CREATING DIGITAL LIBRARIES: A COLLISION COURSE WITH COPYRIGHT LAW Lolly Gasaway November 2011

IMPORTANCE OF THE ISSUE Libraries are eager to share their unique collections digitally  Not only larger academic libraries Public libraries Local historical societies Impact on scholars & other users

TYPES OF DIGITIZATION PROJECTS UNDERWAY Unique or scarce archival materials  May be public domain This may be the most important materials to digitize  But may still be under copyright Public domain books – no problem Permissions are critical Orphan works – may be problematic Non-copyright concerns outside scope of this presentation

WHY COPYRIGHT LAW IS PROBLEM FOR THESE PROJECTS Copyright law across the world gives to owners the rights to their works  Includes the right to reproduce & distribute the work in copies as well as to display & perform the work publicly  Owners want to control how, when and where their works are made available Is this crazy? No, it is what the law permits Why have librarians gone forward without publisher permission?  Maybe many publishers are jerks  Maybe we have let our wishes control any evaluation of what the law actually permits  Maybe a combination

HAS THE LAW CHANGED? Only in minor aspects Will it change?  Perhaps  Copyright Register’s 3-year priorities include relevant 2 items: Orphan works Section 108 Study Group Report

MAJOR PROJECTS UNDERWAY Google Books  15 million books scanned end of 2010  130 million remaining – will scan by end of decade…. Lent by academic libraries which received a digital copy from Google Little concern about whether the works were under copyright Public domain fine  Publishers objected  Settlement agreement failed Still could be some agreement perhaps Unlikely  Reasons for failure Judge though it was too broad Problems with class action – should be opt in not opt out Antitrust concerns Private ordering of public issue  Usurping role of Congress

Internet Archives  Digital library of free books, movies, music  3 digital million books available ( ) Seeks permission for in copyright works Lends to one person at a time Digital Public Library of America  Big thinking Contours much less certain Recognizes copyright law problems  Has a legal work stream already active

HATHI TRUST International community of research libraries  UNC & TRLN are members Currently digitized almost 10 million total volumes  Source of these digital copies Orphan works project  Sought to make works determined to be orphans available Sued by Authors Guild – Hathi procedures questionable Trust recognized the problems

WHY COPYRIGHT HOLDERS OBJECT TO DIGITAL PROJECTS Object only to projects that involve in digitizing copyright works without permission  The works are their property  Changing business models for publishers  Especially crucial for university presses Digital storage of their works Works may not ever again be out-of-print  Print on demand  Digitizing their publishers’ own files Also, some publishers have their own databases of works that they license to users

COPYRIGHT BASICS Form of expression not facts, ideas Originality & creativity - § 102(a) Fixation - § 102(a) Registration – new fees ($45) Deposit

NOTICE OF COPYRIGHT § 401 (b). ©, COPYRIGHT, or COPR., and 1. ©, COPYRIGHT, or COPR., and 2.Year of first publication and 3.Name of copyright holder © 2011 L. GASAWAY

TERM OF COPYRIGHT years + 28 years + 28 years 56 years 56 years 1976 ActSection 202 life Personal Author+ 50 years ? 1998 Amendment life + 70 years ?

RIGHTS OF THE COPYRIGHT HOLDER Reproduction Distribution Adaptation Performance Display Public performance of sound recordings by digital transmission

APPLYING FAIR USE TO DIGITIZATION PROJECTS Section 107 … “the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

FAIR USE § 107 … “the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

FAIR USE FACTORS Purpose and character of the use Nature of the copyrighted work Amount & substantiality used Market effect Market effect

SECTION 108(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords duplicated if: The purpose of such duplication of an UNPUBLISHED work is for preservation, security or for deposit for research in another library and if.....

1. The copy or phonorecord reproduced is currently in the collection, and 2. Any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format & is not made available to the public in that format outside the premises of the library or archives.

SECTION 108(c) The rights of reproduction and distribution under this section apply to three copies or phonorecords of a work duplicated if: The purpose of such duplication is to replace a PUBLISHED damaged, deteriorating, lost, stolen or obsolete copy and if....

1. After the library makes a reasonable effort to determine that an unused replacement cannot be obtained at a fair price and 2. Any copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of that library or archives in lawful possession of such copy.

Further, for purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

SECTION 108 STUDY GROUP REPORT Recommendations on preservation  Revising (b) and (c) re three copies  Preservation-only exception for publicly distributed digital works  Website preservation

ORPHAN WORKS Google tried fix  Hathi Trust tried fix for its contents Must be a statutory change  Will ease many problems dealing with locating missing owners for permissions Will not eliminate need to seek permission After good faith search for owner No liability for damages if owner later shows up  Now a Register’s priority

WHAT WILL IT TAKE TO FIX THIS? Working with copyright holders  Not ignoring their property rights Willingness to compromise (glass ½ full) Amend § 108 as recommended or suggest other changes Move forward on a governmental orphan works solution Best practices on seeking permission for digital projects Group licensing Work with copyright lawyers who do not take such extreme positions