If published with notice, yearbooks from 1978 to 1988, along with those to the present, receive 95 years of copyright protection from the date of first publication.

A college library wants to make available to its users a functionality like Amazon's "Search Inside This Book." The librarian's supervisor has said the following, "I cannot imagine that Amazon is calling tens of thousands of publishers to get permission to be able to offer a "search inside" functionality. Since Amazon probably is using the fair use doctrine, could the library not claim fair use and download Amazon's scans?" How does Amazon get permission to use covers, contents, and chapters from publishers without contacting thousands and requesting permission? Would a library need something in writing from Amazon to download its scans?

Amazon is selling books, and many publishers may not object to the "search inside" feature because it benefits the publishers and stimulates book sales. Others have objected, however. Many publishers view libraries as interfering with book sales, so clearly they are not likely to permit libraries to do this without seeking permission directly from the publisher. Amazon probably has permission for this feature, but whether it does or not, libraries are not in the same position as a bookseller.

When a library creates a website, is the HTML code protected by copyright? There appears to be some disagreement among the experts on this matter.

No, the code is not protected. The underlying work is what is protectedfor example, the literary work, musical work, audiovisual work, and so forthbut not the HTML code. Section 102(a) of the Copyright Act details the eight categories of works that may be protected by copyright; while it is possible that other types of works might also be protected, a judgment would be made based on the originality/creativity requirement of the Copyright Act. Although HTML code is very useful, the code underlying a web page is not copyrightable, although the page itself is as an audiovisual work if it meets the requirements of originality/creativity.

If a library has scanned various photographs, local documents, newspaper articles, and the like, and has created a searchable local history database, should the library use any disclaimer about copyright?

Although there is no legal responsibility to do so, many libraries use disclaimers on such databases. The following are appropriate items to include on a copyright page for the database: (1) The materials included in this local history database may be protected by copyright. (2) The library has done its best to identify copyright owners and to seek permission to scan and post this material. (3) When it was not possible to locate the owner, the library decided to include the material, but it asks copyright holders to come forward so that they can be credited for the work. (4) The library will then seek their permission to continue to post the material.

The disclaimer provides a statement to indicate that the library has not ignored copyright concerns and has done its best to locate copyright owners and seek permission to scan and post their works.

 
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