California Library Association:

Copyright: What You Need to Know about Your Library's Web Page

The following article appeared in California Libraries March 2000 (Vol. 10 No. 3). Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.

Q: Our Library put up a web page sometime ago. Do we need to be worried that someone is going to come after us for copyright infringement?

If you created your own content and expression, there should be no cause for concern. A plaintiff needs to show that actual copying has taken place, even in the event that your page happens to look like another's.

Q: Well, we created our content and expression. But we did borrow ideas and facts from other Web sites.

Ideas are not protected by copyright. Many people misunderstand this. Copyright protects expression of ideas, but not the ideas themselves. Facts are not protected by copyright.

For example, if another web site has a colorful, animated page that promotes its library's reading program, this may have given you the idea to create a colorful, animated page that promotes your reading program. But if yours has a different design and different words, it's unlikely that a court would find that you copied the web site's expression.

Q: What if we did copy some of another web site's content?

Generally, it is best to seek permission from that web site. This maybe as simple as sending an informal email, specifying what you wish to copy, and how you plan to use the content. You may find that the content owner will give you permission by return email. She may request acknowledgment or a link back to her site. Comply and file the correspondence.

If you don't get permission, create your own instead.

Q: I thought "Fair Use" allows libraries, especially nonprofit libraries to do some copying.

It depends. The doctrine of Fair Use does allow limited copying for purposes "such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" 17 USC Sec. 107 (1999).

To determine whether a particular use is Fair Use, the courts look at four nonexclusive factors:

The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for the copyrighted work

What does that really mean for libraries? In quick summary, "Fair Use" favors nonprofit use over commercial use, a definite plus for nonprofit libraries. It is better to copy facts than fiction e.g. if a library copies population statistics, it is significantly less risky than if it copies a student's poem. Third, the less taken from a site, the better. Fourth and most important, the copied portion should not hurt the market for the original. As a general rule, this means you shouldn't copy material from a web site that charges for access. Less obviously, you generally shouldn't copy material from a free web site that relies on advertising, an important market factor.

Finally, be aware that when you scan material from your collection into your web site, you must be aware of copyright issues. Just because you own a book, a manuscript, a letter etc., does not mean you have the right to make copies of it. Make sure the work is in the public domain, or get permission.

Unfortunately, the bottom line is that there are no clear-cut rules as to what is or is not "Fair Use." Each scenario is evaluated on a case-by-case basis.

Q: Isn't there another provision in the Copyright Act that exempts libraries?

Yes, 17 USC Sec. 108 (1999) specifically exempts libraries and archives from liability under certain circumstances, such as making some copies for interlibrary loan, preservation, and filling patron requests.

However, even in the limited circumstances when digital copying is permitted, the digital copies are not to leave the libraries' premises.

Q: What about linking to other Web sites? I recently read that linking might be a copyright infringement.

Interesting question. As you know, the prevalent view in the Internet community is that linking is permissible. By placing a link on your page, you're not actually copying another web site's expression, but merely its address. Further, most people presume that the operator of a web site allows others to link to its site. However, there is no absolute right to link.¹

Q: Can I use graphics from another site if I don't copy them, but merely link to them?

It sounds like you are referring to "inlined links," which are used to seamlessly import graphics from one web site to another, without actual copying and storage. Short answer: it is best to get permission.

Although the courts haven't ruled specifically on this issue, a legal argument can be made that you are harming a copyright owner's rights to make adaptations, such as new arrangements, of her own work. In one well-publicized used case, a fan used inlined links to Dilbert comic strip images. After receiving a cease and desist letter from United Media Services, and extensively debating the issue with attorneys on a listserv, he withdrew the links.²

Q: What about my regular links, that is my hyperlinks (HREFs)? My page has long lists of links.

Linking is the essence of the web. Most users of hyperlinks generally claim that Web traditions and practices imply a legal license to link. Putting a list of links on your page is a lot like putting together a short bibliography and publishing it. Each link is like a citation. If you copy someone else's bibliography, or their list of links, you are in danger of copying her creative work, that is her selection and arrangement of the list. If you create your own bibliography or your own list of links, you should be safe, as individual citations and addresses are generally not copyrightable.

Q: I read that I could be in trouble for "deep linking." What is that?

Although a link by itself is unlikely to raise copyright concerns, deep linking brings up other legal issues, principally "unfair competition" laws. Deep linking is the common practice of bypassing another's top-level page, and linking to the exact information that you need. For example, in a well-known case, Ticketmaster sued Microsoft, claiming unfair competition, when Microsoft deep-linked to "Seattle Sidewalks," bypassing Ticketmaster's top level page and advertising.³ Microsoft settled the case by agreeing to link to Ticketmaster's top level page. No legal precedent was set, but the cautious approach for libraries is to be wary of bypassing top-level pages with advertising.

Q: What if I link to a site that turns out to be bad? That is, what if my page inadvertently refers a patron to someone else's page that violates a copyright?

The legal issue here is "contributory infringement." If the library is acting in good faith, it's not a big risk. Based on the interconnectedness of the Web and the theory that no more than "six degrees of separation" stands between any two web sites on the planet, it would not take too much to bring the Web to its knees if this theory was used.

But that doesn't keep someone from filing a lawsuit! In a recent California case, a photographer sued a web site owner because it linked to unauthorized copies of his work. The courts dismissed the complaint, finding no significant participation in the infringement on the defendant's part.⁴

Q: I read something about unfair competition laws concerning Metatags. Does my library need to pay attention?

Metatags are optional tags embedded in the HTML code, used to help indexes find your page. A number of cases have arisen in which a Web designer used hidden words to mislead the user and bring a site to the top of the search engine listings. Copyright law is generally not an issue, but trademark law and unfair competition laws do come into play. Several courts have written strong injunctive orders in cases of suspicious or deceitful conduct, but have allowed metatags that merely describe the sites content.⁵ Assuming your Webmaster is acting in good faith, and is merely describing your web site, you should not anticipate problems.

Q: It sounds like the library has a lot of new legal worries, just because we have a web page. Is it worth it?

You're witnessing a major transition -- libraries that were traditionally information distributors are becoming information publishers and distributors. Legally, publishers are held to a much higher liability standard than distributors.

Web publishing increases your visibility and your risks. Unfortunately, even noncommercial pages, designed only to provide information to patrons, raise legal issues such as libel, invasion of privacy, and others. Use the same care in web publishing that you would use in publishing a library newsletter or flyer. For example, get permission from patrons before posting pictures of them. Is it worth it? Yes! Nowadays it's expected by your patrons! Just keep educating yourself on the issues to minimize your risks.

Q: Should my library file for copyright to protect its own intellectual property?

That is another interesting question. Most people don't know this, but since May 1, 1989, you don't even need to put a copyright notice (Copyright (c) 2000 by Mary Minow) or register to get copyright protection. The copyright is automatic, protecting the original content on your Web page soon as it is created. Copyright protects original works of authorship, fixed in a tangible medium of expression. 17 USC Section 102 (1999).

You can register, if you wish, by filing a form with the copyright office and paying a fee. The chief advantage of registration is that you can sue for much more money if you decide to file a lawsuit against someone who is infringing your web pages.

For further information, go to the Copyright Office's Web Page at http://lcweb.loc.gov/copyright

Go to Circular 66, Copyright Registration for Online Works.

Q: One last question: I see a lot of headlines about domain name lawsuits - can we be sued by someone who has a similar name and wants our domain?

Although this topic could take a lot of space, for now the short answer is that domain name policies have recently changed, and libraries should be better off under the new policy. Under the old policy, if someone had a trademark that was identical to your domain name, your domain could be taken away, and you'd have to spend a lot of time and money in the fight to keep it.

Under the new policy, the trademark owner has to show you had bad faith. That is, did your library grab a trademarked domain name in the hopes of selling it for a million dollars later?

It's a complicated issue that is still evolving. Unfortunately, old names are still treated under the old policy. New domains registered after November 4, 1999 by an authorized register, such as Network Solutions, Inc., use the new policy. For further information, see The Internet Corporation for Assigned Names and Numbers at http://www.icann.org Uniform Dispute Resolution Policy at http://www.icann.org/udrp/udrp.htm

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¹ For a comprehensive global perspective, see The Link Controversy Page by Stefan Bechtold

http://www.jura.uni-tuebingen.de/~s-bes1/lcp.html Mark Sableman, " Link Law: the Emerging Law of Internet Hyperlinks" 4 Comm. L. & Pol'y http://www.ldrc.com/cyber2.html

² See Dan Wallach, Dilbert Page Hack Archives, http://www.cs.rice.edu/~dwallach/dilbert/

³ Complaint, Case No. 97-3055 DDP (C.D. Calif. filed April 28, 1997), cited in Mark

Sableman, " Link Law: the Emerging Law of Internet Hyperlinks" Comm. L. & Pol'y 557 http://www.ldrc.com/cyber2.html

⁴ See Bernstein v. JC Penney Inc., 50 U.S.P.Q. 2d 1063 (C.D. Cal. 1998). The suit was for

a link to a movie database, which in turn linked to a site in Sweden that allegedly infringed the photographs copyright into celebrity photographs. The case never reached final resolution, suggesting that the "contributory infringement" theory may be a tough one for plaintiffs to win in this situation. The U.S. district court denied the plaintiff's motion for a preliminary injunction, and the plaintiff withdrew his case shortly thereafter.

⁵ See Oppendahl & Larson v. Advanced Concepts, Case No. 97-2-1592 (D. Colo. July 23, 1997) and

Playboy Enterprises, Inc. v. AsiaFocus International Inc. No. 97-734 A, 1998 U.S. Dist. LEXIS 22390

Mary Minow is an attorney and consultant with librarylaw.com. She is currently writing a book on library law for the American Library Association with Tomas Lipinski. She is President of the California Association of Library Trustees and Commissioners.

Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.