I love technology (yes, I am a blog person). In the old days, when you gave a presentation, you invariably thought of better answers to questionners later on. You still do, but with a blog you can keep talking! Anyway, here are follow-ups to the questions that viewers asked at last week's ALA Copyright webcast (now archived)
This is part one - I'll finish up in the next day or so (there were lots of good questions).
All legal disclaimers apply - this is information, not legal advice.
Next, the issue arises as to whether a for-profit library is a Section 108 library. The Copyright Office Circular 21 discusses libraries and archives in profit-making institutions. The legislative history shows that the Senate and House differed on this point.
The Conference Report says that libraries in for-profit institutions can use Section 108 for interlibrary loan and isolated, spontaneous single copying, so long as they meet the rest of Section 108’s criteria, including not making copies for commercial motivation.
The Senate Report essentially says that 108 applies only to nonprofit libraries. It says that the “without any purpose of direct or indirect commercial advantage” language is intended to preclude libraries in profit-making organizations from making copies in furtherance of the organization’s commercial enterprise. Note: If Sect. 108 fails, you can always see if the use might qualify as Fair Use under Sect. 107.
The House Report says that a purely commercial enterprise can’t just call itself a library and then use 108. However, it finds that 108 can be used to allow isolated, spontaneous making of single copies by a library in a for-profit organization. For-profit libraries can use interlibrary loan so long as the reproduction or distribution is not “systematic” (a substitute for subscriptions or purchases) and the copies are not for immediate commercial motivation.
My own experience in talking with various corporate libraries is that many if not most take advantage of Sect. 108.
Susan: This is a little off the subject, but if I take a photo in the library and want to use it on my website, do I need to get written permission from any people in the photo?
Jennifer: Can you touch on the use of photos on websites please? For example, a photo taken of a public program with lots of people in the photo…is it permissible to use on a library website without permission of all people photographed (since it is a public program)?
My reply: Generally, people do not have a legal “expectation of privacy” when they leave their homes. This is why it’s fair game for tabloids to publish all the pictures that they capture. If you were to make commercial use, then you would need permission, subject to your state’s right of publicity law. For more on this, see a 2002 webcast I did for Infopeople, "Say Cheese! Putting Pictures of People on the Library's Web Page."
Of course, ethical concerns may be raised, particularly when children are involved.
Kim: Mary, I’ve heard the phrase, “fair use does not mean free use.” Not only am I not sure I understand this phrase, but I wonder if you agree?
My reply: Interesting – perhaps it means there’s no clarity that what you’re doing is fair and therefore free. But let’s say we know that your use is a fair use, because your situation has been analyzed by a court of law. Then, in fact, it is free – that is, no need to pay royalties or get permissions.
Jennifer: Mary – Can you explain the difference between trademarks and copyrights?
My reply: Trademarks are the words and logos that identify sources of goods and services – like “Things go better with Coke!” Short phrases are not copyrightable – as you know, ideas are not copyrightable, and when there is only one way to express an idea, then that expression is not copyrightable either. Copyright law, on the other hand, protects original expression in a fixed medium….such as books, web pages, movies. You generally can’t copyright a book title – yet if it’s a well known series, the series may be trademarked.
As an example, when I researched the Rosa Parks question (just below this question), I noticed that the voicesofcivilrights.org website has a notice stating that it has a copyright in the site, and that “Voices of Civil Rights” is a trademark of AARP. Note: often websites make incorrect use of both the terms “copyright” and trademark.” This particular site, however, is a joint project of AARP, LCCR and the Library of Congress. The Copyright Office is part of the Library of Congress, and the Library of Congress is scrupulous when it comes to copyright, and if anyone puts accurate notices on their sites, it’s them.
Also, Chillingeffects.org has cease and desist letters – a great way to get a practical handle.
Sarah: What if it’s a website with images we want to use but it’s not a “clip art” website? Example – I recently used an image of Rosa Parks on publicity material. It is a well known image of Rosa Parks on the bus, looking out the window, would this be considered public domain?
My reply: This is a good example to work through the flow chart. After the webcast, I did an Internet search and found a well known image of Rosa Parks on the bus, looking out the window. If the image I found is the same as the one you’re talking about, I’d analyze it this way:
First, is the image in the public domain? Looking at the FRIDGE, facts, recipes, ideas, dedication to the public domain, US government works and expiration, one can eliminate FRIDG (works must be expressly dedicated, and I don’t see notice of that), leaving E, or expiration. According to the Library of Congress, the picture was published in 1956.
http://www.loc.gov/rr/print/list/083_afr.html (see no. 20). It lists the photo as “United Press Photo.” The Library of Congress also says “Rights status not known.”
Could the picture have Expired into the public domain? It depends. Using Peter Hirtle’s chart (one of the handouts), we see that works published in 1956 are now in the public domain unless the owner filed a renewal of copyright. It is such a well known photograph, that it’s more likely than most items to have been renewed, but we don’t know for sure.
Using Google Images, I was able to track the image further – looking for a reputable site (with respect to knowledgeable copyright use), I found it at the voicesofcivilrights.org site, a joint project of AARP, the Leadership Conference on Civil Rights (LCCR), and the Library of Congress. The site has a copyright notice asserting copyright in the collective work, allowing personal, noncommercial use of single copies. It does not claim copyright in the individual items, and in fact that picture has a notation on it that says: “Donated by Corbis-Bettmann” The donation refers to the image, not to a dedication of copyright – and the two are distinct.
I went to the Corbis site at http://pro.corbis.com/ and searched for Rosa Parks, and found the photo with a © notice stating Bettman/Corbis ownership. Does Corbis-Bettmann own the image? Corbis is an image-licensing company with 25 million images, including the Bettmann Archive. This image is listed as “rights managed” as opposed to “royalty free.” Note: Copyright notices are often overly broad – claiming ownership of items that do not actually belong to a site. But assuming that they were assigned the copyright (by United Press Photo or its successor copyright owners), then we are left with seeing if the use would fit into another flow chart diamond.
Section 108, the library exception isn’t any use here (only for preservation, replacement, interlibrary loan and very old works), so let’s look at FAIR USE. There we’d need to know more about your Purpose. The Nature of the work, a photograph, is highly creative, a minus in finding fair use. The Amount could also work against you, if the photograph was registered individually. It may have been registered as part of a group, but that would take a lot more digging to ascertain. The Market effect? Take a look at whether you’d be impacting the licensing market that Corbis enjoys (assuming there is still a valid copyright).
If you can’t fit into the flow chart diamonds, then you’d need to get permission (it was donated at least once, so maybe there’s a shot), or pay licensing fees to Corbis.
Jennifer: If you file for a copyright for your library’s website, does it cover *every* item contained within? Including original graphics the library has created?
My reply: Essentially yes – registration of a library website would cover all the original expression (not facts, recipes, ideas, dedicated works, United States
Naturally websites are tricky, since they’re updated a lot. Circular 66 says that your registration covers the copyrightable content as received in the Copyright Office and identified as the subject of the claim. Revisions and updates are not covered by the registration, but may be registered separately. The filing fee is $30 for each registration. Depending on how frequently you change the expression at your site, you might consider regular registrations, monthly or quarterly etc. Registration puts you in a stronger position if someone copies your site without your permission, and beyond “fair use.” Only registered works can get the $750-$30,000 per infringement that is listed in the 17 U.S.C. § 504 (this was also a handout for the webcast)
Janice: How about PAIN – (purpose, amount, income, nature)?
My reply: Laughing out loud – talk about perfect acronyms!
Derek: What criteria does one use to judge who created the graphics found on a (government or other) Web site?
My reply: Excellent, tough question. I recently had a smart government documents librarian in one of my copyright workshops, and he said it is not at all unusual for the United States government to put graphics on their sites that they don’t own, and without attribution. This is frustrating, since United States government created images are such a great source of public domain images. Certainly if the image on a site has a credit tag, that’s a great clue… but failing that one must ask the webmaster and hope s/he knows the ownership. I confess that I use personal judgment when looking for images on United States government sites – some seems rather obvious though. For example, there are some great illustrations at http://bensguide.gpo.gov/benfranklin/ that I doubt the government had the audacity to swipe wholesale without crediting a third party source. But I’m curious as to what the government documents librarians say about that.
If any readers want to weigh in on Derek's question, or any other, use the comment feature below.