What is the purpose and meaning of the requirement in section 108(a)(2) of the Copyright Act that a library be open to the public in order to enjoy the library exceptions found in section 108?

The purpose is to exclude libraries in the for-profit sector and libraries in nonprofit entities, such as private clubs, that are not open to the public. This is recognition of the public good of public libraries and similar libraries that serve the public even if open to nonaffiliated users only by appointment. The House Report 94-1476, which accompanied the Copyright Act, indicates that this would prohibit a purely commercial enterprise from calling itself a library. Only libraries that meet the requirement of being open to the public or to researchers doing research in a specialized field may take advantage of the exceptions for preservation, copying for users, interlibrary loan, and so forth under the Copyright Act. Another commonsense reason for the requirement is that it asks copyright holders to bear the cost for that exception or to forego royalties that they would otherwise receive. If a library is not open to the public, why should copyright holders bear these costs for another for-profit entity?

Many academic institutions now have copyright or scholarly communications officers. What do these people do?

Colleges and universities have begun to recognize how important copyright is to its faculty, staff, and students. While university attorneys are there to advise the institution on all legal issues, including copyright, they typically are not able to provide services and assistance to individual faculty and staff. A copyright officer is typically required to hold a law degree, and often also a library degree. The duties of a copyright officer may include the following: (1) developing educational materials, online instruction, and websites about copyright for the institution; (2) offering copyright education and training programs for faculty, students, and staff; (3) assisting the library by reviewing licenses for copyrighted materials; (4) answering questions for individual faculty members about the use of copyrighted works in their teaching and scholarship; (5) advising faculty about copyright transfers for their publications; (6) coordinating activities with the campus office of legal counsel; (7) participating in policy development; and (8) serving as an ex officio member of the campus copyright committee.

Additionally, campus copyright officers often develop relationships with other copyright experts around the country to share information and materials. Some officers also have responsibility for developing testimony in various hearings.

Articles and books about copyright often refer to statutory damages. What are statutory damages? How do they differ from other types of damages?

Statutory damages are those detailed in the statute. In copyright there are two types of damages available to the prevailing plaintiff: (1) actual damages and profits and (2) statutory damages. In order to recover actual damages and profits, the plaintiff would have to prove the amount of actual damage incurred because of the defendant's infringing activity. Proof of actual damage is difficult and includes such things as actual lost sales. Courts seldom award the defendants profits unless the conduct has been particularly egregious (such as a software pirate with a warehouse full of pirated software). However, sometimes a plaintiff has no choice but to seek actual damages and profits. If the work in question was not registered for copyright with the U.S. Copyright Office prior to the defendant's infringing activities, statutory damages are unavailable. This restriction should encourage copyright owners to register their works.

Statutory damages are available to a plaintiff who proves infringement, and unlike with a claim for actual damages and profits, the plaintiff does not have to prove the degree of harm suffered. Over the years, the statute has been amended to increase the limits on statutory damages; currently they range from $750 to $30,000 per act of infringement. The range is very broad to permit the judge or jury to determine what is needed to make the plaintiff whole again. They can also take into account the potential for future harm should the practice become widespread. If the infringement is innocent infringement, the damages may be lowered to $200; likewise, the damages may be raised to $150,000 if the infringement is determined by the court to be willful. If a work infringed contains a notice of copyright, an infringer may not claim that although it did infringe, it was good faith infringement and therefore damages should be reduced to $200. On the other hand, if the infringer had reasonable grounds to believe that the use made of the copyrighted work was fair use; and if the infringer is an employee of a nonprofit educational institution, library, or archives and is acting within the scope of employment; damages may be remitted entirely.

What is the statute of limitations for filing a lawsuit for copyright infringement? How long does someone have to discover the infringement before the statute of limitations begins to run?

According to section 507 of the Copyright Act of 1976, the statute of limitation for civil actions is three years and for criminal actions is five years. A 1999 amendment to the Act increased the damages but did not alter the statute of limitations. There are two schools of thought about when the statute of limitations starts to run. In the Seventh Circuit, if the wrong is a "continuing wrong" then the three or five years start to run when the last act occurred. The second view is the tolling statute of limitations theory, which says that the plaintiff may look back for three years for damages after the date that the suit is filed. This is the Ninth Circuit approach, and it is the preferred view.

In the past, libraries have been required to place a copyright notice on self-service photocopiers under 37 C.F.R. Ch. 2, Sec. 201.14. Was this notice requirement eliminated by the Digital Millennium Copyright Act (DMCA)? The copiers here in the library no longer have the notice. Did this happen accidentally when the library obtained a new copier contract or has the law regarding these notices changed?

The DMCA did not change the section 108(f)(1) notice requirement at all. That section requires libraries that offer unsupervised reproduction equipment to post a notice that making a copy may be subject to the copyright law. Absent such notice, the library may be liable for the infringing reproduction activities of patrons on that equipment. Thus, the problem may be one of oversight, and the library should ensure that the requisite notices are posted. Any language may be used for the notice, but most libraries appear to use the copyright warning from the Code of Federal Regulations (CFR).

If an author abandons copyright or makes an item available under a Creative Commons (CC) license, can the heirs try to enforce the copyright after the author's death?

Abandonment of copyright is difficult to prove; it almost takes some written, affirmative statement by the copyright holder that he or she is abandoning the copyright in that particular work. If the work truly is abandoned though, then neither that author nor the heirs have any further rights in it.

If the author has made the work available with a CC license, that license is governed by state law. The heirs cannot enforce the copyright against anyone who used the work as permitted under the CC license, although they are free to release the work under a new license to others.

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