Philip Bolton, Jr. is the ETD Coordinator at Florida International University Graduate School. He is an avid student of copyright, and he lunged into the Third Edition my book when it hit the market this year, and he has been a great Twitter correspondent ever since. This week he posed a few lingering questions after working through the book. I am delighted to offer these thoughts. I could probably write a book on each, but I trust that these replies will help in the meantime!
1. Books of short stories and poems. Not only do the entire books have copyright, but does each individual story or poem have copyright, too? So copying an entire poem or story out of a compilation book would weigh in favor of the third factor for the book, but against the third factor for the individual poem or story? Is this how it works with a journal issue as well?
The first question is the easiest. If you write a book of poems, you presumably own the copyright in the poems and in the compilation of them. If you collect poems from others and organize them into a book, your only new contribution is the compilation and maybe an introduction and such. As a general rule, you hold the copyright only in your original contributions. However, depending on the agreement you strike with the authors of the individual poems, you might hold those copyrights, too. Copyright can be transferred, and authors of poems and journal articles often find themselves confronted with publication agreements that include a transfer of copyright. I work hard to discourage many of those deals.
That said, the fair use of one poem from the book or one article from a journal does get dicey when looking at the third factor. If the pieces were independently created and previously published, then you might have to evaluate each poem separately. By contrast, if the pieces are assembled as original works and gathered into a new volume—such as the articles in a journal—then you may have some argument that they are only portions of a larger work. The Texaco ruling from the 1990s went the other way, but one could argue that if the publisher gathers the articles and secures transfers of copyright, a full article is only a portion of the whole. The jury is still out!
2. Co-authors. You say that one independent author of a multi-authored works may give permissions, but I’ve seen institutional repository policies that discourage archiving multi-authored documents or require permission from all authors. Is requiring permission from each author necessary for non-profit, higher ed, libraries to archive a multi-authored work?
In the case of a joint copyright, one co-owner may enter into nonexclusive licenses. In other words, if you and I co-author a work and we still hold the copyright, either of us may act alone in granting a nonexclusive license to deposit a copy with our repository. As a practical matter, the repository may choose to be more cautious. In order to respect the interests of authors and to prevent disputes that could be messy for everyone, the repository may want to have assent from all. It is more of a management decision than a legal requirement.
3. Registration. You say that registration is necessary for the opportunity to win statutory damages and attorney fees, but you also say that without registration you can still win damages. What ‘actual damages’ could these be?
Actual damages are the harm that you, as the copyright owner, actually incurred. Here is the text of Section 504(b) of the U.S. Copyright Act, which sets forth the general rule: “The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.”
4. Are there added liabilities to repositories or digitization initiatives that have a qualified staff member with a Juris Doctor degree?
Well, having a lawyer on staff is not a guarantee that you will be complying with the law. I do like to think that the lawyer will help with the nuances and help greatly reduce the chance of violations. But if the question is more like “What other possible copyright violations may arise?” then we have a few to mention. Material may be added to digital collections with permission, or within fair use or other exception, or if the materials are public domain. My book addresses these issues in some detail. However, one more issue is cropping up on a regular basis: The copyright issues surrounding photographs and other materials that are included within a larger work. For example, an author may give consent to include her article in the repository, but the repository manager is then left to deal with art images, song lyrics, and other third-party works that are inside the article. Are they within fair use? If the author received permission, did permission extend to digital media and copies in a repository? These situations arise often, not only because of the innovative nature of research and publication, but also because internet search engines can find buried content. Many photographers and others are looking for their works. As a repository manager—whether lawyer or not—you have to be ready to address these concerns.
5. Are there any common pitfalls that you see librarians falling into?
Uh-oh. This is a big one! I will have to pick this up another day. In the meantime, let me know specifically what you might be pondering. Thanks!
I welcome comments and questions,
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