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Licensing vs. Copyright law -Reply 

Stan--

In matters of law, the answer is just about always, "it depends."  The
short answer is if you are not sure what applies in your case, go see a
copyright lawyer. 

The long answer explaining why the short answer is "it depends"  follows: 

Particularly in matters of copyright and libraries, it almost always
depends because much of the applicable law lives in the exceptions to the
general copyright rules. 

In general, to be enforceable, a license usually transfer a legally held
right in exchange for some consideration (usually money).  If the licensor
does not have any right to license the right, then the contract is
frequently found to be void. 

So to determine if a license of statutory copyright law applies, you need
to determine if the what is licensed  is actually a legally held right of the
licensor.

First, to start with the copyright rule, the copyright law (17 USC Sec.
106)  protects the following rights of a copyright holder to do or
authorize the following: 

               (1) to reproduce the copyrighted work in copies or
             phonorecords;
               (2) to prepare derivative works based upon the copyrighted
             work;
               (3) to distribute copies or phonorecords of the copyrighted
             work to the public by sale or other transfer of ownership, or by
             rental, lease, or lending;
               (4) in the case of literary, musical, dramatic, and
             choreographic works, pantomimes, and motion pictures and other
             audiovisual works, to perform the copyrighted work publicly; and
               (5) in the case of literary, musical, dramatic, and
             choreographic works, pantomimes, and pictorial, graphic, or
             sculptural works, including the individual images of a motion
             picture or other audiovisual work, to display the copyrighted
             work publicly.

Thus, a copyright holder not only may do any of the five above things, but
the copyright holder may also authorize another to to one or more of these
things. 

The authorization is an license of another to either reproduce, prepare
derivative works, distribute, perform or display, in the manner specified
in the license.  These rights are divisible, so a licensee may only have
the manner to do one of these things only in a specified manner (for
example, a license to show a videotape on XYZ network at 8pm eastern time
on Friday, March 25). 

Sections 107-120 of the copyright law define some limitations to the
copyright. For example, there are certain things that are subject to what
are called compulsory licenses, including audio recording of a
copyrighted, nondramatical musical work; performance/display by secondary
transmission of a cable system; performance/display by noncommercial
broadcasts; display/performance of network signals by satellite systems
for home viewing; renting of sound recording with embedded copyrighted
music.  With compulsory licenses, the user simply pays for use in these
manners, and there is no infringement. 

Regarding first sale, section 109 of the copyright statue says basically,
in the absence of a contract to the contrary, once the copyright owner
consents to a transfer of title of a copy to the third party, the third
party can sell or otherwise dispose of *that copy* without the copyright
owner's consent.  This section applies only to lawfully sold copies. 
However, if the owner of the physical copy wants to rent, lease or lend
the copy for commercial advantage, section 109(b) also requires that the
copy owner get the authorization of the copyright owner of sound
recordings or computer programs . 

One last twist, because there are so many librarians on this list, and
because Stan is from Penn State.  Section 109 also says: 

"Nothing in the preceding sentence shall apply to the rental, lease, or
lending of a phonorecord for nonprofit purposes by a nonprofit library or
nonprofit educational institution.  The transfer of possession of a
lawfully made copy of a computer program by a nonprofit educational
institution to another nonprofit educational institution or to faculty,
staff, and students does not constitute rental, lease, or lending for
direct or indirect commercial purposes under this subsection." 

By virtue of the fact that you are part of a library in an educational
university, much of the applicable opyright law is found in the
exceptions.  Because the stuff that applies lives in the exceptions, and
because damages potentially due are either (a) not that big in and of
itself or (b)  not that big because libraries frequently remedy the
situation without the need for court intervention, cases involving your
exact circumstances have probably not made published case law.  At least,
I know of no applicable case law. 

If there are multiple nationalities involved, more complexities are
introduced.  I won't go into that here. 

I hope this helps you understand the relationship between the license, the
copyright rights, the right to authorize use, the doctrine of first sale,
and the exceptions for libraries.  All of these factors must be measured
against the specific parties and the specific rights to which the license
applies.  The law is attempting to be fair in setting rules and
exceptions, and in applying these to the parties and the dispute in
question; if the law is too rigid, the danger of an unfair result is quite
large. 

Also, please keep in mind one very important issue: NOT ALL DISAGREEMENTS
CAN OR SHOULD BE SETTLED BY RESORT TO THE COURTS.  As a
lawyer-in-training, I am impressed by both, the law's constant attempt and
general ability to get things right (although it does not always
successful ... judges are human too), as well as the great number of
disputes that people take to court that would have been better (and more
cheaply) resolved by an honest discussion over a bottle of wine. 

_________________________________________

From:  Stan Diamond <sxd@psulias.psu.edu> 04/24/97 08:41pm 

This topic was touched on several time in other threads but it has just
come up again on another list, and I would really like to try to get to
the "real" answer. Does anyone know of any case law or other rulings that
address the issue of which takes precedence - Copyright law or licences. 
The specific situation I am referring to here is does the First Sale
Doctrine of the copyright law (which I believe allows resale, loan,
rental, or other disposition of legally-acquired copyrighted materials),
take precedence over a license agreement: a) Always, b) never, c) it
depends???

Stan Diamond, Manager         (814) 863-3100
Audio Visual Services         (814) 863-2574 (Fax)
Special Services Bldg         (800) 826-0132 Order line
1127 Fox Hill Rd,                sxd@psulias.psu.edu
Univ. Park, PA 16803          HTTP://www.libraries.psu.edu/avs/
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