Copyright Law: Digital Libraries' Complexities Explored

Copyright law is a form of legal protection that encourages innovation and creativity by protecting the rights of authors, artists, musicians, and other creators. While copyright law applies to both digital and non-digital works, the shift to digital libraries has raised new questions about how copyright law should be interpreted in this context. This is an important issue for librarians to understand, as they play a key role in managing and providing access to copyrighted materials. For example, under the First Sale Doctrine, libraries can lend books and periodicals without the permission of the copyright owner, but this right does not extend to making additional copies. In the digital context, the publishing and entertainment industries argue that libraries should not have the same distribution rights for electronic works as they do for print works. This belief is reflected in the Digital Millennium Copyright Act (DMCA), which modified copyright law to authorise libraries to make digital copies of works for archival and preservation purposes only. As such, the right to distribute a digital copy of an analog work still requires authorisation from the copyright owner.

Interlibrary loans

In the US, Section 108 of the Copyright Act permits libraries to make one copy of an item for interlibrary loan without permission from the copyright holder. This section was modified by the Digital Millennium Copyright Act (DMCA) in 1998, which introduced a new copyright notice requirement. Libraries must now reproduce any copyright notice that appears on the original work, and if there is none, they must include a similar notice.

Libraries acting as requestors (borrowing) in the ILL context are responsible for compliance with copyright law. They should refer to Section 108 (g) (2) and Section 107 (fair use) to ensure their borrowing is within the scope of the law. They must also ensure that:

• The copy becomes the property of the patron;
• There is no notice that the copy will be used for a purpose other than private study, scholarship, or research;
• A "Warning of Copyright" is displayed and included on the order form;
• There is no reason to believe that they are engaging in related or concerted reproduction or distribution of multiple copies of the same material;
• The borrowing is not in such aggregate quantities as to substitute for a subscription to or purchase of the work.

Libraries acting as responders (lending) only need to ask whether the requestor has complied with copyright law. The lending library may refuse an order if it appears that fulfilling it would violate copyright law and will advise on other ways to obtain the material.

While some countries have specific provisions that allow limited sharing of copyrighted materials, others require permission from the copyright owners. The Copyright Clearance Center (CCC) has issued guidelines and best practices for interlibrary loans, citing Section 108 of the US Copyright Act of 1976.

Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) is a US law passed in 1998 to address copyright issues related to digital content. It implements two 1996 treaties of the World Intellectual Property Organization (WIPO) and amends US copyright law to address the relationship between copyright and the internet.

The DMCA has three main updates:

• It establishes protections for online service providers (OSPs) in certain situations if their users engage in copyright infringement. This includes the creation of a "notice-and-takedown" system, which allows copyright owners to inform OSPs about infringing material so it can be removed.
• It encourages copyright owners to provide greater access to their works in digital formats by offering legal protections against unauthorized access (e.g. hacking or encryption circumvention).
• It makes it unlawful to provide false copyright management information or to remove/alter such information in certain circumstances.

The DMCA also heightens penalties for copyright infringement on the internet and limits the liability of online service providers for copyright infringement by their users. It criminalizes the production and dissemination of technology intended to circumvent access control measures for copyrighted works and the act of circumventing such controls, regardless of whether copyright infringement occurs.

The DMCA provides safe harbour provisions for OSPs, shielding them from monetary liability for copyright infringement by their users if they meet certain conditions. OSPs must promptly block access to or remove infringing material when notified by a copyright holder.

The DMCA also establishes a triennial rulemaking process, allowing for temporary exemptions to the prohibition on circumventing technological protection measures (TPMs) used by copyright owners. The Librarian of Congress may adopt exemptions for certain non-infringing uses of copyrighted works.

Additionally, the DMCA makes it unlawful to provide or distribute false copyright management information (CMI) with the intent to induce or conceal infringement. CMI includes information such as the title, author, copyright owner, and terms for use of a work.

The DMCA has been criticized for its impact on fair use, competition, and innovation. It has also been abused to censor competition and hide information, such as in the Volkswagen emissions scandal.

Copyright exceptions for libraries

Copyright law includes several exceptions for libraries and archives, allowing them to reproduce and distribute copyrighted works without the copyright holder's permission. However, these exceptions have specific conditions that libraries must satisfy. Here are the key copyright exceptions for libraries:

Archival Copies

Libraries can reproduce and distribute unpublished works for preservation and security purposes, provided the reproduced copy is already in their collection. This exception ensures that valuable unpublished materials are preserved for future generations.

Interlibrary Loan

Libraries are permitted to make single copies of copyrighted works and participate in interlibrary loan arrangements. However, they must ensure that the copying does not replace subscriptions or purchases. In other words, they cannot systematically copy materials to avoid buying or subscribing to them.

Replacement Copies

Libraries are authorised to reproduce published works in facsimile form to replace damaged, deteriorated, lost, or stolen copies. This exception applies when the library cannot obtain an unused replacement at a fair price after reasonable efforts. It is worth noting that this exemption does not extend to digital copies.

Articles and Short Excerpts for Users

Libraries can reproduce and provide users with copies of individual articles or contributions to copyrighted collections or periodicals. They can also provide copies of small parts of other copyrighted works upon user requests. However, libraries must ensure that:

• The copy becomes the user's property.
• The copy is used for private study, scholarship, or research purposes. The library should not be aware of any other use.
• A copyright warning is prominently displayed where orders are accepted and on the order form.

Out-of-Print Works for Scholarly Purposes

Libraries may reproduce and distribute out-of-print works if they determine that a copy cannot be obtained at a fair price. Similar to the previous exception, the library must ensure that:

• The copy becomes the user's property.
• The copy is used for private study, scholarship, or research, and the library is not aware of any other use.
• A copyright warning is prominently displayed at the order acceptance location and on the order form.

News Programs

Libraries are permitted to reproduce and lend a limited number of copies of audiovisual news programs. This exception helps ensure that important news and current affairs information is accessible to the public.

Fair Use

While not limited to libraries, the principle of fair use allows the limited use of copyrighted materials without the copyright owner's permission. Fair use analysis is conducted on a case-by-case basis, considering factors such as the purpose and character of the use, the nature of the copyrighted work, the amount used, and the potential market impact.

Licensing agreements

The LIBLICENSE Model License Agreement is a useful resource for librarians negotiating licensing agreements for digital collections. It serves as a template and a statement of acceptable policy and practice for licensing digital information. The LIBLICENSE project provides an analysis of common terms found in licensing agreements, along with a discussion of their pros and cons. This helps librarians understand the issues and make informed decisions when negotiating agreements with information owners.

Another important aspect of licensing agreements is archival responsibility. The agreement should clearly state who is responsible for archiving the digital content and should allow the library to make preservation copies. This ensures that the library can continue to provide users with access to the information in the future.

Additionally, licensing agreements may include provisions for perpetual access, ensuring that the library retains access to the licensed materials even if the agreement is terminated. This is especially important for electronic content, which represents a significant and permanent asset for universities and research institutions.

In conclusion, licensing agreements play a crucial role in digital libraries by outlining the terms and conditions for accessing and using digital content. Librarians need to have a thorough understanding of these agreements to ensure compliance with copyright laws and to provide users with comprehensive and timely access to information.

Making digital copies

Firstly, it's important to distinguish between published and unpublished works. Libraries are generally permitted to make up to three copies of an unpublished work for preservation, security, or research purposes, according to Section 108 of the US Copyright Act. However, these copies cannot be made available to the public outside the library premises. On the other hand, published works that are in the last 20 years of their copyright protection can be digitised, either for the web or from an analog to a digital format, as per Section 108(h)(1-2). This is allowed as long as the library has ensured that the works are not subject to normal commercial exploitation, are not available at a reasonable price, and the copyright owner has not filed a notice with the Copyright Office.

It's worth noting that the right to make digital copies is more restrictive than analog copies. Libraries are allowed to make copies for interlibrary loans, preservation, and replacement, but these copies must remain within the library. Published works must not be commercially available at a reasonable price, and unpublished works may only be copied for preservation, security, or deposit in another qualified library.

When it comes to personal digital copying, individuals are allowed to make digital copies for private study or research purposes, as long as it's for non-commercial use. However, there are limits on the amount of copyrighted work that can be copied. For example, individuals may copy one article from a journal issue, one chapter from a book, or one short story or poem from an anthology. For non-textual works like music, maps, pictures, and photographs, individuals should exercise caution and consult library staff due to special considerations.

In conclusion, while libraries and individuals have some rights to make digital copies of copyrighted works, it's important to be mindful of the restrictions imposed by copyright law. These laws are in place to balance the rights of copyright owners and users, ensuring that works are preserved and accessible while also protecting the interests of creators.

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