The Librarian's Copyright Companion/Chapter 1

by James S. Heller, Paul Hellyer, and Benjamin J. Keele

Chapter One

General Principles

The Bureau of National Affairs (BNA), a major legal publisher, puts this warning in many of their publications:

Photocopying any portion of this publication is strictly prohibited unless express written authorization is first obtained from BNA Books … Authorization to photocopy items for internal or personal use, or the internal or personal use of specific clients, is granted by BNA Books for libraries and other users registered with the Copyright Clearance Center (CCC) … provided that $1.00 per page is paid directly to CCC …

We didn’t ask BNA for permission to reprint their copyright statement, nor did we pay anything for it. But we’re not worried about being sued. Under the fair use doctrine, copyright law allows authors to quote each other for purposes of criticism.^[1] So here’s our criticism of BNA’s warning: although it may be an accurate statement of BNA’s wishes, it’s not an accurate statement of the law. Users are often allowed to copy portions of copyrighted material without permission; our use of BNA’s copyright statement is just one example. And if you don’t need permission, you don’t need to pay $1.00, or any amount, to the Copyright Clearance Center.

Statements like BNA’s are not uncommon. Publishers and pro-publisher organizations routinely make overreaching statements about copyright law. As you may have already guessed, our book is not written from the publishers’ perspective. It’s written by librarians, for librarians.

If you believe that access to information and creative works ought to be a privilege rather than a right, you probably wouldn’t have picked up this book. Librarians like to share intellectual property. That’s our job. This creates some tension between copyright law and the work that librarians do. We should stay within the law, but that doesn’t mean surrendering to publisher scare tactics. In this book, we’ll show you how to do your job while staying within the boundaries of copyright law.

Copyright Defined

1.1. Copyright

• Exclusive Rights
• Original Work
• Specified Time

First things first. The Copyright Act begins with definitions of about fifty words and phrases, but not the word “copyright.”^[2] Subject to some limitations, a copyright is the exclusive ownership of and right to make use of an original literary, musical, or artistic work for a specified period of time.

Copyright is one part of what is called “intellectual property”, which also includes patents, trademarks, and trade secrets. Like copyrighted materials, patents and trademarks are protected by federal law. Patents apply to useful inventions (such as drugs or computer chips), while trademarks are names or logos used to market goods or services (such as Coca-Cola or Kleenex). State and federal laws protect a company’s trade secrets (such as Coca-Cola’s formula for Coke). Because patents, trademarks, and trade secrets have little impact on librarians’ work, the subject of our book is limited to copyrights.

The Copyright Act

1.2. U.S. Constitution, Article I, Section 8, Clause 8 Congress may “promote the progress of science and the useful arts by securing for a limited time to authors and inventors the exclusive right to their writings and discoveries.”

Copyright protection does not just “happen.” The U.S. Constitution authorizes Congress to pass copyright legislation,^[3] and Congress has enacted legislation pursuant to that authorization. The Copyright Act of 1976^[4]—the legislation now in force in the United States—was the first complete revision of our federal copyright statute since 1909.

Congress recognized as early as the 1950s that the 1909 Act was outdated. But Congress, as we know, usually moves more at the speed of the tortoise than the hare. The 1976 Act, which took more than twenty years to pass, was only the fourth major revision of our federal copyright statute since the first such Act was passed in 1790,^[5] the others occurring in 1831,^[6] 1870,^[7] and 1909.^[8]

In drafting the 1976 Act, Congress tried to balance the often competing interests of copyright owners and those who use copyrighted works. Input from creators, publishers, educators, librarians, and other interested parties resulted in an Act one commentator called “a body of detailed rules reminiscent of the Internal Revenue Code.”^[9]

But we are not given detailed rules for everything. Occasionally Congress gave us guidelines, such as those for classroom copying and off-air taping, rather than legislation. Although not part of the Act, some guidelines were included in its legislative history and have been cited by courts attempting to interpret Congressional intent. Additionally, some provisions of the Act were intentionally left ambiguous to allow for later interpretation by the courts.

Congress recognized the needs of educators, scholars, and librarians in the 1976 Act, although not always to their satisfaction. Teaching, scholarship, and research are specifically mentioned in section 107, the fair use provision. Library copying is addressed in section 108. Certain public performances for instructional purposes are permitted under section 110, which was amended to address distance education in the 2002 TEACH Act. Each of those sections is discussed in greater detail later in this book.

The 1976 Act also created a single structure of copyright, one which is governed by federal law. This means that if you research a copyright question, you need only use federal sources of law such as the United States Code and decisions from federal courts.

Copyright does not place an author’s work in a lockbox. The primary purpose of copyright is not to compensate creators. The U.S. Supreme Court has stated, many times, that copyright is a means to a greater societal end: the dissemination and promotion of knowledge.^[10] As librarians, we promote the dissemination of knowledge. With this in mind, when there is a close call whether a certain use is or is not allowed, we tend to resolve the answer in favor of the library or the user, rather than the copyright owner.

Organizations that represent publishers and other copyright owners, such as the CCC and the Association of American Publishers (AAP), take a more restrictive view of user rights. When you read statements from organizations representing publishers and copyright owners about permissible uses of copyrighted works, remember whence they came.

Copyrightable Works

1.3. Section 102
Copyrightable Works

• Literary works
• Musical works
• Dramatic works
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Architectural works

If the work is original, and fixed in any tangible medium of expression

But not ideas, procedures, processes, systems, concepts …

Copyright protection is very broad. The Copyright Act provides that a wide array of works may be copyrighted, as long as they are “original” and “fixed in any tangible medium of expression.”^[11] “Original” means that the work was independently created by the author (not copied from another source) and has at least a minimal level of creativity.^[12] Only the parts of a work that are original are subject to copyright protection.^[13]

There must also be an expression for copyright to attach. This is often called the idea/expression dichotomy: Only the expression of an idea is protected by copyright, not the idea by itself.^[14] For example, you cannot copyright the idea of a romance between a northern gunrunner and a southern belle in the post-Civil War South, but Margaret Mitchell could copyright the expression of that idea in her novel Gone With The Wind.

Because procedures or methods of operation are not subject to copyright protection, something like a simple recipe cannot be copyrighted.^[15] A Julia Child cookbook that includes recipes, descriptive text, and illustrations (and presumably many calories), however, is copyrightable. If you doubt whether a computer program is an unprotected method of operation or instead protected expression, remove the doubt: Computer programs may be protected by copyright.^[16]

Copyright is available only for works “fixed in a tangible medium of expression.”^[17] Fixation occurs when the embodiment of the work “is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”^[18] Fixation is easily accomplished. The legislative history to the 1976 Act notes the breadth of Congress’s intent:

Under the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device ‘now known or later developed.’^[19]

In other words, text, images, and graphics—essentially anything we can see in print, on a television screen, on an iPad, or in some other medium—are sufficiently “fixed” to be copyrighted.

A helpful guide from the U.S. Copyright Office lists several categories of works generally not eligible for federal copyright protection for the reasons outlined above:

• Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents;
• Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; and
• Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).^[20]

One other category that should be added is impromptu speeches or presentations. The written version of a speech will be protected because it meets the fixation requirement, but the speech itself will not be protected under the Copyright Act unless it was taped or otherwise “fixed” by the speaker or someone authorized by the speaker.^[21]

Although the works mentioned above are not copyrightable, they may be subject to other types of legal protection, such as patent, trademark, trade secret, or unfair competition law.

Copyright Notice

A copyright notice is not necessary for a work to be copyrighted.^[22] Copyright attaches automatically when an original work is created. A work is created “when it is fixed in a copy or phonorecord for the first time.”^[23]

There are advantages to including a copyright notice. First, the notice identifies the copyright owner and indicates the date the work was published. Second, it informs the public that the work is protected. Third, the notice makes it difficult for a defendant in an infringement suit to claim that he or she was an innocent infringer—someone who was not aware and had no reason to believe that his or her acts were infringing. This is important for copyright owners, for a court may reduce statutory damages if the infringer was an “innocent” infringer.^[24]

The Copyright Act specifies the form and position of the copyright notice for “visually perceptible copies,” which are those that can be seen or read. The notice must be “affixed to the copies in such a manner and location as to give reasonable notice of the claim of copyright,”^[25] and should include the following elements:

• the symbol © or the word “Copyright,” or the abbreviation “Copr.”;
• the year of first publication of the work; and
• the name of the copyright owner.^[26]

Although copyright notices provide important information, watch out for notices that try to tell you what you cannot do, like the notice from BNA that we printed at the beginning of this chapter. Here’s another one that appears on the verso of the title page of Haynes Johnson’s The Best of Times: American in the Clinton Years:

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher.

This notice suggests that you cannot copy anything from this book. That is not true. A simple copyright notice cannot dilute your rights. You do not agree to be bound by a copyright notice simply by buying a book. You will honor binding contracts—usually for digital products—to which you have agreed. But just because a copyright notice says “you cannot do this” does not mean that you can’t.

On the other hand, some publications expressly permit certain copying without payment of fees. Most scholarly journals published by U.S. law schools have a notice similar to the one you find in the William and Mary Law Review:

Copyright © 2012 by the William and Mary Law Review. Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made available for classroom use, provided that (1) the copies are distributed at or below cost, (2) the author and the William and Mary Law Review are identified, (3) proper notice of copyright is affixed to each copy and (4) the William and Mary Law Review is notified of the use.

Broader and more specific is the notice in The Journal of Economic Literature and the publications of the American Economic Association:

Permission to make digital or hard copies of part or all of this work for personal or classroom use is granted without fee provided that copies are not distributed for profit or direct commercial advantage and that copies show this notice on the first page or initial screen of a display along with the full citation, including the name of the author. Copyrights for components of this work owned by others than AEA must be honored. Abstracting with credit is permitted. The author has the right to republish, post on servers, redistribute to lists and use any component of this work in other works. For others to do so requires prior specific permission and/or a fee.

The Bottom Line: First, assume that a work is protected by copyright—even if it does not include a copyright notice—unless you know it’s in the public domain. Second, copyright notices that purport to tell you what you may or may not do can’t limit your fair use rights or other rights under the Copyright Act, but they may allow you to do more than the law would otherwise permit. Third, if you agree by contract not to use a work in a particular way, you will abide by the contract.

Works in the Public Domain

1.4. Works in the Public Domain

• Materials never were copyrighted
• Copyright has expired
• Works of the U.S. government
• Laws of state and local governments

Works in the public domain are not protected by copyright. When a work is in the public domain—or if it is protected by copyright but the use is allowed under the Copyright Act—you do not have to receive permission, or pay royalties, to use it. Works in the public domain include those that never were copyrighted, works in which copyright has expired, and works of the United States government.

Under the Act, works of the U.S. government—any work prepared by an officer or employee of the federal government as part of his or her official duties—may not be copyrighted.^[27] Although this appears straightforward, there are some possible twists, such as works prepared for the government under contract, and copyrighted works included in government publications.

Whether a work prepared by an independent contractor under a federal contract or grant is copyrightable generally depends on the terms of the contract between the government and the contractor. The status also may be governed by legislation or agency regulations.^[28] Therefore, even though a work prepared by the RAND Corporation under a government contract may have been funded with taxpayer dollars (which one might think should place it in the public domain), it may be protected by copyright if the contract or a federal statute or regulation so provides.

A copyrighted work does not lose its copyright status just because it is included in a work of the U.S. government. For example, a senator wants to include in the Congressional Record a copyrighted poem written by one of his constituents. As a work of the federal government, the Record is not protected by copyright. However, the poem does not lose its copyright protection because it is reprinted in the Record.

Conversely, a non-copyrightable governmental work that is reprinted by a private publisher, or a portion of a governmental work included in a privately created work, does not lose its public domain status.^[29] For example,

• A publisher who reprints all of the federal statutes dealing with public education cannot claim copyright in the text of the laws.
• A publisher who reprints a report by the U.S. Surgeon General cannot claim copyright in the text of the report.
• A publisher who includes in its newsletter proposed and enacted federal regulations from the Federal Register and the Code of Federal Regulations cannot claim copyright in the text of the regulations.

Some materials published by state or local governments—unlike works of the federal government—may be copyrighted.^[30] This means that a report published by a state department of transportation may be protected. As more and more states place more and more information on their websites, states are publicizing their perceived intellectual property rights. For example, here is what the state of Florida writes about its “MyFlorida” website:

MyFlorida.com is owned and operated by THE STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES (referred to as “DMS” herein). No material from MyFlorida.com or any Web site owned, operated, licensed or controlled by THE STATE OF FLORIDA or DMS may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Materials may be downloaded on any single personal computer, for non-commercial use only providing all copyright and other proprietary notices are kept intact. Modification of the materials or use of the materials for any other purpose is a violation of THE STATE OF FLORIDA and DMS’s copyright and other proprietary rights. For purposes of this Agreement, the use of any such material on any other Web site or networked computer environment is prohibited. All trademarks, service marks, and trade names are proprietary to THE STATE OF FLORIDA and DMS.^[31]

Who are these Cocoanuts? The State of Florida claims copyright not only in its website as a compilation (discussed below), but in all of the materials in the website. That is simply incorrect. State or local governmental works such as court decisions, statutes, regulations, ordinances, and attorney general opinions—in other words, the law—may not be copyrighted.^[32]

Some words of caution: Although judicial decisions are not protected by copyright, two federal appeals courts had differing conclusions as to whether a publisher may claim copyright in a compilation of court decisions that are published as case reporters. In 1986, the U.S. Court of Appeals for the Eighth Circuit held that West Publishing Company’s arrangements of judicial decisions in its reporters were original works of authorship entitled to copyright protection.^[33] But a decade later, the Second Circuit came to the opposite conclusion when it held that West Publishing could not claim copyright in the arrangement of its reporters because it lacked the creativity necessary for copyright protection.^[34]

It seems clear that court records—the oral or written transcript of the trial proceedings—are in the public domain.^[35] It appears that briefs submitted by attorneys to federal or state courts also may be freely copied; while no case has squarely decided the issue, at least two courts have indicated that court briefs enter the public domain when they become part of the judicial record.^[36] In fact, briefs are commonly copied into microformat, and are digitized and made freely available on many websites.

Statutes and ordinances that emanate from state or local governments are not copyrightable. It is unclear, however, whether a privately published, subject-arranged compilation of state statutes or local ordinances—in other words, a “code”—is in the public domain.^[37] Furthermore, it remains an open question whether statutes or administrative codes prepared by private entities (such as a building code) that are subsequently adopted by a state or local government enter the public domain when they are adopted into law.^[38]

You may copy sections from a federal, state, or local code. It does not matter if you are a student, a teacher, or an attorney who charges $300 an hour. You also may copy sections from a privately prepared federal, state, or local code, for the law is not protected by copyright. But do not copy or scan an entire volume of a privately prepared code for any purpose—even an educational one—without permission. Remember that codes produced by private sector publishers (in the United States this generally is Lexis and West) include copyrightable information such as references, research aides, notes, and case summaries.

What about using photographs or scans that someone else has taken of works in the public domain? Do you need to get permission from the photographer or scanner to use their work? It depends. If a photographer takes a shot of the Venus de Milo, the photograph will almost certainly be protected by copyright, even though the sculpture itself is in the public domain. On the other hand, if a researcher scans a page from the Congressional Record, that scan almost certainly does not count as a copyrightable work. It’s just a copy, which the public is free to use without permission.

What’s the difference? A photograph of a sculpture involves some creativity in selecting the lighting, angle, exposure and so on. Conversely, scanning the Congressional Record is a mechanical process devoid of creativity, and so the scan doesn’t qualify as an original work of authorship under Section 102. This doesn’t mean that photographs of public domain works are always copyrightable and scans never are.^[39] It means you have to consider the facts of each case. If in doubt, create your own photograph or scan of the public domain work instead of using someone else’s.^[40]

Compilations and Collective Works

1.5. Section 103 Compilations
and Derivative Works

• Protection for original material contributed by the author
• Independent of and does not affect copyright status of pre-existing material

Copyright in compilations and collective works is a bit different from copyright in an individual work such as an article or a novel. Under the Copyright Act, a collective work is “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.”^[41] A compilation is “a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”^[42]

There are two possible levels of protection for collective works. Take, for example, a compilation of twentieth-century poetry. Let’s call it The 100 Best Poems of the 20th Century. The underlying materials—each individual poem—are protected by copyright. Furthermore, the entire work also may be protected as a copyrightable compilation if the editor exhibited sufficient skill and judgment selecting, organizing and arranging the poems. Here, copyright will extend only to the original material contributed by the editor: the selection and arrangement of the underlying content. Under the Act

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.^[43]

This means that if you want to copy one of the poems from the anthology, then you will need permission from the person who holds copyright in the poem, unless the use is otherwise permitted under the Copyright Act as, say, a fair use. If The 100 Best Poems of the 20th Century is also protected as a compilation, someone who wants to copy a significant number of its poems may need to get permission from whomever has copyright in it as a compilation, generally the editor or the publisher.

If the compilation consists of underlying material that is in the public domain, such as facts, the facts are not protected. Here copyright protection exists, if at all, in the particular selection or arrangement, not in the underlying content. For example, both Guinness World Records and The World Almanac and Book of Facts may record that Mt. Everest, at 29,035 feet, is the highest place on earth. The copyright owners of these two compilations cannot protect this information, nor any other facts in their almanacs. They may, however, copyright their works as compilations, where protection extends to the selection and arrangement of the facts in their respective publications.

Not all compilations may be copyrighted, however. Take, for example, the common white pages telephone directory. In Feist Publications, Inc. v. Rural Telephone Service,^[44] the U.S. Supreme Court ruled that a garden-variety white pages telephone directory contained so little creativity in selecting, arranging or coordinating the unprotected underlying facts that it could not be copyrighted as a compilation. The Feist decision discredited what is called the “sweat of the brow” doctrine: effort alone will not make a work copyrightable. The Court made it clear that compilations require a certain level of creativity to be afforded copyright protection: the creator must exercise some skill and discretion in selecting and arranging the underlying information.^[45]

Legislative efforts designed to effectively overturn the Feist decision have centered on database protection legislation. In the United States, such legislation was introduced in Congress, but never passed into law.^[46] On the international front, although database protection legislation has not been enacted under the Berne Convention, a European Union directive creates sui generis protection of databases if there was a “substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part.”^[47]

The Bottom Line: You may use the height of Mt. Everest and other facts from Guinness or any other source as much as you want. But if you scan Guinness World Records, rename it My Big Book of Facts, and publish it in print or on the web, you violate Guinness’ compilation copyright.

Duration of Copyright Protection

Section 302 of the Act prescribes the term of copyright protection. Copyright protection lasts much longer today than it did under the original 1790 Copyright Act, which prescribed a term of fourteen years with a possible fourteen-year renewal.^[48] In the period immediately prior to the 1976 Act, copyrights were issued for twenty-eight years, with an option to renew and extend the copyright for an additional twenty-eight-year term.^[49] The 1976 Act changed the way we calculate copyright duration by factoring in the author’s lifespan and eliminating the renewal requirement. In 1998, the Sonny Bono Copyright Term Extension Act further lengthened copyright duration.^[50]

Here are the current terms for the most common types of work published or created after 1978, the effective date of the 1976 Act:

• For a work by a single author, protection lasts for the author’s life plus another seventy years.
• When a work is authored by two or more individuals (called joint authorship), copyright lasts for seventy years after the death of last surviving author.
• Copyright in anonymous works, works by corporate authors, and works made for hire, last for ninety-five years from the year of first publication or 120 years from its creation, whichever expires first.

The length of copyright protection gets more complicated than this, particularly with regard to works created before January 1, 1978. Here are some other terms:

• A work published from 1923 to 1963 and that has a copyright notice is protected for twenty-eight years, with the possibility of an additional sixty-seven years if the renewal option is exercised; if not, the work enters the public domain.
• A work published between 1964 and 1977 is protected, if it had a copyright notice, for ninety-five years from the date of publication.
• A work created before 1978 but not published by 1978 is protected for the author’s life plus seventy years, unless the work was published between 1978 and 2002—in which case the work is protected for the author’s life plus seventy years or through 2047, whichever is greater.

The crucial question for works published between 1923 and 1978 is whether all formalities—copyright notice, registration, and renewal—were fulfilled. Looking for a copyright notice is easy; just examine the work to see if there is a copyright notice anywhere.

Finding out if a work was registered or renewed is a bit trickier. For works published between 1923 and 1963, you need to check if the work was renewed, because if it was registered but not renewed, the copyright has expired. If the work was published in 1964 or later and has a copyright notice, it is going to be under copyright protection for quite some time.

Researching copyright renewals can be challenging, but some useful tools are available. The Copyright Office published the Catalog of Copyright Entries, a set of books containing copyright registrations and renewals. Many of these volumes have been digitized and are available on several web sites.^[51] Search these databases by title and author to see if the copyright of the work you are interested in was renewed. The databases tend to each have parts of the entire set (for instance, all the book renewals for a certain period), so pay attention to their scope.

If you don’t find evidence of the copyright being renewed, then the copyright most likely expired. We say most likely because digitized records are still incomplete and works by foreign authors had their copyrights restored by Congress to comply with the Berne Convention. Copyright Office Circular 22 has some advice and details how to request a search of the Copyright Office’s records.^[52] This is an expensive option, so it should be a last resort.

Unfortunately for users, a work that has fallen into the public domain will not necessarily stay there. In a recent case, the U.S. Supreme Court ruled that Congress can reinstate copyright protection for materials that were previously in the public domain.^[53]

The Bottom Line: Copyright, like the Gary White tune (made famous by Linda Ronstadt), lasts a long, long time. To help you see things more clearly, we offer this simplified chart^[54] and a more detailed chart in Appendix P.

1.6. Section 302
Term of Copyright

Works created in 1978 or later
⁠Personal author	Life of the author plus 70 years
⁠Joint authors	Life plus 70 years after last surviving author’s death
⁠Anonymous or corporate authors or works made for hire	95 years after date of first publication, or 120 years after date of creation, whichever expires first
Published 1964–1977	95 years after date of first publication with © notice
Published 1923–1963	28 years after date of first publication with © notice, plus 67 years if renewed
Published before 1923	In public domain
Created before 1978 and published 1978–2002	Life plus 70 (or 95/120 term) or thru 2047, whichever is greater
Created before 1978 and not published before 2003.	Life plus 70 (or 95/120 term)

International Issues

Intellectual property knows no geographic boundaries. Governing law may include national law (in our case, U.S. law), foreign law, and treaties. Notwithstanding international agreements, each nation creates its own copyright laws.

Many of the recent changes in United States law were enacted to align our laws more closely to the international arena, especially Europe. Examples include eliminating the requirement of a formal “notice of copyright” for a work to be copyrighted and extending the length of time a work is protected.

The United States is a party to two international copyright conventions. The United States ratified the Universal Copyright Convention (UCC),^[55] which is administered by United Nations Educational, Scientific and Cultural Organization (UNESCO), in 1954. In 1988 the U.S. joined the Berne Convention,^[56] which is administered by the World Intellectual Property Organization (WIPO), also a U.N. agency.

The core of these treaties is “national treatment.” A country that belongs to a treaty agrees to protect works prepared in other countries that signed the treaty, as well as works created by authors from those countries, at the same level it protects works created by its own authors.^[57] In a nutshell, this means that a work created by a foreign author who is a national of a country that signed the UCC or Berne convention is protected under U.S. law to the same extent as are works prepared in the United States.^[58] The same is true for works published in those countries. Furthermore, works published by the United Nations and by the Organization of American States also are protected.^[59]

The Berne and UCC treaties do not provide an international forum to resolve disputes between litigants, and the treaties have no enforcement mechanism. Consequently, disputes must be resolved in a nation’s courts. For example, a British author who claims that an American infringed her copyright will litigate her claim in a British or American court, under British or American law.

License Agreements

Finally, let’s acknowledge the elephant in the room: license agreements. Over the past few decades, license agreements have been gradually displacing copyright law. Users and owners of copyrighted material have always been free to alter their copyright rights and responsibilities by mutual agreement. Publishers of print and microform sources rarely use license agreements. But digital publishers are compelled to rely on license agreements, partly because their products are more vulnerable to copying and other misuse, and partly because their users sometimes need rights that copyright law doesn’t provide. As digital sources become more common, books like this one can no longer answer all of your questions about using copyrighted materials—increasingly, you’ll have to look to your license agreements instead of copyright law.

In Chapter Seven, we’ll take a closer look at license agreements and offer some advice on getting an agreement that’s good for your library.

---

1. We discuss fair use in Chapter Four.
2. 17 U.S.C. § 101 (2006).
3. U.S. Const. art. I, § 8, cl. 8.
4. Pub. L. No. 94-553, 90 Stat. 2541 (1976).
5. Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790).
6. Act of Feb. 3, 1831, ch. 16, 4 Stat. 436 (1831).
7. Act of July 8, 1870, ch. 230, 16 Stat. 198 (1870).
8. Act of March 4, 1909, ch. 230, 35 Stat. 1075 (1909).
9. 1 Melville Nimmer, Nimmer on Copyright, Preface to the 1978 Comprehensive Treatise Revision.
10. “The sole interest of the United States and the primary object in conferring the monopoly [i.e., copyright protection] lie in the general benefits derived by the public from the labors of authors.” Fox Films Corp. v. Doyal, 286 U.S. 123, 127 (1932). “[T]he ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). See also United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) (“[C]opyright law … makes reward to the owner a secondary consideration”); Feist Publ’ns v. Rural Tel. Serv., 499 U.S. 340, 349 (1991). Congress has made similar statements. Working on the Berne Convention Implementation Act of 1988, the House Judiciary Committee wrote, “The primary objective of our copyright laws is not to reward the author, but rather to secure for the public the benefits from the creations of authors.” H.R. Rep. No. 100-609, at 22 (1988).
11. 17 U.S.C. § 102(a) (2006).
12. Feist Publ’ns v. Rural Tel. Serv., 499 U.S. 340, 345 (1991) (“The requisite level of creativity is extremely low; even a slight amount will suffice.”).
13. Id. at 348.
14. 17 U.S.C. § 102(b) (2006); SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1263–64 (11th Cir. 2001); Ho v. Taflove, 648 F.3d 489, 497–98 (7th Cir. 2011).
15. 17 U.S.C. § 102(b) (2006).
16. Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 400 (Sth Cir. 2000); Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 838 (Fed. Cir. 1992).
17. 17 U.S.C. § 102(a) (2006).
18. Id. § 101.
19. H.R. Rep. No. 94-1476, at 52 (1976).
20. U.S. Copyright Office, Circular 1: Copyright Basics (revised Aug. 2010).
21. 17 U.S.C. §§ 101, 102 (2006).
22. Id. §§ 401–405.
23. The U.S. Copyright Office writes:

    “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or vinyl disks. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both.

    U.S. Copyright Office, Circular 1: Copyright Basics (revised Aug. 2010).

24. 17 U.S.C. § 504(c)(2) (2006).
25. Id. § 401(c).
26. Id. § 401(b).
27. 17 U.S.C. § 105 (2006).
28. H.R. Rep. No. 94-1476, at 59.
29. See Building Officials & Code Adm’rs, Inc. v. Code Tech, Inc., 628 F.2d 730 (1st Cir. 1980).
30. Although most states do not expressly claim copyright in all state publications, there are exceptions. Pennsylvania, for example, gives its Department of General Services the power and the duty “to copyright, in the name of the Commonwealth, all publications of the Commonwealth, or of any department, board, or commission or officer thereof, including the State Reports … .” Pa. Stat. Ann. tit. 71, § 636(i) (West 2010).
31. MyFlorida.com Copyright Statement: Conditions of Use, available at http://www.myflorida.com/myflorida/copyright.html.
32. Banks v. Manchester, 128 U.S. 244, 253–54 (1888); Wheaton v. Peters, 33 U.S. 591, 668 (1834); Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d 791, 796 (5th Cir. 2002) (en banc).
33. West Publ’g Co. v. Mead Data Center, Inc., 799 F.2d 1219 (8th Cir. 1986), cert. denied 479 U.S. 1070 (1987).
34. Matthew Bender & Co., Inc. v. West Publ’g Co., 158 F.3d 674 (2d Cir. 1998).
35. Lipman v. Massachusetts, 475 F.2d 565 (1st Cir. 1973).
36. In a case in which the court was deciding whether audiotapes played in court and introduced into evidence were in the public domain, the U.S. Court of Appeals for the District of Columbia wrote that “until destroyed or placed under seal, tapes played in open court and admitted into evidence—no less than the court reporter’s transcript, the parties’ brief, and the judge’s orders and opinions—remain a part of the public domain.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). See also Krynicki v. Falk II, 983 F.2d 74, 77 (7th Cir. 1992).
37. Texas v. West Publ’g Co., 882 F.2d 171 (5th Cir. 1989).
38. In Building Officials & Code Adm’rs, Inc. v. Code Tech, Inc., 628 F.2d 730, 735 (1st Cir. 1980), a federal appeals court was doubtful that a privately prepared model building code would retain its copyright after enactment by a state. More recently, the Fifth Circuit held that after a model building code was adopted into law by two municipalities, the creator could not prevent a non-profit organization from posting the codes on its website. Veeck v. Southern Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 800 (5th Cir. 2002) (en banc).
39. See Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 197 (S.D.N.Y. 1999) (holding that photographs that are “slavish copies” of paintings are not copyrightable).
40. We discuss this issue more when we cover digital repositories in Chapter Nine.
41. 17 U.S.C. § 101 (2006).
42. Id.
43. 17 U.S.C. § 103(b) (2006). The Copyright Act treats similarly protection for collective and derivative works. The copyright owner’s right to prepare derivative works is addressed in the next chapter.
44. 499 U.S. 340 (1991).
45. “Thus, even a directory that contains absolutely no protectable written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.” 499 U.S. at 348.
46. H.R. 3531, 104th Cong. (1996), H.R. 2652, 105th Cong. (1998), S. 2291, 105th Cong. (1998), H.R. 1858, 106th Cong. (1999), H.R. 354, 106th Cong. (1999), H.R. 3261, 108th Cong. (2003), H.R. 3872, 108th Cong. (2004).
47. Legal Protection of Databases, Council Directive 96/9, 1996 O.J. (L 77) 20.
48. ct of May 31, 1790, ch. 15, § 1, 1 Stat. 124.
49. 17 U.S.C. § 24 (1970).
50. Pub. L. No. 105-298, 112 Stat. 2827 (1998).
51. The University of Pennsylvania has a helpful collection of links to and descriptions of the various collections at http://onlinebooks.library.upenn.edu/cce/.
52. U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work (rev’d Nov. 2010), available at http://www.copyright.gov/circs/cire22.pdf.
53. Golan v. Holder, 132 S. Ct. 873 (2012).
54. Adapted from When Works Pass Into the Public Domain, by Professor Laura Gasaway, University of North Carolina School of Law, available at http://www.unc.edu/~unclng/public-d.htm. Adapted with permission from Prof. Gasaway.
55. Sept. 6, 1952, 6 U.S.T. 2731, 216 U.N.T.S. 132, revised July 24, 1971, 25 U.S.T. 1341, 943 U.N.T.S. 194.
56. Sept. 9, 1886, S. Treaty Doc. No. 99-27, 1161 U.N.T.S. 3.
57. Occasionally this produces somewhat strange results. For example, U.S. law provides that works of our federal government may not be copyrighted. However, Canadian law provides that works of the Canadian government are subject to copyright protection. Because a country must protect foreign works as it protects its own works, this means that works of the U.S. government are protected in Canada, though not in the United States.
58. U.S. Copyright Office, Circular 38A: International Copyright Relations of the United States (Nov. 2010). Many Copyright Office circulars can be found on the Copyright Office homepage at http://www.copyright.gov.
59. The Berne Treaty also provides for so-called “moral rights.” These include the right of attribution (the author has the right to claim authorship of his or her work) and integrity (the right of the author to object to any distortion, mutilation, other modification, or derogatory action in relation to the work that prejudices his reputation). Countries may waive out of, or modify, portions of the treaty, and sometimes they fail to fully honor the provisions they agree to. The U.S. does not protect moral rights at the same level as many other countries. We discuss moral rights in Chapter Two.