Stolen Words

This phenomenon occurs when, say, the school librarian provides copyright advice, then discovers that the teacher or student questions that advice. Librarians report that after the copyright information is given, the student or teacher does one of three things. One, the student or teacher ignores the advice and proceeds to do what he or she wanted to do in the first place. Two, the student or teacher grudgingly accepts the advice and never talks to the librarian again. Three, an argument ensues. (Though statistically insignificant, I do note the very rare instance when the student or teacher accepts the advice and thanks the librarian for broadening his or her understanding of the copyright law.)

Given this situation, it's no wonder that after I'm introduced as ALA's copyright specialist, librarians often seek me out. Some take me aside quietly and whisper: "I don't want to report anybody, but you wouldn't believe what these teachers want to do with copyrighted material." Some turn to me for human resources help. "I don't want to create bad feelings with the teachers," they confide. "Should I stick to my guns or should I just give in?" Some librarians are simply panicked: "What if my school gets sued?" they ask. And some are impatient. "Carrie," they sigh, "can't you just give me a clear answer on what to do in these situations?" Then there's my personal favorite, which comes after a long tale of copyright woe: "I was right, wasn't I?"

Librarians, I hear your concerns--and I know your pain. Copyright is tremendously complex, and your role as a knowledgeable information specialist and occasional copyright adviser is a difficult one. You are asked to provide sound advice on copyright to your users, and you must strive to be consistent and fair. Moreover, while working within the spirit of the copyright law, it's also your job as a librarian to protect your patrons' rights to use and share information, whenever legally possible.

That said, I would like to suggest five guidelines for librarians dealing with copyright issues. Please note that this advice applies just as well to public librarians, who deal with many of the same issues as their school counterparts.

1 Embrace your role as copyright adviser.

Librarians are the information professionals of American society. As such, we protect the interests of library users and strive for the free flow of information. The term "free flow" does not mean that information should be "free" but, rather, that access to information should be as "barrier-free" as possible. Unfettered access to information is critical to a democratic society and essential to schools and other educational institutions. Librarians are the only professionals charged with preserving this access. Thus, it is natural and correct that librarians should be recognized as the copyright experts of the schools, because of who we are and what we represent. Since copyright is a legal doctrine with tremendous impact on information flow, this is not a role we want handled by others.

2 Stay informed, and commit yourself to learning about copyright.

Obviously, digital technology has made copyright law more complicated. Materials in digital formats can be easily replicated and distributed over computer networks. Quite simply, it is now easier to infringe copyright. (However, it is also easier to create new barriers to information, a fact people in the media industries often leave out.) As a result of digital technology, holders of copyrighted materials pushed for, and got, a major revision of the copyright law known as the Digital Millennium Copyright Act (DMCA) of 1998. This law is extremely complex, but it's safe to say that, overall, the tide has shifted to the interests of copyright holders over the interests of those who wish to use copyrighted materials. In effect, the DMCA places tighter controls over access to and use of copyrighted materials. Many of these changes are now being asserted or challenged in court, so in the next few years we can expect even more changes as the courts interpret and apply new statutes.

For their part, librarians should continue to advocate for a balanced approach to copyright, one that recognizes that copyright exemptions are particularly necessary for educators and library users in order to uphold the Constitutional purpose of the law--"to advance the progress of science and the useful arts." All of this change requires that librarians be aware and vigilant. Don't wait for someone else to tell you that what once was a lawful use is now an unlawful use. Stay on top of the subject.

3 Remember, users have rights, too.

The fact is, teachers and students are right some of the time: copyright law can be infringed under certain circumstances. This sounds ridiculous, but it's true. Copyright law includes numerous exemptions that allow users to make and distribute copies, play videos in the classroom, and use excerpts from copyrighted materials--especially in nonprofit educational institutions. For instance, if a teacher wants to show the film version of Hamlet starring Ethan Hawke as part of so-called "face-to-face" instruction, the school librarian does not need to get special permission to screen the film. Of course, each situation should be evaluated on the facts, but there are occasions when even an entire book can be photocopied! I know school librarians take very seriously their responsibility to protect the school from potential lawsuits. But don't let your aversion to risk weaken the ability of teachers and students to exercise their rights. Your primary goal should be to find legal ways to give users access to the information they need.

4 Promote fair use.

Every librarian, especially those working with students, teachers and faculty, should understand and be prepared to apply the concept of "fair use." The Fair Use Doctrine is found in Section 107 of the copyright law. It states that under certain circumstances, users have a legal right to make copies or engage in other activities without permission from the copyright holder. The doctrine originated in judicial decisions in which copyright infringement was excused because the use was deemed beneficial to society or because it caused little or no harm.

Briefly, fair use must be applied on a case-by-case basis considering the following four factors:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
•  the nature of the copyrighted work;
•  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
•  the effect of the use upon the potential market for or value of the copyrighted work.

While each case must be evaluated based on the facts, the use of copyrighted materials in libraries and schools frequently passes the fair-use test. For example, students can photocopy a chapter from a book or an article from a magazine as a matter of fair use. Of course, this does not mean that all uses of copyrighted materials are fair use. In these cases, librarians should request permission from the copyright holder. Think of fair use as your friend. Use the doctrine with teachers and students to explain your reasoning for copyright decisions. Without this important exception, the Constitutional purpose of the copyright law--to promote the progress of science and the useful arts--could not be achieved.

5 Consider the source of copyright information.

When you read articles and educational guides about copyright, don't forget to critically consider the perspective of the author. Obviously, I am a librarian working for the American Library Association, so I do have a particular perspective. A librarian's perspective is to preserve copyright as a balanced law--one that respects both the rights of copyright holders and the rights of the public who need access to copyrighted materials. Librarians also recognize that they must "think" for their public. The public, including teachers and students, may not have a clue about copyright, so we have to help them understand it. Publishers and software vendors, on the other hand, have a very different perspective, which is based, obviously, on a desire to protect their investments. For them, users' rights may be more limited than they would be from my perspective. Writers and other creative types may have yet another perspective. And law professors and practicing attorneys hold views on copyright that differ widely. Always consider the source and critically evaluate the information presented.

Resources

Copyright Essentials for Librarians and Educators by Kenneth Crews (ALA, 2000). Although this book focuses on higher education, much of it applies to the K-12 environment.

"Regents' Guide to Copyright," University of Georgia, www.usg.edu/admin/legal/copyright/copy.htm. Written with higher education in mind, but includes fabulous examples of fair-use situations that commonly occur in any educational setting.

Note

Future issues of School Library Journal will include an occasional column on copyright in which I will respond to questions posed by readers. While I cannot provide legal advice, I will provide professional guidance on the real day-to-day issues facing librarians and media specialists. To submit your questions, please send an e-mail message to slj@cahners.com. On the subject line, write the word "copyright."

Carrie Russell is the copyright specialist for the American Library Association's Office for Information Technology Policy in Washington, D.C.