[Editor’s note: All answers on this page are subject to change. If you have questions, please feel free to contact the editor.]
Warning: copyright laws are both complex and subtle, and the penalties for mistakes can be severe. The material on this page is intended as a helpful resource, but should in no way be considered legal advice. It is always advisable to consult qualified legal counsel when establishing policies or otherwise taking actions which might constitute infringement.
Copyright In General
Copyright is one of three types of laws (the others being trademarks and patents) through which congress exercises its constitutional authority “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (U.S. Const, art. I cl.8) The exclusive rights which Congress grants under the copyright are:
- To reproduce a work,
- To prepare derivative works,
- To sell, rent, lease, lend, or otherwise distribute the work,
- To perform the work publicly,
- To display the work publicly, and
- To publicly perform a work on a sound recording via digital transmission
These exclusive rights are cumulative and may overlap. The exclusive right to perform a work publicly is limited to “literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works,” (17 USC 106(4)) and to sound recordings in the case of digital audio transmissions (17 USC 106(6)). The U.S. copyright law is contained in the U.S. Code, Title 17. Section 106 lists the exclusive rights, while sections 107-122 cover limitations in the scope of copyright.
To qualify for copyright protection, a work must satisfy two requirements: it must be original, and it must be fixed in a tangible medium of expression. The law leaves the phrase ”original works or authorship” undefined, but does list eight
tangible media of expression which are included:
- literary works
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
Works need not necessarily be completely original to qualify for copyright protection. The law also protects original contributions to derivative works.
The scope of copyright in general is covered in 17 USC §2 and derivative works are covered in §3. Works created or published outside the United States are covered by §4 and §4a.
Works which are not original, or which are not tangibly fixed, are not protected. The work need only display a modicum of originality, but original authorship must be present. An example of a work which is not protected due to lack of originality is the white pages of a phone book (see Feist v. Rural, 499 U.S. 340 (1991)). The law identifies several classes of material which are not subject to copyright protection:
- Ideas
- Procedures, processes, systems, and methods of operation,
- Concepts and principles
- Discoveries
As this relates to music, ideas for compositions are not protected, nor are styles of performing or new ways of generating sounds. A composition that exists only in the composer’s head is not eligible for copyright protection because it is not fixed in a tangible medium of expression. Similarly, the content of an improvisational jazz performance is not covered unless it has been recorded. Since ideas are not subject to copyright, expressions of ideas may not be subject to copyright if (as in the case of most recipes) if the expression is essentially the only way to express the idea. This is known as the merger doctrine. In addition, “sweat of the brow” is not protected by copyright. Intensive labor expended in creation of a work is not in itself sufficient to earn copyright protection (Feist). Generally, titles of compositions, songs, books, etc., and entities of similar scope are not subject to copyright protection, though they could be subject to trademark laws.
The length of copyright is normally a function of one of three variables: the date of publication, the date of creation and the death of the author. In general:
- Copyright expires 70 years after the death of the author or, in the case of joint works, the last surviving author.
- In the case of corporate authorship, copyright expires 95 years after the publication date.
- In the case of unpublished works where the author’s identity or date of death is not known, copyright expires 120 years after the work’s creation.
There are numerous complicating factors, not the least of which is the fact that most works published prior to the 1976 copyright revision are subject to the formalities imposed by the 1909 copyright act. For helpful, and more thorough coverage of the topic, see Peter Hirtle’s chart illustrating the Copyright Term in the United States. The law governing copyright term is found in 17 USC Ch. 3.
The Public Domain (often abbreviated, “PD”) is a body of intellectual material which is not under copyright and may be used freely without permission. This includes:
- Works which the owner has explicitly moved into the public domain,
- Works in which copyright has expired (this includes all works published before 1925, as of 2020),
- Works in which copyright has lapsed due to failure comply with necessary formalities such as renewal and notice (applies only to works published before March 1, 1978), and
- Works created by the United States Government (see 17 U.S.C. §5), as well as the works of some state and local governments.
For more detailed information about the copyright term under United States Law, see Peter Hirtle’s chart illustrating the Copyright Term in the United States.
As long as they constitute copyrightable material and are fixed in a tangible medium of expression, unpublished works are protected by copyright regardless of national origin.
The law governing the inclusion of unpublished works is 17 USC §4.
Each individual work contained within an anthology or compilation carries its own copyright. The compiler is responsible for obtaining permission to use copyrighted material in a compilation. Unless a transfer of copyright is negotiated with the copyright owner, the work of each author remains under its original copyright.
The compiler owns the copyright in any original material contributed to the compilation. In some cases, the arrangement of an anthology or compilation may itself be protected; however, the minimal standard of originality must still be met. A simple alphabetical arrangement does not qualify for protection.
Public domain material used in a compilation remains in the public domain and may be reproduced without permission.
The law governing compilations is 17 USC §3.
Yes. The United States has signed several treaties governing copyright in foreign works, which have been ratified by the Senate and incorporated into U.S law. Though there are exceptions, works published outside the United States normally receive similar or identical treatment to works published within the United States.
Beginning January 1, 1996, many works that were out of copyright in the United States, but under copyright in other countries, were restored to copyright in compliance with the General Agreement on Tariff’s and Trade (GATT) to which the United States is a signatory.
Most of the law covering copyright in foreign works is contained in 17 USC §4. The law governing the restoration of copyrights under GATT is found in §4a.
For the purposes of copyright, a “phonorecord” is a material object to which sounds are fixed. This includes digital media, such as compact discs and digital audio tapes, as well as analog media such as records, wax cylinders and cassette tapes. It does not include audiovisual works, so DVDs are not included (though DVD-A likely is, and there may be a separate copyright for an appendix soundtrack).
“Sound recordings” are distinct from phonorecords. Sound recordings are defined as works that “result from the fixation of a series of musical, spoken, or other sounds…regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.” As with phonorecords, sound recordings are distinct from audiovisual recordings.
Essentially, “phonorecord” refers to a physical object, while “sound recording” refers to intellectual content. A phonorecord can contain several sound recordings (different works recorded on the same disc), while one sound recording can be fixed on several different types of phonorecords (cassette tape, LP record and compact disc, for example).
The official definitions of the terms can be found in 17 USC §1.
Fair Use
Fair use is a privilege provided for by the United States copyright law, which allows for the use of copyrighted material without permission. It is an affirmative defense, the concept for which grew out of more than a century of case law.
The concept is very loosely defined by the law, and courts have repeatedly (for example, in Campbell v. Acuff Rose Music) stated that fair use must be determined on a case-by-case basis, making it one of the most complex areas of copyright
law.
What exactly constitutes a fair use is left open by the statute. For example, the law does not exclude any of the exclusive rights from fair use, but it does specifically include the right of reproduction. The law lists four factors to be
considered in deciding fair use cases. And though courts consistently weigh each of the factors individually, the law does not exclude the possibility of other possible factors.
Purpose plays an important role in determining whether a use is fair. The law suggests several possible fair uses, such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,”
but this is not an exhaustive list. Other factors to be considered include, but are not limited to: the nature of the work (is the work published or unpublished? factual or creative?), the amount used, and the effect on the market for
the work.
The law governing fair use is contained in 17 USC §107.
Reserves
The Copyright Act does not specifically address the rights of copying for reserve. General practice among libraries rests on the assumption that such copying rights stem from Section 107 and/or Section 108 of the Act. Both ALA and ARL have asserted that the library reserve room functions as an extension of the classroom and, thus, is permitted to provide copies of copyrighted works under Section 107, related to the rights of copying for purposes of teaching.
ARL also asserts that Section 108(d) and Section 108(e) provide for the copying of copyrighted works for reserve. However, since these sections of the law do not apply to musical works, as per Section 108(h), the rights for copying of musical works for reserve would derive almost entirely from Section 107. This is also affirmed in the Second Report of Register of Copyrights, January 1988, which states, “As the legislative history of Section 108 makes clear, reproduction of music, pictorial and graphic works, motion pictures and most audiovisual works for private study, scholarship, and research is to be governed by fair use under Section 107.”
Single copies Under Section 108(d), a library has the right to reproduce for a user single copies of entire articles or small parts of other copyrighted works. Under Section 108(e), a library has the right to reproduce for a user complete works or substantial parts of works if a copy cannot be obtained at a fair price. This has been interpreted to mean that libraries can make single photocopies of entire articles, among other items, or entire works for reserve, following the provisions of Section 108(d) and (e), at the request of faculty members. [ARL/Repro], [Martell] The Classroom Guidelines also provide for the reproduction of single copies of entire articles, book chapters, etc. under Section 107.
Multiple copies The Classroom Guidelines for multiple copies are stricter, applying numerical limits which effectively mean that most articles, essays, and book chapters can not be copied in their entirety. [Martell] ALA’s Model Policy is less restrictive, asserting, “Fair use cannot always be expressed in numbers — either the number of pages copied or the number of copies distributed. Therefore, you should weigh the various factors listed in the Act and judge whether the intended use of photocopied, copyrighted material is within the spirit of the fair use doctrine.” ACRL has also taken a broader position: “Colleges and universities and their libraries should continue to interpret the Copyright Act in a manner that is in the spirit of the law and consistent with the rights and needs of both copyright proprietors and the academic community. . . .” [ACRL]
Musical materials Section 108(d) and (e) do not apply to musical materials, so the copying of musical materials for reserve is generally justified under Section 107, or fair use. In this instance, the Music Guidelines are more restrictive for musical works than the Classroom Guidelines are for prose works by denying the right to reproduce single or multiple copies of “performable units.” The applicable language in A.2 of the Music Guidelines is stated broadly enough to encompass both the copying of music scores and the dubbing of music sound recordings, though neither is specified. The Music Guidelines reflect the minimum standards of fair use, and it can be argued that there is no reason to assume that the philosophy which engenders ALA and ARL positions mentioned above under Multiple copies is not equally applicable to the photocopying or dubbing of complete individual movements, sections, or other performable units of music scores. ARL has suggested that the right to make and distribute copies of a single work, as agreed to in the MLA/MPA amendment to Section 108 [Report], may already be given under Section 107. [ARL/Repro]
At the very least, Section 108 allows for the copying of copyrighted materials by libraries under provisions specified in that section. Even music materials may be copied under Section 108(b) and 108(c). There is no reason to assume that copies made under the provisions of Section 108 could not be placed on reserve. Such copies should contain a notice of copyright. Additionally, the copies made under Section 108(d) and (e) require that the copy become the property of the user, suggesting the need for such copies to be returned to the faculty member at the end of the term. [ARL/Repro].
Under Section 107:
ALA’s Model Policy states: At the request of a faculty member, a library may photocopy and place on reserve excerpts from copyrighted works in its collection in accordance with guidelines similar to those governing formal classroom
distribution for face-to-face teaching . . . . These guidelines apply to the library reserve shelf to the extent it functions as an extension of classroom readings or reflects an individual student’s right to photocopy for his personal
scholastic use under the doctrine of fair use.” [Hutchings] Surveys and reviews of college and university libraries’ policies suggest that this philosophy is prevalent, though not uniformly implemented in terms of creating multiple copies,
determining ownership of copies, specifying who does the copying, and providing for the reuse of copies [Butler], [Spec.]. Assuming the applicability of the Classroom and Music Guidelines, carefully defined levels of copying for reserve
use is permitted by them, as well. As in question 3 above, any copies of materials made from reserve should contain a notice of copyright.
It is worth noting here that the ALA policy clearly states that it is the right of the library to make the copies; i.e., it is not necessary to receive the copies from the faculty member. However, as a practical matter, to protect themselves from liability, many libraries require faculty members to provide the copies, especially in the instance of requested multiple copies. [Spec.] Additionally, it is important that the copying activity for reserve be initiated by the faculty member and not the library. [Hutchings], [Martell]
As with the Copyright Law, no specific mention of reserve use is made in either set of Guidelines. However, if Section 107 and Section 108 of the law can be said to apply to reserve use, so can the Guidelines, assuming the validity of these documents, which has been seriously and widely questioned due to their restrictiveness with respect to classroom situations [Martell], [Hutchings], [ACRL], [Spec.]. There is a wide variety in the degree and manner that colleges and universities implement the Guidelines for reserve use [Butler], [Spec.].
Additional Sources:
The Classroom Guidelines specify that “Copying shall not be repeated with respect to the same item by the same teacher from term to term” (Guidelines III.C.c). This presumes the ability of the teacher to obtain the necessary permission for copying the materials in the time frame following the first instance of copying. The ALA Model Policy also supports this view, stating, “The classroom or reserve use of photocopied materials in multiple courses or successive years will normally require advance permission from the owner of the copyright.” [Hutchings] In this instance, as with other aspects of the law, college and university libraries differ in practice: some return all copies, single or multiple, to faculty members after each term; others are willing to maintain a single copy for reuse, without obtaining additional permission for use. [Spec.] A review of practice shortly after the enactment of the law suggested that some librarians felt that there was no need to limit in this manner since the law and Classroom Guidelines refer to the repeated copying and not repeated use of material. [Butler]
Teaching with Video
In-classroom performance of a copyrighted video is permissible under the following conditions summarized from Section 110:
- The performance is by instructors (including guest lecturers) or by pupils.
- The class is part of the regular curriculum.
- The performance is in connection with face-to-face teaching activities.
- The entire audience is involved in the teaching activity.
- The entire audience is in the same room or same general area.
- The teaching activities are conducted by a non-profit educational institution.
- The performance takes place in a classroom or similar place devoted to instruction, such as a school library, gym, auditorium or workshop.
- The video is lawfully made; the person responsible had no reason to believe that the video was unlawfully made.
Yes. In-home viewing by the student, alone or with a small group, is permitted.
It could be argued that viewing a video in the public library would not be permitted because more than one person would be watching it, making it a public performance. Small groups are usually ok, but this is a controversial area of the law. Consult legal counsel, and have a copyright policy approved by them. Viewing by a small class group in an academic library would generally be allowed under the classroom exemption. (17 USCS Sec. 107 and Sec. 110).
Yes, as long as the auditorium is actually used as a classroom for systematic instructional activities.
Generally, yes. If the students will be in a small viewing room which is not used as a classroom, the performance may be permissible if only members of the class are present and the performance is not open to the general public. If the library contains regularly-scheduled classrooms, the face-to-face teaching exception applies. This does not have to be the room where the class usually meets. (17 USCS Sec. 110)
Yes, provided that the performance is “in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction.” However, if the copy of the video was unlawfully made (or the responsible party had reason to know it was unlawfully made), then the showing would be an infringement.[17 USC 110(1)]
Preservation
USC §108(b) and (c) provide for preservation copying for libraries. Subsection (b) allows libraries to make preservation copies of unpublished works currently in their collection.
Subsection (c) allows libraries to make replacement copies for published works that are “damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete.” A format is obsolete only if
machines to render the objects is no longer reasonably available in the marketplace. Permission to copy applies only to libraries and archives whose collections are 1) open to the public and 2) open to researchers outside of the institution
of which the collection is a part. The copying for preservation or replacement may not be made for the purpose of direct or indirect commercial advantage. Up to three copies made under subsections (b) or (c). If these copies are made digitally,
they are not permitted to leave the library’s premises in digital form.
If you can obtain the disc from a distributor or publisher at a fair price then it should be purchased. If it is not possible to purchase the disc from a vendor at a fair price then, provided you meet the three requirements outlined in 17 U.S.C. Sec. 108(a), you may invoke section 108(c) and make a copy of the missing disc to replace the lost one.
The three requirements are that:
- The reproduction or is made “without any purpose of direct or indirect commercial advantage,”
- The library be either open to the public, or, at the least, available to those outside the library’s community who are doing specialized research, and
- The reproduction include a copyright notice or, if no copyright notice exists on the original item, an indication that the work may be protected by copyright.
Provided that the library has, after a reasonable effort, determined that an unused copy of the microfilm cannot be purchased at a fair price, then this should qualify for copying under 17 U.S.C. Sec. 108(c) since the reel has been damaged and is deteriorating. If the microfilm is available at a reasonable price, then copying under Sec. 108(c) is not permitted. Unfortunately, the law does not specify what constitutes a reasonable effort, but the House Report on the bill (H.R. Rep. No. 94-1476) states that while it will vary from situation to situation, Congress’ intent is that it would always require searching in commonly-known, U.S.-based trade sources, the publisher or copyright owner, and any authorized reproduction services.
The library may not circulate digital copies made under Sec. 108(c) outside the library’s premises, but analog copies may be circulated.
If the library’s acquisition of the microfilm was subject to a binding licensing agreement, then the terms of that license will supersede any provisions in the law when the two are in conflict.
See: U.S. Congress, House of Representatives, Committee on the Judiciary, Copyright Law Revision, 94th Cong., 2nd sess., 1976, H. Rept. 94-1476, 75-76.
Unless otherwise provided for in a license or purchase agreement, this is an infringement. Some companies have a pricing structure which allows a library to pay a higher price to purchase a video with the right to produce a specific number
of duplicate copies.
If the library has been unable after a reasonable effort to secure an unused replacement at a reasonable cost, 17 USC Sec. 108(c) allows duplication of the tape for replacement purposes.
Copying to change format (called format-rescue conversion) from an obsolete format (such as Beta or VHS) to a modern one is an infringement unless an unused copy in the modern format is unavailable. A format is considered to be obsolete if the machine
necessary to show it is no longer manufactured or available in the commercial marketplace. Be aware that this is a controversial area of the law. (17 USCS 108 (c) and (i)). Consult legal counsel, and have a copyright policy approved by
them in place.
Since PAL is a modern format that is currently used outside the United States, it would be an infringement for a library to convert a PAL tape to NTSC VHS. Instead, a multi-standard VCR may be used to convert the signal so that it may be shown
on an American (NTSC) TV monitor. These multi-standard VCRs are commonly available (although expensive) and most will show both PAL and SECAM videotapes. The Panasonic AG-W1 is an example of these players/converters.
In general, the librarian’s duty in this situation is merely to state that the video is subject to the copyright laws. However, although there is no clear duty to refuse to lend, there is a point after which a library’s continued lending with actual knowledge of infringement could possibly result in liability for contributory infringement.
Sound and Notation Files
Yes and no. You must secure permission if the notes or editorial marks of the edition are apparent in the sound file. However, if the music is not traceable to any one specific edition, then permission probably wouldn’t be necessary. In the case of Urtext, where there should be no fingerings, slurs, notes, etc. added by an editor without indicating such, it should be safe to use.
Yes and no. You must secure permission if the typography or editorial marks of the edition are used in any type of reprint, including electronic. However, if the music is transcribed to another format (using a notation application, for example), and if it isn’t traceable to any one specific edition, then permission probably wouldn’t be necessary. In the case of Urtext, where there should be no fingerings, slurs, etc. added by an editor, it should be safe to use.