Permissions and Licensing

Despite fair use and the Copyright Act section 108 exceptions, libraries and archives sometimes must ask permission to reproduce a work. Increasingly, libraries are dealing with permissions and are operating under license agreements that are required when a library acquires access to a particular work.

Locating copyright holders in order to seek permission to reproduce and/or distribute copyrighted works continues to be problematic for librarians, publishers, authors, and faculty members. Related questions in this chapter focus on requesting permission in good faith and pay royalties, including permission to reuse works prepared by student authors in their course work, and obtaining releases from speakers to record and distribute their presentations.

Libraries have been signing license agreements for many years in order to acquire access to certain works for their users. Section 108(f) (4) of the Copyright Act states that nothing affects license agreements that libraries sign to acquire a work in their collections. In other words, license agreements trump section 108's exceptions for libraries. Related questions focus on license terms, the difference between license fees and royalties, and a library's desire to use licensed content to answer e-mail reference questions and to provide interlibrary loan copies, especially when the library subscribes to both the print and the electronic versions of the journal. Librarians in all types of libraries ask about licenses from the Copyright Clearance Center, as well as performance licenses from the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI), and SESAC Inc. Other questions pertain to providing contract library services to other libraries under license agreements, covering satellite corporations and campuses under license agreements, conflicting license terms, and ebook licensing and lending.

What constitutes a good faith effort in trying to contact copyright owners? Does it differ if the work is an orphan work?

There may be a difference in what constitutes good faith when the owner of the copyright is known as opposed to when the owner is not. In the case of known owners, the problems usually arise when a library has contacted the owner to seek permission for a particular use but the owner fails to respond. The lack of a response may not be treated as an affirmative response, so the library must try various ways to contact the owner, such as e-mail, snail mail, fax, and/or telephone calls. The library should document all of the steps it has taken to contact the owner. It is possible, however, that the use the library seeks to make of the copyrighted work is so important that the library is willing to assume the risk after it has tried to contact the author by various methods and still received no response. In this instance, the library staff should recognize that there is still some risk, and that if it proceeds to use the work without permission, and the owner later sues for infringement, the repeated attempts made by the library to contact the copyright holder will not be a defense to infringement. Copyright infringement requires no element of intent; it is a strict liability cause of action. The documented efforts to obtain permission could help to mitigate the damages at trial, however.

In the case of an orphan work, the copyright owner is either unknown or cannot be located. The element of good faith here is not in repeatedly contacting an owner, but in trying to identify the owner so that owner may be contacted in order to seek permission. The 2006 U.S. Copyright Office Orphan Works study, available at orphan/orphan-report.pdf, recommended that once a library had used best efforts to identify and locate the copyright holder and failed, should the library proceed with the use of the work without permission, it would not be liable for damages if the owner later comes forward and sues for infringement. "Best efforts" likely would include a thorough search of the registration records at the Copyright Office, searching the web for information, and perhaps other steps to be specified by the Copyright Office. Unfortunately, this recommendation was not enacted.

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