Copyright reform: wish carefully

copyrightRecent proposals from the House Judiciary Committee and two former Registers of Copyright, advocating reform of the Copyright Office, have received a lot of attention in the Library world. Many of us can see need for reform, but proponents have focused on moving the Copyright Office out of oversight by the Library of Congress. This proposal seems to stem from a perception that librarians are intent on giving content away, to the detriment of content creators.
Brandon Butler and 42 other lawyer/librarians have sent a very articulate letter opposing this view, and a blog post from David Hansen at Duke, reviews the issues and includes this excerpt of a letter sent by the Duke Libraries:

Libraries like ours have perhaps the most well-rounded and balanced relationship with copyright of any group of institutions in the world. Duke Libraries, like many other libraries, spends millions of dollars every year on services for our faculty and students to help them navigate the legal, technological, and economic choices they face as creators. Our libraries partner with those creators . . . on publishing. Duke Libraries also administer the rights to thousands of works for which we own copyright, primarily in our rare book and archival collections. . . .  Duke Libraries also invest millions of dollars each year into the publishing system by purchasing content and supporting new and emerging publishing platforms. . . .[W]e now spend even more money on developing strategies to carefully respect the rights of copyright owners as we seek to preserve and provide access to those materials in forms that are useful to researchers.

eReserves and Fair Use Again

You may remember that the Georgia State e-reserves case resulted in a District Court ruling largely favorable to libraries, but with a bright line 10% standard applied for fair use. The publishers appealed and the higher court sent the case back to the District Court for a new fair use analysis.

The new ruling, yesterday, is still quite favorable to libraries and does away with the 10% rule. It does apply a financial analysis to each posted excerpt based on data available to the court after the fact, but not to the library or professor beforehand.

Both Keven Smith and Brandon Butler have written helpful analyses.

Some bottom-line advice from Smith:

 All we can do, then, is to continue to think carefully about each instance of fair use, and make responsible decisions.  We still have some rules of thumb, and also some places where we will need to think in a more granular way.  But nothing in these rulings need fundamentally upset good, responsible library practice.

The second takeaway from this decision is that we should resort to paying for licenses only very rarely, and when there is no other alternative.  The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries.  To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt.  Can we link to an already licensed version?  Can we shorten the excerpt?  Buying a separate license should be a last resort.  Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.

And, from Butler:

Her new analysis, stripped of its bright lines and clear arithmetic, seems to amount to nothing more than her opinion about whether the use will substantially harm the market value (actual and potential) for the works used. How much harm is “substantial”? Well, in several places Judge Evans says the harm must be so extensive as to risk undermining the publishers’ entire motivation to publish the work. So, it would need to eat their entire profit margin (or enough that they decide it’s not worth the bother to publish). And in at least one place she seems to suggest that, because there is no marginal cost for a publisher to offer to license use of excerpts from a work, there is no real harm when GSU decides not to pay the license. This is heady stuff, and could offer a very wide berth for educational fair use of electronic excerpts.

Should Anne Frank’s Diary enter the public domain?

AnneFrankSchoolPhotoAn interesting blog post by ReCreate explains the rationale that the Anne Frank Foundation uses to suggest that the copyright term for the Diary should extend to 2051.

There are several absurdities to this story.  First, Otto Frank could have claimed co-authorship during his lifetime, in the decades between the publication of the diary and his death, but never appears to have done so.  The Foundation could have claimed co-authorship soon after his death in 1980, but instead waited until just six years ago to seek copyright advice, seemingly motivated by the fact that the work’s copyright term is set to expire at the end of this year.  It seems bizarre to allow the Foundation to now try to claim copyright on behalf of a man who never tried to do so during his lifetime, and which it never sought to do in the several decades after his death.  This move appears solely motivated by the royalties the Foundation will lose when the work enters the public domain.

Additionally, as pointed out by Mike Masnick of TechDirt, “who in their right mind thinks that copyright was the ‘incentive’ necessary for Anne Frank to write her diary?”

[Anne Frank School Photo. This work is in the public domain in its country of origin and other countries and areas where the copyright term is the author’s life plus 70 years or less.]

#icanhazpdf

Copyright Fail: ‘Pirating’ Academic Papers Not Only Commonplace, But Now Seen As Mainstream

Techdirt has been writing about open access for many years. The idea and practice are certainly spreading, but they’re spreading more slowly than many in the academic world had hoped. That’s particularly frustrating when you’re a researcher who can’t find a particular academic paper freely available as open access, and you really need it now. So it’s no surprise that people resort to other methods, like asking around if anyone has a copy they could send. The Internet being the Internet, it’s also no surprise that this ad-hoc practice has evolved into a formalized system, using Twitter and the hashtag #icanhazpdf to ask other researchers if they have a copy of the article in question. But what is surprising is that recently there have been two articles on mainstream sites that treat the approach as if it’s really quite a reasonable thing to do.

…….

It’s a further sign of copyright’s dwindling relevance in a world whose central technology — the Internet — is built on sharing and openness.

Victory for Fair Use

copyrightCopyright holders must consider fair use before sending a takedown notice.

From the Electronic Frontier Foundation:

A federal appeals court sided with EFF yesterday on several of the major questions at issue in the long-running Lenz v. Universal copyright case. Lenz—sometimes referred to as the “Dancing Baby” case because it centers on a 29-second home video of a toddler dancing with a song by the musician Prince in the background—has long been recognized as a test of the rights enjoyed by users, and the obligations facing people who want to take down online speech.

The big takeaway of yesterday’s opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.

For example, the court states explicitly that “Fair use is not just excused by the law, it is wholly authorized by the law.” However well attested that principle is in the statute and in case law, it is still sometimes considered controversial. Hopefully this decision puts that debate to rest: whether the copyright holder grants permission or not, a fair use is an authorized use.

How copying promotes creativity

Allosaurus

Jonathan Band makes some interesting observations in this post about film score composer Michael Giacchino (Jurassic World):

Giacchino told NPR how he became obsessed with Steven Spielberg films as he was       growing up:

“When I wasn’t able to get myself to a theater to re-watch, you know, E.T. for the hundredth time, or Raiders of the Lost Ark, or Star Wars, the only way to relive those movies was to listen to the soundtrack.” When he did go to the theaters, Giacchino would sneak in tape recorders so he could listen to the soundtracks later. “I still have all those cassettes,” he says. “I would just listen to Raiders of the Lost Ark over and over and over.”

Band points out:

But imagine a budding filmmaker who wants to study the various film and narrative techniques used in Jurassic World. Because of the studios’ windowing strategy, a DVD of the film probably would not be available for at least 120 days. Until then, the filmmaker might not be able to rely on fair use to make his own copy. 18 U.S.C. § 2319B, which imposes felony penalties on the use of an audiovisual recording device to make a copy of a motion picture in a motion picture exhibition facility, does not recognize fair use as a defense.

Image: By FabSubeject (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Re:Create coalition promotes balanced copyright

 

logo

ARL announced today that it is joining Re:Create — a coalition formed to promote balanced copyright policy. This looks like an organization to watch.

Today, April 28, 2015, ARL joined US technology companies, trade associations, and civil society organizations in the launch of Re:Create, a coalition that promotes balanced copyright policy. A balanced copyright system depends on limitations and exceptions, such as fair use. As technology advances, it is imperative that the copyright law is responsive to these changes, balancing the interests of creators of copyrighted information and products with the interests of users of those products.

Re:Create promotes and defends the important balance of copyright. ARL’s member institutions, as well as the general public, depend on balanced copyright that includes robust limitations and exceptions. A balanced system ensures that copyright does not limit or impede new and valuable technologies and uses.

New Guide to Getting Rights Back

The Authors Alliance just published a free guide:  Understanding Rights Reversion: When, Why, & How to Regain Copyright and Make Your Book More Available.

When a book has been out for a while and is no longer selling well, the authors of this guide found that publishers may be willing to let rights revert back to the author. This presents great opportunities for getting new digital readership.

Today’s technologies offer tremendous opportunities for authors to make their out-of-print or otherwise unavailable books more widely available. Some authors want to revive their books by creating e-books, while others may want to use print-on-demand technology or deposit their books in openly accessible repositories. We hope that the guide empowers authors to advocate on their own behalf to make their works more widely available, and we believe that many authors can work with their publishers to increase their books’ availability by following the strategies articulated in the guide: Be Reasonable, Be Flexible, Be Persistent, and Be Creative.  More

The Boston College Libraries have experienced this firsthand. We send many out-of-copyright books to the Internet Archive to be reproduced as Kindle and ePub versions. A few years ago, Prof. David Northrup regained copyright to a book he had published in 1995 with Cambridge University Press, Indentured labor in the age of imperialism, 1834-1922. According to WorldCat the book is held by some 520 libraries worldwide.

With Prof. Northrup’s permission, we sent it to be digitized as part of the Boston College Collection. In the slightly more than two years it has been available through the Internet Archive and HathiTrust, it has been viewed 6698 times.

Faculty authors interested in making older work available may want to consult this guide or talk to their subject liaison librarian about our digitization program.

 

Fair Use “Ripped from the Headlines”

Pont_Neuf,_Paris_July_2014Laura Quilter, Copyright and Information Policy Librarian at UMass, Amherst posted a fascinating analysis of a recent fair use case that involved paraphrasing Faulkner in a Woody Allen film. She had used the example in a quiz and about a quarter of respondents did not think the case was a fair use. Her analysis is thorough and fun to read. Like getting your history from historical novels, except more accurate.

Paraphrasing a famous quote from a novelist, in a commercially released film.

Almost a quarter of respondents thought this should be licensed. The Faulkner estate agreed, actually, and sued Sony Pictures for the paraphrase of William Faulkner’s quote in Woody Allen’s “Midnight in Paris”.  Eriq Gardner for the Hollywood Reporter covered the case, which resulted in a finding of fair use in July, 2013.

The quote in the movie goes like this:

“The past is not dead! Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him, too. I ran into him at a dinner party.”

And the original quote, in Requiem for a Nun, is certainly one of Faulkner’s more memorable quotes:

“The past is never dead.  It’s not even past.”

This brings up my first point, which is that reasonable people can disagree about fair use.

 

Photo By Frédérik Vuille (quai de paris soiree lune_) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Best Practices in Fair Use

copyrightThe Center for Media and Social Impact has released two important new statements of best practices in fair use. The Code of Best Practices in Fair Use for Academic and Research Libraries has, since its release in 2012, become an important guide for use of copyrighted materials by libraries. The new statements deal with Fair Use of Orphan Works by Libraries and Archives and Fair Use for the Visual Arts.

The statement on Orphan Works frames the issue:

Memory institution professionals commonly manage collections containing materials that are, practically speaking, impossible to identify and seek copyright permission for, item by item. If they fail to address copyright clearance issues, they could compromise their institutions’ public missions. Nevertheless, faithful representation of a collection in its entirety could be critical to fulfilling an institution’s missions to preserve the past and to make research materials available, including online.

These documents provide expert, well-reasoned guidance. They are also important in recording and establishing the consensus of practitioners in their fields.