Editors’ Note (SP): This article is divided into six parts. You may link directly to each one of these parts using the chart directly below. In addition, for your reference, the article’s complete Table of Contents appears in section one of the article.
Introduction and Overview / Expiration of Works into the Public Domain / Section 108 Library Exception
Fair Use and Salami / Permissions, Good Faith Efforts and Disclaimers / Pickle Jars and Other Restrictions
Table of Contents
“I will tell you that I have found it instructive and exhilarating to be involved at the cutting edge of the law, even though my presence at the cutting edge was in the role of the salami.”
– Judge Pierre Leval
whose rulings on unpublished works and fair use have been reversed32
Remember, it’s exhilarating to be at the cutting edge of the law, even if you are the salami. Keep that in mind as you make your way through the gray area of FAIR USE. Courts determine whether a use is a FAIR USE on a case by case basis.
The only way we’ll know whether it’s okay to digitize works and put them on the web using a FAIR USE argument is if a library does so, gets sued and wins. Or loses. And the Appeals process concludes one way or the other. At least we’d know. Even then, unless the court is expansive in its narrative, the decision could apply only to the circumstances in a particular case.
Courts look at four nonexclusive factors, codified at 17 U.S.C. § 107. In a simplification of the factors, drawn from principles derived from previous court cases (no on library digitization projects), I draw this chart:
Likely Yes Likely No Purpose Non profit
Create new work +
No new work  -
Nature Reference, nonfiction
Amount Small amt. (relative to whole original) + Complete work
Heart of work  -
Market Doesn’t hurt market of original
Hurts market or potential market of
It’s pure speculation to discuss how a court would apply these factors. Courts don’t even tell you how many of the factors you need the get + marks in. The strength of your + or – will also vary depending on the circumstances. Nevertheless, suffice it to say it’s a very strong case if you have four +‘s, a strong case if you have three, a so-so case with two, and a poor case with one. The strength of each factor is also considered, and the only thing that can be said with certainty is that you have no certainty going into the courtroom. Courts will also sometimes pull in the overreaching purpose of copyright as well: to promote progress by expanding our pool of knowledge.33
Here’s one possible, albeit speculative scenario: Say you have a handwritten letter from the madam at the local bordello, (in the U.S.) dated 1890. She died in 1942. You want to digitize it and put it on the web.
First, check to see if it’s in the public domain.
Unpublished works in the public domain (starting New Years Day 2003), begins with works created in 1882 or earlier (e.g. if she wrote it for her employer) and for authors who died no later than 1932. It is not in the public domain.34
Next check to see if it fits into a library exception. Say you are a public library and definitely eligible for Section 108 provisions. The Bono Library Exception doesn’t apply, since it only applies to published works.35
The next option is whether your purpose is solely for preservation, security or deposit in another library. If so, you may digitize, but you may not put it on the web.
At this point, consider FAIR USE.
Purpose- If your Purpose is nonprofit (you’re not selling access to the work), and its intended for use by researchers, you have a good chance of getting a +.
Nature of work- Now we’re actually delving into the content of the letter. The more factual it is, the better. Facts themselves enjoy no copyright protection, and works that are mostly factual have “thin copyrights.” If the letter is a merely a list of customers and addresses (however interesting this may be, it is factual), it is likely to be +.
If the letter is filled with creative expression, such as desperation, joy, poetry or art, it is likely to be –. This letter is an unpublished work. This is does not rule out fair use, but it is a thumb on the scale against it –.
Amount – It’s best if the Amount that you digitize is small in relation to the whole. But let’s face it — it’s more likely that you’re digitizing the whole letter, so that factor that works against you. –
Market harm- Often considered the most important factor, but sometimes seen as of equal importance to the other three factors. Are you hurting the copyright owner’s market, even potentially? Here we’re talking about the madam’s heirs, who probably don’t know they are the copyright owners. You evaluate whether you are harming the likelihood of the owners commercially exploiting the letter. This is debatable, but in an argument can be made that it is unlikely that the market is harmed. The heirs, most likely, do not know that they’ve inherited the rights to this letter in your library, let alone exhibit a commercial interest in it. Nevertheless, it’s not clear. If the heirs do know, it’s possible they intend to publish the letter. +
Finally, if we look at the effect on the progress of expanding knowledge, this works in our favor. Copyright law is supposed to give incentives to authors while replenishing the pool of knowledge. A good case can be made that digitizing the work will expand our knowledge (it could give insights to scholars and the public) without significantly harming the incentives that copyright ownership bestows on authors who write for money.
The sum total of the PNAM factors? You decide. Then evaluate the risk of being sued, and your institution’s risk tolerance.
Once can never be conclusive about a fair use analysis that hasn’t been tried by court. Nevertheless, if you don’t ever use FAIR USE, you lose it. Some libraries are using FAIR USE to help them with digitization projects. Typically, they pass through FAIR USE, and move on to PERMISSIONS. If that fails because the owners can’t be identified or located, they return to FAIR USE analysis.
A good place to look is the Library of Congress American Memory Project. It asserts FAIR USE, for example, for part of its Coolidge collection:
… Despite extensive research, the Library has been unable to identify all possible rights holders in the materials in this collection. Thus, some of the materials provided here online are made available under an assertion of fair use (17 U.S.C. 107). Therefore, we stress that this collection and the materials contained therein are provided strictly for noncommercial educational and research purposes. Again, responsibility for making an independent legal assessment and independently securing any necessary permissions ultimately rests with persons desiring to use particular items in the context of the intended use.
The Library of Congress would like to learn more about these materials and would like to hear from individuals or institutions that have any additional information. Please contact the American Memory Help Desk.
- 32Fair Use and Unpublished Works: Joint Hearing on S. 2370 and H.R. 4263 Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary and the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the Judiciary, 101st Cong. 107 (1990) (statement of Judge Pierre Leval), cited in Kenneth D. Crews, Fair Use of Unpublished Works: Burdens of Proof and Integrity of Copyright, 37 Ariz. St. L. J. 1, 46 (Spring 1999).
- 33The copyright and patent clause of the United States Constitution consists of twenty-four words. It serves as a Rosetta Stone for all statutory interpretation: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;” Const. Art. 1, Sect. 8, Cl. 8.
- 34If it had been a published letter (1890), it would be in the public domain.
- 35If it had been a published letter, on the other hand – in its last twenty years of copyright, you would need to make a reasonable investigation to determine that the work is not commercially exploitable. You could make an argument that the owner is extremely unlikely to exploit the letter, particularly if after a reasonable investigation you are unable to determine the owner (this is the party that the madam transferred copyright to, or an heir that she left it to as part of her estate). If it is likely that the owner him/herself is unaware (and unlikely to be made aware) of the copyrighted work, you could make a reasonable case that it is not commercially exploitable. Alternatively, you might take the cautious approach that anything today is commercially exploitable, bypass 108(h) and move on.
Proceed to Part 5 of this article: Permissions, Good Faith Efforts and Disclaimers