A library machine isn’t a license
A reader who asks not to be identified was a bit disconcerted by the appearance of large scale book scanners in a major research library he often uses.
“A patron may stand there and scan entire books free of charge, no questions asked,” he notes. “To me, this raises some hackles. To have someone’s entire work simply there for the taking bothers me.”
Oh, boy is the reader ever right. There’s a lot about this that should raise hackles and bother us all.
Let’s start by reviewing, one more time, the basics when it comes to copyright.
Copyright is protection granted by the law to the creator of works like the books that might be scanned. One of the rights the law gives that creator — the author — is the exclusive right “to reproduce the copyrighted work in copies.”1
That’s where the analysis has to start, where the default setting in all our minds has to be. Not “I can make copies unless” but rather “only the copyright owner can make or authorize the making of copies unless…”
It doesn’t matter if we’re only making copies for personal use and not for resale, and it doesn’t matter if we’re in a library or a research facility. We still start with the idea that we can’t make copies… unless an exception applies.
One big exception is for anything that was published in the United States before 1923. That’s now in the public domain.2 That means there is no copyright restriction on it of any kind and you are free to use it in any way you’d like.3
Second, if something was published after 1923, certain formalities may have been required at the time it was published in order to keep the work protected by copyright, and it may be necessary to check the copyright status of a particular book to know for sure.4
But for anything published in recent years, copyright protection began the minute the work was created in tangible form,5 no copyright notice is required6 and the copyright doesn’t even have to be registered with the Copyright Office.7 It’s all automatic.
If a work isn’t currently under copyright protection, then copying any part of it isn’t a problem. But if it is still under copyright protection, then copying of any part of it can be done only if it’s allowed by the copyright statute and its exceptions.
Now there is a section of the law that provides that, under certain circumstances, a library may make a copy of a copyrighted work in its possession, or allow a copy to be made, for a patron.8
The operative phrase there is “under certain circumstances.” There is no general “I’m in a library, I can copy a whole book” exception to the copyright law.
To the contrary, the law makes it very clear that, even where the item is being used solely for private study, scholarship, or research, copying is generally permitted only of “no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work.”9
The only time an entire work can be be legally copied is when it is impossible to obtain a copy of the work at a fair price.10 Not inexpensively, mind you. The test isn’t whether our wallets would be thin if we bought a copy. It’s whether the price for the work is fair — and that can be a lot higher than we might like.
In short, if the book is still being published and can be purchased for a fair price, it’s a violation of copyright to stand there at a book scanner and scan the whole book.11
What should the library do, to comply in these circumstances? It needs to put up clear, unequivocal signs that copying entire books still covered by copyright protection is a violation of the law — and that the person doing the copying is responsible for that copyright violation. The law requires as much.12
And what should we do, as responsible, ethical genealogists?
1. Buy the book. If it’s important enough to have in our own personal libraries, then let’s reward the author for the hard work in writing it and the publisher for the financial risk in publishing it by buying it at a fair price.
2. Borrow the book, if we can’t afford or don’t want to buy it. We can try to find a friend who owns it, or find it in a local library, or get our local library to borrow it from another library via inter-library loan.
3. Copy only the very small portion of the work we need for our own research and only to the extent that it qualifies as a fair use under the copyright laws.
The law doesn’t always make things easy for us. But it sure makes it clear as to what’s right. Just because a library has a book scanner shouldn’t turn us into copy-thieves.
Image: User lnasto, Openclipart.org.
- “Exclusive rights in copyrighted works,” 17 U.S.C. §106. ↩
- See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 4 Feb 2013). ↩
- See generally “Where is the public domain?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 4 Feb 2014). ↩
- See U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at 2 (http://www.copyright.gov : accessed 4 Feb 2014). ↩
- U.S. Copyright Office, Circular 1: Copyright Basics (http://www.copyright.gov/circs/circ1.pdf : accessed 4 Feb 2014), PDF version at 2 (“Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work”). ↩
- Ibid., at 4 (“The use of a copyright notice is no longer required under U. S. law, although it is often beneficial”). ↩
- Ibid., at 3 (“No publication or registration or other action in the Copyright Office is required to secure copyright”). ↩
- “Limitations on exclusive rights: Reproduction by libraries and archives,” 17 U.S.C. §108. ↩
- 17 U.S.C. §108(d). ↩
- 17 U.S.C. §108(e). ↩
- See generally U.S. Copyright Office, Circular 21: Reproduction of Copyrighted Works by Educators and Librarians (http://www.copyright.gov/circs/circ21.pdf : accessed 4 Feb 2014), PDF version at 11-20. ↩
- See ibid. at 20. ↩