This guide provides information on copyright policies and laws regarding digital library resources. More particularly, it discusses copyright law, the first sale doctrine, fair use law, controlled digital lending, and licensing agreements. Each page contains practical resources that can help libraries understand copyright policy, but also, when read as a whole, tells the overarching story between the difference in values of libraries/archives and copyright holders/publishers. Please note that this guide does not provide legal advice. If you need legal advice, please contact an attorney.
Intellectual property refers to the intangible product of human invention or creativity that can be copyrighted, trademarked, or patented. The idea of intellectual property and copyright established by Article 1, Section 8 of the U.S. Constitution originally meant "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." However, with recent expansions on copyright terms and technological development, some argue that intellectual property laws hinder the progress of society instead of promoting it.
Digital Copyright refers to the rules and regulations around the reproduction and use of digital materials under the Digital Millennium Copyright Act of 1998 (DMCA). This act made it illegal to circumvent the digital rights software that protects digital content, like DVDs or Ebooks from being copied.The DMCA also created a "safe harbor" for Internet Service Providers (ISPs) so they are not liable for copyright infringement claims as long as they take down the infringing content. There have been no updates to digital copyright law since the DMCA was passed in 1998, but there has been many changes to technology and the internet. The U.S. Copyright Office's Section 512 Report from May of 2020 sets forth that the Section 512 of the DMCA is out of line with Congress' original intent of the DMCA.
Copyright laws and policies affect many aspects of librarianship, including the lending of both physical and digital resources, library digitization projects, and the altering of works for assistive technologies. Many of the core values of librarianship, like expanding access to information and ensuring the privacy of patrons seem to be at odds with many copyright policies in effect today.
More specifically, the DMCA and digital copyright policies have put increased restrictions on the ability of libraries to own, lend, and disseminate digital materials. Purchasing Ebooks tends to be more expensive than purchasing physical books and many licensing agreements between libraries and publishers are unfair and expensive as well. Due to this, most libraries have put more focus on their physical collections than their digital collections. Academic librarians in particular are worried that if they continue to license digital materials from publishers, libraries will no longer own their collections and have the ability to archive and preserve the written word. In addition to this, when the COVID-19 pandemic began in March of 2020, libraries had to find ways to ensure that their physical collections would be available to their patrons in a digital world. Many libraries started practicing Controlled Digital Lending, which has led to some backlash from publishers and authors.
There has also been discussion about whether or not online storytimes can be considered copyright infringement. According to an interview with Thomas A. Lipinski in American Libraries Magazine, story times and sing-a-longs in library spaces are legal, but librarians should be cautious about posting or live-streaming content with copyrighted music, and use songs in the public domain instead. As for story times, Lipinski says that some publishers allow for the performance of their literary work, but that the Fair Use of such materials in digital library environments has yet to be determined.
Creative Commons is a nonprofit organization that aims to promote the sharing of knowledge and creativity by creating Creative Commons licenses and public domain tools that have resulted in a standardized way to grant copyright permissions for intellectual property. Creative Commons also has designed CC Search, a system that makes it easier to find CC licensed works. Below are some other Creative Commons resources and a guide to Creative Commons licenses.
LLRX's Library Digitization Projects and Copyright resource provides a guide to determining whether or not an item can be digitized for library use.
Cornell University's Copyright Information Center has a Guide on Copyright Term and the Public Domain in the U.S. that details what works are still under copyright and what works are in the public domain.
The Electronic Information for Libraries' (EIFL) Handbook on Copyright and Related Issues for Libraries is a guide to a breadth of legal issues that affect the function and ability of library digital services. The guide is also available in Arabic, Armenian, French, Polish, Romanian, and Russian.
The Copyright Advisory Network (CAN) is a resource that assists librarian's understanding of copyright law and its impact on access to information, censorship, and free expression. They have a forum where librarians can ask questions about copyright, and a collection of tools that help evaluate copyright policies like fair use.
The Berkman Klein Center for Internet & Society at Harvard University has a free course, Copyright for Librarians, available on their website. The course has a total of 9 modules that range in topic from managing rights to activism that has shaped copyright law.
Benson, S. R., & Stitzlein, H. (2020). Copyright and Digital Collections: A Data-Driven Roadmap for Rights Statement Success. College & Research Libraries, 81(5), 753–767. https://crl.acrl.org/index.php/crl/article/view/24510
Gould, T. H. P., Lipinski, T. A., & Buchanan, E. A. (2005). Copyright Policies and the Deciphering of Fair Use in the Creation of Reserves at University Libraries. Journal of Academic Librarianship, 31(3), 182–197. https://doi.org/10.1016/j.acalib.2005.02.001
Jacobs, P., Pugh, H., & Wang, J. (2020, September 24). A 21st Century Update to Digital Copyright Law. The Regulatory Review. https://www.theregreview.org/2020/08/01/saturday-seminar-21st-century-update-digital-copyright-law/
Jobson Guinevere, & Nercessian Armen. (2017). Developments Related to the Safe Harbors Under the Digital Millennium Copyright Act. The Business Lawyer, 73(1), 243–258. https://www.jstor.org/stable/26419203
McDermott, A. J. (2012). Copyright: Regulation Out of Line with Our Digital Reality? Information Technology & Libraries, 31(1), 7–20. https://doi.org/10.6017/ital.v31i1.1859
Shincovich, A. C. (2004). Copyright Issues and the Creation of a Digital Resource: Artists’ Books Collection at the Frick Fine Arts Library, University of Pittsburgh. Art Documentation: Bulletin of the Art Libraries Society of North America, 23(2), 8–13. https://www.journals.uchicago.edu/doi/10.1086/adx.23.2.27949311