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MLA Position Statements and FAQs

Copyright Liability FAQ

This document on copyright liability is intended as a guide to assist librarians in their practice. It is based on the ideas and interpretations of the author in her capacity as a librarian and does not purport to be a legal statement or to serve as legal advice. Because of the nature of the subject matter, in which legal rights and liabilities often are dependent upon the specific facts and circumstances involved, readers are encouraged to consult with competent legal counsel as appropriate.

To top of page Liability is a legal term. What exactly does it mean?

The term "liability" is used to refer to one's legal responsibility for his or her conduct. However, being liable for an action, such as a violation of copyright law, is only half of the equation. Equally important is the question of the "remedy" to which the aggrieved party is entitled, or what punishment will be meted out for the violation, either to discourage future behavior or to compensate the person holding the copyright. While some legal actions may in the end result in minimal monetary "damages" as the remedy, it is clear from the copyright law that the consequences of copyright infringement can be severe. Thus, a goal of preventing liability for copyright infringement is important, and policies and procedures should be in place so that library staff are aware of the guidelines and can make appropriate and defendable decisions when necessary.

To top of page Who can sue?

Only the owner of rights pursuant to a valid copyright (for purposes of this paper, the "copyright owner") can sue and becomes the plaintiff in a copyright action. In the event of infringement, the copyright owner has three years after the date when he knew or should have known about the infringement to bring an action. Although registration is technically optional, it is generally required before a copyright owner can bring an infringement action. Timely registration also permits a court to award "statutory damages" (discussed below), attorney fees and court costs. If the copyright has been transferred, the plaintiff must prove this information. It is important for libraries to remember that getting copyright permission from the author of a work will not be valid if the author has transferred his or her rights to a publisher. In addition, materials that a person prepares in the course of his or her job would probably be considered "work for hire" and it would then be the employer who holds the copyright. An action for copyright infringement would have to be brought in federal court. It is important to note that each unauthorized copy made or distributed of a work can be considered one "act of infringement."

To top of page If a copyright owner is the plaintiff in a copyright action, who is the defendant?

The defendant may be the person who made the unauthorized copy, or even a third party if that person profits from the infringement. A person or organization found to have violated the copyright law is known as an infringer.

To top of page What is an infringement?

Congress grants broad and exclusive rights to the copyright owner. These rights include the rights of reproduction, distribution, adaptation, performance, and display. A wide variety of materials are protected under copyright law, including literary works, photographs, sound recordings, and audiovisuals. It is easy to list several types of activities that would be copyright infringement, including making copies, selling copies, preparing derivative works, including translation, and showing videotapes or performing a play or music for an audience.

To top of page I footnote everything. Isn't this enough for copyright law?

It is important to distinguish copyright infringement from plagiarism. While providing a footnote for another author's words and ideas is required in order to give proper credit and avoid intellectual dishonesty, it does not offer protection from a charge of copyright infringement. In addition, it is a myth that just because the use of materials is for "scholarly" purposes, it is exempt from copyright law.

To top of page What is fair use?

Fair use is an exception to the broad and exclusive rights granted to copyright owners. The fair use exception was developed to facilitate such First Amendment rights as news reporting, scholarship, research and teaching. However, the scope of fair use and whether or not an activity is within this exception turns on four factors: the purpose of the use, the nature of the work used, the amount of the use, and the effect of the use on the potential market for or value of the original. There are no clear guidelines on how these four factors might be applied in a court of law in any given case (which ultimately will turn on its own set of facts), and the interpretation of these factors is subject to change, particularly in this era of new types of "works," such as Websites and computer software.

To top of page Are there different types of infringers? It seems unfair to lump libraries with for-profit entities.

In addition to the garden variety infringement situation, there are two special categories of infringement. If the infringement was unintentional or the person infringing can show a good faith belief that he or she acted within the parameters of copyright law, he or she could be termed an "innocent infringer." On the other hand, if the infringement is done deliberately, and particularly if substantial profits were involved, the infringement could be termed "willful." It is important to know all three categories of infringement, since they have a significant impact on the damages available to the plaintiff in a case. More than likely, but certainly not always, a library would fall into the "innocent infringer" category.

To top of page What are some examples of "innocent infringement" in a library setting?

A common problem might be contacting the wrong party for permission to copy a work. For example, as mentioned above, the library may have communicated with an author named on the copyright notice, mistakenly believing that he or she was the valid copyright owner. Permission might be given by a junior staff member who lacks the authority to grant it. Another example of innocent infringement might be a library which sincerely believed it was acting within the scope of copyright law. A Web-based situation might be the use of a photograph on a Web site where the library's efforts to date the item were not accurate and the photograph was more recent than expected and thus still under copyright protection. Perhaps copyright permission had been granted, but there was a misunderstanding about how much of a work was going to be used, with the copyright owner alleging that the terms of the permission had been exceeded.

To top of page Our library is part of a non-profit organization and our budget is small. Why should we be worried about liability for copyright infringement?

It is important to know that liability for copyright violation attaches whether or not the organization is for-profit or non-profit and in spite of the size of the operation or its budget. The ability to pay a judgment rarely factors into a decision on the merits in many civil cases. Although it may be the library which infringes, usually the parent institution will be held liable. And while many library budgets may be small, such as a hospital library, the hospital's overall assets may make the copyright action attractive enough to pursue. Bad publicity and a tarnished reputation may be just as costly for your institution as the money it would pay in damages.

To top of page If our library has been found liable for infringement, what do we owe the copyright owner?

There are several remedies available for those whose copyright has been infringed. Among these are two types of "damages," (i.e., the payment of money from the infringer to the copyright owner); they are "actual damages" and "statutory damages". "Actual" damages may include lost profits, compensation for loss of business opportunity, and compensation for injury to reputation, as well as the profits the infringer has made, unless the profits and loss to the copyright owner are the same.

To top of page What are "statutory damages" and what are their implications when a library is liable for infringement?

If is often difficult to prove the amount of damages suffered or the profits earned by the infringer and the burden of proof is on the copyright owner. In recognition of these limitations, "statutory" damages are also available as an alternative to actual damages, wherein the parameters of monetary awards that a court can award are set by statute. However, the copyright owner typically may not seek statutory damages (or attorney's fees) for the infringement of a published work if the work was not registered within three months of the last publication or prior to the infringement.

To top of page How much are statutory damages?

Statutory damages range from $500 to $20,000 per act of infringement. In this context, the court may try to approximate what actual damages might have been, if provided with sufficient evidence by the copyright owner. If the infringement can be categorized as "innocent," the court may lower the damage award to $200 per act of infringement. However, if the court finds that the infringement was "willful" or that the existence of a copyright was disregarded, it may raise the award to $100,000.

To top of page So with statutory damages, being found an "innocent infringer" is clearly better?

The court can reduce damages to only $200 per act of infringement. Under the "innocent infringer" provision of 504(c)(2), the court "shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was fair use under Section 107, if the infringer was. . .either an employee or agent of a non-profit educational institution, library or archives acting within the scope of his or her employment who, or such institution, library or archives itself, which infringed by reproducing the work in copies or phonorecords. . .". It is important to note that in this context, the burden of proving that there was not good faith rests with the plaintiff.

To top of page What other remedies are available to the plaintiff?

In addition to money damages, injunctive relief may also be granted. This might include a temporary or permanent restraining order that stops the infringer from making or selling any more of the copyrighted material. In addition, the court may impound the items during the pendency of the case and may order their destruction if they are found to infringe the copyright. Attorney fees and court costs may be awarded to the party prevailing in a copyright action.

For those whose violations are particularly egregious, even stronger criminal penalties are available under Section 506, including imprisonment and fines of up to $250,000 per individual or $500,000 for an organization.

To top of page Is there a bright line between fair use and copyright infringement?

While certain activities are without question a violation of copyright law, many activities are in a gray area where liability might only be determined on a case-by-case basis in a court of law. In addition, many of the major copyright cases have involved for-profit companies and a level of copyright violation that would have significantly affected the financial status of a copyright owner. However, since litigation is a time-consuming and expensive process, it may be best for a library to err on the side of conservatism in copyright matters and be ready to document its good faith efforts on compliance.

To top of page How can our library reduce its potential liability for copyright infringement?

In order to minimize liability exposure, the library should stay well within the copyright guidelines. Have clear policies on what will and will not be ordered on interlibrary loan, placed on reserve, and photocopied on demand. In the event of a questionable activity, seek legal counsel or conduct a brief survey of how other libraries would handle the request. If a library goes ahead with an activity, be sure that the rationale for proceeding is clearly documented. Provide evidence of a good faith belief that the activity was within the guidelines.

As with any legal matter, thorough and substantive documentation is the key. If the use of an item seems to fall outside of fair use, take the time to get the necessary permissions or utilize the Copyright Clearing Center (CCC).

To top of page Should all library staff understand copyright or just those in interlibrary loan?

Since there is no bright line between fair use and copyright infringement, each member of the library's staff should be adequately trained and kept current in copyright law, not just those who work in interlibrary loan. Library staff are now assuming a host of duties, including Web site development, distance learning, multimedia, and the operation of in-house fee-based information services.

Each library staff member should understand the four factors considered by courts to determine fair use and be able to make decisions before they download, photocopy, link, use graphics or quotes on a Web site, or incorporate sound or video into multimedia or distance education packages. Fortunately, excellent workshops are available on copyright law, as are several comprehensive but affordable books.

To top of page If we are careful to follow copyright law, could we still be sued?

Anyone can file a suit, no matter how speculative the case might be. However, good documentation and clear policies with regard to copyright matters can be vital to stopping a suit in its early stages, because it may reduce the likelihood of the plaintiff prevailing, particularly since the plaintiff might then be liable for the defendant's attorney fees and court costs.

To top of page Why can't you be more specific in what is copyright infringement and what is not?

Like many other legal matters, the question of liability for copyright infringement turns on the particular facts in the case and in the court's interpretation of how the law is to be applied to those facts. Therefore, it is paramount that the library have clear policies and procedures in place to deal with copyright matters and to be able to support any decisions that are made with regard to copyright questions that are within the gray area of this important and evolving field of law.

To top of page Author

Prepared February 1997
Sara Anne Hook, M.L.S., M.B.A., J.D., AHIP., Head Librarian, Indiana University School of Dentistry, Indianapolis, IN.

For more information, contact Mary Langman, 312.419.9094 x27.

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