The 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.
During Open Access Week the Harvard University Libraries announced a new policy on reproduction of public domain works:
The Harvard Library is pleased to announce a new policy on the use of digital reproductions of works in the public domain. When the Library makes such reproductions and makes them openly available online, it will treat the reproductions themselves as objects in the public domain. It will not try to restrict what users can do with them, nor will it grant or deny permission for any use.
In an interesting podcast from Digital Campus, Dan Cohen from the DPLA, and others discuss this policy and other copyright issues.
At BC, the recommendation of our Digital Program Plan (Appendix K) regarding rights to digitized public domain material is:
For items we have determined are in the public domain, we recommend asking only for acknowledgement of the source of the material. All uses of the content and the images will be permitted.
On Friday the Federal Appeals Court reversed the lower court decision in the Georgia State e-reserves case and sent it back to the lower court. An article in yesterday’s Chronicle of Higher Education sums up analysis by several library copyright experts:
The Digital Public Library of America (DPLA) announced today that it has received $300,000 from the John S. and James L. Knight Foundation as part of its Knight News Challenge, an open contest seeking ideas that strengthen the Internet for free expression and innovation. Selected from more than 650 applicants, DPLA’s “Getting it Right on Rights” project will create a simplified and more coherent rights structure for digital items, making access to, and use of, items found in large-scale digital collections like DPLA easier and more straightforward for users.
From the award application:
In ONE sentence, tell us about your project to strengthen the Internet for free expression and innovation.
Working with a global set of expert practitioners, copyright lawyers, and metadata specialists, we will establish a common system of rights and a neutral international namespace for the scanned contents of libraries, archives, museums, and cultural heritage sites so that the maximal number of items from these institutions can be made available to the public, with clear designations around use and reuse.
From today’s WIPO press release:
International negotiators meeting under the auspices of the World Intellectual Property Organization (WIPO) adopted today a landmark new treaty that boosts access to books for the benefit of hundreds of millions of people who are blind, visually impaired and print-disabled.
The treaty, approved after more than a week of intense debate among negotiators gathered in Marrakesh, Morocco, is the culmination of years of work on improving access for the blind, visually impaired, and print disabled to published works in formats such as Braille, large print text and audio books…..
The treaty, called the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled, addresses the “book famine” by requiring its contracting parties to adopt national law provisions that permit the reproduction, distribution and making available of published works in accessible formats through limitations and exceptions to the rights of copyright rightholders.
It also provides for the exchange of these accessible format works across borders by organizations that serve the people who are blind, visually impaired, and print disabled. It will harmonize limitations and exceptions so that these organizations can operate across borders. This sharing of works in accessible formats should increase the overall number of works available because it will eliminate duplication and increase efficiency. Instead of five countries producing accessible versions of the same work, the five countries will each be able to produce an accessible version of a different work, which can then be shared with each of the other countries.
We will need to follow closely how this is adopted and implemented in the US.
The Library Copyright Alliance, a group of three national library associations representing over 100,000 United States libraries, has filed comments on the Copyright Office notice of inquiry regarding Orphan Works and Mass Digitization.
In the past the LCA has supported legislation on the issue of orphan works — works whose copyright owner cannot be readily determined or contacted for permission to digitize the work. The new comments take quite a different tack and indicate a new confidence in the strength of fair use:
LCA welcomes this opportunity to comment on the Copyright Office’s October 22, 2012, Notice of Inquiry concerning Orphan Works and Mass Digitization. LCA has a long history of involvement in this issue. It provided extensive comments to the Copyright Office during the course of the Office’s study that led to the Office’s 2006 Orphan Works Report. LCA also actively participated in the negotiations concerning the orphan works legislation introduced in the 109th and the 110th Congresses. Although LCA strongly supported enactment of these bills, significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works. (emphasis added)
Publishers Weekly published an interesting interview with Brandon Butler, wrapping up the year 2012 in library copyright issues, including the GSU case, the HathiTrust case and the defeat of SOPA. He also talks about upcoming challenges for 2013, including the pending Kirtsaeng v. Wiley case, testing the first sale doctrine, and the possibility of orphan works legislation.
The full interview: Overruled: PW Talks to ARL’s Brandon Butler: ALA Preview 2013.
For a fuller discussion of how Kirtsaeng may affect libraries, see Butler’s earlier article, coauthored with Jonathan Band.
And, for a lighter take and an indication that copyright law is of mainstream importance, watch Stephen Colbert’s segment on Kirtsaeng.
The Berkman Center for Internet and Society has just released a guide to good practices for universities adopting open access policies.
The guide addresses drafting, adopting, implementing and talking about the policy, as well as strategies for filling the repository. It was written by Stuart Shieber, Director of the Office for Scholarly Communication at Harvard, and Peter Suber, Director of the Open Access Project at Harvard. It’s an excellent resource for understanding these policies, as well as for universities considering adopting one.
This time the victory comes in a ruling on the case brought by the Author’s Guild against the HathiTrust Digital Library, of which Boston College is a member.
Among otherr issues litigated was whether HathiTrust could create a searchable index of digitized texts and supply them to print-disabled readers. Kevin Smith has provided a good analysis of the ruling and notes:
Judge Baer first held that the purpose of the use was research and scholarship, which are favored in the fair use statute. But he went on to hold that the use of these copyrighted materials in HathiTrust was also a transformational use. Unlike Judge Evans in the GSU case, Judge Baer cited case law that has determined that a use can be transformational because it has a different purpose, not only when an actual change in content has been made. And providing a searchable database of books, within copyrighted works only available to the visually-impaired, was, in the Court’s opinion, transformative.
Judge Baer concludes with this sentence:
I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.
As the last part of this comment indicates, the Judge also upheld the provision of digital files to persons with visual disabilities to facilitate adaptive access, using a combination of fair use and section 121of the copyright law. Hard to believe that the AG thought it was a good idea to challenge that practice, but they did. So overall this is a comprehensive win for the libraries and for the important public interest that they serve.
More analysis is available linked from the HathiTrust site.Particularly helpful is the post by Kenneth Crews.
Good news for authors of MLA journal articles! They have adopted a new author agreement that will allow posting in open access repositories such as eScholarship@Boston College. Here’s the announcement:
The journals of the Modern Language Association, including PMLA, Profession, and the ADE and ADFL bulletins, have adopted new open-access-friendly author agreements, which will go into use with their next full issues. The revised agreements leave copyright with the authors and explicitly permit authors to deposit in open-access repositories and post on personal or departmental Web sites the versions of their manuscripts accepted for publication. For more information on the new agreements, please contact the office of scholarly communication.