Why Does the U.S. Copyright Office Require Libraries to Lie to Users about Their Fair Use Rights? They Won’t Say.

If you’ve ever [made a photocopy in a U.S. library or]* received a copy of an in-copyright document supplied by your library, you’ve likely seen a notice that looks like this:

The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.

Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement.

This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

And if you’re someone who is fairly familiar with U.S. copyright law, and especially with the fair use doctrine, that notice may have led you to ask yourself the following question: “Why are my rights more constrained with regard to a copy [made in]* made for me by the library than they would be if the copy were made anywhere else?”

Why indeed?

Magical book lying open on desk in library with glowing pages

As it turns out, the answer is that they aren’t – the notice that libraries are required by law to provide you is false and misleading. In fact, you have the exact same rights in copies provided by the library that you do in copies made elsewhere. So why are libraries required by the current federal statute to mislead you in this way?

The copyright notice that libraries are required by law to provide you is false and misleading.

Let’s take a look at what led to this odd situation.

First of all, it’s important to know what fair use is and what rights it affords you if you’re not the copyright holder in a document. The fair use doctrine is laid out in Title 17, Section 107 of the U.S. Code. It describes limitations on the exclusive rights of copyright holders, making clear that despite the general exclusivity of those rights, users of copyrighted documents are nevertheless allowed to make limited uses of those documents that might otherwise infringe on the exclusivity of the copyright holder’s prerogatives. The law introduces fair use as follows:

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.

The above, again, is in section 107. Then comes section 108.

As summarized by the Section 108 Study Group (which was convened by the U.S. Copyright Office in 2005 to examine and propose recommendations regarding possible changes to it), section 108 of the U.S. Code lays out some exceptions to the copyright rules codified in section 106; this section is designed to “(permit) libraries and archives to make certain uses of copyrighted materials in order to serve the public and ensure the availability of works over time,” providing “limited exceptions for libraries and archives to make copies in specified instances for preservation, replacement and patron access.” Along with those exceptions, though, is a requirement that all copies made [in]* by the library be accompanied by a “warning of copyright” to patrons – the language of which I provided at the beginning of this post.

What should be clear to any attentive reader is that the fair use doctrine outlined in section 107 covers many kinds of use that would fall outside the category of “private study, scholarship, or research.” So is it really the case that when you [make a copy of an in-copyright document at Kinko’s]* receive a copy of an in-copyright document from anyone other than a library or archives, you have the full spectrum of fair use rights – but if you [copy or]* receive a copy of the same document in a library your fair use rights are significantly more restricted?

As a matter of fact, no. You still have the same fair use rights regardless of where the copy is made, because Section 108 says clearly that “nothing in this section… in any way affects the right of fair use as provided by section 107.”

So if the law says that your rights in a library-copied document are the same as they are in a document copied anywhere else, why is a library required tell you otherwise? Why must libraries actively misinform their patrons about their actual rights under the law?

The problem is that although Section 108 makes clear that the copyright warning notice it requires is not intended to restrict artificially the fair use rights of document users, the code itself doesn’t provide the language for the notice. It specifies that the “warning of copyright” shall be written “in accordance with requirements that the Register of Copyrights shall prescribe by regulation.” And the language prescribed by the Register of Copyrights in that regulation is, unfortunately, false and misleading. And worse, libraries are required to include the prescribed language “verbatim.”

Wanting to understand better why this would be the case, I contacted the U.S. Copyright Office on 20 June 2023, expressing my puzzlement at the artificially restrictive language prescribed by the Office for the copyright warning notice, and asking if there were someone I could talk to about my concerns.

I was answered promptly and told that “the Federal Register announcement for a specific regulation may provide helpful context and background.” The response referred me to the Federal Register announcement for 37 C.F.R. 201.14, a 34-page document that does indeed contain some discussion of the wording of both the copyright warning notice and the statute itself – though at no point does it acknowledge or address the fact that the prescribed notice inaccurately represents users’ rights as laid out in sections 107 and 108.

The U.S. Copyright Office has no comment.

I thanked the Office for sharing the link, but pointed out that it didn’t address my question, and asked again if there were someone to whom I could speak about the issue.

The next day I received a response saying that “at this time, the Copyright Office has no further comment, and we would refer you to the materials on our website.”

Let’s be clear about what the problem is here. It’s not that patrons who use library-provided copies of copyrighted works in a manner beyond the scope of “private study, scholarship, or research” are in legal danger if their use falls within the full range of the fair use provisions in section 107. Again, the language of section 108 makes it very clear that owners of such copies are entirely within their rights to make full (fair) use of them, regardless of what the copyright warning notice prescribed by the Copyright Office says. The problem is that the Copyright Office, under color of authority ostensibly assigned to it by statute, requires libraries to misinform patrons about their rights. Although library patrons are in reality free to make full fair use of copies we provide them [(or copies they make on our premises)]*, we must tell them – every time they [make or]* request a copy from us – that they have only a small subset of those rights.

How much does this disinformation end up constraining patrons’ exercise of their full rights under the law? It’s impossible to know, of course. But as a profession that sees itself at the vanguard of the fight against both mis- and disinformation, it certainly should rankle us that we’ve been drafted into a disinformation campaign that affects so many information seekers so directly.

It should rankle us even more that the U.S. Copyright Office, the very entity that has created this issue and is uniquely empowered to fix it, seems to have no interest in doing so. I hope my library colleagues (and everyone else who cares about libraries and archives, and about fair use) will join me in calling on the Copyright Office to change the language of its prescribed copyright warning notice, bringing it into full conformity with what the law actually says. (I’ve created an online petition for this purpose, and encourage all interested to sign it.)

* Update, 10 July 2023: Thanks to commenter Janice Pilch, I have seen the need to correct one aspect of this essay: the law requires a warning of copyright notice only for copies made by the library or archives — not for copies made by patrons of those institutions who use “unsupervised… reproducing equipment.” For unsupervised self-service machines, libraries and archives are only required to post “a notice that the making of a copy may be subject to the copyright law” — the text of which is not dictated either in the law or by the Copyright Office. I incorrectly assumed that the “notice” in the self-serve context was the same as the “warning of copyright” in the library-provided-copy context. In order to avoid making it look like I’m trying to hide my error, I’ve put brackets around the instances of incorrect language and followed those bracketed phrases, where necessary, with corrected or clarifying anguage in italics. I hope the value of the resulting correction outweighs the cost in readability. I regret the error and am grateful to Janice for the correction.

Please note that the remainder of my argument stands. It continues to be unacceptable that the language in the notice required by law and prescribed by the Copyright Office misleads patrons regarding their fair use rights in copies made for them by the library — and with the steep decline over recent years in self-serve library copying and the increased importance of library-made copies (in contexts such as digital collections, electronic interlibrary loan, etc.), this issue has only become more important.

Editor’s Note: This article is published with the author’s permission with first publication on The Scholarly Kitchen.

Posted in: Copyright, Legal Research, Libraries & Librarians, United States Law