Fair Use

When digitizing radio broadcasts of cultural significance (such as a talk show confronting social issues), must a library, museum, or archive remove any separately copyrighted songs before posting the recordings?

This question assumes that the library, museum, or archive owns or has a license to use the overall recording of the broadcast.

When digitizing radio broadcasts for online (not-for-profit, academic) access, there are a number of legal issues to consider: intellectual property, contract, privacy, preservation, etc.  But the question focuses on copyright, so this answer does, too. 

This answer was inspired by some recent questions…

In the quest to give excellent service and maximum access, librarians must apply intellectual property guidelines--a skill the average person has not honed. Library users, observing this skill (or having been alerted to a copyright concern by a librarian), may then ask for legal advice. 

LIBRARIAN:  We have that copy Moulin Rouge you wanted!

PATRON:  Thank you!  I am planning to generate a version of it with my commentary over it. 

LIBRARIAN:  How interesting.  Are you planning to get permission, or claim Fair Use?

PATRON:  Um…?

An instructor has loaded many scanned pages from a cookbook (possibly multiple cookbooks) into her class Blackboard page so that students do not have to purchase a textbook. In the samples I've received, I don't see any acknowledgements of the original author(s). Is this permissible? Thank you!

[Note:  The syllabus, which set out the basis for compiling recipes from a variety of regions and cooking styles, was also provided as part of this analysis.]

I have had several requests by faculty to approve the coursepacks they have put together. All of them contain articles from various journals; some contain book chapters (1 chapter or less than 10%) as well, and they are intended to be sold in the campus book store to recoup copying costs.

You are not wrong in your thinking.  You are protecting your institution.   Further, by educating your faculty, you are helping them educate students.

We have several VHS tapes that our anthropology professors use in the classroom. Our campus will be phasing out VHS as the players break down. We would like to send these to a vendor to create DVDs or digital files. We feel we have done the due diligence searching for a replacement.

This question starts with 17 USC 108(c), which allows for duplication of “obsolete,” formats, but limits the accessibility of digitized copies “to the premises” of the library. 

A law practice in is litigating a case.  They have contacted us asking for all relevant materials.

Aside from my general admiration of libraries, one of reasons I relish “Ask the Lawyer” is the chance to answer questions that might never otherwise come my way.  This question is one of those!

Could duplication of an entire copy of a work for use in a court case meet the requirements of Fair Use?

Our question concerns the copying of college textbook chapters for students where the required textbook is either backordered by the bookstore day one of semester or where a late enrollees’ textbook is out of stock. 

It’s 2017.  Digital access to academic resources having been a factor in academic life for over 20 years, it would be reasonable to think I would have clear, well-established guidance to give you.

I encountered a situation in which a patron wanted to share an article that I sent to [a not-for-profit organization’s] educational portal. As it happened, she had a very specific intended audience…which I thought fell within the "Fair Use" doctrine as, in addition to the information being educational, it was to be shared with [only] a small group.

This is a great question, as it occupies the crossroads of the specific exceptions for libraries and archives in the copyright code, the elements of fair use, and an essential aspect of a library’s mission: dissemination of information. So, I am a bit sorry to say the answer is most likely: NO.

We are shifting away from VHS here on this campus (along with everywhere else), and have a question from an instructor about transferring a VHS tape to DVD. She's not able to get the tape on DVD or streaming, but knows that it's under copyright. Are there any loopholes to allow for making a digital backup of a VHS tape because VHS is an obsolete medium?

We’ll start out with the best advice: unless you stand on the legal high ground of a disability accommodation or a crumbling single copy unavailable in the original medium, when it comes to creating a new format of a work, written permission from the copyright owner is always best.

We have a request from a patron from another state for scans or photocopies of music scores that we own and that are still under copyright. They are rare and only a few libraries have them across the country. The patron does not intend to perform the music, only to study the scores. Is it fair use to copy or scan them for the patron who is writing a doctoral thesis?

Short answer: The proposed copying would not be a permitted, duplication or Fair Use without some additional steps consistent with the four Fair Use factors.

Long answer: This is a great question, as it marries the practical consideration of access with the scary question of a liability for infringement.  To answer it, there are a few initial points of priority….