MDL Annual 2011 - Copyright Questions

Disclaimer: I do NOT provide legal advice - this page, and all of our discussions at the meeting, focus on general information about how copyright works. For answers to specific legal questions, you will need to consult an attorney.

Common Issues (i.e., slide content)

Sorry this isn't done yet - most of your questions came in quite close to the end of the week, so I focused more on getting the presentation ready!


  • Physical ownership does not convey copyright ownership.
  • Ownership can be difficult - and sometimes actually impossible - to determine.
  • Accurate reproductions of an existing work are not independently copyrightable; the copyright ownership in a digital copy of a work is usually the same as for the work itself.

Use (By Us)

  • Copyright holders' rights include control of reproduction, distribution, public performance or display, and creation of derivative works. Anytime we take action that overlaps with one of those rights, we are raising copyright issues. But often, we are still able to make the use!
  • Public domain determination issues
  • Fair Use
    • Not covering details today
    • Concepts
      • Fair use is "breathing space" in copyright law. Embeds important First Amendment freedom of expression values.
      • Guidelines exist, and there are people who would be willing to tell you the limits. But court cases go every which way, because fair use was intended to be a flexible doctrine, and to vary on a case-by-case basis.
      • Fair use is like a hot air balloon, and we (users) are on the inside. If we don't continue to  use it, it's under pressure from atmospheric forces to shrink in around us.

Use (By Others)

  • Fair use
    • Some folks want to know what the limits of fair use are in order to share that information with others. But fair use is flexible and case-by-case-oriented, so its easier to explain how the law works than to try to explain limits (which don't exactly exist.) 
    • In general, institutions are not responsible for the down-the-line uses that other people make of their material. Enquiring into other folks' uses, or telling them what they should or shouldn't do, can be a source of liability. Look for information on "vicarious liability" or "contributory liability", as well as  for more information on §108 limitations on library liability.
  • Copyright-friendly materials
    • Public domain is one good source - (links will be added to some public domain resources)
    • Creative Commons
  • Controlling use of publicly available digital copies
    • Not really possible. But that's basically a good thing!

Session-Specific Issues

Session 1 Issues

Fair use and Creative Commons are two parallel ways to make use of something - fair use is uncertan, but broad; Creative Commons is certain but might be limited. No Creative Commons license purports to restrict fair use rights. But contracts CAN restrict fair use rights - we often sign licenses that limit our organizational rights, and/or our users' rights to make many uses that copyright would allow.

Fair use is kind of unique to US law (see above), but other countries have similar provisions. The UK, Canada, and many former Commonwealth countries have something called "fair dealing" - where certain types of users making certain types of uses get certain kinds of rights. I often use the image of a bank of filing cabinets as an analogy for this - if you fit the exact parameters on the label of a particular drawer, you get the specific rights in that drawer. US law also has a lot of exceptions that are this specific and categorical (for example, the small business exception for broadcast signal, the §108 library exceptions). What is unique to US law is the flexibile provision of fair use.

(Will add other questions as I remember them...)

Session 2 Issues

I will add info on points (that I remember) from open question time, after the session.