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

2. 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 Fair Use
Section 108 – Reproduction in libraries
Section 109 – First Sale Doctrine
Section 110 and the TEACH Act
Digital Millennium Copyright Act

3. 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

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

5. 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

6. 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

7. Background Middle Ages 1557 Royal Monopolies Letters Patent
Stationers Company
Registration

8. 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

9. 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

10. 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Extended to unpublished works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

11. 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

12. 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)

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Unpublished works when author died before or (if author unknown) before 1893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

14. 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.”

15. 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.

16. 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

17. 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

18. 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

19. 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”

20. 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

21. 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.

22. 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.

23. 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.

24. 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.

25. 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

26. 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

27. 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.

28. 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

29. 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

30. 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)
and-security/educause-policy/issues-and-positions/intellectual- property/georgia-state-copy

31. 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)

32. 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.”
victory-for-fair-use-and-libraries

33. 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

34. Authors Guild v. HathiTrust
Decision
“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
and-security/educause-policy/issues-and-positions/intellectual- property/hathitrust-copyrig

35. 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

36. Kirtsaeng v. Wiley Background Decision
Supreme Court decision (6-3)
First Sale doctrine
Import regulations
wiley-a-sons

37. 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

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

39. 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

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

41. Creative Commons

42. 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

43. 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

44. 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

45. 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

46. 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