Intellectual Property and Copyright Basics Or, Is this legal? Answer: It Depends

Outline Effects of licenses Background and History Copyright Cases Before the Courts International Copyright Law Conclusions Questions Background and History Registration Public Domain Copyright Law Relevant to Libraries Section 107 - Fair Use Section 108 – Reproduction in libraries Section 109 – First Sale Doctrine Section 110 and the TEACH Act Digital Millennium Copyright Act

Background Trademark law Protect consumers so that they know what they’re buying Patent law Secure for 20 years (with some limited extensions) exclusive sales rights for inventions or processes Copyright law Secure for authors the right to distribute their creative works Licensing and Contract Law “Trade Secrets” Terms of Use

Background “The Congress shall have Power . . . To regulate commerce . . . among the several States.” - Article I, Section 8, U.S. Constitution

Background “The Congress shall have Power . . . 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” - Article I, Section 8, U.S. Constitution

Background Copyright law Requires it be in a “fixed, tangible format” Makes distinction about “publication” Bundle of Rights, for redistribution Only applies to expression of ideas, not the idea itself Often confused with plagiarism Only applies to “creative” works, not facts

Background Middle Ages 1557 Royal Monopolies Letters Patent Stationers Company Registration

Background 1624 1710 Statute of Monopolies Abolished previous monopolies Provided exceptions for future monopolies of 14 years 1710 Statute of Anne First English Copyright Law Provided copyright for 14 years

Background 1790 1831 1909 First Copyright and first patent laws 14 years possibility of renewal for another 14 for copyright 1831 28 years, 14 year renewal 1909 broadened definition of authorship, 28 year term with 28 year renewal

Background 1976 Life of the author + 50 years or 75 years after date of creation for works for hire Extended to unpublished works Codified fair use and first sale doctrines

Background 1998 Copyright Term Extension Act Digital Millennium Copyright Act Life of the author + 70 years, or 95 years after date of creation for works for hire Created copyright protections for digital works Currently Section 108 and 109 revisions Orphan works act 2018 – next renewal, expect at least another 20 years

Registration No longer required for copyright protection (but was prior to 1976) Is required if you want to file an infringement suit Also entitles those who have registered the ability to sue for additional remedies (statutory damages and attorney’s fees)

Public Domain Most US government publications Works published before 1923 Unpublished works when author died before 1943 or (if author unknown) before 1893 In some cases works between 1923 and 1977 may be in public domain if they were not registered with copyright office http://copyright.cornell.edu/resources/publicdomai n.cfm

Section 107 – Fair Use “ . . .purposes such as Criticism Comment news reporting teaching (including multiple copies for classroom use) Scholarship or research is not an infringement of copyright.”

Section 107 – Fair Use the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes the nature of the copyrighted work the amount and substantiality of the portion used in relation to the copy-righted work as a whole the effect of the use upon the potential market for or value of the copy-righted work. http://fairuse.stanford.edu/

Section 108 - Reproduction Librarians working within scope of employment can make one copy and distribute it (for purposes of ILL, etc.) Can make 3 copies for purpose of preservation

Section 108 - Reproduction No direct or indirect commercial advantage Library collections open to public (or open to persons doing research in a specialized field) Reproduction includes a notice of copyright Copy of work is currently in collections of library

Section 108 - Reproduction If in digital format it is not made available outside the premises of the library The library has made a “reasonable effort” to obtain a copy at a fair price The copy becomes property of user, and the library has no reason to believe the user will violate copyright

Section 108 - Reproduction Does not apply to photographs, recordings, works of art, etc. Does not apply if work can be commercially exploited Does not apply if a copy can be obtained at a reasonable price Does not apply if copyright owner provides notice to “cease and desist”

Section 109 “First Sale Doctrine” If a copy of a book, CD, DVD, etc. has been obtained, then it is OK to lend that book to a limited audience Does not apply to software

Section 110 and TEACH Act “Public Performances” of copyrighted work The institution must be an accredited, non- profit educational institution. The use must be part of mediated instructional activities. The use must be limited to a specific number of students enrolled in a specific class.

Section 110 and the TEACH Act The use must either be for ‘live’ or asynchronous class sessions. The use must not include the transmission of textbook materials, materials “typically purchased or acquired by students,” or works developed specifically for online uses.

Section 110 and the TEACH Act Only “reasonable and limited portions,” such as might be performed or displayed during a typical live classroom session, may be used. The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.

Section 110 and the TEACH Act The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut and paste disabling, etc.

Digital Millennium Copyright Act Makes it illegal to circumvent any copy protection on digital materials Libraries have exception only to break it in order to make a determination of whether we want to buy it Notice and Take down – requires us to remove any infringing material or notify infringer of the infringement

Effects of Licenses License always trumps any of these laws License agreements may specifically exclude notions of fair use, reproduction, or other laws If we sign a license that does any of these things it means that we must comply with the terms of that license

Publisher Licenses A. AUTHOR’S GRANT OF RIGHTS Author grants to the Library the following distinct rights: An irrevocable non-exclusive license to publish, transmit, sell, distribute, and otherwise use the Work in electronic and print editions of ScholarlyCommons and in derivative works throughout the world, in all languages, and in all media now known or later developed, and to license or permit others to do so. An irrevocable non-exclusive license to create and store electronic archival copies of the Work, including the right to deposit the work in open access digital repositories. B. AUTHOR’S OWNERSHIP OF COPYRIGHT Copyright in the work remains with the Author, or, in the case of multiple authors, with the authors as a group. C. LIBRARY’S COMMITMENT The Library agrees to publish the Work in ScholarlyCommons with a notice in the Work identifying Author’s Name”. D. AUTHOR’S WARRANTEE The Author represents and warrants that the Work is the Author’s original work, does not infringe on any subsisting copyrights, or any other right of any kind, and contains no material which is obscene, libelous, or otherwise in contravention of law. The Author also warrants that he or she has the full power to make this agreement, and if the Work was prepared jointly, the Author agrees to inform the co-Authors of the terms of this Agreement and to obtain their signature to this Agreement or their written permission to sign on their behalf. The Author indemnifies the Publisher against any losses and other expenses, including reasonable attorney’s fees, after final judgment of any claim or action against any or all of these warranties.

Copyright Cases Cambridge U. Press v. Becker (Georgia State) – e-reserves Authors guild v. Google – Google Books Scanning (fair use) Authors guild v. HathiTrust – Google Books Scanning (fair use) AIME v. UCLA Kirtsaeng v. Wiley – First Sale Doctrine

Cambridge University Press v Cambridge University Press v. Becker (2012) (Georgia State University case) Background GSU professors put excerpts on their library’s electronic reserves. Academic publishers whose works were used claimed copyright infringement. Decision Fair use = If work is 10 chapters or less, no more than 10% use. Or, If work is 10 chapters or more, no more than 1 chapter. Fair use is more likely to be fair use if licenses are unavailable

Georgia State Case Decision 5/95 instances found to be infringing Most instances there was the presence of a market to pay for permission Most instances had greater than 10% usage of entire work (usually books) Now on appeal and appeals court focused on applicability of coursepack cases (Kinkos) http://www.educause.edu/focus-areas-and-initiatives/policy- and-security/educause-policy/issues-and-positions/intellectual- property/georgia-state-copy

Authors Guild v. Google (2005) (Google Book Search case) Background 2004: Google’s “Library Project” launched 2005: Authors Guild sues. Google claims fair use. 2008: Far-reaching settlement proposed 2011: Proposed settlement rejected for going too far. May 2012: Class action status granted Framework for fair use analysis proposed (analyze works by category)

Authors Guild v. Google Decision - 2015 “In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.” http://www.arl.org/news/arl-news/3047-google-books-case-dismissed- victory-for-fair-use-and-libraries

Authors Guild v. HathiTrust (2011) Background University libraries created online collection of of books in their libraries, now known as Hathi-Trust. Hathi-Trust initiated “Orphan Works Project” to research copyright status of books. If no rights holder found, digital copy of the book made available to students and faculty. Authors Guild sues on behalf of its members. Case centered on definition of fair use

Authors Guild v. HathiTrust Decision - 2012 “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants. . . and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].” Focused on “Transformativeness” of use http://www.educause.edu/focus-areas-and-initiatives/policy- and-security/educause-policy/issues-and-positions/intellectual- property/hathitrust-copyrig

AIME v. UCLA (2011) Background UCLA licensed DVDs for classroom setting UCLA streamed them over internet to students. AIME sued for copyright infringement Decision Dismissed because of lack of standing Streaming to UCLA students within scope of license. Streaming also likely a fair use. Because of dismissal , issue still undecided

Kirtsaeng v. Wiley Background Decision Supreme Court decision (6-3) First Sale doctrine Import regulations http://www.arl.org/focus-areas/court-cases/2479-kirtsaeng-v- wiley-a-sons

Lessons for Libraries Courts seem to be favoring libraries Resounding victories for fair use Transformativeness a key provision Availability of a market E-reserves still problematic 10% bright line rule Are e-reserves the new coursepack? Is there a market for articles permission (eg. Copyright Clearance Center) Who pays and how? Courts have not decided, but we’re still in murky legal territory

International Copyright Berne Convention Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement Moral Rights (EU) Fair Dealing (UK) Protection of Databases (EU)

International Copyright Law applies to country in which you are operating Law Applies to servers of country with which you are working Patent, Trademark and other IP laws can often differ drastically from US law

Solutions Create a “Commons” where academic institutions can legally share information Creative Commons Institutional Repositories/Open Access Open Science Initiatives

Creative Commons http://creativecommons.org/

Free Culture and Information Libraries – 3 purposes Collect and make information accessible to particular audience Preserve information Serve as a “public good” for society Archive of human memory Public social institution Laboratory for creation of new knowledge

Problems of Distribution and Control Librarians Information public good Free flow to create new knowledge Create open access databases Publishers Make money from new knowledge Does have to be paid for Create closed systems

Problems of Distribution and Control Intellectual Property Copyright Too much restriction stifles innovation Too much freedom decreases incentive Licenses/contracts Give content on “permanent loan” Heavily restrict High priced

Problems of Distribution and Control Who owns rights? Public domain works Derivative works Orphaned works Collaborative works Publishers vs. authors Very few publishers Problems of monopoly/oligopoly

Questions about the future What is a public good? Is information a public good? If no, then do libraries serve a purpose? Who controls information? Public sector Private sector Individuals All of the above