Preventive Law
Preventive Law Corner - What Copyright Giveth, License Taketh Away: Resource Sharing and Copyright Concerns
By Carol Simpson - Schwartz & Eichelbaum P.C.
Mar 13, 2008, 08:32

What Copyright Giveth, License Taketh Away:

Resource Sharing and Copyright Concerns

Schools spend many thousands of dollars each year on instructional materials, supplements, library books, and audiovisuals that are housed at individual campuses but used only a few days a year. Not knowing that Campus A owns a particular resource, Campus B may also order that same resource, which is also used only a few days a year. Logic dictates that if Campus A could share its item with Campus B through coordination of scheduling, the District would have additional money available to purchase more supplemental resources or apply to other areas. It sounds like a dream come true!

The dream of such resource sharing turned into a nightmare for a BOCES[1] in Long Island, New York. The 160 schools had pooled their online library catalog information into one large, cooperative database known as a union catalog.  The combined online catalog allowed every school to see what items every other school owned, and the schools could then borrow materials from other campuses to fill short term needs. Everyone benefited since schools no longer had to purchase everything they might want to use; they could borrow materials if the holding school was not using the materials at the same time. Schools had the option to decline requests for loans if the materials were in use or too fragile to survive shipping to other schools. Students and teachers were able to access many more materials than could possibly be housed at a single school library and schools could share expensive materials. Because the “first sale” doctrine of U.S. copyright law allows the purchaser of a legal copy of an item to loan that item, the libraries believed they were on firm ground in offering these materials to other schools in the BOCES through the online union catalog.[2]

The BOCES was shocked to find that it was going to be sued by an industry trade group of audiovisual producers unless the BOCES removed from the catalog all records pertaining to video recordings.[3]  Traditionally, both books and videos have been sold, in the sense that the school owned the physical copy (though never the intellectual content) of each item, and could therefore rely on first sale doctrine to loan the materials they owned.  Unknown to the schools, the video producers represented by the Association of Information Media and Equipment (AIME) had changed their policy of selling videos to schools, and started licensing their materials instead. The new license agreement not only prohibited lending among campuses, some of the producers even restricted the term of the license to as few as three years.[4]  In many cases the schools were unaware of the change in terms since the materials were bought through jobbers or other intermediaries and the paperwork that might have indicated license rather than sale was separated from the items as the materials arrived in the district. The librarians processed the videos into the online catalog just as any other book. There was no signed license or click-through agreement, but opening the package of the video obligated the user to the license agreement in what is known as “shrink wrap” licensing. The license prohibited the libraries from offering these videos for loan to other libraries or schools to which they had not been licensed.[5] Because a United States Court of Appeals has ruled that merely listing an item in a library catalog is the equivalent of actually lending the item,[6] simply including these materials in the union catalog meant that the schools had violated their license on these videos and the producers had a credible case of copyright infringement and breach of the license contract.

What were the schools to do? Removing the records of the videos from all the online catalogs would be cost prohibitive and would reduce access to these materials for students and teachers at their home campuses where the materials were legally licensed. The BOCES and AIME eventually settled their disagreement out of court by including information in each item’s catalog record indicating that the material was licensed at only the purchasing campus, and putting a general disclaimer on the BOCES union catalog entry page to the effect that not every item listed in the catalog was available for loan.[7]

What can Texas schools learn from the BOCES situation? Certainly, inter-school lending of most materials is exempt from copyright or licensing concerns.  Those materials may be listed in district online catalogs with no worries. Nevertheless, when materials are licensed rather than sold outright, investigation of the licensed rights is in order. Librarians can include licensing and copyright restrictions in the online materials records if they are aware of the restrictions. If library purchases arrive at a central receiving area, it would be important not to separate order paperwork or license documents from the actual items, or to include copies of those when forwarding materials to the campus or library processing center. Locating license or purchase information on materials already in online catalogs will be more problematic. In addition, a disclaimer on the library or union catalog entry page that some materials are restricted to single-campus use because of licensing restrictions would be a prudent and non-obtrusive addendum.

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