COPYRIGHT AND GOVERNMENT LIBRARIES

February 1999

Guest columnist: Sarah K. Wiant, Director of the Law Library & Professor of Law, Washington & Lee University, Lexington, Virginia

Libraries operated by federal and state entities such as administrative agencies and research groups must adhere to the copyright laws just as do corporate and educational libraries. Government libraries face similar problems when their uses of copyrighted works are not exempted by the Copyright Act or if their uses exceed fair use. One particular question is how these laws apply to various practices of the government libraries such as screening documentaries and showing films in staff meetings. Many exemptions from protected uses are for educational purposes, but they are limited to nonprofit educational institutions, and a government library likely does not fall within this definition.

Government libraries may face problems in complying with copyright laws when they show copyrighted works such as a documentary to in-house personnel. Section 106(5) of the Copyright Act grants to an owner of a copyrighted work the exclusive right to control any public performance (or showing) of his work. On its face, Section 106 grants to owners total and complete control of the public dissemination of their works. These rights are balanced against the public's right to use the work under limited circumstances for socially beneficial purposes and for personal non-commercial use of works that fall under the protection of the copyright law.

Performances

Generally, when a library purchases a copyrighted motion picture, it does not obtain a performance right unless the right is purchased separately. Is the showing of a documentary for staff functions is a public performance? A public performance is defined as a performance at a place open to the public or at a place where a substantial number of persons outside the normal circle of family or friends might be gathered. Thus, when a patron checks out a videotape and watches it on her own, the performance is private and there is no infringement. However, as the group viewing the tape becomes larger, the chance of copyright infringement increases. The House Report that accompanied the 1976 Act, H.R. 94-1476 gives as an example of a limited use (not a public performance) a closed audience such as a board of directors. Arguably, a showing to a small closed audience of 8-10 people is not a public performance. Thus, a showing of a documentary to a very small group in a staff meeting may be permissible.

Section 110 of the Act exempts certain performances of copyright works if the copy has been lawfully obtained and will be shown in the regular course of instruction in a nonprofit educational institution providing several requirements are met. When the Act first became law, many people believed that nonprofit libraries were nonprofit education institutions; however, since the 1984 Amendments to the Copyright Act, it is clear they are not. Thus, government and agency libraries may not rely on the exemptions in Section 110(1) to perform videos without obtaining permission and/or paying royalties. Section 110(2) does allow the performance of a non-dramatic literary or musical work (but not a film or other audiovisual work) if it is part of the systematic activities of a government body and if employees are required to view it as a part of their employment.

If the public performance does not fall within the Section 110 exemptions, the government library or agency library might argue that the use is exempted nonetheless as a fair use, provided the showing meets the factors set out in Section 107: purpose of the use; nature of the work; the amount of the work used; and the effect on the market. Fair use is difficult to claim when the showing is of an entire audiovisual work and when more people are present than meets the small group requirement. Thus, without exemptions, in order for a government library to show performances of copyrighted works to anyone besides single users, or a very small closed group the library must purchase a performance right along with the work. Only then can the library be positive that it is not infringing on the rights of the copyright owner.

Recording Performances

The off-air recording of copyrighted programs from television and subsequent performance of the show presents another important issue for many government libraries. Libraries generally do not have the right to copy programs off the air at will. Under the Guidelines for Off-Air Recordings of Broadcast Programming for Educational Purposes, libraries in nonprofit educational institutions may record copyrighted programs and can show them under limited circumstances without seeking a license. Any off-air recording and subsequent use by government libraries must fall within fair use or the library should seek permission from the owner. If taping solely for a small closed audience, no other copies will be made and the single copy will not be circulated, arguable the recording is a fair use copy. Nonetheless, it is recommended that the library check first to determine whether the work is easily available for purchase at a reasonable price, but some stations do not sell copies of broadcast programs. Thus, libraries that wish to maintain some type of film archive must negotiate with the broadcaster for permission to make and use the copies.

An exception permitted under Section 108 allows libraries to record purely news broadcasts off the air. This exception is limited to the real news broadcasts and does not include news magazine programs such as “20/20,” “Dateline” or “60 Minutes.” The library may make and distribute “a limited number of copies” of news programs. In order for a government or agency library to qualify for the Section 108 exemptions, it must meet the three statutory requirements of Section 108(a). First, the reproduction must be made without direct or indirect commercial advantage. Second, the library must be open to the public or to researchers doing research in the same or a similar field; and third, the reproduction must contain either the notice of copyright contained on the work or, if there is no such notice, it must contain a legend that the work may be protected by copyright. A government library likely meets these requirements.

Thus, government and agency libraries may qualify for some of the exemptions provided in the Copyright Act relating to showing and reproducing documentaries and films, but not all of them.