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The Librarian's Copyright Companion/Chapter 2

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Chapter Two

Restrictions on the Use of Copyrighted Materials


2.1. Section 106 Copyright Owner's Rights
  • Reproduction
  • Derivative works
  • Public distribution
  • Public performance
  • Public Display
  • Digital audio transmission of sound recordings
  • Importation

For works of visual art (106a)

  • Attribution
  • Integrity

You may infringe someone's copyright when you reproduce a copyrighted work; prepare derivative works based on a work; or distribute, perform or display a work publicly.[1] But engaging in these activities without permission doesn't necessarily result in copyright infringement; sections 107 to 122 of the Copyright Act permit certain uses that would overwise be infringing. We will address these exceptions later. For now, we will explain what types of use may result in copyright infringement.

​Reproduction (Section 106(1))

The most common type of copyright infringement is copying (or, as it's referred to in the Copyright Act, "reproducing"). Copies may be made in all sorts of different formats, such as paper, microform, or digital.

Before personal computers and the Internet became common, copying was a straightforward issue. You knew when you were making a copy, and most forms of communication didn't involve copying. If you wanted to share a document, you pinned it on a bulletin board, routed it through a distribution list, or sent it by mail, without making a copy. If you did copy, you had to use a photocopier, retype text, or engage in some similar physical activity.

Today, it's much easier to copy. We can create digital copies with the click of a button, and modern forms of communication encourage us to copy without thinking about it. If you post a document on the Web instead of a bulletin board, you've made a copy. If you send a document by e-mail instead of the postal service, you've made a copy. Unfortunately for users, e-mailing an infringing copy as an attachment is just as bad as making a photocopy.

Modern technology has changed what was once a straightforward issue into a somewhat difficult one, so today's users need to be especially alert when it comes to copying. Generally, any action that transfers a file from one electronic device to another involves making a copy, even if you intend to erase that copy at some point in the future.[2]

Remember that sharing material doesn't have to involve copying. Sharing a link to material on the Web is not a form of copying, nor is sharing an existing physical copy. Although some types of copying are ​permitted without the owner's permission, the easiest way to avoid copyright infringement is not to copy when you don't have to.

Derivate Works (Section 106(2))

A derivative work is "a work based upon one or more preexisting works."[3]

A derivative work may be created when someone recasts, reformats, or adapts an earlier work; obvious examples include translations and sequels. If the earlier work is protected by copyright, preparation of a derivative work without permission may infringe the copyright.[4]

For example, Elmore Leonard has the exclusive right to translate his novel Get Shorty to another language, and also to authorize a screenplay or film from the novel. If Mr. Leonard refuses to give permission to translate his novel, or to prepare a screenplay or film from it, someone who does so could be liable for infringement.

Be careful not to confuse derivative works with works that merely borrow ideas from earlier material. Remember that copyright only protects the expression of ideas.[5] A work that merely follows a formula or draws inspiration from an earlier material is not a "derivative work" within the meaning of copyright law. Thus, the Superman movies are derivative works based on the Superman comic book character; the Spider-Man franchise, while it may follow the Superman genre, is not a derivative work based on Superman because it has its own names, storyline, and characters.

Like collective works, the copyright status of a derivative work is distinct from that of the original work from which it was derived.[6] This means that a screenplay based on a novel will be copyrighted independently of the novel, so long as it meets the requirements for protection: an original work of authorship fixed in a tangible medium of expression.

What about abridgments or abstracts? Whether a small portion or summary of a copyrighted work is a derivative work—and therefore requires permission from the original work's copyright owner—depends mostly on the extent to which the summary substitutes for the original. The more a ​person would be able to use the abstract instead of the original work, the more likely the abstract would be deemed a derivative work. The longer and more comprehensive the abstract is, the greater the chance it will be considered a derivative work. But even a short abstract still distills the essence of the original work—one which can substitute quite well for the original work—may also be considered a derivative work.

The Bottom Line: You may create a summary or abstract of a copyrighted work without permission if it is not a derivative work that can substitute for the original. A librarian may summarize individual journal articles, and also create annotated bibliographies from numerous articles on the same topic. But a one-page abstract that distills the essence of a five-page article and that can substitute for the original is probably a derivative work. Keep your abstracts brief. Whet the reader's appetite, but do not fill his or her stomach.

Distribution and the First Sale Doctrine (Sections 106(3) and 109)

2.2 Section 109
First Sale Doctrine


Owner may sell or otherwise dispose of a lawful copy:
  • but may not lease or lend sound recordings or computer programs for direct or indirect commercial advantage
  • library/school lending exemption of sound recordings and computer programs is permitted

Under section 106(3) of the Copyright Act, the right to distribute a copyrighted work is reserved to the copyright owner. But the distribution is limited by the "first sale doctrine", found in section 109 of the Act.

The first sale doctrine permits the owner of a lawfully made copy of a copyrighted work to lease, lend, rent, sell, or otherwise dispose of the copy ​without permission.[7] The term "first sale" refers to the copyright owner's initial first sale of an authorized copy. Once the owner has made this final sale of a particular copy, the owner has no power under copyright law to control what happens to that particular copy, at least with respect to most types of material.[8]

For libraries, the first sale doctrine is probably the most important concept in all of copyright law, because libraries couldn't function without it. Any library open to the public "distributes" work under the meaning of the Copyright Act by lending it.[9] Thanks to the first sale doctrine, libraries generally don't incur any liability for these unauthorized distributions, but there's a catch. As we stated above, the first sale doctrine only applies to authorized copies. If a library distributes an unauthorized copy, the first sale doctrine is of no help and the library will incur liability absent some other defense such as fair use.

At this point, you might be thinking: "Yes, I already know that my library could be liable for making unauthorized copies, so why should I worry about distributing unauthorized copies?" It's important to understand that copying and distribution are two separate issues, because your library could incur liability for distribution even when it's not liable for copying. For example, if a donor offers your library a paper copy of a dissertation that he obtained from another library's microfiche collection, your library won't be liable for the copying, but it may be liable for distribution if it lends the copy.

Another way your liable may be liable for distribution (and not copying) is when it distributes unauthorized copies that were made many years ago. For example, if your library's collection includes an unauthorized copy that a former staff member made thirty years ago, the statute of ​limitations will probably shield you from liability for copying,[10] but the copyright owner could still obtain damages for distribution. When a work is in your collection, it's being distributed on an ongoing basis, and thus the statute of limitations won't protect you from a distribution claim.[11] For libraries, this is the most troublesome aspect of distribution, because you probably don't know how your library acquired certain items in the distant past. If you know that your collection includes unauthorized copies of protected works, you may want to consider discarding the copies, or at least remove them from the catalog and put them in storage.

So far, we're been talking about distribution and the first sale doctrine as they apply to most types of works. Under the original 1976 Copyright Act, all works were treated the same way with respect to distribution, but Congress later amended the Act to create special distribution rules for sound recordings and software.[12]

The Record Rental Amendment Act of 1984[13] and the Computer Software Rental Amendment Act of 1990[14] prohibit the unauthorized rental, leasing or lending of sound recordings or computer programs for a purpose of direct or indirect commercial advantage. The purpose of these acts was to stop stores like Blockbuster from renting sound recordings and software.[15] The Record Rental Amendment Act did not clearly define the term "sound recording", but a federal appellate court has ruled that the Act applies only to recordings of musical works, and not to recordings of literary works (i.e., audio books).[16]

​There are exceptions in both Acts that permit non-profit libraries and non-profit educational institutions to lend sound recordings and computer programs. Here is the language from the Act:

Nothing in the preceding sentence [which prohibits the transfer of computer programs and sound recordings] … shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.[17]

The section indicates that non-profit libraries and non-profit educational institutions may lend phonorecords (CDs, tapes, etc.) to anyone. As for computer programs, it seems that the exemption applies only to non-profit educational institutions, which would include their libraries. They may lend software to other educational institutions. and to faculty, students and staff, because such lending is not "for direct or indirect commercial purposes." But read on, for later in section 109, we see this:

Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register or Copyrights shall prescribe by regulation.[18]

Here, congress writes that any type of non-profit library may lend a computer program so long as the library does so for non-profit purposes and if it includes on the package the following warning:

Computer Program Warning Label
Notice: Warning of Copyright Restrictions

The copyright law of the United States (Title 17, United States Code) governs the reproduction, distribution, adaptation, public performance, and public display of copyrighted material.

Under certain condition specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs to patrons on a nonprofit basis and for nonprofit purposes. Any person who makes ​an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program except as permitted by Title 17 of the United States Code, may be liable for copyright infringement.

This institution reserves the rights to refuse to fill a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law.[19]

Note that you do not need to affix a warning label to sound recordings, as Congress did not include such a requirement in the Record Rental Amendment Act.

The exemption for lending software and sound recordings, then, applies both to non-profit libraries and non-profit educational institutions, if done for non-profit purposes. As for libraries in for-profit institutions, they may share software and sound recordings within their institutions, but should not lend them to outsiders.[20]

Another difference between software and other types of works is that software is often subject to a license agreement that may defeat the first sale doctrine. In itself, this is not surprising, but you may be surprised to learn that a license agreement could prevent you from relying on the first sale doctrine even when you didn't agree to any license agreement. In a recent case before the 9th Circuit U.S. Court of Appeals, an eBay merchant purchased copies of software from an end user and attempted to resell them, but was barred from doing so because the end user had acquired the copies through a license agreement that stated that the software developer retained ownership of the copies and merely licensed them to the end user. Although the eBay merchant had made no agreement with the software developer, he was nonetheless unable to assert the first sale doctrine in his defense because the software developer had never transferred ownership of the copies.[21]

Finally, we need to mention e-books, which are becoming increasingly important to libraries. Unfortunately, the first-sale doctrine is rarely applic​able to e-books, because the use of e-books is almost always controlled by license agreements. Just because your library purchases an authorized copy of an e-book doesn't mean you're free to share it with your patrons; you must look to your license agreement.[22]

Public Display and Public Performance (Sections 106(4) and 106(5))

Publicly displaying or performing copyrighted material without permission may infringe copyright. The owner's "public performance" right applies to literary, musical, dramatic, choreographic, pantomimes, motion pictures, and other audiovisual works.[23] The owner's "public display" right applies to those same works, and also to graphic and sculptural works.[24]

The performance right is a bit different from a display right, especially with regard to audiovisual works, such as film. The performance of an audiovisual work means showing the images in sequence.[25] The display of an audiovisual work involves showing individual images non-sequentially.[26] Showing the Marx Brothers' film Duck Soup would be a performance, while showing selected images of Groucho as Rufus T. Firefly, the President of Freedonia, would be a display.

Not all performances or displays are protected by copyright, but only those that are "public." Under the Copyright Act,

To perform or display a work "publicly" means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public by means of any device or process, whether the members of the public are capable of ​receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.[27]

The first sale doctrine, which we discussed in connection with the distribution right, permits the owner of a lawfully made copy to publicly display the copy.[28] This is why libraries are permitted to put books, photographs and other material in display cases, provided that they use authorized copies. But the first sale doctrine does not extend to public performances, and your library can't build a theater and show DVDs to the public without permission from the copyright owners. We'll discuss public performances in more detail in Chapter Eight.

What about images or text on a computer screen? This is a little tricky, because of the ability to display images simultaneously in multiple locations or to display them to remote viewers. The Act provides that the owner of a lawful copy may display the copy publicly "either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."[29] So although you may not send digital images from a computer to the world at large, you may display images on a projection device to a group, such as students in a classroom.

Digital Transmission of Sound Recordings (Section 106(6))

The Digital Performance Right in Sound Recordings Act of 1995 gives and owner of copyright in a sound recording the exclusive right to perform his or her work publicly by means of a digital audio transmission.[30] The right is qualified by numerous exceptions, which are spelled out in section 114 of the Act.

Unlike the other exclusive rights we've already described, this digital performance right is narrowly tailored to address specific types of situations, and is unlikely to affect your library. In passing this Act, Congress was attempting to protect the market for sound recordings by restricting subscription and "interactive" digital transmissions, the latter referring to ​services that allow users to select the songs they want to hear. It has no application to libraries' traditional practice of lending sound recordings. The issue of sound recordings in electronic reserves will be addressed in Chapter Eight.

Moral Rights

Many countries recognize a category of authors' rights known as "moral rights", which the United States recognizes only in a very limited way. Moral rights, in their fullest sense, include the attribution right (i.e., the right to be known (or not known) as the author of a work), the integrity right (which restricts alterations to a work), and the right to begin or cease distribution of a work.[31] These rights are separate from the economic ownership of a work, and in some countries they cannot be waived or transferred by the author.[32] For example, in France, an author could sign away all rights to his novel, but still prevent anyone from issuing an abridged version.[33]

The Berne Convention, which we introduced in Chapter One, requires its members to recognize the attribution and integrity rights. But some signatories to the Convention, particularly the United States, have never fully complied with these requirements.[34] Long before joining Berne, the United States offered authors some protection similar to the attribution and integrity rights, but not under the traditional "moral rights" framework. Instead, the law of unfair competition, defamation, or invasion of privacy can sometimes be used in the United States to prevent distortions of authorship or damaging alterations to a work, even in situations where the author has already sold all economic rights.[35] Although this limited protection probably does not meet the requirements of the Berne Convention, the United States is unlikely to adopt full-fledged moral rights any time soon. So in contrast to France, in the United States, an author can sell all rights to a novel, including the right to approve alterations.

​Visual fine art is the one type of material in the United States that receives certain "moral rights" protection beyond what is accorded to most types of work. The Visual Artists Rights Act of 1990 gives the creator of visual fine art the rights of attribution and integrity.[36] Under the Act, works of visual art include a single copy of a painting, drawing, print, photograph, or sculptural work, or if they are produced in multiple copies, to a limited edition of fewer than 200 numbered copies.[37] They do not include posters, maps, charts, technical drawings, motion pictures or other audiovisual works, electronic publications, or advertisements. And they do not include works made for hire.[38]

Generally, the Visual Artists Rights Act gives an author of a work of visual art the right (1) to claim authorship of the work; (2) to prevent the use of his or her name as the author of a work he or she did not create; (3) to prevent the use of an author's name on a work that was distorted, mutilated, or otherwise modified if those changes prejudiced the author's honor or reputation; (4) to prevent the intentional distortion, mutilation, or other modification of the work that prejudices the author's honor or reputation; and (5) to prevent the destruction of certain works.[39] The artist's rights are subject to certain exemptions.[40]

Although an artist's attribution and integrity rights may not appear to impact many libraries significantly, there is a bottom line: Whenever you "use" someone else's work—even if that use is permitted under fair use or another provision of the Copyright Act—you should credit the authors. If you modify the original work, you should provide credit, and also note the changes that were made from the original work. Not only is this smart legally, but it complies with scholarly and journalistic norms.

  1. ↑ 17 U.S.C. § 106 (2006).
  2. ↑ The legal definition of "copy" in the electronic environment is complicated and, at times, surprising. Many users might think that an electronic copy is made only by saving a file, but a federal appellate court has held that copying can occur when information is merely loaded into a device's memory. MAI Systems Corp. v. Peak Computer, Inc., 991, F.2d 511, 518-19 (9th Cir. 1993). If the information exists in the device's memory for "more than a transitory duration," it's a copy. 17 U.S.C. § 101 (2006). This worrisome legal definition is mitigated by other rules. For example, under an implied license theory, you may browse Web pages, even though copies of the content are made in your computer's memory. We'll further discuss digital content in Chapter Six.
  3. ↑ 17 U.S.C. § 101 (2006).
  4. ↑ 17 U.S.C. § 106(2) (2006).
  5. ↑ SunTrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257, 1263-64 (11th Cir. 2001).
  6. ↑ 17 U.S.C. § 103(b) (2006).
  7. ↑ 17 U.S.C. § 109 (2006).
  8. ↑ For more background information on the first sale doctrine, see William F. Patry, Patry on Copyright § 13.15 (2006).
  9. ↑ One court has held that merely adding a work to the library's collection and cataloging it constitutes distribution. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) ("When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.") However, another court has criticized Hotaling for its conclusion that distribution occurs when a library merely makes a work available for lending, holding instead that distribution occurs when a work is actually distributed. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1224-25 (D. Minn. 2008).
  10. ↑ Generally, civil actions for copyright infringement must be filed within three years of the infringement, 17 U.S.C. § 507(b) (2006). We'll discuss the statute of limitations in more detail in Chapter Three.
  11. ↑ In Hotaling, a library incurred liability in exactly this way. Its collection included unauthorized copies of a work, and although the copyright owner's copying claim was time-barred, the distribution claim was not. 118 F.3d at 203-05.
  12. ↑ Congress considered, but did not include, a prohibition against lending computer game cartridges. This is why you can rent Nintendo and PlayStation games from video rental stores. See S. Rep. No. 101-265 (1990).
  13. ↑ Pub. L. No. 98-450, 98 Stat. 1727 (1984).
  14. ↑ Pub. L. No. 101-650, 104 Stat. 5134 (1990).
  15. ↑ H.R. Rep. No. 98-987, at 2 (1984) and S. Rep. No. 101-265, at 3 (1990).
  16. ↑ Brilliance Audio, Inc. v. Haights Cross Communications, Inc., 474 F.3d 365, 374 (6th Cir. 2007).
  17. ↑ 17 U.S.C. § 109(b)(1)(A) (2006).
  18. ↑ Id § 109(b)(2)(A). The label prescribed by the Register of Copyrights can be found at 37 C.F.R. § 201.24 (2011).
  19. ↑ 37 C.F.R. § 201.24 (2011).
  20. ↑ As a Congressman noted with respect to the Computer Software Rental Amendment Act, "the transfer of copies within a single entity, whether nonprofit or for-profit, is exempt." 136 Cong. Rec. H13315 (daily ed. Oct. 27, 1990) (statement of Rep. Kastenmeier). See also Paul Goldstein, Goldstein on Copyright § 7.6.1.2(c) (3d ed. 2005).
  21. ↑ Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010), cert denied, 2011 U.S. LEXIS 6875, 80 U.S.L.W. 3182 (2011).
  22. ↑ For further reading on this topic, see Joseph Gratz, Digital Book Distribution: The End of the First-Sale Doctrine?, Landslide, May/June 2011, at 9.
  23. ↑ 17 U.S.C. § 106(4) (2006).
  24. ↑ Id. § 106(5).
  25. ↑ Id. § 101.
  26. ↑ Id.
  27. ↑ Id.
  28. ↑ Id. § 109(c)
  29. ↑ Id.
  30. ↑ Id. 106(6).
  31. ↑ 3 Melville Nimmer, Nimmer on Copyright § SD.01 (2011).
  32. ↑ Id.
  33. ↑ See Robert Platt, A Comparative Survey of Moral Rights, 57 {{sc|J. Copyright Soc'y U.S.A. 951, 965 (2010).
  34. ↑ Nimmer, supra note 31, at § 8D.01.
  35. ↑ Id.
  36. ↑ Pub. L. No. 101-650, Title VI, 104 Stat. 5128 (1990).
  37. ↑ 17 U.S.C. § 101 (2006).
  38. ↑ Id.
  39. ↑ Id. § 106A.
  40. ↑ Id. § 113.
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