Federal copyright law is contained within Title 17 of the United States Code, the official version of which is published online by the Office of the Law Revision Counsel. A hyperlinked version can be found at Cornell University’s Legal Information Institute (LII).
[statutory language contained in italics]
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
17 U.S.C. §107: Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 [and 106A,] the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
This is the statutory implementation of the fair use privilege in the United States Code. When determining whether a use is fair, judges consistently examine each of the four factors listed in the statute before making a decision. The last of the four tests has traditionally been considered the most important, though recent litigation has shown that commercial gain does not rule out a fair use defense. The transformational nature of the use (from the first factor) has also been emphasized recently (see Campbell v. Acuff-Rose Music). It is important to note that factors other than the four outlined by the statute may be used to consider whether a potential infringement is a fair use, and that the statute does not, and does not purport to, provide a rule which may automatically be applied in deciding whether a use is fair. (Nimmer, et al. Cases and Materials on Copyright, 479.)
17 U.S.C. §108: Reproduction by libraries and archives
Section 108 of the copyright code grants certain exemptions from copyright restrictions to libraries and archives. Among these are clauses which under very specific circumstances allow libraries to make copies for preservation, to replace lost or damaged materials, and for interlibrary loan purposes. The section applies only to single copies (with an exception for preservation), and only when:
- The reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
- “the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
- the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
The conditions under which libraries may make such copies are spelled out in subsections (b) through (i). Subsections (b) and (c) apply to preservation copies, subsections (d) and (e) apply to interlibrary loan copies and copies for researchers. It is especially important for music libraries to note that, with the exception of subsections (b) and (c), the provisions of §108 do not apply to musical works.
17 U.S.C. §109: Effect of transfer of particular copy or phonorecord
17 U.S.C. §109: Effect of transfer of particular copy or phonorecord.
This is the codification of the “First Sale Doctrine” in U.S. law. The exclusive rights identified in 17 U.S.C. §6 include the right to to “distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” If the law stopped there, libraries’ practice of lending materials to patrons would require permission from the copyright owner and/or license fees. Section 109 states that once title on an individual copy of a work has been transferred after the first sale each subsequent owner has the right to sell or otherwise dispose of that copy without permission.
There are important exceptions to the law. Subsection (b) of the law states that media containing sound recordings or computer programs are not subject to first sale rights, though it allows libraries those rights provided they meet certain requirements. The law also explicitly states that first sale rights do not apply in cases where the title for the copy has not transferred (i.e., when the copy is loaned, rented, leased, etc.). There are also exceptions which restrict the first sale rights on works whose copyright was restored.
17 U.S.C. §110: Exemption of certain performances and displays
Section 110 is especially relevant to academic librarians in that it provides additional exemptions to educational institutions with regard to performances or displays of copyrighted works in face-to-face or virtual classrooms. The law is very complicated and has many conditions which must be met before the exemptions take effect. For example, to take advantage of the law, the materials must be obtained lawfully to begin with. In the case of virtual classrooms, the law requires that access be restricted to those enrolled in the class, that the material be directly relevant to the subject matter of the class, and that the institution promote compliance with U.S. Copyright laws.
17 U.S.C. §301: Preemption with respect to other laws
Section 301 establishes dates and conditions under which the federal copyright laws preempt any state laws under Article 6. One of the most important parts for music libraries to keep in mind is an exception contained within subsection (c), which governs sound recordings. Under 17 U.S.C. 301(c), Sound recordings which are tangibly fixed on or after February 15, 1972 are governed by federal law. All earlier recordings are governed by any applicable laws for the state in which they were produced until February 15, 2067. Until that date, pre-1972 sound recordings may not be subject to fair use, copyright term limitations, or exemptions under §8 or §110.
17 U.S.C. §1201: Circumvention of copyright protection systems
Section 1201 codifies the anti-circumvention provisions of the Digital Millennium Copyright Act. The act criminalizes the circumvention of rights management systems and other technological measures used to control copying of, or access to copyrighted material (“access controls”). In addition, §1201 prohibits trafficking in technology that aids in the circumvention of access controls.
The empowers the Librarian of Congress to issue exemptions to the law every three years. The current exceptions to the The empowers the Librarian of Congress to issue exemptions to the law every three years. The current exceptions to the §1201 anti-circumvention provisions are:1201 anti-circumvention provisions are:
- Circumvention of audiovisual works in the library of a college or university film or media studies department, but only by film or media studies professors when making compilations for classroom use.
- Circumvention of computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, but only for preservation purposes within a library or archives.
- Circumvention of computer programs protected by “dongles” that prevent access due to malfunction or damage and which are obsolete.
- Circumvention of ebook controls for purposes of enabling a “read aloud’ function.
- Circumvention of cellphone firmware for the sole purpose of lawfully connecting to a wireless telephone communication network.
- Circumvention of sound and video recordings which or exploit security flaws or vulnerabilities that compromise the security of personal computers, for the sole purposes of testing, investigating, or correcting the security problem.
See also: Report on circumvention exemptions