Hot Issues in Copyright Ebooks, orphans, first sale … Massachusetts Library System Wednesday Jan 30, 2013 at 12:00 PM Presented by Mary Minow, J.D., A.M.L.S. LibraryLaw.com

Legal information Not legal advice! Legal Disclaimer

Agenda Ebooks Lending content Litigation: Google Books, Hathi Trust Other issues E-reserves Streaming videos UCLA, YouTube Changing formats

Lending Content Copyright v. Licenses Specific Copyright Exception: FIRST SALE

Lending Content Copyright v. Licenses Specific Copyright Exception: FIRST SALE PART OF PUBLIC LAW

Lending Content Copyright v. Licenses Specific Copyright Exception: FIRST SALE PRIVATE CONTRACT overrides copyright law (almost always)

What is Copyright FIRST SALE? Loan books Sell used books Copyright Law 17 U.S.C. Sect. 109

Dont take for granted! First Sale Doctrine in United States Public Lending Right Euros © Will Spaetzel Some Rights Reserved. Attribution-NonCommercial-ShareAlike 2.0 Generic Spaetzel Not true everywhere!Public Lending Right = authors paid when books are loaned

First Sale: Under Review Case to watch Capitol Records v Redigi (New York Southern District) Is there a right to sell used digital music? If yes, ebooks next Massachusetts based MP3 reseller Deletes MP3 from users computer

Digital First Sale? Outdated law. Rights triggered when copy is made, even if original is deleted.* *may make INCIDENTAL OR FAIR USE argument, depending on circumstances

First Sale: Under Review Case to watch Kirtsaeng v. Wiley (U.S. Supreme Court) See also First Sale Fast Facts for Libraries / Library Copyright Alliance Jan. 18, Are copies printed abroad subject to First Sale? If no, possible erosion of print loans, library booksales works made overseas

LENDING CONTENT Copyright Safe OK: Public Domain Creative Commons Permission (e.g. local author)

New rights models unglue.it – creative commons Rights holders set dollar mount, readers pledge $ to unglue Success = Creative Commons License

Licenses

understand default copyright rights before signing understand default copyright rights before signing

Douglas County Libraries and Califa: Statement of Common Understanding Uses copyright law, not license Describes how copyright law applies One user- One loan

LITIGATION: Hathi Trust Book Scans as FAIR USE OK for preservation searching text mining print disabled users Now on appeal. Orphan works program suspended, not currently at issue Authors Guild v. HathiTrust

LITIGATION: Google Books Scanned over 20 million books with library partners Search snippets 2005 Authors and publishers sued Google Proposed settlement: BOOKS RIGHTS REGISTRY (sell orphans) Court REJECTED Current status: publishers settled authors have not Authors Guild v. Google Not at issue: 2 million public domain books 2 million previews with publisher agreements

Google Books Authors Guild v. Google For updates thepublicindex.org Institute for Information Law and Policy at New York Law School.

Orphans: Public Comment Period Deadline Feb. 4,

Updating library copyright Feb 8 Columbia Univ Updating library copyright Feb 8 Columbia Univ

Agenda Other issues E-reserves Streaming videos UCLA, YouTube Changing formats

E-Reserves Cambridge University Press v. Becker COURT (May 2012): 26 not registered or de minimis 44 FAIR USE 5 Infringing Look to amount and market harm Rejected CLASSROOM GUIDELINES Reasonable limits: One chapter of book with 10+ chapters 10 % of book less than 10 chapters On appeal See ARL Issue Brief by Brandon C. Butler suebrief_15may12.pdf

Streaming Videos: UCLA Case UCLA converted DVDs to streaming for in course management system November 2012: Court found it could be FAIR USE – the streaming did not substitute for purchase and did not cause market harm. January 2013 : Second amended complaint dismissed Assn for Information Media & Equipment v. University of California

May We Show YouTube Video? Copyright and YouTube Terms of Service Copyright Law – Specific exception OR MAKE FAIR USE CASE Performance by instructors or pupils in face-to- face teaching activities of nonprofit educational institution in classroom or similar place devoted to instruction See also TEACH Act for distance ed 17 U.S.C. Sect. 110(1)and (2)

May We Show YouTube Video? Copyright and YouTube Terms of Service Copyright Law – Specific exception OR MAKE FAIR USE CASE Performance or display to the public on apparatus commonly used in private homes permissible unless –Direct charge to audience or further transmission to the public OK for non food/drinking establishments with less than 2,000 sq ft if no more than six loudspeakers (no more than four per room) (for audio only) no more than four audiovisual devices (no more than one per room) and diagonal screen size no greater than 55 inches 17 U.S.C. Sect. 110(5)

YouTube Terms

YouTube Terms of Service 4. General Use of the ServicePermissions and Restrictions YouTube hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that: A.You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player). B.You agree not to alter or modify any part of the Service. C.You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate. D.You agree not to use the Service for any of the following commercial uses unless you obtain YouTube's prior written approval: the sale of access to the Service; the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales. E.Prohibited commercial uses do not include: uploading an original video to YouTube, or maintaining an original channel on YouTube, to promote your business or artistic enterprise; showing YouTube videos through the Embeddable Player on an ad- enabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; or any use that YouTube expressly authorizes in writing. (For more information about what constitutes a prohibited commercial use, see our FAQ.)

Copyright Geek Time: Changing Formats A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work. 17 U.S.C. Sect. 101 To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and formatting are not copyrightable.

Agenda Ebooks Lending content Litigation: Google Books, Hathi Trust Other issues E-reserves Streaming videos UCLA, YouTube Changing formats