The U.S. Copyright Office requires libraries to lie about fair use rights
scholarlykitchen.sspnet.org
scholarlykitchen.sspnet.org
Copying for "private study, scholarship, or research" specifically by libraries is permitted by §108 [1], while fair use is permitted by §107 [2]. These are separate concepts.
Libraries are not intended for photocopying of materials for all possible fair use cases; they're only intended for "private study, scholarship, or research" purposes.
So the sign correctly indicates what's allowed per library policy; it also correctly indicates you have additional rights per fair use policy and warns not to go beyond those.
(A good example is that a teacher can use a private/school photocopier to make 30 copies of material for classroom use according to fair use; but you're not allowed to use the library photocopier to make more than 1 copy of anything.)
The library is furnishing a powerful tool to users: the ability to make copies readily. The government's ability to police or regulate this tool so that it complies with copyright law is extremely limited. The government's options are to ban the tool outright, or to permit the tool while impressing a scary warning upon the user, hoping law-abiders will exercise self-control. "If you do something potentially illegal, then you are potentially liable for something illegal." It's a tautological warning, but it still has an effect. And the way they can force the library to communicate the scary warning to the end user is by conditioning the library's liability on the posting of the warning.
You could get these signs with the following path with no lobbying at all:
1) Library puts out copier with no signage
2) Someone makes a bunch of copies of something and starts selling them to people they know
3) That person gets in trouble
4) That person gets angry and lawyers up "how was I supposed to know I couldn't do this, they let me use the machine, they need to indemnify me against this!!"
5) Library wastes money defending this and someone says "ugh let's just put up a stupid sign to deter the fools"
I think this is unlikely here. I would expect such a suit to get tossed out in the early, early phases because the plaintiff doesn't have standing.
Per Manuel LUJAN, Jr., Secretary of the Interior, Petitioner v. DEFENDERS OF WILDLIFE, et al. the 3 part test for standing is:
1. The plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent
2. There must be a causal connection between the injury and the conduct brought before the court
3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury
They almost certainly fail the first test. Making bootleg copies of stuff to sell is not a "legally protected interest".
They also likely fail the second test because having copiers available, even without signage, isn't causative of copyright infringement.
The third is largely speculative, but I would bet a case like that fails that too. I don't even know what law someone would sue under for "they failed to tell me what the law is". Citizens are expected to know what the law is (whether that's reasonable or not is another question), as evidenced by the many laws that don't require mens rea.
In all likelihood the way this goes is that person files a lawsuit against the library, the library files a motion for summary judgement, and the judge rules against the plaintiff before discovery even happens. The facts of the case are irrelevant, because even if we presume that everything the plaintiff says is true, the library wouldn't be liable.
So if the government has an interest in enforcing copyright, that's because the people (whether or not they are intellectual property holders themselves) told the government to enforce copyright.
Edit: ok, not.
The grammar is bothering me.
Thanks for your moderation either way.
Maybe:
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or
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Charitably, I could maybe see how the library's notice might cause confusion to someone who only skims it. However, upon close reading, it's very clear that they first talk about the conditions the library is bound by in order to use the authorization under §108, and then talk about individual liability if the individual exceeds fair use under §107.
In my view, both their summary of §108 and their reference to §107 are cogent and neither is false. As a result, I believe it's incorrect to say that they are lying (and I believe the question mark should have remained).
IAALBIANAIPL
I disbelieve that this is the case, for copyrighted material; this is not supported by your citations, and that behavior (30 copies in a classroom) seems like a flagrant violation, in fact, and although most teachers wouldn't generally get in trouble with it, most teachers also tend to steer clear of violations like this. A teacher either obtains permission, or uses public domain materials, or finds some other way to convey the information to their students.
In fact I researched this when I was teaching a class, and I wanted to use some copyrighted handouts. I was able to obtain permission from a local blogger to use her article and distribute it to the whole class. In fact, she was very glad that I'd asked. I was less successful in contacting a publishing house overseas and obtaining permission for their stuff. So I didn't copy it.
I don't think this contradicts the parent to your comment. There are cases where a teacher can make 30 copies of a portion of a copyright work for distribution in the classroom, and the comment is about those cases.
False, the comment is not about "a portion" of a work, it's about the whole work. I would certainly agree that an educator could photocopy a few paragraphs of a novel, or a textbook, or anything basically, if that work was 300 pages long, and that educator would be within his rights to distribute it to 30 students. A few paragraphs of a 300-page work is a negligible portion when considering copyright.
My personal examples were very definitely about reproducing the works in their entirety. The blog post was about a page and a half, so with permission, I had no trouble making it a handout. The other documents were of comparable length, and it would not have worked to use excerpts. I really wanted the work in its entirety for my students to understand the topic.
If an educator copied a full page of a one-page handout and distributed it to 30 students, they would definitely be in violation, as that is a reproduction in full, and not fair use at all. Ask any news aggregator site how much of a news article they are allowed to quote. They can't scrape the entire article from a website, they need to selectively quote from it so that it is a minimal portion of the copyrighted work. Percentages matter here. The GP didn't even address that question.
The comment doesn't actually specify whether the "material" is a portion or a whole work. It is perfectly plausible that the comment is about those cases.
It is perfectly plausible that the original comment, in referring to "material" was implying the former, but it made no distinction about the latter, and the devil's in the details, as they say.
The blog post provides this link to section 107 of the US Copyright code: https://www.law.cornell.edu/uscode/text/17/107
And, in the text of the statute is the following:
> Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
The above was also quoted by the blog itself. The actual statute says "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords ... for purposes such as ... teaching (including multiple copies for classroom use) ... is not an infringement of copyright.".
So the statute explicitly details that the statement by the GP is correct. That making multiple (meaning more than one, 30 being more than one) copies for classroom use for the purpose of teaching is actually "not an infringement of copyright".
> (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Now as I said, one page of a 300-page text is not infringing and is definitely fair use. If a teacher makes 30 copies of all 300 pages of a 300-page book, what do you think? Fair use too? Ridiculous.
The whole text of the law applies, not just the bits you are willing to cherry-pick here. Every YouTuber knows that fair use often depends on what percentage of the work has been reproduced.
108 gives additional rights to libraries to make copies. But it does not take away the right of the library to offer copying for any existing purpose. Therefore, contrary to the posted notice, it is perfectly legal for the library to offer copying services for purposes OTHER than the extra permissions granted in 108.
Which means that libraries are authorized under the law to produce copies for all the same purposes that Kinko's is allowed to produce copies. It is up to the library whether to do so. And it is incorrect for the sign to say that the library may NOT do so.
It states “a photocopy or reproduction for purposes in excess of ‘fair use’” (emphasis mine) generates liability, and that the library “reserves the right to refuse to accept a copying order,” not that it must.
The entire article is premised on a red herring.
Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.”
This says that libraries and archives are ONLY authorized to furnish a photocopy IF the specified condition is met. In other words, they are not authorized to allow you to make a copy for any other purpose. Even if that other purpose is covered by fair use.
But that isn't what the law says. The law says that, even if not otherwise authorized, the library or archive is ALLOWED to furnish a photocopy for those purposes. It is an additional permission, NOT a restriction.
Elsewhere it correctly indicates when you, the user, will be sued. And it indicates when the library may legally refuse to make a way you a copy. But it is still worded in such a way to mislead the librarian into thinking that the library will violate the law if they let you make copies for the various purposes for which people legally make copies at Kinko's. And that is false.
Do we have anecdotes of this happening? Librarians tend to be well versed in their rights, at least in states which see libraries as more than book bazaars.
This is not how I parse this. Notably, the library is an intermediary and the purposes enabling fair-use for the end user do not apply to them. They require their own framework, which is provided under Section 108. However, while this regulates the activities of the library as an intermediary, this does not apply to the end user. For the latter, the note still refers to the general conditions of fair-use.
(I also do not see how these purposes may be hindered by this: in order to express your criticism, you go to the library to research the original material. The title for the library to provide you a copy is your research. Now, you can still use this material under the general conditions of fair-use. On the other hand, the library is not supposed to provide you a copy for the purpose of commercial distribution.)
Where in the statute does it say this?
Suppose that I write a pamphlet. I am the copyright owner. What in the law says that I can't go to the library, pay for the use of their photocopier, and make copies there that I will try to sell?
The library may indeed refuse me if they think that copyright law is being broken. But if I can convince them that it isn't, then there is nothing illegal in their permitting that copying. Even if I was lying, they did their due diligence and are legally still fine.
Generally speaking, in Section 108:
> (…) under the conditions specified by this section, if—
> (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
https://www.law.cornell.edu/uscode/text/17/108
If, however, you were the copyright owner and were to (ab)use a library as a copy shop, the entire section does not apply, since it's about a special (but limited) exemption from copyright regulations for library copies. (The section starts with, "Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce…") Mind that this is not about the use of library hardware, its's about a legal framework for libraries to provide copies of copyrighted material to library users.
(Still, you may encounter other difficulties, like the library deciding that they are not a copy shop, or that they won't exceed the legal limit of 3 copies as provided under Section 108 anyways, which wouldn't work out that great for producing a pamphlet… Maybe, there's a statute for this, but this is another topic.)
The article really does seem like breathless muck-raking. Yeah there are subtleties, and yes the notice isn’t totally clear (perhaps because that would make it really long and harder to understand by non-lawyers), but the author insists on interpreting the language “study, scholarship, or research” to be exhaustive and complete, where I read it from the beginning to be simply an example of fair use. The notice actually is pretty clear it’s just saying the copies must adhere to fair use, which kinda clears up the whole problem the author is trying to inflate. The notice says explicitly “in excess of ‘fair use’”, so why is the author jumping to some conclusion that the notice meant something other than fair use?
(Disclaimer: not a US citizen, not a lawyer.)
> Libraries are not intended for photocopying of materials for all possible fair use cases; they're only intended for "private study, scholarship, or research" purposes.
"What Libraries are intended for" makes no sense here. Libraries are not intended for many things. Might I suggest a rephrasing? 108 is specifically to allow specific rights, mentioning nebulous "under specific conditions".
> One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.”
Without an understanding that this is not a universally prohibitive condition, the poor phrasing makes it seem like it applies in all cases, despite the "Fair use" statement that follows.
The US Copyright Office does not require libraries to lie about fair use rights.
Each paragraph in 108 lays out various situations under which libraries and archives are permitted to furnish copies without liability (without this, no library would dare).
Paragraphs (d) and (e) are the relevant ones (dealing with one component of a larger collection or to an entire work if necessary, respectively). Clause (1) of each paragraph describes a situation where the copy is to become property of the user making the request (so, I walk up to a copy machine, make a copy, and take possession of the copy). In this situation, the library is released from liability if two conditions hold: a) "the library ... has had no notice that the copy ... would be used for any purpose other than private study, scholarship, or research". (Note that this is the source of the quote in the posted notice.) Naturally, that condition holds for self-service copy machines. b) "the library ... displays prominently ... a warning of copyright...". Said warning just recaps 108 (d) and (e).
I do not find any lie here.
Could the warning be better phrased? Almost certainly—it's a four-sentence digest, designed for a lay audience, of an incredibly complicated area of law (copyright fair use). But the warning itself is completely accurate: There are conditions where reproducing a copyrighted work (which otherwise infringe's the owner's exclusive right of reproduction) is acceptable. And "one of these specified conditions" (quoting from the warning) is for scholarship. It's not the only such condition!
To me, this feels like the author is making a mountain out of a molehill.
> One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.”
"[I]s not to be used for any purpose other than" sounds very restrictive. However the language from the statute is the opposite
> The fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
This sounds like the opposite. A list of times when fair use is OK.
The article could benefit from further discussion of this subtle distinction, as a librarian I think the writer assumes we already know exactly why this message is incorrect.
From my interpretation the message seems to "remove" several of the examples in the statute from the message, for instance news reporting. I think that is the concern here, along with the mandate that libraries then promulgate this subtle misinformation.
> Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement.
Emphasis mine. Of course it is possible to commit some sort of copyright infringement using a document copied in a library. You are being reminded of the fact that you could use this service provided by the library to commit a some copyright violation, the fact that the library helped you doesn’t magically change the law.
The first is that the blurb covers _furnishing_ the archival/photocopy, not creating the copy itself. This is more akin to whether I can give a friend a copy of a book I purchased, as opposed to the act of photocopying it myself. That is to say, it is okay to provide a photocopied version of a copyrighted document, but only under certain usage circumstances as defined by fair use doctrine.
The other aspect may simply be laziness. Perhaps it could be read as:
> [institutions such as] libraries and archives are authorized to furnish a photocopy or other reproduction
Either way, I think "requires libraries to lie" is a bit sensationalist.
"(e) The rights of reproduction and distribution...made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if-
"(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
"(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation."
The author's issue is primarily with the inconsistency of the law itself.
A government agency isn't a better authority on the law than your own lawyers are, if you’re rich enough to access the courts.
The agencies, including the white house, offer one interpretation of the law, and they don't know your interpretation. Make it expensive for them to disagree with you and they will likely back off. But also be prepared to continue that fight in court in case they didnt back off. They theoretically have unlimited resources but are frugal.
That is a potentially grave mistake to make. They are in no way frugal (the very concept of being frugal with an unlimited faucet of "other people's money" is truly ridiculous). If they forbear to go to trial and/or appeal adverse rulings, it is only because they strongly prefer never to suffer adverse precedent. They would rather lose the same case a thousand times, than have precedent which restores the rights of ten thousand all at once, let alone 300 million. In a way it's quite the opposite of frugality.
This is why we don't let lawyers say grace before dinner.
(I'm thinking things like asking the librarian to hand-copy down pages from a book in the 1800s or similar.)
If I go into my library and stand there and pretend to photocopy things, but really I'm looking around, casing the joint, so I can come back and burgle the place, that's research, isn't it?