Carrie on Copyright

-- Library Journal, 5/22/2001

Carrie Russell, the American Library Association's copyright specialist, will answer selected questions from readers. Send questions to slj@cahners.com, with 'copyright' in the subject line. Note: Carrie's comments are not to be considered legal advice.

Cheryl O'Neal of Crossett (AR) High School asks:

I would like to include several pages from a worktext in a study guide and appendix that I am working on with several teachers. The worktext is no longer in print. The original publisher was bought out and the new publisher does not carry the worktext. Am I allowed to copy four to five pages of this worktext to include in our appendix? It will be copied by teachers throughout the state to be used with students. The study guide will be free of charge to anyone who would like to download it from the Arkansas Department of Education's Web site.

The worktext, although out-of-print and not available for sale, is probably still protected by copyright. Remember, the current term of copyright is life of the author plus 70 years. Corporate works are protected for 120 years from the date of first publication. If you reproduce pages from a copyrighted work and your use is not a 'fair use,' you are infringing the right of reproduction.

The problem here is that although what Cheryl wants to do would have no effect on the market for the work (Cheryl cannot purchase copies of the work), a worktext is by nature a 'consumable' work-that is, copies are meant to be purchased for each student who takes the class. The law is clear that consumable works may not be copied and handed out. Moreover, the pages would be posted on the Arkansas Department of Education's Web site. Since anyone could copy the pages, the posting of the work infringes on the copyright holder's right to distribute the work.

What in the world can Cheryl do? She has already tried to buy copies and they are unavailable. She can contact the current publisher and ask if he holds the copyright. If so, ask for permission to copy and post the necessary pages. Hopefully, the publisher will say, 'Sure, go ahead.' Get your agreement with the publisher in writing. Warning: the publisher might not hold the copyright! If so, ask who does and begin your hunt for the real copyright holder.