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May someone redraw a painting from the library collection and use his drawing for a brochure advertising the library's special collections without infringing copyright?

The drawing would not be an exact replica, just similar. The original painting is still under copyright.

A reproduction in any medium is still a reproduction. While librarians understand that a photocopy or a digital copy is a reproduction, it is easy to forget that a drawing of a painting is also a reproduction. If, when the library obtained the copyrighted painting it also obtained the copyright in the work, then no permission would be needed except from the library. The library would have had to receive a written transfer of the copyright since physical ownership of the painting does not presume ownership of the copyright. If the painting was produced before 1978 and was not protected by federal copyright, some courts have held that transfer of the physical object also included transfer of the copyright.

Since the question states that the painting is still under copyright, unless the library owns the copyright, the library should seek permission to use the drawing of the copyrighted painting in a brochure.

All of the above presumes that the drawing is substantially similar to the painting. Should the drawing simply use the ideas from the painting but not copy it, then there is no problem with the drawing. The library could decide that even though the drawing is substantially similar to the painting, it is a fair use. Should there be litigation, a court would analyze the drawing using the fair use factors.

Librarians must often explain copyright law to patrons, including students and faculty. How should this be done?

Educational institutions should have adopted a copyright policy that the library can distribute on its website and also have available as printed copies to share with users. A number of books and pamphlets have been developed to explain the law to various user groups. A good one is Campus Copyright Rights and Responsibilities: A Basic Guide to Policy Considerations, published in December 2005 by the Association of American Universities, the Association of American Publishers, the Association of American University Presses, and the Association of Research Libraries. It is available for purchase in multiple copies and also as a free download at arl.org/ bm~doc/campuscopyright05.pdf. (In the interest of full disclosure, I was one of the authors of this booklet.)

Why there is a debate over whether fair use is a defense or a right, and does it makes any difference?

This is one of the central debates in copyright law, and there is not an absolute answer (sort of like, "What is the meaning of life?"). In law, a defense is something that may be raised by a defendant to defeat the claim made by the plaintiff in a lawsuit. In section 107 of the Copyright Act, in order to determine whether the use is a fair use, courts are directed to evaluate the particular use in relation to four factors (purpose of the use, nature of the works copied, how much is used, and market effect). This makes it clear that fair use is a defense to copyright infringement, because a court is involved only in the context of litigation. So, fair use certainly is a defense to a claim of copyright infringement, but it is also more. Often fair use is referred to as an affirmative defense, which is defined as a new fact or set of facts that operates to defeat a claim even if the facts alleged by the plaintiff in the claim are true. In other words, the defendant did make the copies of a protected work, but the purpose of the use, amount of the work copied, and so forth are such that a court would find that the use is a fair use, and this defeats the infringement claim.

But is fair use also a right? There is a significant difference between a right and defense. A defense is raised only in the context of litigationin other words, someone has been sued for copyright infringement and then raises the defense of fair use. By contrast, a legal right is a power, privilege, demand, or claim possessed by a person by virtue of law. So, a right exists under the rules of a legal system, such as the law of a country. Sometimes fair use is defined as a privilege rather than a right, but this simply presents a circular argument since Black's Law Dictionary defines a right as a privilege and a privilege as a right.

Individuals who argue that fair use is a right are those who want expanded ability to use copyrighted works without permission of the copyright owner. Copyright holders, however, want to restrict fair use to a defense only. The difficulty in the copyright law is that the statute actually uses the term "right of fair use" in the library provision, section 108(f)(4). It is difficult to know if this was intentional on the part of Congress or was inadvertent, but it certainly has furthered the debate on this issue. This contrasts with section 107's direction to courts and serves to enhance the confusion even further.

Does the difference between a defense and a right make a difference? Perhaps or perhaps not, but the problem is this: If fair use is a right, then one gets to assert it as a matter of law, so that an infringement claim would not even be filed. Maybe the answer is that fair use falls somewhere in the middle between a defense and a right. To some extent, this is the essence of an affirmative defense. The debate over whether fair use is a right or a defense is likely to continue, and unless the U.S. Supreme Court or Congress speaks definitively on the matter, no clear answer is possible.

 
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