/ The Copyright First Responders Model

Abstract

The Copyright First Responders (CFR) system was developed by Kyle K. Courtney, Copyright Advisor at Harvard University Library's Office for Scholarly Communication. The CFR program trains librarians, archivists, museum staff, and other staff and cultural institutional employees in an immersive-style program learning the fundamentals of copyright law. Now in in its sixth year, the CFR system has spread beyond Harvard to reach libraries, archives, and cultural institutions in Alaska, Arizona, California, Colorado, Massachusetts, Oregon, Rhode Island, and Washington.Keywords: copyright, libraries, education, fair use

Today librarians and other information professionals can hardly escape the conundrum of intellectual property law, especially copyright.  As our work increasingly encompasses copyright-intensive programs and projects, questions arise about topics such as digitization, public domain, fair use, e-media, scholarly publishing, streaming, MOOCs, and more.

These questions, however, give libraries ample opportunity to harness the powers given to librarians through the federal copyright statute. Under the law, libraries represent the carefully crafted balance in copyright: serving both the "economic" and "access" purposes of copyright. Libraries are, therefore, a part of the economic engine that underlies copyright law’s creator rights through purchase of materials, while also satisfying copyright’s Constitutional purpose in "promoting the Progress of Science and the Useful Arts" (U.S. Const. art. I, § 8, cl. 8) through knowledge distribution. The Copyright First Responders (CFR) system was developed to provide a greater understanding of that balance by empowering librarians, and their communities, through training on "practical copyright."

I created the CFR program in my first year at the Office for Scholarly Communication (OSC) at Harvard Library. The goal was narrow at the time: to create a decentralized network of copyright experts across the Harvard Library system, but later the goal spread to serve all the cultural institutions in the U.S. Over the last 6 years, the CFR program has extended from its origins at Harvard Library to Alaska, Arizona, California, Colorado, Massachusetts, Oregon, Rhode Island, and Washington. The popularity of this program reveals a great opportunity for the profession – that librarians, archivists, and other staff at cultural institutions must have training on the issues surrounding copyright in order to successfully support their organization’s mission. But, as noted below, librarians themselves often have had little professional training in their degree programs or in the field on this topic.

Some ALA-accredited programs in librarianship feature courses on scholarly communications, which certainly touches on copyright; however, fewer than 25% offer two or more classes that deal with these complex issues (Cross & Edwards, 2011). Some MLIS programs rely on offerings at local law schools, but this is an option that is not available to students attending programs without an affiliated law school, and "even under the best circumstances, many students graduate with a limited understanding of legal issues" (Cross & Edwards, 2011, p. 534). A 2008 investigation of the Association for Library and Information Science Education found information policy courses appearing "just slightly less that one (0.81) per school," with copyright/intellectual property courses being offered the least frequently, only once in every 20 information schools (Gathegi & Burke, 2008, p. 2).

More recently, the Columbia University Libraries, with support from LYRASIS, released a study titled "Feasibility Study on the Establishment of an Independent Copyright Education Center for Professionals in the Fields of Libraries, Archives, and Museums." Their survey and conclusion mapped what has been known informally for years, that staff at libraries, archives, and museums need training to help answer questions from both their communities and patrons (Kelly & Pantalony, 2018).

Origins

The story of the CFR program started by attempting to address this gap in the professional library curriculum in the libraries themselves. In 2011, a Harvard Library Lab grant helped to fund the creation of a "Harvard Library Copyright and Fair Use Tool." The Tool was designed as a series of dynamic web pages, flow-charts, interactive exercises, and substantive information that could be used by Harvard faculty, staff, and students to learn more about an area of copyright law.

The finished product imagined leading the user, step-by-step, through an interactive copyright decision making process. The step-by-step process was designed to introduce the user to the various copyright rules, guidelines, and laws, without overwhelming the user with information. At the time, the project had received the support from the Office of General Counsel and the Office for Scholarly Communication—two offices that did receive copyright questions, but often did not have the time to dedicate resources to answer them.

During the creation phase of the Tool emerged a nuanced dilemma: copyright expertise required some decision making that could not be automated by a form or interactive tool. The reality was that the Tool, while offering conclusive answers on certain topics, could not replace human judgment needed for the "gray areas" of copyright law, including the large topic of fair use. This was the first key realization to the formation of the CFR program.

Need

Later, based on these prior conversations and work with the lab grant, it became further apparent that many more copyright questions were arriving at libraries than we supposed, and not just at the local reference desk. We found that reserves librarians, document delivery librarians, interlibrary loan departments, faculty liaison librarians, special collections staff, archivists, imaging staff, and many other departments and individuals were receiving copyright questions. Often, because of fear, misunderstanding, or time, these questions were left unanswered.

In retrospect, though we only had anecdotal data about these questions, it was perfectly natural to our users and patrons that the library would answer these copyright questions. Why? Because the materials and functions they were asking about often had library oversight. Have questions about copyright and the subscription databases? Please ask the library. Questions about the copyright status of books? See the library. Are you using movies, images, sounds, and other materials in presentations, online and on-ground? Ask the source of these materials—the library.

As a result, over the following year the OSC hosted a series of seminars, roundtables, and discussions on copyright. These meetings encapsulated the previous discussions about risk—including the knowledge and judgment that may be employed by staff during any copyright decision-making process. The "first responders," then, after the training, could be relied upon to make quick informed risk-based decisions based on their knowledge of copyright and experience with the community asking the questions. And, further, the CFR training empowers the patrons to also have a greater understanding of copyright through their questions. This is called "copyright myth busting," which helps mitigate institutional risk. Much of this myth busting is also accomplished by creating a ground floor of concise copyright first responder curriculum.

The response to these sessions was overwhelming. Sessions were especially full; nearly 100 librarians attended from the central library system alone. We ran corresponding trainings at school libraries as well. A brief feedback form was distributed to measure the interest levels in further copyright training, topics of interest to users, and to gather data about how frequently copyright issues were coming to everyone.

According to the results of 125 responses, 28% of the librarians reported dealing with copyright issues "every day" and 26% reported dealing with copyright issues "frequently." This was the first time our organization attempted to acquire simple, yet revealing, copyright data. Leaving room for error, the feedback still indicated that over half the staff that attended these initial interest sessions were seeing copyright in greater numbers than anticipated. These numbers clearly indicated a need for continued copyright education.

Development and Decentralization

As a result of the informal needs assessment, the Copyright First Responders program was developed with one thing in mind: training librarians to be copyright experts at "the front lines." And, from the research, it appeared that a hub-and-spoke, decentralized model of copyright expertise would work the best.  While many colleges and universities have a central copyright office or general counsel where all the questions arrive, this was unmanageable in a large-scale system. A decentralized service, however, operating out of the library, offered the community more responsive, nimble support in answering these questions.

Further, the decentralized system is also beneficial to the special factual nature of copyright questions. When answering copyright questions, a solid understanding of copyright is necessary, but knowing the factual nature of the question is equally as critical. This is often discipline-specific. Whether it's law, business, art, education, design, history, science, or any other field of study, knowledge of the subject matter, the norms, values, and other factual particulars is very relevant. In what journals does the field publish? Who are the routine publishers of the journals, serials, monographs, or e-books in this discipline? What do the agreements look like? How does the community approach and disseminate information sources? What databases and licenses exist in this field? Where are the materials located? How are they accessed? Who owns the materials? Librarians frequency have undergraduate and/or graduate degrees in the same fields as the communities they serve. Or they have extensive work experience in those communities. Having this necessary expert level of knowledge makes for a solid ground to starting to engage with copyright questions.

Building an understanding of "practical copyright"—combining foundational copyright knowledge with a librarian’s subject expertise—serves the institution’s best interest: a CFR can ease a patron’s fears or present legal alternatives. It reduces risk and serves to create an informed, empowered community.

Additionally, the decentralized model was furthered by a "hub and spoke" approach to the teaching and learning component. Distribution is critical to the success of a CFR network, and the hub and spoke model serves a great role in the program’s framework. Once graduated from the CFR program, the new copyright expert serves as the "hub," establishing the program, selecting and training colleagues and staff, and serving as a liaison between the different constituents (e.g., CFRs, users, and administration/institutional stakeholders). The staff are the "spokes" out to the community, now informed with a point of access to an expert. Communication and collaboration between the hub and spokes are critical for a CFR program’s success. If the program advances, eventually the hubs and spokes expand and build greater networks of hubs and spoke themselves. As more CFR’s are added to the program, coverage in institutions, departments, and units develops. This can be the beginning of new and useful contact points through an institution that can aid in the creation of copyright procedures and workflows. Also, with the hubs and spokes acting as data points, we can measure the amount of questions, track answers, apportion risk more clearly, and work towards developing copyright polices that aid the mission of the institution. All this can only be accomplished by using the hub and spoke model to gather information inward.

Tiered Support and CFR Roles

Layered on top of this hub-and-spoke framework is a tiered level of support, which ensures the right resources are devoted to the community’s questions. For example, FAQ questions (e.g., "Do I need to cite my own previously published work in my dissertation?") can be triaged by appropriately trained front-line staff (e.g., circulation desk staff, reference staff, etc.). Weightier questions (e.g., "I am doing a project on activism and social media; can I scrape Facebook public event pages?") should be addressed by the CFR, in partnership with the hub, as needed. Complex questions can be passed to the top of the chain and should be handled by the expert hub. In rare cases where the hub needs administrative-level support, the institution’s general counsel or copyright office is an established, and key, partner in the program.

Here are some examples of some of the roles in a working decentralized, hub-and-spoke model CFR network.

Front-Line Staff

  • Front-line staff are a direct interface with faculty, staff, and students.
  • Front-line staff often will be the first point of contact for a community member with a copyright question.
  • Front-line staff can (and should) be trained on copyright "FAQs" by an established CFR. This training can be as (in)formal and (in)frequent as appropriate.
  • Documentation and other appropriate resources (policies, cheat sheets, reference sources, etc.) can be shared with front-line staff to provide scaffolding and ensure consistent messaging is delivered to the community.

Copyright First Responder

  • A CFR is an engaged, interested staff member who participates in an immersion course on copyright law.
  • Once trained and embedded, a CFR addresses copyright concerns, without offering legal advice, to faculty, students, and staff.
  • Once a CFR is an established and trusted copyright presence (an organic process, which the expert hub will recognize), then the CFR may serve as a secondary "hub," training local peers on copyright basics to empower them to respond with confidence to copyright FAQs.

General Counsel/Copyright Office

  • If an institution has a general counsel or copyright office, then the copyright expert will establish a partnership early in the program’s life cycle to ensure there is high-level support for a CFR service.
  • General counsel or the copyright office can serve as a last line of defense if a particularly challenging copyright question is presented to the CFR and the expert hub cannot determine an appropriate solution.
  • General counsel or the copyright office may also provide policy-level support, which will help to codify a CFR program’s effort.
  • Note: If there is a general counsel or copyright office, a CFR program should not be housed under this arm of the institution. The strength of the CFRs lies in its distributed, grassroots nature based out of the library.

The foundation of these roles is supplemented by the lectures. Copyright teaching involves specialized strategic choice and focus on the library’s special role in copyright. Lectures are essential and serve as the bedrock of CFR class. Equally important, however, is the opportunity to workshop hypothetical scenarios and debate risk assessment. This gives the CFRs the opportunity to synthesize facts around copyright to get a feel for the process of troubleshooting potential issues that they may encounter once they are "in the field."

Programmatic Highlights

Central to a CFR program is developing a familiarity and comfort with a risk assessment. Practicing with these hypothetical scenarios with CFRs help them determine how to best mitigate risk. Beginning with basic concepts—is a work copyrightable, who owns a work, what rights does the owner of a work have—and moving toward larger issues at regular intervals throughout the course both help to break up the session and develop the necessary copyright muscles in the CFRs.

Once the immersion program has concluded, there are additional next steps that are helpful for success. From standing up the program within the library community, to info sharing and meeting updates, the work of maintaining a robust and active CFR program is vital. One of the great strengths of a CFR program is its flexibility, so here are some programmatic highlights developed in a successful CFR program.

1. Stand up the CFRs locally

At the conclusion of the immersion program (and the CFR graduation), it is helpful to host "stand up" meetings to establish each CFR as a point of contact locally. Depending on the local institution (culture, logistics, etc.), this could be done during recurring staff meeting time, as a brown bag, or as a special event. The important part is to introduce the CFRs both as members of a formal program composed of trained experts and as an available resource. By ensuring the library community at large is aware of the CFRs, then they can direct copyright-related questions appropriately.

2. Meetings and Current Awareness

Current awareness is critical to the CFR network. And, in fact, it is almost as important to the CFR program as the curriculum itself. Once the program has ended and the CFR’s are established with the ground floor training, it is imperative to hold current awareness meetings. These meetings, which can be held monthly if schedules allow, should occur at the same time and, if possible, in the same space as the training. This will ensure that the CFRs can build this check-in time into the rhythm of their work routine. The time together should be used to discuss current issues (e.g., recent court decisions, policy updates, etc.), CFR questions or ideas, potential special projects (LibGuide development, copyright compliance assessments, etc.), and refresher training (e.g., contracts).

3. Establish a CFR safe space

Another important meeting space for a CFR program is the closed listserv mentioned above. This environment offers a "safe space" for discussion in-between the monthly meetings for CFRs to share news, troubleshoot questions, and support one another’s efforts. It is also helpful to have a central wiki for sharing notes, resources, and templates. Consider creating a web presence for the CFRs to help establish this as a legitimate service. Use the space to describe the program and provide contact information for the CFRs.

4. Gather and leverage data

Create a tool (e.g., a survey) to gather the questions CFRs field, along with their responses. By creating a database of this information, you will be able to share metrics and successes. CFRs will be able to consult their peers’ responses to similar questions. Over time, trends will become apparent, which will mean appropriate and responsive policy can be developed.

5. Ripple effect

Once the CFRs are trained, they become local hubs and can educate their faculty, staff, and colleagues on copyright, fair use, and public domain issues. This is one of the central charges of a CFR: to educate their local community.

Copyright Curriculum Highlights

As discussed above, the majority of librarians, archivists, and other cultural institutional staff receive little to no training on copyright in their schooling or professional development. However, even if they have taken a copyright law course, not every curriculum emphasizes the special copyright provisions for libraries, include Section 108, limited fair use liability, and related areas of focus in the copyright statute that directly benefit libraries. All these areas are a critical focus in the CFR curriculum and empower libraries and other cultural institutional staff to know and harness these laws to fulfill their mission. Here are some select areas of focus, with brief explanations, of the top topics covered in the CFR program.

Library Exceptions (§ 108): The Superpower of Libraries and Archives

Section 108 of the U.S. Copyright Act provides under certain conditions it is not infringement for a library or archives, or its employees acting within the scope of their employment, to reproduce or distribute copies of a work. It is an amazing library exception since the copying that is allowed under this law, if done by an individual, might be infringement. This Section is an affirmative statement by Congress that libraries and archives have a special mission in preservation and access that allows the copying and distribution of materials.

There is a very specific condition in Section 108(a) that must be met to qualify for this exception. Libraries' copies cannot be made for any direct or indirect commercial advantage. There is conflicting analysis about whether libraries associated with for-profit organizations (for-profit universities, corporate libraries, etc.) may rely on this law. A House of Representatives report, in the legislative history of the Copyright Act, indicates that a for-profit library can make copies as long as the copying itself is not the overall goal of the institution where the copying takes place. (H.R. Rep. No. 94-1476, 1976, p. 75). A Senate report, found in the same legislative history, has a different interpretation (S. Rep. No. 94-473, 1975, p. 67).

The collections of the library must be open to the public, available to researchers affiliated with the library or other persons doing research in a specialized field. Again, for-profit libraries might have some trouble meeting this condition. Very few private law libraries or corporate libraries would open their doors to other lawyers, competitors, or business rivals in a particular field (Library of Congress, 1983, p. 78-79). And lastly, the reproduction or distribution must include a notice of copyright or a statement that the work may be protected by copyright if no notice is found on the original.

The exceptions granted under section 108 extend only "to the isolated and unrelated reproduction or distribution of a single copy...of the same material on separate occasions" (17 U.S.C. § 108(g)) and do not apply to "a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news" (17 U.S.C. §108(i)). Once a university library has met the requirements above, what type of copies and in what situations can it copy, scan, or distribute to the university community and beyond? The next section reviews Section 108 by type of reproduction permitted.

Replacement Copies (§ 108(c))

Up to three copies of a published work may be reproduced solely for the purpose of replacing a copy that is damaged, deteriorated, lost, stolen, or in an obsolete format. This reproduction is contingent on the library making reasonable efforts to determine that an unused replacement cannot be acquired at a fair price, and any such copy that is reproduced digitally is not made available beyond "the premises of the library."

This law frequently yields some interesting discussion. To start: what exactly is an obsolete format? Are VHS tapes, cassette tapes, or vinyl records considered statutorily "obsolete"? The definition states that "a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace" (7 U.S.C. § 108(c)). In today’s global economy, it is easy to see how vinyl records might not be considered obsolete, considering you can easily find these players for sale. This is part of the 108 analysis—determining how the definition informs our preservation and access to the materials we house. Certainly, each CFR has experience with some of these formats and has knowledge to interpret this section of the statute.

Articles, Book Chapters, or Other Short Works (§ 108(d))

Making a copy of an article for a patron is something we certainly have built into our workflows, but it is currently part of the statutes as well. A copy of one article or a short excerpt from a copyrighted work may be made at the request of the library patron, subject to two specific conditions. First, the copy must become the property of the user, provided that the library has no notice that the copy will be used for any other purpose than private study, research, or scholarship. Second, the library must prominently display a copyright warning notice on any request form, including print or web forms, and at the location where the orders are accepted. With those basic requirements satisfied, libraries and archives can continue to provide access to works for the patrons, and not worry about any potential infringement.

Archival Copies (§ 108(b))

If a work is unpublished, and currently resides in the collection of the library making a copy, the library may make up to three copies. These copies must be made solely for preservation and security or for the deposit for research use in another library. In the legislative history of the Copyright Act, the House Report noted that this right "would extend to any type of work, including photographs, motion pictures, and sound recordings" (H.R. Rep. No. 94-1476, 1976, p. 75). Although this seems to be a fairly encouraging section for digital reproduction of many types of works, any of these archival copies made in a digital format under this section must not be made available outside of the premises of the library.

Out of Print Works (§ 108(e))

A copy of an entire work may be made if the library has determined a copy cannot be obtained at a fair price, subject to the condition that the copy becomes the property of the user and the library has no notice that the copy is going to be used for any purpose other than private study, research, or scholarship. The library must prominently display a copyright warning notice on any request form, including print or web forms, at the location where the copy orders are accepted. This is one of the most powerful provisions under the library and archives exception. In many CFR cohorts the idea that a whole copy could be made is one not often considered. But again, this particular section of the law clarifies Congress’s intent to provide exceptions for libraries and archives because of the special nature of our mission. Libraries and archives must be able to make copies and give access to these types of works.

Inter-Library Loan (§ 108(d), (e), and (g))

The role of interlibrary loan is critical to library work. And it is protected by the federal statute. As a result, interlibrary loan functions are impacted in many parts of Section 108. Libraries may make single copies of works and may enter into regional, national, and consortial interlibrary agreements. For the library that creates copies and sends them (the "lender" in ILL terminology), they must adhere to the general requirements mentioned above (§ 108(d) for short works/article or § 108(e) for whole works/out of print works). The library that receives the copies (the "borrower") has a different standard. They must not make so many requests "in such aggregate quantities as to substitute for" (17 U.S.C. § 108(g)(2)) a subscription to a journal or purchase of a copyrighted work. The purpose was to prevent libraries substituting ILL article requests for purchasing a journal subscription. This is a fair compromise, but also frees up libraries to rely on each other for continued access to works and to fulfill their patrons' needs.

Library Copiers, Scanners, and other Reproduction Devices (§ 108)(f))

One of the most common questions about copiers in the library is "Is the library liable for the user’s violation of copyright on the copy machines?" Thanks to section § 108(f) libraries are protected from liability resulting from a user’s potential copyright infringements when using copy machines in the library. Like most § 108 sections, in order to claim the benefit of this limited liability, there are two requirements. First, the copying must be unsupervised by any library staff. Second, the copier must "display a notice that the making of a copy may be subject to the copyright law" (17 U.S.C. § 108(f)).

Further, by complying with these simple provisions, a library can effectively remove any potential liability for copyright infringement from patron copier use. The liability then shifts directly to the user making the copies. In a modern library or archive, this notice might appear on copy machines, scanners, microfilm readers, printers, or any other equipment capable of reproduction. This provision shifts a potentially enormous liability for the price of a few stickers. This is well worth a "copyright equipment review" at each library or archive.

Fair Use (§ 107)

In addition to providing creators with an exclusive bundle of rights, copyright law also gives everyone the flexibility to allow uses that are made during a creator’s copyright term and can be made without permission. Much like the language of the previous exceptions, this "fair use" exception is one that is frequently encountered in library work. Under fair use, an author may use certain amounts of copyrighted material without permission from the copyright owner. The doctrine itself was rooted in both English and U.S. caselaw, but was eventually codified in the Copyright Act.

The source of fair use law is statutory: Section 107 of the Copyright Act provides that fair use of a work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (17 U.S.C. § 107) is not copyright infringement. This list is not exhaustive; other uses of copyrighted work without permission may also be fair. Section 107 of the Copyright Act provides:

Notwithstanding the provisions of sections 106 and 106A (the "bundle of rights"), 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors (17 U.S.C. § 107).

Like a libraries’ mission, fair use exists to advance copyright’s purpose of "promot[ing] the Progress of Science and useful Arts" (U.S. Const. art. I, § 8, cl. 8). The concept allows "others to build freely upon the ideas and information conveyed by a work" (Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. 1991). But, as stated very plainly in an interesting case from Wisconsin, fair use "is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors" (Kienitz v. Sconnie Nation LLC, 2014).

When the fair use provision was being proposed, Congress took the position that "since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts" (H.R. Rep. No. 94-1476, 1976, p. 65). Therefore, when courts are examining a fair use claim, they analyze each factor using the specific facts of the case to make a fair use determination. This examination of the four factors determines whether the use is "fair" or constitutes "copyright infringement." Courts weigh each factor and decide based on the overview of all four factors.

In the library and archive context, this four-factor test is also often used as an instant risk mitigation test for a proposed use. For example, libraries and archives will frequently apply these four factors to determine whether they can perform a certain activity or function involving quoting or copying materials to include in their own works. Teaching the "how" of using this test is a critical part of the CFR curriculum. By reviewing the four factors as a court might, a library or archive can determine whether the action they are taking might risk infringement or fall squarely within the realm of fair use. Therefore, it is a critical skill for librarians and archivists, everyone in fact, to have a solid understanding of each factor and its legal rationale.

Library Innocent Infringer § 504(c)(2)

Built into the fair use analysis is one of the more powerful provisions that helps mitigate risk for libraries, and acts as a shield, somewhat, for potential litigation. If a library is found guilty of infringing a copyrighted work, there is a potential chance that there will be no statutory damages for such infringement. The test is in § 504(c)(2): if an employee or agent of a nonprofit educational institution, library, or archives that is acting within the scope of his or her employment had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, a court "shall remit statutory damages."

Statutory damages are a speciated form of damages in which the amount awarded is stipulated within the statute rather than being calculated based on the actual economic damages. Statutory damages in copyright cases can yield some very big numbers; the range is from $750 to $30,000 per infringement. In cases where there is willful or deliberate infringement, statutory awards can be up to $150,000 per infringement. For an institution that makes frequent use of fair use, this could have the potential for astronomical infringement figures, which is the purpose of the statutory damages in the first place—it is supposed to curb any willful infringement or piracy.

Therefore, to make sure to harness this limit on liability, it is critical that fair use education be a part of the CFR curriculum. Good faith efforts of libraries to provide this expertise is part of the 504(c)(2) analysis; the staff has to be able to have "reasonable grounds for believing that his or her use of the copyrighted work was a fair use under § 107" and this is accomplished through CFR education and outreach. That way, we are making the correct fair use decisions, and even if it is found to be wrong, the damages are highly limited. Knowledge of this section can also aid the "total" analysis for risk mitigation of various library activities overall.

Fin

Whether it is scanning chapters for e-reserves or accessing databases online, knowledge of copyright law can help mitigate risk and enhance our patrons' services. As librarians, we want to provide whatever our patrons desire. But we also must balance the law versus the patrons' needs. Fortunately, copyright law does not always restrict a patron’s uses. In many cases a solid understanding of copyright can help ease a patron’s fears, or provide legal alternatives to a patron’s request, or help educate the community at large. The CFR network, now part of a larger national framework of copyright leadership, helps to foster greater understanding of copyright in our communities and advances the library’s mission.

[Note: If you are interested in setting up your own CFR Network at your library, institution, or state, consortia, or regional library system, please contact the author.]

References

  • Copyright Act of 1976, 17 U.S.C. § 101-1401 (2018).
  • Cross, W. M., & Edwards, P. M. (2011). Preservice legal education for academic librarians within ALA-accredited degree programs. portal: Libraries and the Academy 11(1), 533-50. Retrieved from https://www.muse.jhu.edu/article/409892.
  • Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
  • Gathegi, J., & Burke, D. (2008). Convergence of information and law: A comparative study between i-Schools and other ALISE schools. Journal of Education for Library and Information Science, 49(1), 1-22. Retrieved from http://www.jstor.org/stable/40323784
  • H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 47 (1976). https://www.copyright.gov/history/law/clrev_94-1476.pdf
  • Kelly, K. & Pantalony, R. (2018).  Feasibility study on the creation of a virtual center for copyright education for professionals in libraries, archives and museums, Columbia University Libraries and LYRASIS. Retrieved from https://copyright.columbia.edu/content/dam/copyright/Policy%20Docs/Copyright%20Education%20Center%20Feasibility%20Study%20Report-1-1.pdf
  • Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014).
  • Library of Congress. (1983). Report of the Register of Copyrights — Library reproduction of copyrighted works (17 U.S.C. 108). Washington, D.C.: U.S. Government Printing Office.
  • S. Rep. No. 94-473, 94th Cong., 1st Sess. (1975).
  • U.S. Const. art. I, § 8, cl. 8