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) <[email protected]>
QUESTION: Does a public library need a public performance license to play children’s music recordings in the library as a background for story hour?
ANSWER: The playing of music in a public place, such as in a public library, is a public performance as defined by the copyright law. Sound recordings, however, do not have public performance rights. This means that the performance right belongs to the composer or other copyright owner of the music, and his or her permission is needed. One certainly could argue that music recordings aimed at children are intended to be played; not only for individual children, but also for groups of children, and that the use for story hour is a fair use. If the library has a blanket music performance licenses from ASCAP, BMI, and SESAC, these licenses would cover performance of children’s music. Assuming that the library does not have music performance licenses, then, as a policy matter, it must decide whether it will continue the practice of playing recorded music for children claiming that it is a fair use or seek permission from the copyright owner.
QUESTION: How does a school know when instructional materials received from publishers are templates that can be customized or adapted?
ANSWER: The initial question to ask is under what conditions do publishers make these materials available. There are two ways to know for sure whether instructional materials are templates that may be customized or adapted. The first is to consult any license agreement that comes with the materials or is posted on the publishers’ Website, if the materials are downloaded from the Web. The second way is to contact the publisher directly and so inquire. Generally, absent a license agreement which says that the materials may not be customized or adapted, it is permissible to adapt them. The school should not post adapted materials on the Web, however, unless they are password protected for students in the class for which they are being used.
QUESTION: Who is responsible for violating the law when a professor makes a DVD copy of a VHS tape and the library then places the DVD on reserve?
ANSWER: The professor is definitely the direct infringer. The library could be viewed as encouraging or furthering the infringement by accepting the infringing copy and putting it on reserve, however. To a large extent, whether the faculty member or a librarian is responsible for the infringement does not matter because it is the institution itself that will be held liable. The school might then take action against the faculty member, of course. To protect the library, it should develop a policy about whether it will accept copies of DVDs that are not lawfully made, purchased or acquired by gift and then follow the policy it adopts. Many libraries accept for reserve only DVDs that are purchased by either the library or the faculty member or which are donations of purchased (not reproduced) DVDs.
QUESTION: Since so few libraries have ever been sued for copyright infringement, which libraries are the most vulnerable? Is there a difference between public and academic libraries regarding liability?
ANSWER: Libraries that make concerted efforts to learn about the copyright law as it is amended and interpreted by new court decisions, follow that law, develop policies about how to handle various copyright problems, and educate their staffs about the law and the library’s policies are not likely to be sued even if a library makes a mistake and infringes copyright. That said, there are libraries that are more at risk than others. If one were to create a liability scale, then libraries in for-profit companies are the most vulnerable because they may be unable to take advantage of the exceptions that the copyright law provides for libraries, particularly nonprofit ones. The second type of library that is likely to be most liable is the for-profit educational institution which operates much as do other corporate libraries for copyright purposes. Academic and public libraries are the least likely to be sued, but they are not immune to suit as the Georgia State University case (see 863 F. Supp. 2d 1190 (N.D. Ga. 2012) illustrates.
In fact, academic libraries must be divided into state-supported universities and colleges versus privately supported ones. State-supported universities are protected by Eleventh Amendment immunity which does not mean that they cannot be sued for copyright infringement but that they cannot be sued for damages. Plaintiffs can still sue for injunctions, costs, and attorneys’ fees. Academic institutions that are privately supported do not have Eleventh Amendment immunity, so they are more at risk of suit than are publicly supported ones. Public libraries generally receive their support from local government, and therefore do not qualify for Eleventh Amendment immunity. They are not usually sued, however. A library is much more likely to receive a cease and desist letter from a copyright owner, and it would then have the opportunity to settle rather than litigate.
QUESTION: If a poet voluntarily registers the copyright on her poems, does she have to register each poem individually? Or does registering a collection of poems extend the registration to each individual poem?
ANSWER: According to the U.S. Copyright Office, published collections of poetry can be registered on a single application with a single fee if all the poems are owned by the same copyright claimant. Unpublished poems can also be registered as a collection on a single application with the payment of a single fee and a deposit of one complete copy or phonorecord of the collection if all the following conditions are met: (1) the elements are assembled in an orderly form; (2) they bear a single title identifying the collection as a whole and (3) “the copyright claimant in all of the elements and in the collection is the same; and all the elements are by the same author or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each of the elements.” See http://www.copyright.gov/fls/fl106.html.
Registration of an unpublished collection of poems extends the benefits of registration to each poem in the collection, although the only listing of the work in the Copyright Office’s catalogs is by the collection title and not by individual poem title.
QUESTION: What permissions are required for a university to stream video works across a college network and off campus using the Web?
ANSWER: Section 110(2) of the Copyright Act provides an exception for nonprofit educational institutions to transmit performances of copyrighted works as a part of a class without permission of the copyright owner. An institution has to meet several conditions in order to take advantage of this exception. Although other conditions apply here, the most relevant is that the recipients of the performances must be enrolled in the particular course to view the performance. Schools must take measures to prevent reception by others who are not enrolled. Whether the transmission is to the campus only or is beyond, it must be limited to students enrolled in the course. Another important condition is that only reasonable and limited portions of a video may be performed without obtaining permission from the copyright holder.
If the school wishes to stream entire motion pictures, it must seek permission and should specify whether recipients are enrolled in the specific course, whether the stream is to be available to the entire campus, or whether it is to be shown beyond the campus. Royalty fees probably would vary depending on the answers to these questions.