Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193)
QUESTION: A number of public library patrons ask for a copy of that day’s New York Times crossword puzzle. Is it permissible to photocopy the number of copies projected to be needed and make them available at the circulation desk for the patrons?
ANSWER: While it likely is fair use for patrons to make a photocopy of the puzzle for personal use, and even for the library to reproduce a copy of the puzzle for a patron upon request, there are restrictions on what a library can do. Section 108(d) allows libraries to make a single copy of an article, book chapter, etc., for a user upon request, but the library must provide notice of copyright, the copy must become the property of the user and the library must have no notice that the copy will be used for other than fair-use purposes. This subsection is further restricted by section 108(g), which says, among other things, that the copying under section 108(d) cannot be systematic. Making multiple copies of the crossword puzzle each day is certainly systematic. The library could seek permission from the New York Times to make these copies in advance each day or continue to make single copies for users after the request of that user.
QUESTION: A librarian in a public high school is often asked for help by students who are completing class research papers and projects. When a student uses an image from the Internet in a research paper, how can he or she seek permission if it cannot be determined who produced the image? Would use of an image from the Internet most likely be permitted under fair use if the use was only for a research paper for one course? To cite to the origin of the image, is the url sufficient?
ANSWER: Actually, to include the photograph in a research paper that will be submitted only to the teacher likely is a fair use, and the student would not be required to seek permission. If the paper were to be posted on a website or widely distributed, permission would be necessary. Attribution is not a copyright issue, but crediting the photographer or copyright owner is a good thing to do. Including the url tells someone where to find the photograph online, which is helpful to readers, but the attribution should be to the “author.”
QUESTION: A community college regularly films the lectures of speakers invited to speak on campus. In order to place a video copy of the talk online, must the institution seek permission? Is a Webinar the same thing?
ANSWER: In order to record the lecture of the guest speaker, the institution should obtain prior permission from the speaker. The release should also specify what the institution intends to do with the recording, such as podcast it. A Webinar also needs to have permission of the speakers and specify how the Webinar will be used, whether it will be repeated, etc.
QUESTION: What are the copyright rules for downloadable books?
ANSWER: It is more likely that the downloading of eBooks is governed by a license agreement (contract) than just by copyright law. Copyright certainly applies, but a license agreement most likely covers issues such as access, reproduction, distribution, display, etc.
QUESTION: When a for-profit company files for approval from the Federal Drug Administration, either for a new drug or medical device, the company must provide copies of all articles and other literature, along with the filing. Now, in Europe, there is a Medical Device directive, MEDDEV.2.7.1 Rev.3 – Guidelines on Medical Devices, that requires all manufacturers who want to sell product in European Union countries to provide a clinical evaluation of their product. Part of the evaluation is a literature search, along with copies of the articles and other materials that support their evaluation. Must copyright royalties be paid for these copies provided in response to a government directive?
ANSWER: If the company has a Copyright Clearance Center annual copyright license (often called a blanket license), the librarian can provide copies of these articles to accompany federal and international filings without concern. If the company does not have a CCC license, then it should look at its various license agreements for full-text journals to see if this activity is covered by the license agreement. Otherwise, royalties should be paid.
QUESTION: A librarian with curatorial responsibilities for a university library music collection is making an educational/promotional film about one of the collection’s donors, a classical musician of note. As a member a performance group, the donor made many classical music recordings on the Philips label, and the librarian wants to obtain permission from Philips Records to use part of one track from one of these recordings in the film. The film is part of the fund-raising efforts to support the collection.
ANSWER: Assuming that the music on the recording is under copyright, the right the librarian is seeking is called the synchronization or “synch” right which involves the use of a recording of a musical work in audiovisual form such as in a film. It is called the synchronization right because the music is “synchronized,” or recorded in timed relation with the visual images. The music publisher synch rights are licensed by the music publisher (the publisher of the sheet music) and not the recording company. Sound recordings do not have public performance rights, and the sync right is a part of the right of public performance.