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Copyright

Overview

There are a number of exceptions that apply to libraries and educational institutions.  One of more of these exceptions may apply to how you intend to use a work:

Classroom Performance Exception

This exception is used extensively by instructors (most often without instructors realizing they are using this exception).  It provides an exception to the rights to publicly display or perform works, such as the showing of films and images, or the performance of plays, readings of poems, etc. in the classroom. Section 110 (1) of the copyright law is summarized below:

Notwithstanding the provisions of Section 106, the classroom exception:

  1. Enables the performance or display of a work in a classroom setting without infringing on copyright.
  2. Covers the performance or display of works by either instructors or students.
  3. Must take place in the course of face-to-face teaching activities in a non-profit educational institution
  4. Must take place In a classroom or similar place devoted to instruction (which would include rooms in libraries that are used for instructional purposes)

This exception does not apply to the recording of classroom activities.  When classroom activities are recorded, another set of considerations arise, including:

  • Who is the copyright holder of the recording (instructor, institution, both)?
  • Obtaining permissions from those being recorded (or their parents, if they are minors).
  • Does the recording contain third-party content (content that is protected by copyright), for example a recording of a student fashion show which has copyrighted music playing in the background?
  • What is the impact of distributing the recording, especially if it contains third-party content?

This exception does not apply to reserve readings -- by their nature, reserve readings are intended to be read outside the classroom.  The use of reserve readings falls under fair use.

TEACH Act

The Technology Education And Copyright Harmonization (TEACH) Act (Section 110(2)), was adopted by Congress in November 2002, as an amendment of the previous section 110(2) with the intent to deal with distance instruction activities in the digital age.  The TEACH Act is very limited in scope, with a number of institutional and instructional requirements that must be met.  Use the Educational Exemptions tool from the American Library Association to provide guidance to this copyright exemption.

The TEACH Act excludes:

  • Performance or display of works made specifically for instructional purposes -- most likely resources of this nature will have a license.
  • Copies of works that were not lawfully made or acquired.

Additional Caveats

  • The institution must be an accredited non-profit education institution or government body.
  • The institution must have copyright policies and provide copyright information to faculty, students, and staff.
  • The institution must provide technological measures that reasonably prevent access to the work once the course or session has ended
  • The Institution must prevent any unlawful distribution of the work (prevent PDFs from being downloaded and/or printed; use streaming videos; etc.).
  • The institution does not interfere with technological measures that prevent retention and dissemination implemented by the copyright holder .
  • For nondramatic literary or musical works, the entire work can be performed or displayed.
  • For all other works, reasonable/limited portions of the work can be performed or displayed, comparable to what would be used in a face-to-face classroom.
  • Performances or display of works must be made by or under the supervision of the instructor and must directly relate and be of material assistance to the teaching content of the transmission.
  • Transmission of the performance or display is limited (to the extent that it is technologically feasible) to students officially enrolled in the course.
  • Students must receive notice that materials used in the course may be subject to copyright protection.

Louisiana State University provides both a basic and expanded checklist from their TEACH Act Toolkit that provide excellent guidance in deciding whether the TEACH Act exception applies for works used in an online instruction environment.

As with the classroom exception, the TEACH Act does not apply to electronic reserves -- by their nature, reserve readings are intended to be read outside the classroom.  The use of reserve readings falls under fair use.

Libraries and Archives Exception

Section 108 of the US copyright law provides some exceptions for libraries and archives.  If a library/archive can't apply Section 108, fair use may still apply. Also any contractual agreements the library/archive has will take precedence over the application of Section 108.  For a quick overview, take a look at the Section 108 Spinner available from the American Library Association

Section 108 applies to both the library/archive and the employees and specifies the following requirements:

  1. the reproduction or distribution is made without any purpose of direct or indirect commercial advantage (cost recovery charges, only);
  2. the collections of the library/archive are (i) open to the public, or (ii) available to other researches in a specialized field (special libraries only open to the employees of a company would not be included); and
  3. the reproduction or distribution of the work includes a notice of copyright.

There is no mention of museums in Section 108, therefore, one can assume that this exception does not apply to museums.  However, if the museum has a library or an archive that is open to the public or specialized researchers, this exception could be used by the museum library or archive.  In addition, fair use may be applicable. In 2008 a Section 108 Study Group recommended (among other things) that museums be included, but thus far, Congress has not acted on any of the recommendations from this Study.

In general, the library/archive exception applies to:

  • copying by a library/archive for a library/archive
    • digitization during the last 20 years of copyright term, with some additional investigation [published]
    • can make a copy of media if the equipment is obsolete (machine or device needed to display/read the work in that format is no longer manufactured or reasonably available in the marketplace) or if the media is damaged and it is not available in the marketplace in any format [published]
    • must make a reasonable effort to find an unused replacement at a fair price  [published]
    • digital copies should not be made available to the public outside the premises of the library/archive [published or unpublished]
    • up to three copies can be made [published or unpublished]
    • different requirements for published and unpublished works
    • copying by a library/archive for users
      • some works exempted (musical works, motion pictures, and most other audiovisual works)
      • only one copy that becomes the property of the library/archive or user
    • copying by a user who is physically present in the library/archive
      • library/archive is not liable for unsupervised copying as long as a notice that making a copy may be subject to copyright is displayed by the copier
      • user not excused from liability for copyright infringement if the copy exceeds fair use

The above information provides an broad overview of how the library and archive exception applies, but -- in fact -- this is a complex section of the copyright law.  Chapter 6, "The Libraries and Archives Exemptions" from Peter Hirtle's, et. al. book, Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, provides a good breakdown of Section 108 and also provides a flowchart (page 117), a table of when works can be digitized (page 125), and a checklist (page 127-128) -- each of which can help guide library personnel in the use of the library and archives exceptions.

In the end -- if there is no exemption from Section 108 that applies, nothing in Section 108 prohibits the use of a fair use analysis. 

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