Copyright and the book scanner

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.

lnasto_Scanner_ln“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

So…

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.


SOURCES

Image: User lnasto, Openclipart.org.

  1. “Exclusive rights in copyrighted works,” 17 U.S.C. §106.
  2. 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).
  3. See generally “Where is the public domain?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 4 Feb 2014).
  4. See U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at 2 (http://www.copyright.gov : accessed 4 Feb 2014).
  5. 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”).
  6. Ibid., at 4 (“The use of a copyright notice is no longer required under U. S. law, although it is often beneficial”).
  7. Ibid., at 3 (“No publication or registration or other action in the Copyright Office is required to secure copyright”).
  8. “Limitations on exclusive rights: Reproduction by libraries and archives,” 17 U.S.C. §108.
  9. 17 U.S.C. §108(d).
  10. 17 U.S.C. §108(e).
  11. 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.
  12. See ibid. at 20.
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10 Responses to Copyright and the book scanner

  1. Tony Proctor says:

    One of the comprehension issues I have with copyright, Judy, is the nature of a “copy”. I accept that photocopying/photographing the work, either whole or in part, would violate the copyright protection. What about a transcription (i.e. a copy-by-hand as opposed to an image copy)? I can probably guess the answer here but it becomes more complicated when we appreciate that our memory is also a copy, albeit mostly imperfect. I have met people who can read a number of pages from a work, then go home and write it out verbatim. Obviously we’re allowed to memorise it (although this acceptance is implicit) but where would the regurgitation stand?

    • Judy G. Russell says:

      It’s the verbatim reproduction that’s the issue, Tony. Remember that the facts themselves (“John married Mary”) can’t be copyrighted. It’s the particular expression of the facts (“John was tall, dark and handsome, and barely 16 years old, when he married Mary, a white-haired cougar of a grand dame…”) that’s covered by copyright. So the medium of reproduction doesn’t matter, it’s that the expression is being reproduced (copied) at all.

  2. Emily M. says:

    If the original publisher is no longer publishing the book but used copies can be purchased, is it or is it not permissible to copy? If the book is not being published any longer and there are only a few copies in WorldCat, is it permissible for a library to make a copy?

    • Judy G. Russell says:

      With my usual caveat of “this is not legal advice” and “consult a professional licensed in your jurisdiction,” my own view is no and no. The statutes doesn’t say a library can copy a whole book if it’s inconvenient to buy a copy. It says it can make such a copy “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.” 17 USC §108(e). Seems to me that means you have to buy the used copy or use inter-library loan.

    • Not long ago, we at the Mary Ball Washington Museum and Library noticed that a particular volume pertaining to Lancaster County, Virginia in the Virginia Regimental Histories (Civil War) had gone missing, and it was out of print. The price to purchase it on line was outrageous (some $180). However, the author was very much alive. We simply obtained his written permission to go to the Library of Virginia and copy it there. A notice on the front of the binder by our Executive Director makes the statement that it was copied under Title 17 of the United States Code Circular 92, Chapter 1, Section 108 “Limitations on exclusive rights: Reproduction by libraries and archives.” (I have no idea what that says).

      Incidentally, the Library of Virginia is one of those large institutions recently installing scanners. They are not book scanners per se, but as long as you stand there and turn the pages yourself, you are in business, so to speak. I was wondering about this myself. Timely article, Judy!

      Craig Kilby

      • Judy G. Russell says:

        Any copy made with the permission of the author and copyright owner is just fine, Craig. For everything else, it has the limits described here.

  3. Sean says:

    This is an excellent article. You could take it further, too, by noting that just because it’s on the internet one is not automatically entitled to copy material that might be found there. It’s particularly bad for those whose copyrighted material is visual, such as photographs. So many people think that because a picture is posted on the internet they can download it and use it without question.

  4. Gus Marsh says:

    In 2005 I published 100 books of my Lange Family 1525-2005 and it was copyright. I sent one book to the LDS in Salt Lake City, they made a copy of this book and saved it as a PDF file. It is now all over the internet, including in Norway, Sweden, England and here in the USA. Is this legal and what should I be aware of when I publish my next book.

    • Judy G. Russell says:

      Unless you signed an agreement that the book could be copied and shared, then, no, it isn’t legal. If you choose to donate a book again, make sure the donation agreement spells out what can and can’t be done with it.

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