Library’s decision to remove all restrictions on use of the library’s public domain
works.15 As Hirtle explains, making this material freely available is consistent
with the library’s educational mission and values, and the costs of controlling
access may well have exceeded expected revenues from charging for access.
It was also valuable for the library to have a consistent message about the
importance of wide access to materials as it moved forward on open access
and other policy initiatives.
To be sure, libraries are entitled to control access to the materials in
their collections, and, under certain circumstances, to charge for services in
connection with providing access to materials. Some of the policies Schlosser
describes seem to be based on these theories. But, as the interview with Peter
Hirtle shows, there may be considerable value in foregoing these limitations in
favor of a more open policy.
Public Performance Rights for Classroom Uses
A second variety of misleading copyright claim is the oft-repeated assertion that
showing audiovisual materials (i.e., films) in a classroom setting requires a
special “public performance” license, or the purchase of an “institutional” copy.
This claim is based on the existence of a performance right under the Copyright
Act, which is intended to give rights holders control over public exhibitions of
their works.16 Because of this right, mere ownership of a copy of a DVD, for
example, does not necessarily entitle the owner to stage a public showing of the
film. Indeed, a separate license is required for most public performances (i.e.,
showings) of audiovisual materials to groups larger than family or friends.
This right is limited, however, by another provision in the law that states
that the performance right does not apply to:
performance or display of a work by instructors or pupils in the course of
face-to-face teaching activities of a nonprofit educational institution, in a
classroom or similar place devoted to instruction…17
All that is required for these teaching uses is a lawfully made copy of the
work (i.e., the copy cannot be a bootleg or otherwise illegally created). In a
nutshell, this provision tells libraries that, unlike other users, they do not need to
acquire additional performance rights for in-class performances (and analogous
teaching uses) of legitimate copies. If a teacher finds the DVD she needs at
Target for $5 (or at a garage sale for 25¢), she can buy it and show it in class;
Copyfraud and Classroom Performance Rights: Two Common Bogus Copyright Claims
C O N T I N U E D
SEPTEMBER 2011 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC