AALL Guidelines on the Use of Copyrighted Works by Law Libraries

AALL Guide on the Use of Copyrighted Works by Law Libraries1

Purpose and Scope

The purpose of this guide is to provide a brief general overview of copyright laws that potentially apply to law libraries and a list of relevant resources with further information. Applicability of these laws will vary depending on type of institution (e.g., public versus private), type of material, nature of the intended use(s), and availability of certain exemptions.

This guide does not address or apply to works in the public domain. It also does not address or apply to works that are the subject of license agreements or contracts, such as commercial legal databases. Users should refer to the applicable license or contract terms for guidance on the use of those works.2

Overview

The Copyright Act3 sets out the exclusive rights of copyright ownership4 and the limits to those exclusive rights.5 Two limits that may be relevant to law libraries are (1) fair use (§  107 of the Copyright Act), and (2) reproduction by libraries and archives (commonly referred to as the “Library Exemption”) (§108 of the Copyright Act). The first sale doctrine (§109 of the Copyright Act) is also relevant to law libraries.

Fair Use

Fair use is a legal principle that limits the exclusive rights of copyright owners.6 Section 107 of the Copyright Act7 lists four factors that must be considered to determine whether a use is a fair use, as shown in the below text box. There is not a simple bright-line test to determine whether any given use will qualify as a fair use. Each instance must be analyzed based on its unique facts and weighed using the four statutory factors as appropriate.8

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The Library Exemption

The Library Exemption is set forth in §108 of the Copyright Act.9 The basic statutory requirements used to determine qualification for the Library Exemption are listed in §108(a) and require that:

  1. the reproduction or distribution is made without any purpose of direct or indirect commercial advantage10;
  2. the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
  3. the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.11

The regulations set forth in 37 C.F.R. §214 provide detailed information regarding the copyright notices/warning that certain libraries are required to post under §108(a)(3).

First Sale Doctrine

Section 109 of the Copyright Act sets for the first sale doctrine, which allows owners of legitimately acquired copyrighted works to sell, lend, display or otherwise dispose of that particular copy without having to obtain permission from or pay fees to the copyright owner. The first sale doctrine never protects unauthorized reproductions of a copyrighted work.

Additional Resources

Disclaimer

Links included in the Guidelines include those websites over which neither the American Association of Law Libraries (AALL) nor any of its members asserts any authority or control. AALL assumes no responsibility for the accuracy or veracity of the information that a user may encounter at these sites.

[1] Formerly the AALL Guidelines on the Fair Use of Copyrighted Works by Law Libraries (“the Guidelines”). This guide is updated on a periodic basis and may not reflect recent changes in relevant laws. All institutions should review their own policies to ensure compliance with all applicable laws.

[2] 17 U.S.C. §108(f)(4)

[3] Title 17 of the United States Code

[4] 17 U.S.C. § 106

[5] 17 U.S.C. §§ 107 – 122

[6] https://www.copyright.gov/fair-use/

[7] 17 U.S.C. §107

[8] “The task [of determining fair use] is not to be simplified with bright-line rules, for the statute, like the doctrine it recognized, calls for case-by-case analysis… the four statutory factors [may not] be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-578 (1994).

[9] 17 U.S.C. §108

[10] In this context, “indirect commercial advantage” does not necessarily apply solely because the ultimate use of the copy will be a commercial use. This means only that “…the reproduction (and distribution) was itself not commercially motivated”  2 Melville B. Nimmer and David Nimmer, Nimmer on Copyrights § 8.03[A][1] (Matthew Bender, Rev. Ed.).

[11] 17 U.S.C. § 108(a)