COPYRIGHT HOLDER RIGHTS

Q7 Are all types of works created in a library copyrightable?

No. The work must be original and fixed in a tangible medium of expres- sion.¹⁵ An oral workshop given by a librarian to a class is not copy- rightable, unless it is fixed in a tangible medium, such as videotape.

Handouts are copyrightable, if they are not the works of the federal gov- ernment, or of a state government that has ceded its works into the public domain.

Q9 When can libraries make copies of works?

Most of this chapter revolves around that question. The rights listed in section 106 of the copyright law are subject to numerous exceptions that help libraries and their users. The most important exceptions that help libraries are the section 107 “fair use,” the section 108 “library excep- tion,” and the section 109 “first sale doctrine.” In addition, a library can occasionally make use of other exceptions listed in the copyright law, such as the “backup of software” provision in section 117. All of the excep- tions are found at 17 U.S.C. §§107–122.

The exceptions that help libraries are discussed in this chapter imme- diately after a detailed explanation of the copyright holder’s rights.

Copyright Holder’s Exclusive Rights

Reproduction

The right held by copyright owners to control reproduction (copies) of their works is the most important issue that libraries confront. Libraries are routinely requested to make copies for patrons through analog (pho- tocopies) or digital means. Of course, if the work is in the public domain, there is no problem. Otherwise, the library must find the act of copying that fits into the specific categories listed in section 108, the “library exception,” explained below. If the copying does not fit there, the library must evaluate whether or not it is a “fair use,” which is a difficult bal- ancing test. A final option is to see if another copyright exception applies.

Unless the work is in the public domain, or the library can make a case for

“fair use,” the “library exception,” or another specific exception, it must get permission from the copyright holder to make copies of the work in question.

Derivative Works (Adaptations of Works)

The right to prepare derivative works (adaptations of works) based upon the copyrighted work is one of the broadest rights that copyright owners possess. The copyright holder has the right to control (or deny) abridge- ments, annotations, art reproductions, condensations, dramatizations, editorial revisions, elaborations, fictionalizations, musical arrangements, and translations.¹⁷ The key to understanding derivative works is that some portion of the original work is incorporated into the new work, the derivative work. If a school librarian adapts a book from her library shelf

into a stage play for her students to perform, she first needs to get per- mission from the copyright holder, unless she can find an exception that covers her. Both the librarian and the original copyright holder have copy- rightable interests in the new work, the stage play.

This should sound familiar to those who follow news stories about

“film rights,” such as the purchase of rights to John Grisham’s novel The Firm by Paramount Pictures for $600,000, or the purchase of rights to Stephen Ambrose’s book Band of Brothers by Tom Hanks and others for an HBO miniseries,¹⁸ or the controversy surrounding books based on popular television shows such as Twin Peaks, Seinfeld, and Star Trek.¹⁹ Distribution

The copyright holder has the exclusive right to distribute copies of his or her work to the public by sale or other transfer of ownership, or by rental, lease, or lending. This is another important right that affects libraries. The term “public” is defined as beyond the “normal circle of a family and its social acquaintances,”²⁰or at least “a substantial number of persons.”²¹

Traditionally, courts have interpreted distribution to require some sort of “commercial” enterprise, one that is tied to the formal publication of the work. The description of distribution in section 106 of the copyright law is almost identical to the definition of “publication” in section 101:

“distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending”²² (emphasis added). In addition, the legislative history refers to the section 106 “dis- tribution” right as “publication.”²³

However, recent case law suggests an expanding view of distribution.

This would mean that a library can not add illegally made copies to its col- lection, as the items’ availability to patrons might be considered a distri- bution. In Hotaling v. Church of Jesus Christ of Latter-day Saints,²⁴ an unlawfully made microfiche copy of a text was made available and then distributed (lent) to members of the public through its availability in the library catalog. The court observed that “[w]hen 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.”²⁵Because the library had an unlawfully made complete copy of one of the plaintiff’s works on genealogy, the distribution of that material was unlawful.

Nonprofit, noncommercial status will not insulate a library from liabil- ity for an illegal “distribution” of a pirated work. This applies to “dubbed”

videotapes and audiotapes that are “donated” by well-meaning users.

Performance and Display

Libraries can own films and videotapes yet not have the right to show them to the public. This is a “performance right,” held by the copyright owner, who may fully license the rights to the library on a nonexclusive basis, or merely license the right to show (or “perform”) such works on a one-time basis. Unlike the exclusive rights of reproduction, derivative, and distribution, the rights of public performance and display apply only to specified categories: literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works.

Performance rights do not apply to pictorial, graphic, or sculptural works, or to sound recordings transmitted nondigitally. (This is so because picto- rial, graphic, and sculptural works are displayed rather than performed, whereas musical, dramatic, and choreographic works are performed rather than displayed.) Performance rights apply to motion pictures and other audiovisual works when the images are shown sequentially, while display rights apply when the images are shown nonsequentially.

The rights of performance and display apply only to those perfor- mances and displays that are “public.” “To perform or display a work

‘publicly’ means 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 a family and its social acquaintances is gathered.”²⁶

LOCATIONCLAUSE

The foregoing definition refers to “a place open to the public” and encom- passes a wide range of library locations. It may not matter if a group of people know each other, if a student is working on an after-school project, or if members of the same household wish to see a library-owned video.

The trigger is that the performance or display is made at a place open to the public or where people beyond the family or its social acquaintances might gather.

ACTION (TRANSMISSION ORCOMMUNICATION) CLAUSE

The definition also has an “action (transmission or communication) clause.” If the performance or display is transmitted or communicated to a place specified by the “location clause” or “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in sep- arate places and at the same time or at different times,” the library may be infringing copyright.²⁷

If a library allows patrons to view videos on its premises, it would trigger the location clause but not the action clause.²⁸ However, if the library placed an elevated monitor in each corner of the main reading room, and played videos related to various book-theme weeks, this would trigger the action (transmission or communication) clause as well.

Under certain conditions, such acts might still be allowable under other provisions of the copyright law (see the discussions of sections 107 and 110 in this chapter).

Performance of Sound Recordings by Digital Transmission

The last right covers only sound recordings and gives copyright holders the exclusive right to “perform the copyrighted work publicly by means of a digital audio transmission.”²⁹ Sound recordings are works that result from the fixation of a series of musical, spoken, or other sounds. They do not include the sounds accompanying a motion picture or other audiovi- sual work. Sound recordings can be in any material objects, such as disks or tapes.³⁰ Because the recording is usually a record of someone singing or reading a preexisting copyrighted work, sound recordings are a form of derivative work. Before the passage of the Digital Performance Right in Sound Recordings Act of 1995,³¹ sound recordings represented a signifi- cant category of copyrighted work denied the right of public performance.

This act now gives copyright owners of sound recordings the rights to authorize certain digital transmissions of their works, including interactive digital audio transmissions. As amended by the Digital Millennium Copyright Act (DMCA) in 1998, the right now covers cable and satellite digital audio services, webcasters, and future forms of digital transmis- sion. Most non-interactive transmissions are subject to statutory licensing at rates to be negotiated or, if necessary, arbitrated. Exempt from this bill are traditional radio and television broadcasts and transmissions to busi- ness establishments.