If you’ve ever [made a photocopy in a U.S. library or]* received a copy of an in-copyright document supplied by your library, you’ve likely seen a notice that looks like this:
The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.
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.
This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.
And if you’re someone who is fairly familiar with U.S. copyright law, and especially with the fair use doctrine, that notice may have led you to ask yourself the following question: “Why are my rights more constrained with regard to a copy [made in]* made for me by the library than they would be if the copy were made anywhere else?”
Why indeed?
As it turns out, the answer is that they aren’t – the notice that libraries are required by law to provide you is false and misleading. In fact, you have the exact same rights in copies provided by the library that you do in copies made elsewhere. So why are libraries required by the current federal statute to mislead you in this way?
The copyright notice that libraries are required by law to provide you is false and misleading.
Let’s take a look at what led to this odd situation.
First of all, it’s important to know what fair use is and what rights it affords you if you’re not the copyright holder in a document. The fair use doctrine is laid out in Title 17, Section 107 of the U.S. Code. It describes limitations on the exclusive rights of copyright holders, making clear that despite the general exclusivity of those rights, users of copyrighted documents are nevertheless allowed to make limited uses of those documents that might otherwise infringe on the exclusivity of the copyright holder’s prerogatives. The law introduces fair use as follows:
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, again, is in section 107. Then comes section 108.
As summarized by the Section 108 Study Group (which was convened by the U.S. Copyright Office in 2005 to examine and propose recommendations regarding possible changes to it), section 108 of the U.S. Code lays out some exceptions to the copyright rules codified in section 106; this section is designed to “(permit) libraries and archives to make certain uses of copyrighted materials in order to serve the public and ensure the availability of works over time,” providing “limited exceptions for libraries and archives to make copies in specified instances for preservation, replacement and patron access.” Along with those exceptions, though, is a requirement that all copies made [in]* by the library be accompanied by a “warning of copyright” to patrons – the language of which I provided at the beginning of this post.
What should be clear to any attentive reader is that the fair use doctrine outlined in section 107 covers many kinds of use that would fall outside the category of “private study, scholarship, or research.” So is it really the case that when you [make a copy of an in-copyright document at Kinko’s]* receive a copy of an in-copyright document from anyone other than a library or archives, you have the full spectrum of fair use rights – but if you [copy or]* receive a copy of the same document in a library your fair use rights are significantly more restricted?
As a matter of fact, no. You still have the same fair use rights regardless of where the copy is made, because Section 108 says clearly that “nothing in this section… in any way affects the right of fair use as provided by section 107.”
So if the law says that your rights in a library-copied document are the same as they are in a document copied anywhere else, why is a library required tell you otherwise? Why must libraries actively misinform their patrons about their actual rights under the law?
The problem is that although Section 108 makes clear that the copyright warning notice it requires is not intended to restrict artificially the fair use rights of document users, the code itself doesn’t provide the language for the notice. It specifies that the “warning of copyright” shall be written “in accordance with requirements that the Register of Copyrights shall prescribe by regulation.” And the language prescribed by the Register of Copyrights in that regulation is, unfortunately, false and misleading. And worse, libraries are required to include the prescribed language “verbatim.”
Wanting to understand better why this would be the case, I contacted the U.S. Copyright Office on 20 June 2023, expressing my puzzlement at the artificially restrictive language prescribed by the Office for the copyright warning notice, and asking if there were someone I could talk to about my concerns.
I was answered promptly and told that “the Federal Register announcement for a specific regulation may provide helpful context and background.” The response referred me to the Federal Register announcement for 37 C.F.R. 201.14, a 34-page document that does indeed contain some discussion of the wording of both the copyright warning notice and the statute itself – though at no point does it acknowledge or address the fact that the prescribed notice inaccurately represents users’ rights as laid out in sections 107 and 108.
The U.S. Copyright Office has no comment.
I thanked the Office for sharing the link, but pointed out that it didn’t address my question, and asked again if there were someone to whom I could speak about the issue.
The next day I received a response saying that “at this time, the Copyright Office has no further comment, and we would refer you to the materials on our website.”
Let’s be clear about what the problem is here. It’s not that patrons who use library-provided copies of copyrighted works in a manner beyond the scope of “private study, scholarship, or research” are in legal danger if their use falls within the full range of the fair use provisions in section 107. Again, the language of section 108 makes it very clear that owners of such copies are entirely within their rights to make full (fair) use of them, regardless of what the copyright warning notice prescribed by the Copyright Office says. The problem is that the Copyright Office, under color of authority ostensibly assigned to it by statute, requires libraries to misinform patrons about their rights. Although library patrons are in reality free to make full fair use of copies we provide them [(or copies they make on our premises)]*, we must tell them – every time they [make or]* request a copy from us – that they have only a small subset of those rights.
How much does this disinformation end up constraining patrons’ exercise of their full rights under the law? It’s impossible to know, of course. But as a profession that sees itself at the vanguard of the fight against both mis- and disinformation, it certainly should rankle us that we’ve been drafted into a disinformation campaign that affects so many information seekers so directly.
It should rankle us even more that the U.S. Copyright Office, the very entity that has created this issue and is uniquely empowered to fix it, seems to have no interest in doing so. I hope my library colleagues (and everyone else who cares about libraries and archives, and about fair use) will join me in calling on the Copyright Office to change the language of its prescribed copyright warning notice, bringing it into full conformity with what the law actually says. (I’ve created an online petition for this purpose, and encourage all interested to sign it.)
* Update, 10 July 2023: Thanks to commenter Janice Pilch, I have seen the need to correct one aspect of this essay: the law requires a warning of copyright notice only for copies made by the library or archives — not for copies made by patrons of those institutions who use “unsupervised… reproducing equipment.” For unsupervised self-service machines, libraries and archives are only required to post “a notice that the making of a copy may be subject to the copyright law” — the text of which is not dictated either in the law or by the Copyright Office. I incorrectly assumed that the “notice” in the self-serve context was the same as the “warning of copyright” in the library-provided-copy context. In order to avoid making it look like I’m trying to hide my error, I’ve put brackets around the instances of incorrect language and followed those bracketed phrases, where necessary, with corrected or clarifying anguage in italics. I hope the value of the resulting correction outweighs the cost in readability. I regret the error and am grateful to Janice for the correction.
Please note that the remainder of my argument stands. It continues to be unacceptable that the language in the notice required by law and prescribed by the Copyright Office misleads patrons regarding their fair use rights in copies made for them by the library — and with the steep decline over recent years in self-serve library copying and the increased importance of library-made copies (in contexts such as digital collections, electronic interlibrary loan, etc.), this issue has only become more important.
Discussion
45 Thoughts on "Why Does the U.S. Copyright Office Require Libraries to Lie to Users about Their Fair Use Rights? They Won’t Say."
>Section 108 says clearly that “nothing in this section… in any way affects the right of fair use …
One might also point out that nowhere else in Title 17 — including Sec. 107, where fair use is broadly described — is fair use referred to as a ‘right’. If it is to be considered a right — as distinct from an affirmative defense against an allegation of infringement (as the lawyers point know to point out) or as a limitation on the exclusive rights of creators– then it seems a thin kind of right, if we confine ourselves to the words the statute; its status as a right is founded on that single oblique reference.
Mostly I observe folks who refer to it — the fair use doctrine — as a right tending to overlap in the Venn diagram of those who would prefer to expand its application. Something which I uphold their right to do.
N.B. Following Justice Story (1841) Section 107 is for all ‘users’ (reusers) of works under copyright; on the other hand, Section 108 is for certain special sorts of users — libraries open to the public, and their close kin, archives. Of such fine distinctions, law — including court decisions — is made.
Dave, I’m curious as to what reference it is that you’re characterizing as “oblique.” It seems to me that Section 107 is quite clear and direct with regard to fair use, and not oblique at all — but again, I’m not sure exactly what you’re referring to here.
Happy to explicate 😉
Section 107 never calls it a right; the meat of 107 is the four factors, which are mostly questions for judges or juries to ask themselves in assessing such matters. Section 108 refers back to Section 107 for this description.
I wouldn’t call it a typo, but I do think it was sloppy final-drafting on the part of the folks who authored the 1976 act. YMMV.
Fair enough. For our purposes, I think the specific use of the term “right” is maybe beside the point, given that Section 107 is abundantly clear about the nature of fair use in relation to copyright law: “the fair use of a copyrighted work… is not an infringement of copyright.” To me, this seems like the real meat of 107 — neither the list of potential uses nor the list of “factors to be considered” is intended to be exhaustive.
For the record and for what it’s worth, I have no particular interest in seeing the application of fair use expanded. I think it’s suitably expansive as is. But I certainly don’t want fair use to be artificially constrained — especially by legally prescribed misinformation.
There’s a lot of gray area in Fair Use Law, and my understanding is that the final decisions there are not made by the US Copyright Office, but by judges as part of US case law. Because of that, I feel comfortable assuming good faith in the original author(s) of this policy.
That said, their current statement goes beyond what’s required by any reasonable reading of Fair Use law. The degree of caution the US Copyright Office uses in avoiding copyright liability ought to be determined by a systematic risk management evaluation, informed by that case law.
Thanks, Michael. I agree with your point about case law. It’s a little off-topic in the context here, but consider the role of “transformative use” — (IMHO) SCOTUS seemed to expand its application in the Campbell vs Acuff Rose case (1994), and to have circumscribed that application in this year’s AWF vs Goldsmith decision (2023). See also: https://www.copyright.gov/fair-use/
Let’s keep in mind here, though, that the question at hand isn’t about either the statute itself or about case law. The statute (in Section 108) is very clear with regard to copies made in libraries: use of those copies is subject to the same fair use considerations as would apply to copies made anywhere else. The issue is the content of the notice that Section 108 requires, but does not define. That notice (written by the Copyright Office) says clearly, and falsely, that the users of copies made in libraries are permitted only a subset of the fair uses outlined in Section 107. That disconnect — and the Copyright Office’s refusal to respond to questions about it — is the issue at hand.
In my experience, folks who emphasize the procedural posture at which fair use is raised in litigation (“it’s just an affirmative defense”) also have an agenda. We pretty commonly refer to “the right of self defense” as something we all affirmatively possess when we are physically attacked by someone else, but if our attacker were to later file a tort claim against us for battery, we would have to raise self-defense as an affirmative defense. We also routinely refer to our “First Amendment rights” but those, too, are often vindicated in the form of a defense against a claim like defamation or invasion of privacy. As a lawyer, I recognize that the procedural posture can matter if you’re doing risk management in edge cases. But in the majority of cases, where a lawyer on the other side can be reasonably expected to anticipate that they will lose due to the strength of your defense, the fact that a right is vindicated procedurally as a defense doesn’t in any way diminish its status as a right.
Is there any legal limitation or restriction from libraries adding an additional statement after the required USCO statement detailing these contradictions and interpretations?
Not that I’m aware of or can find, and I’m thinking that this may be what we need to do in our library. My only concern is that it’s going to add one more layer of confusion for patrons: “Notwithstanding the notice you see above, please be advised that in fact your legal rights are much broader…”
It makes me tired just to think about it — and I’m someone who actually finds this topic interesting!
Some libraries do this, e.g.: https://www.library.illinois.edu/staff/wp-content/uploads/sites/24/2018/07/unsupervised-copying-notice.pdf
Here’s a sign near copiers/printers I like:
Copyright law gives authors certain rights — but it also limits those rights too.
Fair use (Section 107 of the Copyright Act) allows users to make certain uses of
copyrighted works without permission. We can help you to understand how to use equipment and
resources in this library facility, but we cannot make copyright determinations for you.
THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17, U.S. CODE) GOVERNS THE MAKING OF PHOTOCOPIES OR OTHER REPRODUCTIONS OF COPYRIGHTED MATERIAL; THE PERSON USING THIS EQUIPMENT MAY BE LIABLE FOR ANY INFRINGEMENT.
I really like that one too! I wish it could displace the one required by Section 108 and written by the Copyright Office. Unfortunately, according to current law, it can supplement that notice but not displace it.
Is it possible to provide context with the copyright notice. Something developed by the trade group(s) that represent libraries interests. While there is the down side that it would possibly make it MORE obtuse than it already is, I’m thinking of something like
“Title 17 USC Section 108 blah blah et seq and all the other stuff requires libraries to post the following copyright notice verbatim; ‘blah blah fair use blah blah private scholarly and stuff blah blah blah’
Additionally, Title 17 USC Section 107 and all that provides additional rights. ‘blah blah blah accurate description of actual rights that superseed those stated in the required copyright statement’ ”
The idea being, if the government requires you to post the notice verbatim, then so be it. It’s incorrect and there might well be a free speech issue in requiring that an incorrect statement be communicated. But it’s probably not worth fighting about, if there is a simple solution. However if you post the notice verbatim, but then add context and further explanation, and that further explanation is in fact accurate and true, if that’s acceptable to the copyright office, great, everyone’s happy. But should they take issue with it, then it would seem we may well have a serious first amendment issue. The. Idea that the government could both REQUIRE a librarian to provide incorrect or misleading information and then PROHIBIT them from posting a truthful and accurate statement of clarification along WITH the required notice, so long as there is nothing inaccurate or misleading in that statement, would seem to present serious first amendment issues. At that point, it’s time for the lawyers and the courts to get involved.
Hi, Michael —
I’m not aware of any law or regulation that would prevent the library from putting an additional notice in place, one designed to clarify the misinformation in the “warning of copyright” notice. As you can see from some of the other comments here, this is what a few libraries have elected to do. But I think you’re right that here the risk lies in overwhelming patrons with contradictory messages and asking them to sort through the competing content. I can see real upsides to providing the correction, but the challenge lies in figuring out how to do it in a way that results in a net increase of clarity. It’s frustrating.
It seems like the language is geared more towards academic libraries than libraries in general. I think maybe it was meant to emphasize educational use over commercialization/non-educational use. Educational use is far more forgiving as far as copyright violations go.
This is another example of the conflict between the notice language prescribed by the Copyright Office and the language of the law itself. Despite what the notice says, the law is very clear that copies made in libraries are under no restrictions different from those that apply to copies made anywhere else. To the degree that the notice suggests non-educational fair use is somehow less permissible because the copies were made in a library, it is actively misinforming and misleading patrons — and as currently written, the law requires that the library be complicit in this act of misinformation.
I’ve always thought that this was designed to protect libraries from liability for any copyright violations committed by patrons with materials we have copied for them or that they have copied using library equipment and resources, but you’re right — there are contradictions in the language used.
It was included as part of the Code of Federal Regulations to protect libraries from vicarious liability for copies made on machines in the library where one is employed. It was also meant to remove librarians and library staff from the role of policing content or copyright in the items copied — inappropriate for librarians and intrusive for researchers. It is not part of the Copyright Act per see but is legally required. See 37 CFR 201.14. https://www.law.cornell.edu/cfr/text/37/201.14
Periodically we post a graffiti-style notice on our copiers. The design gets attention in a way that supports respect for copyright holistically. We include the required notice preceded with the following: “The law requires that we tell you this…” After the necessary statement, we add: The law does not require that we tell you this: The law is not only for copyright holders. Users have rights too. Fair use (Title 17, US Code Section 107) allows users to make certain uses of copyrighted works without permission. Learn about fair use and then use your best judgment.” We close with a link to relevant resources and “Know Your Copyrights” in large lettering.
Nice, Melissa!
One question: does Section 108 only apply to publicly-owned libraries? As-written, it seems like it also applies to privately-run and owned libraries (thinking private university libraries)? That would seem to up the ante of the discrepancy, so to speak, if it’s compelling actions by private organizations.
Section 108 doesn’t make any distinction between public and private libraries/archives, I think because copyright applies identically in either context.
Section 108 does not distinguish between “privately-run and owned libraries” and public libraries. To have the benefit of Section 108, 1) the copy is made with no purpose of direct or indirect commercial advantage, 2) the collections are open to the public — or available beyond researchers affiliated with the library or archives to other people doing research in a specialized field, and 3) the copy includes a notice that it is made under the provision of Section 108. See Section 108(a).
Keep in mind that Section 108 applies to copying performed BY libraries and archives — not the researcher or the general public. It does not deal with copies made on unsupervised copy equipment in and/or maintained by the library for the convenience of its researchers. Thus the notice required for unsupervised copy equipment may start to make more sense. It allows us to provide the tools to our researchers and to be hands-off, to avoid being put in the untenable role of copyright enforcers. Note that the Section 108 Study Group mentioned in this conversation recommended adding museums to libraries and archives for the benefits of 108; this has not happened. My general point is that 108 deals with the special kind of copying that libraries and archives in particular need to do for preservation and interlibrary loan. The notices for photocopiers are related but have a different target and purpose.
Excellent point! I wanted to point out (and somewhat revise what I wrote at first) that the text of 108 looks at the /activity/ of the library — and not the organizational ‘nature’ of the library. “Open to the public” has some bite to it, though. Would simply participating in reciprocal ILL meet this “openness” criteria? I think maybe not.
“No purpose of direct or indirect commercial advantage” here seems key to me. Document delivery companies would be excluded by this language while making and sharing an occasional copy outside –upon request, at no charge– might not (be excluded) by this.
BTW, the 108 Committee’s recommendations have yet to be followed up on by Congress. I think the analysis in their report suggests that, basically, no one can be confident that they know what the language of 108 means, and doesn’t mean. I like the petition idea.
If you think this is something that needs to change, consider filing a petition for rulemaking with the Library of Congress.
For more information on petitions for rulemaking, see the following CRS report:
https://www.everycrsreport.com/files/20200123_R46190_d9c71b23a70a709534b1e847693fdbf3cc181127.pdf
Good tip, Jay, thanks.
Eric, the answer to that is a little complicated, but basically I think the direct benefit to the public of the operations of a public library (or, publically accessible archive) is what the statute has in mind there. I’ve run three corporate libraries — their purpose is the same as that for anything else in the corporation. Usually, making money.
More — much more — here: https://www.copyright.gov/policy/section108/discussion-document.pdf
I am generally cautious about the use of “lie.” A lie is an untruth told deliberately to deceive.
The posted statement may be incomplete, but is it mean to “deceive”? I would argue that it’s meant to be read and that people will not read what is long, though a longer version is certainly more precise. I would also suggest that every copy machine probably needs such a warning but only libraries got stuck.
Further, I am weary of people saying copyright law is too complicated. It really isn’t, it’s just inconvenient for people who want to avoid it. I studied the law as an editor, layout designer, and high school teacher. I know where the line is.
The goal of copyright law is to preserve value for the creator. Only if a user damages the creation or creator (except in criticism or parody) or steals (I can say “steals”) use, thus depriving the creator of income, is that person in violation of copyright. That principle should not be so difficult to understand.
Hi, Jan —
I think your proposed definition of “lie” is too narrow. I’d say that we lie when we say things that we know to be untrue, whether or not the intention is to actually deceive.
I know for a fact that the Copyright Office has been notified of the objective untruthfulness of its required notice. It has nevertheless chosen (so far) not to change it.
I understand your point and do not doubt the accuracy of your facts. Nevertheless, if I am mistaken, I am not lying but wrong. If I tell you I am two hundred years old, wink-wink, I and not lying; I am joking. Usually, when public agencies do weird (unnecessary, silly) stuff it’s the result of a lawsuit by a private citizen. I would bet that’s the case here. And while they might be lying, my definition is not “too narrow.” It’s straight out of Websters.
The problem, of course, is that we in libraries aren’t “winking” when we tell patrons they can’t use copies “for any purpose other than private study, scholarship, or research.” We’re required by law not just to tell patrons this thing that is untrue, but also to do so in a way that is unambiguously designed to convince them of the untruth. Whether you call that “lying” or not, the impact on patrons is the same: the library is actively misinforming them as to their rights.
Now you’re just being stubborn.
I love an overwrought copyright panic as much as the next scholcomm librarian*, but this takes it to a new level. The only falsehoods here are the title and content of this post.
Altogether, the actual text of the Copyright Office’s statement makes 4 straightforward propositions:
1. copyright law exists (sentence 1)
2. libraries have a special right to make copies in specific conditions (sentences 2 & 3)
3. if you use a library-copied work in a way that isn’t covered by fair use, you might violate copyright (sentence 4).
4. the library doesn’t have to risk infringing copyright for you. (sentence 5)
Nothing here is false! If someone uses a library-produced photocopy IN EXCESS OF FAIR USE, they might wind up infringing copyright–that’s exactly how fair use works. If your use falls within the bounds of fair use, great! If your use is in excess – i.e., if it doesn’t qualify as fair use – you might be in trouble.
At no point do the actual words and sentences of this statement assert that fair use rights are limited. The only limits are in sentences 2 and 3 – and they explicitly limit the LIBRARY, not the user. Sentence 4 simply warns the user that library-copied material comes under the same fair use rules as something the user copied themselves.
Maybe the juxtaposition of these ideas in a single paragraph could imply some sort of link, and personally I would have formatted the text with a line break between sentences 3 and 4. But compared to the terms of service we routinely ignore for any & all websites/apps/devices, this is a beacon of clarity.
*obligatory scholcomm librarian disclaimer: I’m not a lawyer and cannot give legal advice
Matt! Long time no hear from!
None of the propositions you’ve quoted is false. But you didn’t quote all of the “straightforward propositions” in the Copyright Office’s statement. You conveniently left out the statement my post is about:
“One of these [conditions specified in the law] is that the photocopy or reproduction [furnished by the library] is not to be ‘used for any purpose other than private study, scholarship, or research.'”
That statement is false; the condition it describes is not specified in the law. The phrase “other than private study, scholarship, or research” does occur in Section 108, but it is qualified and superseded by the statement that “nothing in this section… in any way affects the right of fair use as provided by section 107.”
This means that contrary to what the Copyright Office requires libraries to tell users, copies provided by the library can in fact be used for purposes “other than private study, scholarship, or research.” The Copyright Office requires libraries to misinform patrons about their legal rights.
Matt is right. You didn’t address his point that the first three sentences are about what libraries can do, not end users. That is what 108(d) says. The first three sentences are an accurate summary of that statute. As someone else already pointed out, this is about vicarious liability rather than fair use.
Really, you are arguing that 108(d)(1) is wrong because of the “don’t construe 108 to limit 107 language” but your interpretation would render 108(d) — and really all of 108 — meaningless. That is not how a court would interpret it. Under canons of statutory construction (surplusage), a court assumes that Congress intends every word of the statute to be meaningful and the court should avoid an interpretation that makes any word surplus. A court would also prioritize the specific language of 108(d) over the general language of 108(f).
And even if I concede your other interpretations, the notice still would not be wrong. It specifically says *one of* the conditions rather than “the only” condition. It then continues to say there is violation when it is not fair use. That is, “private study” can be understood as an example of “one of” the ways that is fair use.
Is it misleading? Sure, but it isn’t wrong. You need to read it as an attorney, not a librarian.
So, Different Matt, is it your position that the prescribed notice is correct in saying that library-provided copies are “not to be used for any purpose other than private study, scholarship, or research”? Or is it your position that this is not what the notice actually says?
(Please note that my quarrel is not with the content of the statute itself, nor am I arguing that library users put themselves in legal jeopardy if they use library-provided copies within the bounds of fair use. My quarrel is with the content of the notice that the Copyright Office has prescribed, and which libraries are legally obligated to communicate to patrons.)
Matt(1) here – Rick, you’re rewording the text of the notice to fit your interpretation.
If you look at the literal text of the statement, it does not address the use of “library-provided copies” – it constrains [restates] a set of conditions under which a library can provide copies. Sentence 2 says that libraries can provide copies under certain conditions. Sentence 3 describes “One of these specified conditions” – i.e., one of the conditions under which libraries can provide copies. ANd the actual, literal text of 17 USC 108 says *libraries cannot provide copies* [under this set of conditions] to be used “for any purpose other than than private study, scholarship, or research”*. The actions being limited are those of the LIBRARY, not those of the user. This may seem like hairsplitting, but that’s the nature of legal language. (Especially this style of CYA legalese.)
Read carefully, then, the first half of the statement is describing a special set of conditions applying to the actions of a library: a universal right to reproduce and distribute a copyrighted work for private study, scholarship, or research. At no point does the statement preclude other conditions that might apply to a library’s behavior, nor does it assert anything about what the recipient of a copy can do with it.
Because of course libraries can make use of other rights, limitations, and exceptions to copyright law. And we do so all the time. When a faculty member asks us to scan an book chapter and add it to our digital course reserves for their students, section 108 doesn’t apply — but we could certainly do a fair use analysis. Or maybe we’d rely on 110(2), if we felt like wading through that section’s convoluted criteria. We routinely lean on 121 to produce derivative works for people with disabilities. Heck, depending on context, a library might even make reproductions under sections 115 and 116 (i.e., “audio copyright is a garbage fire”).
But if you start listing all of the possible conditions under which a library might provide reproductions (or exercise any of the other exclusive rights in a copyrighted work), we might as well just post 17 USC in its entirety. That serves no one, and would be significantly less user-friendly than the current, technically correct (albeit imperfect) statement.
Here’s the exact text of the relevant portion of the notice:
“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.'”
So Matt, when the notice says “… not to be used for…” who do you believe is the contemplated user? The library itself, or the patron?
Because honestly, it kind of sounds like you’re disagreeing with me by rephrasing my position: obviously, the notice constrains the library’s copying behavior. But it’s equally obvious that the constraint attaches to the use that the patron intends to make of the copy. (Hence the word “furnish” in the previous sentence, which would make no sense if the restriction didn’t apply to copies furnished by the library to patrons.) The library is allowed to make a copy only if the patron’s intended use is for “private study, scholarship, or research.” You and I understand that if the patron subsequently goes on to exercise her full legal rights in that copy in a way that goes beyond that, but still remains within the bounds of fair use, she won’t have broken the law — but the notice that we are required to provide her doesn’t say that. Instead it says that if we’ve furnished her a copy, it’s with the understanding that her use of it will fall within an artificially narrow subset of fair use. Or, to put it slightly differently, we’re not allowed to furnish the copy if her intent is to take fuller advantage of her fair use rights. The notice clearly — and falsely — communicates to patrons that if they receive a copy from the library, it is “not to be used for any purpose other than private study, scholarship, or research.”
And again, that’s my critique of the notice. It’s that it misinforms patrons about their rights, telling them that by receiving a copy from the library, they are accepting an artificially narrow subset of fair use in that copy (because the copy was provided on the understanding that their intent is to stay within those constrained bounds).
Replying here because I guess I can’t reply further in the original thread.
>>Here’s the exact text of the relevant portion of the notice:
“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.’”
So Matt, when the notice says “… not to be used for…” who do you believe is the contemplated user? The library itself, or the patron? <>Instead it says that if we’ve furnished her a copy [UNDER ONE SPECIFIC SET OF CONDITIONS], it’s with the understanding that her use of it will fall within an artificially narrow subset of fair use. Or, to put it slightly differently, we’re not allowed [BY ONE SPECIFIC SET OF CONDITIONS] to furnish the copy if her intent is to take fuller advantage of her fair use rights [WHICH DO NOT INCLUDE A RIGHT TO RECEIVE A COPY FROM SOMEONE ELSE]. The notice clearly — and [CORRECTLY]— communicates to patrons that if they receive a copy from the library [UNDER THIS SET OF CONDITIONS], it is “not to be used for any purpose other than private study, scholarship, or research.”<<
[Bracketed additions are mine, obvs] This notice describes one of several avenues allowing a library to exercise one of the exclusive rights in a copyrighted work. It is entirely correct to note that this avenue only applies if the intent (as far as the library knows) is for a limited set of conditions. Sure, the notice omits other avenues available to a library, but no part of the literal text preclude other conditions which may permit a library to reproduce a copyrighted work. Addressing all possible avenues for reproduction by a library would entail reprinting most, if not all, of 17 USC, which is an absurd expectation for a sticker on a photocopier or stamp on an ILL document.
Finally, our user can still exercise all of her fair use rights – because at no point do her fair use rights entitle her to receive a reproduction from anyone else, under any circumstances. Sections 107 and 108 don't even entitle her to receive a copy for personal study, research, or scholarship. They merely permit a library to provide such a copy, if they choose to do so.
On the other hand, if you truly believe that 17 USC 107 and 108 entitle a person to copies from a library for any purpose within the bounds of fair use…what address should my colleagues and I use to demand reproductions from your library? I bet we could save a lot of money on printer ink and paper if BYU provided all the copies of anything we wanted to use under Section 107. 🙂
I think we’ve taken up enough TSK bandwidth with this discussion, so this will be my final comment in response to you, Matt. You can feel free to have the last word if you wish.
I confess that the way you’ve commingled my text with yours and repeatedly inserted all-caps bracketed phrases leaves me uncertain as to what you’re actually arguing in this comment. But I think you may be saying that by specifying only one of multiple “specific conditions” under which a library may make copies for a patron, the notice is thereby not saying either that this condition is the only one under which the library may furnish a copy, or that the patron doesn’t have the full spectrum of fair use rights in the library-provided copy. (Forgive me if I’m misinterpreting you; again, that part of your comment is tough to parse.) But if that’s your interpretation, it seems incoherent to me. It would mean that the Copyright Office took a subset of fair use rights and pulled them out of Section 107 for no prescriptive reason. Why specify the patron’s intent to limit use to these three purposes as a possible condition of copy provision if the intent isn’t to communicate that intent as a defining condition of provision? (Yes, those three purposes are mentioned specifically in 108[d][1], but since 108[f][4] clarifies that the patron’s full fair use rights are not constrained by any other language in that section, signaling this limitation to the patron contradicts what the law says about her rights.)
Furthermore, the phrase “not to be used” is clearly prescriptive. The notice isn’t offering “no purpose other than private study, etc.” as one possible legal use among many; it’s clearly saying “a copy made for you by the library is not to be used for any purpose other than private study, [etc.]”. You assert that “no part of the literal text preclude [sic] other conditions which may permit a library to reproduce a copyrighted work,” but I think you’re mistaken. The text clearly says that the patron’s intent to use the work “for any purpose other than private study, [etc.]” constitutes a condition that precludes the library providing a copy — and therefore signals equally clearly that if the library does provide a copy, it’s with the understanding that full fair use will not be made of it. The notice makes undefined reference to other limiting conditions that might exist as well (uses that might be characterized as “scholarship” but that fail the four-factor test might be one example), but clearly presents the stated limitation as a constraining one for the patron.
In short, no reasonable patron will read that notice and come away thinking that she has the full spectrum of fair use rights in the copy provided by her library.
As for whether the notice could be rewritten to be both legally accurate and clear, I disagree that “addressing all possible avenues for reproduction by a library would entail reprinting most, if not all, of 17 USC.” For example: if the Copyright Office were to rewrite the notice as follows, it seems to me that it would meet the demands of 108(d)(2) while also remaining in harmony with the qualifying language of 108(f)(4):
The copyright law of the United States (title 17, United States Code) reserves for copyright holders the exclusive right to make photocopies or other reproductions of their works. However, the law also allows “fair use” of the works by others, which includes limited copying “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), 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.
This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.
(That’s just a first crack at replacement language. I’m sure it could be improved upon with more work.)
Obviously, the library is free to deny copy requests “if, in its judgment, fulfillment of the order would involve violation of copyright law.” That’s what would happen if you and your colleagues were to order copies from us in a way that we think would represent a copyright violation. (The library is also free to deny requests that would represent an undue burden on staff, which is what would happen if you tried to use my library as an offsite high-volume printer, even of public domain materials.) But if you request a copy or copies in a way that doesn’t trigger that red flag for us, and we provide them, you will have your full fair use rights with regard to those copies — despite the misleading notice to the contrary that we will be legally obligated to put in front of you when you submit the request.
Reply 3 and final:
You’re missing a key point here: the Section 108 notice is only required for *copies provided under the provisions of Section 108*, and those can only be provided if the library “has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research”. If a library provides a copy for a user, knowing the user’s intended purpose is something else, then the library isn’t providing the copy under Section 108, and no notice is required.
>>>It would mean that the Copyright Office took a subset of fair use rights and pulled them out of Section 107 for no prescriptive reason.<<>>In short, no reasonable patron will read that notice and come away thinking that she has the full spectrum of fair use rights in the copy provided by her library.<<>But if you request a copy or copies in a way that doesn’t trigger that red flag for us, and we provide them, you will have your full fair use rights with regard to those copies — despite the misleading notice to the contrary that we will be legally obligated to put in front of you when you submit the request.<<
You're only legally obligated to apply the notice if you're relying on Section 108 to allow your copying. If you're using the same order form and process for reproductions made on the basis of fair use, Section 110, or any other exception, then sure, using this notice alone is misleading. But that seems like something you should fix on your own library's interface, perhaps by adding some extra text like all the examples discussed in the comments. The Copyright Office is not responsible for fixing your library's user interfaces.
Reply 3, take 2, I guess, because something went wrong in the formatting for my earlier post. (mods: please go ahead and delete that one.)
You’re missing a key point here: the Section 108 notice is only required for *copies provided under the provisions of Section 108*, and those can only be provided if the library “has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research”. If a library provides a copy for a user, knowing the user’s intended purpose is something else, then the library isn’t providing the copy under Section 108, and no notice is required.
You said: **It would mean that the Copyright Office took a subset of fair use rights and pulled them out of Section 107 for no prescriptive reason.**
The reason is that Section 108 provides a specific blanket exception to a copyright holder’s exclusive rights in their work, in addition or as an alternative to the rights granted by fair use. Fair use is always an option, but it’s also always subjective, contextual, and carries some risk. With Sections 108, 109, and 110, Congress preemptively determines that specific use cases do not infringe copyright.
You said: **In short, no reasonable patron will read that notice and come away thinking that she has the full spectrum of fair use rights in the copy provided by her library.**
That’s because Section 108 does not allow the library to provide copies for her full spectrum of fair use rights! In order for our patron to receive a copy under the provisions of Section 108, then: 1) her intended purpose was be personal research/study/etc., OR 2) she gave the library no notice of a different purpose. Otherwise, the library cannot provide a copy under the provisions of Section 108. The library can still turn to fair use or another exception to authorize its copying, or it can risk infringing copyright. But in neither case is it relying on Section 108, and so the Section 108 notice is unnecessary.
Regardless, our patron’s fair use rights regarding the original copyrighted work are unchanged. She may still be able to make and distribute copies, perform/display the work, or create derivatives. Section 108(f)(4) makes sure of that – but it doesn’t create any new rights for our patron – only what’s in Section 107. And no part of fair use entitles our patron to demand that someone else provide her with copies.
You said: **But if you request a copy or copies in a way that doesn’t trigger that red flag for us, and we provide them, you will have your full fair use rights with regard to those copies — despite the misleading notice to the contrary that we will be legally obligated to put in front of you when you submit the request.**
You’re only legally obligated to apply the notice if you’re relying on Section 108 to allow your copying. If you’re using the same order form and process for reproductions made on the basis of fair use, Section 110, or any other exception, then sure, using this notice alone is misleading. But that seems like something you should fix on your own library’s interface, perhaps by adding some extra text like all the examples discussed in the comments. The Copyright Office is not responsible for fixing your library’s user interfaces.
What Matt says.
Rick, your criticism itself seems to be based on a degree of misinformation.
1. There are two types of notices. You seem to have confused/conflated the regulated notice required in Section 108(d)(2) and 108(e)(2) to be displayed “at the place where orders are accepted” and included on the “order form” (the notice in 37 CFR § 201.14), that pertains to situations where librarians make copies for users, such as for ILL, document delivery, and other reproduction services; and the unregulated noticed required in Section 108(f)(1) that pertains to photocopying equipment used for unsupervised copying. That notice is not spelled out in any regulation and just needs to indicate “that the making of a copy may be subject to the copyright law.” That can be worded however you like. It’s normal for it to read like this, as Nate suggested:
Notice: The copyright law of the United States (Title 17, U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. The person using this equipment may be liable for any infringement.
2. Your petition begins with incorrect information that seems designed to agitate librarians into self-righteous fury based on something that isn’t even true. You write: “Everyone who makes a copy in a library, or for whom the library makes a copy of an in-copyright work, is given notice that their copy “is not to be used for any purpose other than private study, scholarship, or research.” No, that is not true.
Not everyone who makes a copy in a library is given such notice. If they make a copy on a photocopy machine on the premises of the library they don’t see a notice that their copy “is not to be used for any purpose other than private study, scholarship, or research.” They only see the above short notice, and that notice is absolutely accurate.
If your library knows what it is doing, it will have the correct notices in the correct places. If it doesn’t, you shouldn’t be blaming the Copyright Office for “lying.”
You write: “So is it really the case that when you make a copy of an in-copyright document at Kinko’s, you have the full spectrum of fair use rights – but if you copy (or receive a copy of) the same document in a library your fair use rights are significantly more restricted? As a matter of fact, no.”
If you make a copy at Kinko’s you are subject to the same copyright law and the same affirmative defense of fair use as you are if you make a copy in the library. No one ever required you to be told that that if you copy the same document in a library your fair use rights are significantly more restricted. If your library is telling you this, they are lying or misinformed.
If you receive a copy of an in-copyright document from Kinko’s, you may in fact be more restricted—you may have to pay a copyright permission fee because years ago copy centers lost their legal battle concerning reproduction of academic coursepacks without obtaining permission. You may be more restricted at Kinko’s if they make the copy. The library, on the other hand, will not ask you to pay a permissions fee. They may, however, not make the copy if they have notice that the copy would be used for any purpose other than private study, scholarship, or research, because such a use would go beyond their specific exception and the library may not be in a position to risk liability for the user’s copy.
3. The 37 CFR § 201.14 notice is meant for the “place where orders are accepted” and included on the “order form” in situations where library staff make copies for users, such as for ILL, document delivery, and other reproduction services.
I agree with others that nothing in that CFR notice is false. Libraries enjoy a specific exception to make copies for users if they have had no notice that the copy would be used for any purpose other than private study, scholarship, or research. That is their legal comfort zone. The notice means that the library is clearly in a position to make a copy for the user if the purpose is private study, scholarship, or research and is otherwise in a position to make its own judgment about making the copy. That’s totally accurate and it’s all about fair use.
That said, a few words could be added to bring the notice into exact line with the wording in Section 108, by adding what is referred to as the “no notice” proviso:
• Section 108 specifically allows libraries and archives to furnish a photocopy or other reproduction if “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.
• The CFR notice states that one of the specific conditions by which libraries and archives are authorized to furnish a photocopy or other reproduction “is that the photocopy or reproduction is not to be ‘used for any purpose other than private study, scholarship, or research.’”
That’s a slight difference that could be corrected but it’s hardly something to create a petition about.
As for “fair use” in this scenario, the library is free to make a fair use determination when making copies for users. The CFR notice does not prevent them from doing that.
You write: “[I]t certainly should rankle us that we’ve been drafted into a disinformation campaign….” “It should rankle us even more…” No, it shouldn’t. We should not be rankled, agitated, or furious about this notice. It was formulated decades ago and it is not an incorrect notice. At that time, the specific limitation in Section 108 was widely accepted and did not present an issue, it was not seen as a problem or a lie. That was before the tech industry started propagandizing to libraries about the supremacy of fair use, trying to insert fair use into every corner, consciousness, every sentence, every thought and action as a way to re-engineer the law and human behavior in its favor. That’s the disinformation campaign we have been drafted into, not one led by the Copyright Office.
Finally, you refer to the Section 108 Study Group but it’s worth noting that a primary reason the copyright law has not actually been revised is due to resistance from the library associations themselves. So again, don’t look at the Copyright Office to blame—look at the library associations and at library practices.
Rick, I think there is enough wrong with the formulation and spirit of this petition that it would be appropriate to take it down and apologize to the Copyright Office.
Hi, Janice —
After reviewing the relevant sections of the code and the requirements defined by the Copyright Office, I believe that you’re right about the distinction between the notice that the law requires be posted near copy machines and the one required at service points and on order forms for library-provided copies. 17 U.S. Code § 108(d) requires the warning of copyright in the latter case, but requires something different in the former: § 108(f) provides that the library won’t be liable for copyright infringement that takes place on unsupervised reproducing equipment as long as it has posted a “notice that the making of a copy may be subject to the copyright law.” The text of the latter kind of notice is not specified in the law, nor is the Copyright Office directed to provide that text. As noted in the correction above, I incorrectly assumed that the “notice” in the self-serve context was the same as the “warning of copyright” in the library-provided-copy context.
As you can see above, I’ve made corrections in the post where I made reference to self-made copying, and inserted an addendum at the end of the post calling attention to the changes. I appreciate the correction.
That said, I can’t agree with you (and others who have asserted this) that “nothing in that CFR notice is false.” The notice says that “one of (the) specific conditions” under which a library can make a copy of an in-copyright work for a patron “is that the photocopy or reproduction is not to be ‘used for any purpose other than private study, scholarship, or research.'” As you’ve acknowledged, this is not an accurate characterization of what Section 108 says. At a very technical level, it mischaracterizes the way § 108(e)(1) uses the phrase “for any purpose other than private study, scholarship, or research” — but more importantly, it elides the clarification in § 108(f)(4) that “nothing in this section… in any way affects the right of fair use as provided by section 107.” As written, the text prescribed by the Copyright Office gives patrons the very clear (and false) impression that copies provided by the library are provided only on the condition that the patron’s exploitation of them be limited to a narrow subset of fair use, rather than for the full spectrum of fair use rights (as provided by § 108[f][4]). The fact that the prescribed notice later says that uses beyond fair use may leave the user liable for copyright infringement does not make it clear that the user is allowed to make full fair use of the copy, particularly in light of the previous sentence in the notice.
I regret that it’s not possible to change the text of my petition to reflect the correction regarding self-serve copy machines, but I believe the remaining issue of the misleading warning of copyright notice for library-provided copies is more than important enough to justify leaving the petition up.
