Is the library without walls on a collision course with the 1976 copyright act?

Law Library Journal

Volumn 85, Issue 3, 1993, Pages 619-642

  Jensen, Mary Brandt ^a  

^a UNIVERSITY OF SOUTH DAKOTA   (United States)

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EID: 21344489728     PISSN: 00239283     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (113)

1. See, e.g., Sally W. Kalin & Roy Tennant, Beyond OPACS . . . The Wealth of Information Resources on the Internet, DATABASE, Aug. 1991, at 28.
2. See also Jon Van, International Affairs Library Is Trading Paper for Laser Disc, CHI. TRIB., Mar. 17, 1991, at C8;
3. Susan A. Motley, Optical Disc Technology and Libraries: A Review of the 1989 Literature, CD-ROM LIBR., May 1990, at 11;
4. Emily G. Fayen, Beyond Technology: Rethinking "Librarian," 17 AM. LIBR. 240 (1986).
5. Desktop scanning systems are now available for less than $2,000, and high-end large-format scanners can be bought for less than $15,000. John Gantz, Scanning a Hot Market, COMPUTER GRAPHICS WORLD, Sept. 1991, at 27.
6. Many librarians agree with this thesis. See Eldred Smith, Resolving the Acquisitions Dilemma: Into the Electronic Information Environment, 52 C. & RES. LBR. 231, 238 (1991);
7. Mary K. Duggan, Copyright of Electronic Information: Issues and Questions, ONLINE, May 1991, at 20.
8. There is no limitation on how far the extension program is from the main campus. Czeslaw Jan Grycz of the University of California taught a course in the fall of 1991 via the Internet. Some of the students enrolled were in Europe. News bulletin of the Berkeley/Wroclaw Cooperative Assistance Program for Poland (May 25, 1991).
9. The two greatest impediments to amassing large collections have been the size of acquisitions budgets and the amount of space needed to store all the works acquired. To some extent, technology can address at least the space problem. Microforms require less space than print materials, and electronic storage requires even less space than microforms. A single 5-inch CD-ROM disc can hold as much as 250,000 pages of text. Sony Laser Library System Uses Multimedia Compact Disc to Bring Facts and Fun to PC and Home Computers, PR Newswire, Aug. 27, 1991, available in LEXIS, Nexis Library, PR News File. At 24X reduction, it would take approximately 2,600 sheets of fiche to hold the. same amount of text as one 5-inch CD-ROM disc.
10. The amount of recorded literature doubles every 15 to 17 years. Duggan, supra note 3, at 22.
11. Some libraries have experimented with such projects. Letter from Maria E. Protti, Interim Director of the Law Library, University of Oklahoma, to Mary Brandt Jensen, Director of the Law Library, University of South Dakota (July 11, 1990);
12. Message from Lorcan Dempsey, Center for Bibliographic Management, University of Bath, to PACS-L Computer Conference on the Enhanced Record Project at Bath University (Aug. 23, 1990) (available from LISTSERV®UHUPVMI.BITNET) ;
13. Message from Antonio Mendoza, Biblioteca, Universidad de las Americas, to PACS-L Computer Conference on Scanning Text (Jan. 4, 1991) (available from LISTSERV@UHUPVMI.BITNET).
14. quot;[A] 'display' would include the . . . showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system." H.R. REP. No. 1476, 94th Cong., 2d Sess. 64 (1976).
15. Reciting a work constitutes a performance even if it is done by means of a machine. 17 U.S.C. § 101 (1988) (defining "perform").
16. See H.R. REP. NO. 1476, supra note 8, at 63.
17. Performances and displays that occur in libraries seem to fit the definition of public performances and displays. See James S. Heller, The Public Performance Right in Libraries: Is There Anything Fair About It?, 84 LAW LBR. J. 315, 319-20 (1992).
18. But cf. Mary Hutchings Reed & Debra Stanek, Library and Classroom Use of Copyrighted Videotapes and Computer Software, 17 AM. LIBR. insert after 120 (1986);
19. Debra J. Stanek, Videotapes, Computer Programs, and the Library, 5 INFO. TECH. & LIBR. 42 (1986);
20. MARY HUTCHINGS REED, THE COPYRIGHT PRIMER FOR LIBRARIANS AND EDUCATORS 33 (1987). Whether a public performance or display occurs when a patron accesses something in the collection of a library without walls using a computer located in a private home or office probably depends upon whether the patron is accessing material from an area of the library's computer that is generally available to other patrons or from a private area of the library computer.
21. If the patron is accessing material from an area of the library computer generally available to other patrons, the display or performance is probably public because it is transmitted to a member of the public-even if it is viewed only by a single patron at home-because members of the public are capable of receiving the performance or display "in the same place or in separate places and at the same time or at different times." 17 U.S.C. § 101 (1988). Even if the display or performance emanates from a private area of the library's computer, it may still be a public display if it occurs on a screen located in an office or other place (such as an airport or building lobby) that is "open to the public or . . . where a substantial number of persons ... is gathered." Id. The legislative history and case law make it clear that it is the character of the place where the performance or display occurs that matters, not how many people actually see it.
22. Debra J. Stanek, Videotapes, Computer Programs, and the Library, 5 INFO. TECH. & LIBR. 42 (1986); MARY HUTCHINGS REED, THE COPYRIGHT PRIMER FOR LIBRARIANS AND EDUCATORS 33 (1987). Whether a public performance or display occurs when a patron accesses something in the collection of a library without walls using a computer located in a private home or office probably depends upon whether the patron is accessing material from an area of the library's computer that is generally available to other patrons or from a private area of the library computer. If the patron is accessing material from an area of the library computer generally available to other patrons, the display or performance is probably public because it is transmitted to a member of the public-even if it is viewed only by a single patron at home-because members of the public are capable of receiving the performance or display "in the same place or in separate places and at the same time or at different times." 17 U.S.C. § 101 (1988). Even if the display or performance emanates from a private area of the library's computer, it may still be a public display if it occurs on a screen located in an office or other place (such as an airport or building lobby) that is "open to the public or . . . where a substantial number of persons ... is gathered." Id. The legislative history and case law make it clear that it is the character of the place where the performance or display occurs that matters, not how many people actually see it. See H.R. REP. No. 1476, supra note 8, at 65; Columbia Pictures Industries v. Redd Home, Inc., 749 F.2d 154 (3d Cir. 1984); Columbia Pictures Industries v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986); Columbia Pictures Industries v. Professional Real Estate Investors, 866 F.2d 278 (9th Cir. 1989); On Command Video Corp. v. Columbia Pictures Industries, 764 F. Supp. 1372 (N.D. Cal. 1991).See H.R. REP. No. 1476, supra note 8, at 65; Columbia Pictures Industries v. Redd Home, Inc., 749 F.2d 154 (3d Cir. 1984); Columbia Pictures Industries v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986); Columbia Pictures Industries v. Professional Real Estate Investors, 866 F.2d 278 (9th Cir. 1989); On Command Video Corp. v. Columbia Pictures Industries, 764 F. Supp. 1372 (N.D. Cal. 1991).
23. 17 U.S.C. §110(1).
24. H.R. REP. NO. 1476, supra note 8, at 81;
25. S. REP. No. 473, 94th Cong., 2d Sess. 73 (1976).
26. Section 101 states that to "'transmit' a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." 17 U.S.C. § 101. The legislative history states: The definition of "transmit" ... is broad enough to include all conceivable forms and combinations of wired or wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which images or sounds comprising a performance or display are picked up and conveyed is a "transmission,"and if the transmission reaches the public in [any] form, the case comes within the scope of clauses (4) or (5) of section 106. H.R. REP. No. 1476, supra note 8, at 64; S. REP. No. 473, supra note 12, at 61. The legislative history of section 110 makes it clear that if the work being displayed or performed is located outside the classroom or other similar place where the students are gathered to view the work, a transmission occurs when the work is projected into the place where the students are located. H.R. REP. No. 1476, supra note 8, at 81; S. REP. No. 473, supra note 12, at 73.
27. Section 110(2) applies only to government bodies and nonprofit educational institutions. It does not authorize any public performances or displays by libraries or patrons of libraries associated with other types of institutions. See also Heller, supra note 11, at 324 n.54.
28. 17 U.S.C. §110(2)(A).
29. H.R. REP. No. 1476, supra note 8, at 83; S. REP. NO. 473, supra note 13, at 75.
30. 17 U.S.C. §110(2)(B).
31. Id. §110(2)(C).
32. Id. § 110(2)(C)(i).
33. H.R. REP. No. 1476, supra note 8, at 82.
34. A library in an educational institution is a similar place devoted to instruction. H.R. REP. No. 1476, supra note 8, at 82; S. REP. No. 473, supra note 13, at 74. By analogy to this and other examples in the legislative history, the library's computer is probably also a similar place of instruction.
35. 17U.S.C. § 110(2)(C)(ii).
36. H.R. REP. No. 1476, supra note 8, at 84; S. REP. NO. 473, supra note 13, at 76.
37. 17 U.S.C. §110(2).
38. Id.
39. The nonsequential showing of images from an audiovisual work is a display, and thus, is permitted. Id. § 101.
40. Id. §110(5).
41. H.R. REP. NO. 1476, supra note 8, at 86-87.
42. See, e.g., id. at 47, 51, 52, and 66.
43. 17 U.S.C. §110(5)(A).
44. Id. § 110(B).
45. Dumb terminals directly connected to the system or PCs networked directly to the system might not be the kind of equipment commonly found in the home.
46. Subsection (3) of 110 is limited to performances of nondramatic literary or musical works and dramatico-musical works of a religious nature performed in the course of services at a place of worship or other religious assembly. Subsection (4) authorizes nonprofit performances of nondramatic literary and musical works under certain conditions provided that the performance is not transmitted to the public. Subsection (6) covers certain performances in the course of agricultural and horticultural fairs. Subsection (7) permits certain performances of nondramatic musical works as part of the process of selling phonorecords and sheet music. Subsections (8) and (9) cover certain performances in the, process of transmissions directed at handicapped individuals. Subsection (10) permits performances of nondramatic literary or musical works in the course of certain social events organized and promoted by nonprofit veterans and fraternal organizations.
47. 17U.S.C. § 111(b)(3).
48. Id. § 111(b). Since transmissions from password-protected databases are not intended for reception by the general public, retransmission of material from such databases would not be covered by this section.
49. Id. § 109(c).
50. Id.
51. H.R. REP. NO. 1476, supra note 8, at 80.
52. Id.
53. Id. § 107.
54. See 2 PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLES, LAW AND PRACTICE § 10.1.1 (1989). See also the discussion in the conclusion of this article.
55. See COPYRIGHT OFFICE STUDY NO. 15, 86TH CONG., 2D SESS.: PHOTODUPLICATION OF COPYRIGHTED MATERIALS BY LIBRARIES 49 (Comm. Print 1960) (by Borge Varmer) [hereinafter VARMER].
56. NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT 41-42 (1979) [hereinafter CONTU FINAL REPORT].
57. 17 U.S.C. § 108(0.
58. See Duggan, supra note 3, at 21.
59. Some libraries require intervention by librarians before patrons can print on their LEXIS/ NEXIS and WESTLAW stand-alone printers. Some online library systems, such as PALS, require staff validation before searches can be printed.
60. 17 U.S.C. § 108(d).
61. Id. § 108(d) & (e).
62. Id.
63. Id.§ 108(e).
64. MELVILLE B. NIMMER, NIMMER ON COPYRIGHT §§ 8.03[E][l][c] & 8.03[E][2] (1978).
65. See David Ensign, Copyright Consideration for Telefacsimile Transmission of Documents in Interlibrary Loan Transactions, 81 LAW LIBR. J. 805 (1989).
66. Workstations in the new science building at Berkeley are equipped with fax boards, which are capable of receiving fax copies of documents. The AT&T library also delivers documents electronically to research workstations, although much of its document delivery must be licensed through the Copyright Clearance Center because of the commercial nature of AT&T. See Duggan, supra note 3, at 21.
67. H.R. REP. NO. 1476, supra note 8, at 78-79.
68. Sections 108 and 109 are the only limitation sections that specifically mention public distribution. Section 109 authorizes the owner of a copy lawfully made under the Copyright Act to sell or otherwise dispose of possession of that particular copy. Section 109 applies only to the particular copy a library owns. It does not authorize any form of distribution in which an additional copy is made, as is usually the case with electronic distribution. In addition, a copyright holder may eliminate the section 109 distribution authorization entirely by leasing or licensing a copy of a work instead of selling it to a library. In fact, nearly all electronic works are licensed rather than sold, making section 109 inapplicable to them. Section 108 gives a library the right to distribute a copy lawfully made under that section. Although it does not contain the "particular copy" language of section 109, it does contain a provision allowing copyright owners to modify its effects by contract. Thus, copyright holders can (and often do in the case of electronic works) place contractual limitations upon the library's right to publicly distribute the work as a condition of providing a copy for the library's collection.
69. See NIMMER, supra note 52, § 8.03 n.l.
70. Distribution may be permitted under fair use even if it requires the reproduction of another copy to complete the distribution process, provided that the additional copy does not materially alter any factors that made the first copy a fair use. See generally Ensign, supra note 53, at 809-10.
71. See VARMER, supra note 43, at 49.
72. Section 109 gives the owner of a particular copy, such as a library, the right to sell or otherwise dispose of possession of that copy or phonorecord. Lending of the physical copy is a form of disposition of possession of the copy or phonorecord and, thus, is permitted. The limitations on this right for sound recordings and computer programs contain provisions that allow libraries to continue to lend these materials as well. 17 U.S.C. § 109(a) & (b)(1).
73. Those circumstances are discussed supra part III.B.
74. 17 U.S.C. § 108(g).
75. Id. § 108(g)(2).
76. CONTU FINAI REPORT, supra note 44, at 55.
77. Id.
78. 17 U.S.C. § 108(g)(2).
79. H.R. CONF. REP. NO. 1733, 94th Cong., 2d Sess. 72 (1976).
80. See discussion supra part III.B.
81. See supra note 60.
82. See H.R. REP. NO. 1476, supra note 8, at 78.
83. S. REP. 473, supra note 13, at 70.
84. The reproduction necessary to perceive the contents of the work should be considered a fair use. See supra part III.A.4.
85. ROBERT L. OAKLEY, COPYRIGHT AND PRESERVATION: A SERIOUS PROBLEM IN NEED OF A THOUGHTFUL SOLUTION 6 (1990).
86. Reproduction means "produc[ing] a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be 'perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.'" H.R. REP. No. 1476, supra note 8, at 61 (quoting 17 U.S.C. § 101). Electronic versions of works must be fixed on some form of magnetic, optical, or other media somewhere for patrons to access them. They are also capable of being perceived, reproduced, and communicated, and thus, they are copies.
87. H.R. REP. No. 1476, supra note 8, at 73.
88. 17 U.S.C. § 108(b)-(c).
89. See H.R. REP. No. 1476, supra note 8, at 75. See also S. REP. NO. 473, supra note 12, at 68.
90. 17 U.S.C. § 108 (g).
91. See OAKLEY, supra note 73, at 24-29.
92. H. R. REP. NO. 1476, supra note 8, at 73; S. REP. NO. 473, supra note 13, at 66.
93. See, e.g., Salinger v. Random House, 811 F.2d 90, 99 (2d Cir. 1987); American Geophysical Union v. Texaco, 802 F. Supp. 1, 19 (S.D.N.Y. 1992).
94. De minimis portions of works, such as titles, are not in themselves copyrightable subject matter. See LATMAN'S THE COPYRIGHT LAW 45 (William F. Patry ed., 6th ed. 1986);
95. NIMMER, supra note 52, § 2.16. Nor can facts, in themselves, be the subject of copyright. See NIMMER, supra note 52, § 2.11. The name of the author, the name of the publisher and the date of publication are facts relating to the particular work and are not, in themselves, copyrightable. See also WILLAM F. PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW 399 (1985).
96. The legislative history states that a summary of an address or article is a fair use. See H.R. REP. NO. 1476, supra note 8, at 65; S. REP. No. 473, supra note 13, at 61. Since a description of the author, title, and publication information on a work is so much less than a summary, it should also be considered a fair use.
97. Ideas are not copyrightable. See H.R. REP. No. 1476, supra note 8, at 56; S. REP. No. 473, supra note 13, at 54;
98. NIMMER, supra note 52, § 2.03[D]. Nor are facts copyrightable. NIMMER, supra note 52, §2.11 [A].
99. See PATRY, supra note 82, at 398-99.
100. See H.R. REP. NO. 2237, 89th Cong., 2d Sess. 54 (1966).
101. See PATRY, supra note 82, at 399.
102. See supra note 7.
103. Some experts believe that the prohibition against systematic copying in section 108(g)(2) prohibits all systematic copying by libraries. Under this analysis, they believe that the systematic copying of tables of contents is prohibited. This author and other experts believe that this is an incorrect interpretation. The House Conference Report states, "[The Senate Bill] . . . made clear that the privileges of a library or archives under the section do not apply" where the reproduction or distribution is of multiple copies or is 'systematic'." H.R. CONF. REP. NO. 1733, supra note 67, at 70-71. However, it goes on to state that it adopts the House version of 108(g), and the discussion of systematic copying in the House Report starts with the phrase, "With respect to material described in subsection (d). . . ." H.R. REP. NO. 1476, supra note 8, at 77. Furthermore, the actual language of section 108(g)(2) only prohibits systematic copying of the type described in section 108(d)-copies requested by patrons of articles or other contributions to copyrighted collections or small parts of other copyrighted works. Since the copying of tables of contents into bibliographic records in information storage and retrieval systems is not copying at the request of a patron, it is not covered by section 108(d). Since this type of copying is not covered by subsection (d), systematic copying of this sort is not automatically prohibited by subsection (g)(2), but neither is it authorized by section 108. Such copying is permissible if it falls within the bounds of fair use. Compare OAKLEY, supra note 73, at 29; Comments of Laura Gasaway and Ross Cherup, on Tapes of Copyright Workshop held by the Southeastern Association of Law Libraries (Mar. 14, 1991); Message from Laura Gasaway to CNI-COPYRIGHT Computer Conference (Nov. 4, 1992) (available from LISTSSERV@ CNI.ORG).
104. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 455 n.40 (1984). See also NIMMER, supra note 52, § 13.05[A].
105. See 464 U.S. at 448-49. See also NIMMER., supra note 52, § 13.05[A].
106. See NIMMER, supra note 52, § 13.05[A][2].
107. Blackwell North American is adding tables of contents to some of its databases. When. representatives were asked at the 1992 Mid-American Association of Law Libraries Conference whether they had asked permission from publishers to do this, they replied that they had consulted a sampling of publishers, most of whom thought that it would help the potential market for their works.
108. COPYRIGHT LAW REVISION PART 4: FURTHER DISCUSSIONS AND COMMENTS ON PRELIMINARY DRAFT FOR REVISED U.S. COPYRIGHT LAW, 88th Cong., 2d Sess. 269 (Comm, Print 1964).
109. The Library of Congress gave up trying to track down the copyright holders of all the works that it microfilms as part of its preservation projects. They found searches of the Copyright Office records to be time-consuming and unreliable. See OAKLEY, supra note 73, at 38.
110. See Duggan, supra note 3, at 22-23.
111. H.R. REP. No. 1476, supra note 8, at 89.
112. While the number of publishers represented by the Copyright Clearance Center is growing, it is far from comprehensive. See OAKLEY, supra note 73, at 45. Furthermore, the CCC does not generally license electronic rights. Although the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) include most copyrighted musical works in their repertoire, they license only nondramatic performing rights and do not cover'dramatic performances or the right to reproduce musical works.
113. See NEIL BOORSTYN, COPYRIGHT LAW § 5.42 (1981). There is no similar organization covering reproduction of motion pictures or other nonprint works. 99. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932). · 100. While authors are entitled to prevent first use of their works by preventing publication and to compensation for uses of their works in excess of fair use, they are not necessarily entitled to prohibit further compensated use of their works. At least in cases where compulsory licenses exist, copyright holders have little or no right to prohibit further compensated uses of their works after publication.