Module 7: Enforcement
By Dmitriy Tishyevich, Melanie Dulong de Rosnay and William Fisher
Learning objective
This module provides an overview of what may constitute copyright infringement, several exceptions and defenses to infringement, and the procedures used in a typical infringement case.
The purpose of this module is to provide a general overview of what it means to infringe another’s copyright, and to explain the various ways in which infringement may occur. It will also provide a description of some of the issues that commonly arise when a copyright owner decides to bring a copyright infringement lawsuit, and how such cases typically proceed and conclude. It will review some statutory provisions discussed in previous modules that provide liability exemptions for service providers, including libraries. Finally, the module will consider the appropriate roles of librarians with regard to copyright and copyright enforcement, and suggest possible ways to assess and minimize the risk of liability for copyright infringement.
Case Study
“I received a cease and desist letter from a publisher complaining that, by including some of his works in one of my coursepacks, I am infringing his copyright. What should I do?”
What may constitute copyright infringement?
Actions that may constitute copyright infringement
Copyright infringement occurs when one exercises one or more of the exclusive rights of the copyright owner without the owner’s permission – for example, by engaging in unauthorized copying, distribution, or performance of the copyrighted work – or assisting another person to do so. Infringement may also occur when one violates any of the moral rights recognized by the particular country’s copyright regime, such as the right of an author to prevent distortion or mutilation of his or her work, the right to be attributed for one’s work or not to have authorship falsely attributed.
Direct and indirect infringement
Copyright law typically distinguishes between two different kinds of infringement. Direct infringement occurs when one actually exercises any of the copyright owner’s exclusive rights without authorization. However, most copyright regimes also recognize a form of indirect or secondary infringement, which may result in one being found liable for acts of infringement by another party. For example, one may be liable for “contributory infringement” if he or she knows about the infringing activity and induces, causes, or materially contributes to the infringement done by another person. Additionally, one may be liable for ”vicarious infringement” even when he or she does not have actual knowledge of the infringement, so long as he or she has the right and ability to control the other person’s acts, and receives a direct financial benefit from the infringement.
Merely providing someone with a device that may be used to commit direct infringement is usually not sufficient to make one liable for contributory or vicarious infringement if the device is also capable of substantial noninfringing uses – for example, a copy machine, a videotape recorder, or file-sharing software. However, courts in the United States have recently ruled that one may be liable for “inducing” infringing behavior if one supplies technology that makes the infringement possible with the object of promoting its use to infringe copyright, as demonstrated by clear expression or other purposeful, culpable expression and conduct.
Other countries take a similar approach. In addition to punishing direct infringement, for example, the United Kingdom also imposes liability for secondary infringement for actions such as importing infringing copies, providing means of creating unauthorized copies, transmitting a copyrighted work over a telecommunications system, or supplying sound recordings or films for an infringing performance. Similarly, under South African law, infringement may occur when one exercises any of the exclusive rights of the copyright holder without license, or causes any other person to do so.
Can plagiarism constitute copyright infringement?
Plagiarism is conceptually and legally distinct from copyright infringement, and as such, it is unusual – though not impossible – that plagiarizing another’s work will also constitute an act of copyright infringement. This is in part due to the fact that copyright law is concerned with protection of material manifestations and expression of ideas, rather than protection of ideas themselves. However, because many countries protect authors’ rights to have their work attributed to them, it is possible that plagiarism may constitute infringement of moral right of attribution.
In the most common instance of copyright infringement, one engages in unauthorized copying or distribution of a particular copyrighted work. In a typical instance of plagiarism, however, a person uses another author’s writing, ideas, research, or language without citing or otherwise attributing the source. Although plagiarism is similarly likely to involve unauthorized use of another’s work, it also requires the additional element of consciously concealing the source of that work. Further, unlike copyright infringement, plagiarism may still occur when the original work is not protected by copyright: for example, using the ideas or language contained in a book presently in public domain but failing to attribute it as the source would constitute plagiarism but not copyright infringement. Still, it may be possible for plagiarism to constitute copyright infringement if the source work is protected by copyright, and if the amount taken without attribution from the source is sufficiently substantial so as to violate the copyright holder’s exclusive right of reproduction.
The distinction between plagiarism and copyright infringement also explains the distinction in their enforcement. Instances of plagiarism are typically enforced by educational institutions, social norms, and ethical codes and carry no civil or criminal penalties, while instances of copyright infringement are adjudicated by courts and may be punishable by civil damages, fines, and / or imprisonment.
Legal Procedures and Damages
Cease-and-desist and take-down procedures
Many countries have enacted “safe harbor” statutes that exempt online service providers such as search engines, internet service providers, libraries or universities from liability for their users’ activities, provided that the service provider complies with the statutory requirements necessary to qualify for the exemptions. If the service provider complies with the safe harbor requirements, only the infringing user will be held liable for damages, while the provider will not be held responsible.
Some common statutory requirements are so-called “notice and takedown” provisions. These are delineated fairly clearly under United States law; other countries, however, have not been as particular in enacting these statutes. A brief overview of the United States approach is as follows. If a copyright owner believes that a document or recording hosted by a service provider infringes his copyright or allows others to infringe it, the copyright owner may submit a notice to the provider. The notice must typically include the name of the complaining party, the infringing materials and their Internet location, sufficient information to identify the material, a good-faith statement by the copyright owner that the materials complained of infringe the copyright, and a statement, under the penalty of perjury, of the accuracy of the notice and authorization to act on behalf of the owner.
Upon receipt of the notice, the service provider must expeditiously remove the infringing material or disable access to it to qualify for the safe harbor provisions. It must also notify the individual responsible for the infringing material of the removal. It is not necessary for the copyright holder to obtain a judicial decision that the material is, in fact, infringing in order to send a take-down notice – rather, all that is necessary is a good-faith belief that infringement has occurred.
The safe-harbor provisions also provide for counter-notice and put-back procedures to make sure that copyright owners do not insist on removal of works that do not actually infringe their copyright. To so invoke these procedures, the user responsible for the allegedly infringing material – rather than the service provider – must provide a “counter-notice” to the service provider, asserting that the material removed was not infringing. Upon receipt of the counter-notice, the service provider is obligated to notify the copyright holder of the objection. If the copyright holder does not file a lawsuit within two weeks, the service provider must then put the removed material back online. Notably, the statute exempts service providers for liability for any claims made on the basis of the provider’s good-faith removal of materials, regardless whether the material or activity is ultimately determined to be infringing.
The European Union has created a similar, though more open-ended, system by announcing Directive 2000/31/EC (Directive on Electronic Commerce). This Directive distinguishes between different kinds of service providers. Mere “conduits,” or services that only route and cache online traffic, are exempted from liability entirely. Providers that actually host data, however, are exempted only if they have no “actual knowledge” or “awareness” of illegal activities, and if they act expeditiously to remove or disable access to infringing materials.
Problematically, the question of what constitutes “actual knowledge” of hosting infringing materials has been left largely unanswered. Consequently, it is unclear whether a service provider who receives a notice from a copyright holder that it may be hosting infringing materials may be deemed to have actual knowledge of hosting the materials. Likewise, it is uncertain what, if any, evidence such notices must include, whether the person sending it is required to identify himself and include a good-faith statement of belief of infringement, and in what circumstances the service provider is actually obligated to remove the content in order to take advantage of the safe-harbor provisions. The “awareness” of illegal activities criterion is similarly vague, and it is far from clear how rigorously providers must self-regulate and monitor the data they host or provide access to in order to come within the safe harbor provisions.
At the very least, the European Union directive seems broader than the United States approach in that it does not provide a clearly articulated, multi-step approach for initiating and responding to take-down notices. Because of this lack of clarity, service providers have incentives to respond aggressively to take-down notices. Further, under the Directive, there does not appear to be a set procedure in place for a user to object to the material being removed, nor are providers required to notify the users when material is removed or made inaccessible.
Other countries’ approach to exempting online service providers from liability for infringement committed by their users may differ substantially. Australian law, for example, contains an exemption that is similar to that codified in the United States, though it does not require service providers to notify of the persons who posted material that has been removed. Israel likewise has a notice and take-down procedure as part of its safe harbor statute. Unlike the United States, however, it does not require the service providers to remove the material expeditiously upon receipt of a complaint, but instead allows users three days to respond to the complaint. On the other hand, some countries -- such as India, for example -- do not recognize safe harbor provisions for Internet service providers, and may hold them liable for the copyright infringement committed by their users even when the providers had no active or direct involvement with that infringement.
Cross-border infringement; extraterritoriality; conflict of laws and jurisdictional limitations
Although international agreements have sought to achieve at least relative uniformity across the copyright regimes in different countries, substantial variations in legal procedures, burden of proof, and the availability and extent of damages still remain. Because of these differences, the plaintiff’s choice of which country and court in which to bring his suit in becomes important. However, whether a particular forum is available is likely to be limited by substantive law of copyright, extraterritoriality, choice of law, and conflict of laws.
It is unusual for a copyright holder to be able to maintain a copyright infringement action for infringement that occurred entirely outside of the country. Under United States precedents concerning the extraterritorial reach of federal statutes, federal legislation is presumed to apply only within the territorial jurisdiction absent contrary intent from Congress. Because the U.S. Copyright Act does not contain any explicit legislative language expressing intent for it to apply extraterritoriality, United States courts have almost uniformly rejected attempts to apply it to extraterritorial conduct. Other countries have been similarly reluctant to extend the reach of their copyright statutes beyond their own borders, and have generally declined to extend enforcement of their domestic copyright regimes to infringement that takes place entirely outside of the country’s territory.
This analysis, however, has been complicated by advances in digital technologies and the rise of the Internet. Where previously identifying the location where copyright infringement occurred would be fairly easy – by determining, for example, where unauthorized copies were produced – digital infringement may involve several steps that occur in different countries governed by different copyright regimes. As a result, the issue of where the actual infringement takes place may quickly become muddled. Courts have not been entirely consistent in their analyses of such multi-step infringement. Some earlier decisions have suggested that, for example, merely authorizing infringing acts from within the United States, where the actual infringement occurred elsewhere, does not constitute a violation of the U.S. copyright laws. Subsequent courts, however, have been reluctant to follow this reasoning, and have instead applied U.S. copyright law to foreign acts of infringement so long as there was a single predicate act that took place within the United States. Commentators have advanced alternative choice-of-law rules, including, for example, application of the law of a particular state if it is possible to localize in that state the point from which the infringing work becomes available to the public. However, there presently does not appear to be a uniform, agreed-upon analysis that governs this issue.
If a particular infringement is alleged to have occurred at least in part in more than one country, a court will engage in a “conflict of laws” analysis to determine which state’s law will govern the infringement action. Because the same act of infringement may occur in several different countries, it is possible that a court adjudicating the matter will apply laws of each of those countries in the same lawsuit. Sometimes, a court will rule that the applicable law is the law of the country in which the infringement occurred; that law will govern all elements of the action without regard to nationality of author, country of origin of copyrighted work, or place of first publication. However, this view is criticized by some because its application would result in application of different laws every time the work crosses a national border. An alternative approach is to apply different laws to originality, ownership, and infringement – the different elements of the infringement action. Under this view, a U.S. court would have to apply U.S. law in resolving issues of originality, because originality is a constitutional requirement, which precludes courts from applying more lenient originality standards of foreign countries. The law applicable to ownership is likely to be the law of the state that has the most significant relationship to the copyrighted work and to the parties involved. Finally, under the general principle of lex loci delicti (the place of wrong), the law applicable to the actual infringement is likely to be that of the country in which the actual infringement occurred.
Despite the disagreement on the subject, the dominant view seems to be that courts should apply the law of the place where the infringement actually occurred. This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic. It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.
Legal procedures and remedies.
If a copyright holder believes that infringement of one of his exclusive rights in connection with a copyrighted work has occurred, he may decide to file a copyright infringement lawsuit. Typically, only an owner of the exclusive right that was infringed or a beneficial owner of the copyright may bring a copyright infringement claim.
The copyright owner may choose to sue the person or persons who committed direct infringement, and / or anyone else who may be found to be liable under the several theories of secondary or indirect infringement described above. The copyright owner must bring the claim within a certain period of time, frequently three years of the time after the copyright infringement occurred, or it will be barred by the statute of limitations.
To learn about the doctrine of sovereign immunity, click here(7.1).
The doctrine of sovereign immunity may also come into play if the plaintiff sues an American public library, public university, or any other state-owned entity. In the United States, under the Eleventh Amendment, states have immunity from being sued in federal court unless the state consents to be sued, or unless Congress directly and validly overrides the immunity. This is relevant to copyright litigation, because federal courts have exclusive jurisdiction over copyright claims. In 1990, Congress attempted to override states’ sovereign immunity in copyright claims by enacting the Copyright Remedy Clarification Act, which stated that remedies for infringement are available against states, and that states are not immune from suit in federal courts for violation of exclusive rights of the copyright owner. Since its enactment, however, the Supreme Court has held that Congress does not have the authority to abrogate states’ Eleventh Amendment immunity. As a result, one circuit court has held that Congress had exceeded its authority in enacting the Copyright Remedy Clarification Act and that an infringement suit could not be brought against a public university. At least two other district court decisions have reached this same conclusion in cases involving claims of infringement against a city institute and a research center. As a result of these recent developments, copyright owners seeking to bring claims of infringement against public state-run United States entities may be barred from doing so. However, it is important to note that copyright owners may still be able to obtain injunctions against infringement by state employees, or may seek legal relief against state employees acting in their individual, rather than their official, capacities.
At the outset of litigation, the defendant – who could be an individual user, a librarian, or a library – should consider whether settlement may not be a better alternative than proceeding toward full trial. Because the finer points of copyright infringement litigation are often complex, defending against an allegation of copyright infringement can be very expensive. Further, because many countries allow a plaintiff who succeeds in his copyright infringement lawsuit to collect damages as set by statute, rather than have to prove actual damages, the final award can be substantial. Finally, statutes or courts may even award attorney’s fees and other costs to the plaintiff if he prevails in his litigation.
In light of the above considerations, the defendant may decide that settling with the plaintiff is a better option than facing the uncertainty and potential expense of litigation. Settlement procedures in copyright infringement litigation are the same as in other civil suits: once the parties have agreed to a set of terms and once the defendant has complied with those terms, the plaintiff will dismiss his lawsuit. The terms of settlement can of course vary significantly. In some instances, the plaintiff may be content, for example, simply with the defendant removing some particular materials from his web site. In other cases, the plaintiff may demand that the defendant pay some amount of money in addition to removing the infringing material. Frequently, as part of a settlement, the parties will agree to a permanent injunction that prohibits the defendant from engaging in the same behavior in the future.
At other times, however, the defendant may decide that settlement is not appropriate, and thus will proceed with the litigation. In order to prevail in a copyright infringement lawsuit, the copyright owner must prove (1) that the work is copyrightable; (2) originality of the work; (3) that he or she is the author or owner of the copyright; and (4) that unauthorized exercise of one or more of the exclusive rights occurred. Each of these requirements is discussed in depth in earlier modules; we review them here briefly.
Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also by demonstrated indirectly, by presenting evidence of substantial similarity between the original work and the copied work, and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how defendant could have obtained the copyrighted work; alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce of access.
In the library setting, however, some infringing actions are much more straightforward – such as, for example, when a library patron makes a full copy of a copyrighted book provided by the library, or when he digitally copies a CD or DVD that he borrows. However, ambiguities as to whether infringement has occurred may arise, for example, when a librarian copies an article or a portion of a copyrighted work at a patron’s request, or when a librarian seeks to make a copy of an entire copyrighted work for preservation or replacement. Broadly speaking, most countries allow libraries to make copies of portions of materials available at the library for patrons’ personal use, though some allow this only in instances where the patron requests the material for research or study. Likewise, many countries permit libraries to make copies of copyrighted materials for purposes of replacing or archiving them, but vary in the requirements and the restrictions of this practice. Further, only certain categories of works may be subject to these statutory exceptions. Because the scope of these exceptions and practices can mean the difference between legal activities and an act of copyright infringement, it is important for the librarian to be aware of the local statutes and regulations.
In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, and other statutory exemptions. [Link to Exceptions, Limitations]
Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by, among other, various EU Directives as well as the TRIPS Agreement, which requires members to establish enforcement procedures and remedies sufficient to prevent infringement and to serve as a deterrent to future infringements. (Art. 41(1).) The copyright owner can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, statutory damages, award of trial costs and attorney fees. Finally, and under fairly limited circumstances, the infringing party may be found to be criminally liable, and sanctioned with fines and imprisonment.
To obtain a preliminary injunction against the infringement, the copyright owner typically has to establish a likelihood of success on the merits of the lawsuit and the possibility of irreparable injury if injunctive relief is not granted. If infringement is found, the copyright owner may be entitled to a permanent injunction, which results in seizure, impoundment, and destruction of the infringing works. United States courts routinely grant preliminary injunctions if the plaintiff is able to establish a prima facie case of infringement. The seizure and impoundment procedures are part of international treaty obligations under Article 46 of the TRIPS Agreement.
The copyright owner is also likely to seek either actual or statutory damages arising from the copyright infringement. In establishing the amount of money to be recovered, the owner may demonstrate either the actual loss caused by infringement, or the defendant’s profits attributable to the infringement. The goal is typically to place the copyright owner in a position he would have been but for the infringement. The copyright owner may also claim injury suffered from not being credited with authorship or injury to business goodwill in computing damages. Further, some countries allow recovery of immaterial or moral damages in instances where the violation of rights was particularly egregious, or where the infringement was intentional. For example, Art. 13(1)(a) of the EU Directive 2004/48/EC on the Enforcement of Intellectual Property Rights indicates that in calculating damages, the court may take into account non-economic factors such as the moral prejudice caused to the copyright owner by the infringement.
Because precise calculation of damages and lost profits may be difficult or even impossible in copyright infringement cases, most countries allow the copyright owner to choose to recover statutorily-determined damages instead of having to compute and prove actual damages. For example, under United States law, if the copyright owner chooses this option, the court may award damages of between $750 and $30,000 for each copyrighted work infringed. If, however, the copyright owner proves that the defendant infringed willfully, the statutory damages award may be as high as $150,000. Conversely, if the defendant is able to demonstrate that he or she was unaware that his or her acts constituted copyright infringement, the court may reduce the damage award to $200 per work infringed. The statutory damages set by other countries vary, but the upper limits of the awards tend to be substantial. Israel, for example, permits an award of statutory damages for infringement of a copyright or a moral right of up to $26,000 at the court’s discretion, while Canada allows for statutory damages of between $500 and $20,000 per work infringed.
As noted above, plaintiffs in copyright infringement suits may attempt to recover some or all of their costs, as well as reasonable attorney’s fees. The courts typically have discretion to decide whether to award costs and fees, and if so, in what amount. Some countries allow courts to award costs (but not attorney’s fees) to losing parties.
In rare cases, copyright infringement may result in criminal sanctions. Typically, to succeed in a criminal copyright infringement suit, the government must demonstrate that the defendant infringed a copyright, did so willfully, and for commercial advantage or private financial gain. Persons who knowingly and willfully aid and abet a person committing copyright infringement may be subject to the same criminal penalties as that person. A good-faith belief by the defendant that the infringing conduct was legal will typically suffice to defeat the “willfulness” requirement in a criminal prosecution. If, however, the government is able to demonstrate all required elements of criminal copyright infringement, the sanctions may be very steep. Under United States law, for example, a commercial infringer may be fined up to $250,000 and imprisoned for up to five years. However, criminal prosecutions of individual infringers are infrequent, and seem largely limited to instances such as willful copying of copyrighted material with the intent to sell or otherwise distribute the copies.
Responsibilities and Remedies for Librarians
The roles of librarians
Libraries are major purchasers of copyrighted works, and serve to make these works available for the public. Although librarians do, where reasonably possible, protect against copyright infringement of library materials, the ultimate role of librarians is to provide access to materials and information services, rather than enforce copyright and police the behavior of the library’s patrons. Several organizations in their statement of policies or codes of ethics have articulated their views as to the appropriate balance between protecting the rights of authors and serving the needs of library patrons. For example, the American Library Association Code of Ethics notes that recognition and respect for intellectual property rights is one of the principles that should guide librarians’ ethical decision-making. Concomitantly, however, the Code emphasizes that the ALA is committed to upholding the principles of intellectual freedom and resisting efforts to censor library resources. The United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP) supports similar values in its Code of Professional Practice, expecting its members to “defend the legitimate needs and interests of information users, while upholding the moral and legal rights of the creators and distributors of intellectual property.” Finally, the International Federation of Library Associations and Institutions (IFLA), an international non-governmental organization, has released a statement to clarify its position on copyright. The IFLA has acknowledged that librarians have a long-standing role in informing and educating users about the importance of copyright law and compliance with it. However, it also emphasized that overprotection of copyright leads to unreasonable restrictions to access and knowledge, and suggested further that copyright law should establish clear limitations on liability of third parties, such as librarians, in instances where compliance cannot practically or reasonably be enforced.
Risk of lawsuits and sanctions when acting in good faith: liability and safe harbors
Most countries have at least implicitly acknowledged that the role of the librarian is to provide access rather than to enforce copyright – specifically, by enacting various statutory exceptions and immunities to libraries and librarians in their copyright laws. These exceptions vary widely, and librarians should familiarize themselves with the local statutes. The following will briefly survey some common situations librarians may face, and provide general guidelines librarians should follow to minimize the risk of liability for copyright infringement.
Allowing library patrons to use the library’s copy machines or other copy equipment: Patrons frequently wish to make copies of excerpts of library-owned materials. Unless the book or article the patron is copying is in public domain, such copying is regulated by the country’s copyright statute and, if the copying exceeds the permissible scope allowed by the statute, it may render the patron liable for copyright infringement, and may even result in the library being held secondarily or indirectly liable for allowing the infringement to take place by providing the equipment. Fortunately, many countries, have enacted specific statutory provisions that shield librarians and libraries for liability for copyright infringement committed by patrons who use photocopiers or other equipment the library provides. To qualify for the statutory exemption, libraries typically must post a notice and a disclaimer, stating that making of photocopies or other reproductions is governed by copyright law, and that the person using the equipment is liable for any infringement.
Making copyrighted material available on the library’s computers: With growing frequency, libraries, like museums, make documents available to the public on computers. If those documents are subject to copyright, and if the library fails to obtain permission, it may be subject to liability. However, as noted above, many countries have enacted so-called “safe harbor” statutory exceptions to the liability of online service providers, and to the extent that universities and libraries may be considered such providers, they are shielded from liability for any acts of infringement that occur, provided that the comply with the procedures set forth in each country’s laws.
Making copies for library patrons: Library patrons may on occasion request that the librarian make copies of copyrighted materials for their personal use or for research and study. Many countries provide statutory exceptions that permit librarians to make limited copies. Some allow such reproductions only for certain specified classes of works such as periodicals, while others make no such distinctions. Further, some countries only permit copying for purposes such as research, while others do not have this limitation. By way of example, the United Kingdom allows librarians to make copies of articles in periodicals, but limits such copying to a single article per issue, and requires the patron to prove that the copy is for private noncommercial research or study. In contrast, Canada does not have the single-article restriction, but does limit the reproduction exception to articles published in scholarly, scientific, or technical journals, and excludes works of fiction, poetry, etc. from the class of works that may be copied. The particular statutory requirements differ widely between countries, and librarians should consult their local statutes to ensure that any copying for library patrons comports with the relevant copyright requirements.
Making copies for preservation or replacement; digital copies: Librarians are permitted, in certain circumstances, to make copies of library materials for their preservation or replacement. As with the above, these circumstances are typically tightly regulated by local copyright statutes. Many countries permit copying when the library owns the original work and the work is publicly accessible, and when the original is at risk for damage or deterioration, is in obsolete format, or cannot be viewed because of the conditions in which it must be kept. The permitted reproduction is often limited to a small number of copies. If an appropriate copy is commercially available, the right to reproduce for preservation or replacement is typically much more circumscribed. Further, copying is often limited to paper reproduction, and copies made in digital format typically may not be made available to the public outside of the library premises.
Creating coursepacks for students: University librarians are sometimes asked to create “coursepacks,” typically a collection of excerpted journals, articles, book chapters, etc. for use by students enrolled in a particular course. In the United States, many universities used to assemble coursepacks without obtaining permission of the copyright owners of the individual articles, believing that such copying qualified for the “fair use” exception for academic purposes. However, court decisions in the 1990s held that such copying did not constitute fair use, and that the universities must obtain permission from the copyright owners to be able to reproduce their articles in a coursepack. Because the United States doctrine of fair use is more expansive than the comparable exceptions to copyright law in most other countries and was still found not to cover coursepack assembly, it is likely that librarians in other countries must obtain permission from the copyright holders in order to create coursepacks. To reduce the administrative burden of seeking permission from many different copyright holders, librarians may wish to use private clearance services, who enter into affiliations with academic publishers and obtain blanket clearance licenses for the publisher’s entire catalog, or enter into agreements with collecting societies representing publishers.
Back to the case study
Nadia (the librarian) and Angela (the professor) will make sure that an infringement is unlikely to occur and elaborate best practices around some of their core activities:
· Entire works, such as publishers’ abstracts or book covers, should not be uploaded on the library website without authorization. · If publishers’ abstracts can’t be reused verbatim, a summary may well be rewritten by the librarian to describe and index books in the catalog. · Notices should be placed next to copy machines, computers and other equipement available to the public to inform patrons of their rights and limits.
Assignment and discussion questions
Round 1 questions
1. Does your country have a safe harbor limiting service providers’ liability? If yes, please describe the mechanism.
2. Select one activity of your library, describe it and elaborate best practices to avoid copyright infringement. For example, you might draft a set of guidelines for professors who prepare coursepacks or a notice to be displayed next to the printing machine or the computers available to patrons.
Round 2 questions
1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?
2. Please comment on a few notices of your colleagues. These should be clear and inclusive, but not overbroad.