Shades of Gray

When it comes to copyright, the solution isn't always clear—even to an expert

By Carrie Russell -- School Library Journal, 4/1/2004

Our library is planning to lend a local hospital part of our video collection. The hospital has a central server that pipes into each patient's room, and it plans to show two films each night. What do we need to know about copyright and site-licensing legalities?
—Patricia Musante, director, Potsdam Public Library, Potsdam, NY

There are various elements to consider. On the one hand, the first sale doctrine allows libraries (and anyone else, for that matter) the right to lend copies of lawfully acquired materials, including videos. On the other hand, generally speaking, the library may not have rights of public performance for every video that it lends. Public performance rights may be necessary if the videos will be "publicly performed" before a group of people outside of a family or a small group, whether or not admission is charged (except, of course, if the public performance is for face-to-face teaching purposes). Since the videos will be piped into individual patients' rooms, there is no "public" to be worried about.

But is the local hospital considered a public place where a public performance might occur? There are a couple of court cases that are relevant here. For example, it has been ruled that private viewing rooms for individuals to screen films in video stores are considered public places. And in another case, hotels were allowed to pipe videos into private sleeping rooms because the court reasoned that the private room replaced the home environment. Does a private or semi-private hospital room replace the home?

One must also consider the viewing format. Will the library always be lending the hospital analog copies (videos) or might it sometimes loan them digital copies (DVDs)? Recent amendments in the copyright law clearly suggest that Congress (influenced by powerful lobbying groups) feels that digital formats should be afforded more protection, altering their original assertions that copyright should be technologically neutral.

Finally, there's the question of site licensing. Can a hospital or library obtain an annual site license for these anticipated screenings (which would imply that there's an effect on the works' market)? Or is site licensing a red herring? After all, the videos have been purchased by the library and therefore should be governed by the rules of copyright and not a state contract.

Readers probably expect me to give a definitive answer to this question, but copyright is not black and white. (Darn!) For this complex query, here's my suggestion: seek legal advice.

One of our teachers is scanning and printing characters from several books to use in her reading lessons. Is that OK? Also, what about the reproduction of game boards?
—Beth Brabble, media coordinator, White Oak Elementary, Edenton, NC

We must consider fair use to answer this question. If copies of the picture-book characters are not being reproduced and distributed outside of the classroom and the books themselves have been lawfully acquired, I would argue that the copies are fair. My determination is based on the fact that the copies are being used for nonprofit, educational purposes and the copyright law cites multiple copies for classroom purposes as an exemplar of fair use.

One might, of course, make a counter argument: since character illustrations are highly creative, they are deserving of greater copyright protection; plus, since an entire character is being copied, rather than a small portion, the use is not fair. This is a legitimate argument, and that's why some people find fair use so vexing. But in this particular case, I think that the educational purpose of the use and its limited effect on the works' market outweigh the other fair-use considerations. Also, it may be necessary to copy an entire character to achieve the teaching objective. Admittedly, this is a judgment call, but it's what we must do whenever we make a fair-use analysis.

I assume the use of game boards is not for educational purposes and therefore is probably not fair. Also, the logos, symbols, and short phrases (such as "just do it") that appear on game boards are registered trademarks. Trademark law is more rigid than copyright law and does not have the same fair-use exemption.