understanding and defending copyright in your library: an introduction (part 2)

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Jill H-W • p. 1 Jill Hurst-Wahl [email protected] @Jill_HW UNDERSTANDING AND DEFENDING COPYRIGHT IN YOUR LIBRARY: AN INTRODUCTION PART 2

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Page 1: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 1

Jill Hurst-Wahl

[email protected]

@Jill_HW

UNDERSTANDING AND DEFENDING

COPYRIGHT IN YOUR LIBRARY:

AN INTRODUCTION

PART 2

Page 2: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 2

Agenda

• Quick review of Part 1

• Using the Four Factors of Fair Use

• Overview of Section 109: Effect of transfer of

particular copy or phonorecord

• eBooks, Licensing and Copyright

• Resources

• We didn’t discuss Section108: Reproduction by

libraries and archives

• Answering your questions

Page 3: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 3

Remember

We are focused primarily

on U.S. copyright law.

Please set aside what you

think is in the law and learn

what the law actually

contains.

Page 4: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 4

What was in Part 1?• Discussed:

• What is copyrightable • Title 17, Sections 102-105

• Original work, fixed in a tangible medium

• The rights of the creator (or copyright holder)• Title 17, Sections106 and 106A

• Reproduce, create derivative works, distribute, perform, display

• The length of copyright protection• Title 17, Chapter 3

• In general, life of the creator/copyright owner plus 70 years

• Assessed an item’s copyright status

• Introduced the public domain • A work in the public domain is free of copyright protection

• In general, works produced before 1923 are in the public domain

• Introduced Fair Use• Title 17, Section 107

Page 5: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 5

WHAT IS FAIR USE?

(TITLE 17, SECTION 107)The entire section on Fair Use, a limitation on the

exclusive rights of the copyright owner, is on the next

four slides!

Page 6: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 6

Limitations on exclusive rights: Fair use

“Notwithstanding the provisions of sections

106 [Exclusive rights in copyrighted works] and

106A [Rights of certain authors to attribution

and integrity]…

Page 7: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 7

Fair Use (continued): Purposes

“…fair use of a copyrighted work, including such

use by reproduction in copies or phonorecords or

by any other means specified by that section, for

purposes such as criticism, comment, news

reporting, teaching (including multiple copies

for classroom use), scholarship, or research, is

not an infringement of copyright. In determining

whether the use made of a work in any particular

case is a fair use the factors to be considered

shall include—

Page 8: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 8

Fair Use (continued): The Four Factors

(1) the purpose and character of the use,

including whether such use is of a commercial

nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion

used in relation to the copyrighted work as a

whole; and

(4) the effect of the use upon the potential market

for or value of the copyrighted work.

Page 9: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 9

Fair Use (continued): Unpublished works

“The fact that a work is unpublished shall not

itself bar a finding of fair use if such finding is

made upon consideration of all the above factors.”

Page 10: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 10

• Fair Use is the broadest limitation to

the rights of the copyright owner.

• Fair use is relevant only if the work is

protected by copyright.

• Fair Use is flexible.

• It is highly fact sensitive.

• If your use is not “fair,” another

statutory exception to the rights of

owner may work in your favor.

• You can always ask the copyright

owner for permission to use a work.

That is it!

Page 11: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 11

The good news: You do not seek permission. Rather you

use the Four Factors to determine if you believe your use

is fair. This evaluation is normal and occurs every day.

The concern: The copyright owner may discover your use

and disagree with your Fair Use determination. That person

may ask you to discontinue your use. If you disagree and

neither party is willing to negotiate, then a lawsuit may

occur. The final arbiter would be a judge; however court

cases rarely occur because people negotiate. Libraries are

rarely, rarely taken to court.

With Fair Use…

Page 12: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 12

TO JUDGE IF A USE IS FAIR,

USE THE FOUR FACTORSNo…nothing is automatically fair.

Let’s work through four examples.

Page 13: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 13

Example 1: Patron wants to make multiple

copies of a recent political news article to

distribute on the street

Page 14: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 14

The purpose and

character of the use

Activism

Publicity

Marketing

Unclear

The nature of the

copyrighted work

Non-fiction Favors fair use

The amount and

substantiality

Entire article Opposes fair use

The effect of the use Replaces a sale of the

work OR licensing of the

work

Numerous copies made

Opposes fair use

Example 1: Patron wants to make multiple

copies of a recent political news article to

distribute on the street

Page 15: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 15

Example 2: Manager copies 30-page

chapter on homelessness for people to

read before staff development day

Page 16: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 16

The purpose and

character of the use

Training

Prof. development

Non-profit?

May favor fair use

The nature of the

copyrighted work

Non-fiction Favors fair use

The amount and

substantiality

Entire chapter

30 pages out of a 150

page book

Opposes fair use

The effect of the use Replaces a sale of the

work OR licensing of the

work

Numerous copies made

Opposes fair use

Example 2: Manager copies 30-page

chapter on homelessness for people to

read before staff development day

Page 17: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 17

Example 3: Marketing manager uses a large portion of

a photo found on the Internet on a poster which will be

distributed in the community

Page 18: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 18

The purpose and

character of the use

Marketing

Promotion

Opposes fair use

The nature of the

copyrighted work

Creative Favors fair use

The amount and

substantiality

Portion used is nearly

the entire photo

Opposes fair use

The effect of the use Replaces licensing of

the work

Numerous copies made

Could be seen as

replacing the original

work

Opposes fair use

Example 3: Marketing manager uses a large portion of

a photo found on the Internet on a poster which will be

distributed in the community

Page 19: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 19

Example 4: Staff use 1-2 sentence quotes from

popular fiction books on displays around the

library

Page 20: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 20

The purpose and

character of the use

Marketing

Promotion

Opposes fair use

The nature of the

copyrighted work

Creative Favors fair use

The amount and

substantiality

Small amounts

Not the “heart of the

work”

Favors fair use

The effect of the use Does not replace the

original work

No effect on the market

Favors fair use

Example 4: Staff use 1-2 sentence quotes from

popular fiction books on displays around the

library

Page 21: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 21

SECTION 109Limitations on exclusive rights:

Effect of transfer of particular copy or phonorecord

“The First Sale Doctrine”

Page 22: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 22

Our culture is build

around owning property

Page 23: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 23

Includes…

Subsection (a): “the owner of a particular [physical]

copy or phonorecord lawfully made under this

title…is entitled, without the authority of the

copyright owner, to sell or otherwise dispose of

the possession of that copy or phonorecord.”

Subsection (b): Ability for the rental, lease, or

lending of a phonorecord for nonprofit purposes

by a nonprofit library or nonprofit educational

institution.

Page 24: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 24

Includes…and…

Subsection (c): “is entitled, without the authority of

the copyright owner, to display that copy publicly,

either directly or by the projection of no more than

one image at a time, to viewers present at the

place where the copy is located.”

Page 25: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 25

Yes you (and the library) can…

• Lend

• Give away

• Re-sell

• Destroy

…lawfully acquired copy (e.g., book, periodical, record).

Page 26: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 26

But there is no digital first sale doctrine

• Section 109 doesn’t apply to digital works.

• We don’t buy digital works; we license them.

• A license limits what can be done with the work.

• The license “sits on top” of copyright, and limits

what the user can do.

• The Digital Millennium Copyright Act (DMCA)

restricts our ability to circumvent any protections

placed on a digital work.

Page 27: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 27

EBOOKS, COPYRIGHT &

LICENSES

Page 28: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 28

Ebooks do not fit into Section 109

• We talk about ownership of digital assets in the

same way as physical assets, however…

• Section 109 is about physical property, not digital.

• Ebooks are licensed.

• The ebook vendor gives us the ability to license

an ebook if we agree to specific terms, e.g.:

• Limits to number of simultaneous users

• Limit to the length of the “loan”

• Limit to the number of loans per license

• Inability to keep or archive an ebook

Page 29: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 29

The good news

• We have had to wrestle with definitions for ebooks, lending, owning, copying, etc.

• Publishers and libraries have argued over and developed contractual arrangements for ebook lending.

• There is a growing understanding that a digital first sale doctrine is needed, because our lives increasingly revolve around digital content.

• How we think about digital content as property is evolving.

• This area is changing rapidly, if not in practice then at least in understanding.

Page 30: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 30

• Advocating with the Copyright Office and the U.S.

Congress for a digital first sale doctrine.

• Working with copyright owners, publishers and

distributors to recognize ebooks as property.

Where we need to do more work

Page 31: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 31

• Understand the contract options available for

your library for its ebook collections.

• What is in the contract?

• What aspects of the license are not meeting the

needs of your community?

• Where can you negotiate or renegotiate?

• Recognize if your library is willing to take a

difficult stand in terms of ebook licensing.

• For example, only obtain ebooks which are

licensed to function like physical books.

What you can do

Page 32: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 32

RESOURCES

Page 33: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 33

• U.S. Copyright Law, Title 17

• U.S. Copyright Law: Limitations on exclusive rights:

Reproduction for blind or other people with disabilities

(Section 121)

• U.S. Copyright Basics (Circular 1)

• Copyright in Derivative Works and Compilations (Circ. 14)

• Duration of Copyright (Circular 15)

• Reproduction of Copyrighted Works by Educators and

• Librarians (Circular 21)

• Digital Millennium Copyright Act Summary

Resources – U.S. Law

Page 34: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 34

• Crews, K.D. (2018) Copyright Law for Librarians and

Educators: Creative Strategies and Practical Solutions

• Columbia Univ. Libraries. Fair Use Checklist

• Cornell Univ. Library. Copyright Term and the Public

Domain in the United States

• Copyright Clearance Center. Interlibrary Loan: Copyright

Guidelines and Best Practices

Resources – Other, page 1

Page 35: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 35

• Creative Commons

• A global nonprofit organization that enables sharing and

reuse of creativity and knowledge through the provision

of free legal tools.

• Faden, E. A Fair(y) Use Tale (video)

• “…humorous, yet informative, review of copyright

principles delivered through the words of the very

folks we can thank for nearly endless copyright

terms.”

• RUSA/ALA. Interlibrary Loan Code for the United States

Resources – Other, page 2

Page 36: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 36

WE DIDN’T DISCUSS

SECTION 108Limitations on exclusive rights:

Reproduction by libraries and archives

Page 37: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 37

Section 108

• Outlines conditions which a library or archive must meet in order to

use the provisions outlined within.

• “the collections of the library or archives are (i) open to the public, or

(ii) available not only to researchers affiliated with the library or

archives or with the institution of which it is a part, but also to other

persons doing research in a specialized field”

• It is not an automatic carte blanche for libraries and archives in terms

of producing copies.

• It governs:

• Replacement copies

• Copies made to preserve the original or for security

• Copies made in response to a user request (including interlibrary

loan)

• The need to place copyright warnings on photocopiers

• …and other conditions/situations

Page 38: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 38

ANSWERING YOUR

QUESTIONS

Page 39: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 39

• Clarify the question.

• What is the real question?

• Get the details.

• You need to seek answers or advice which fit the real question.

• Does your institution have a copyright attorney or advisor?

• Look for answers in a Copyright.gov circular or the law itself (Title17).

• Research the question and look for an answer from a respected copyright authority.

• Remember that the answer (or advice) fits only thatspecific situation.

How can you answer copyright

questions? Consider:

Page 40: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 40

Copyright vs. Trademark vs. Patent

• Patent – “The right conferred by the patent grant is, in the language of the statute and of the grant itself, ‘the right to exclude others from making, using, offering for sale, or selling’ the invention in the United States or ‘importing’ the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.” USPTO

• Trademark – “A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.” USPTO

Page 41: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 41

Each country’s laws governs how works are used

in that country, in regards to copyright. For

example, U.S. law governs how we use works in

the U.S.

Do our US copyright laws apply to all works in

the world? Or do each country's laws govern

how we in the US can use the works?

Page 42: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 42

“Translations of works in the public domain—

are they protected by copyright?”

Circular 14 says: To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. The derivative work right is often referred to as the adaptation right. The following are examples of the many different types of derivative works:

• A motion picture based on a play or novel

• A translation of an novel written in English into another language [Producing a translation requires original work.]

• A revision of a previously published book

• A sculpture based on a drawing

• A drawing based on a photograph

• A lithograph based on a painting

• …see circular for more information…

Page 43: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 43

Why aren’t our notes of your workshop

derivative of your copyrighted material?

This is why I think you own the copyright to your notes:

• Your notes are your original work in fixed form.

• Your notes are what you want to remember from the workshop and may not be what I actually said.

• Your notes may incorporate thoughts that were not covered in my workshop.

• Your notes may be wrong.

Article of interest:

Do Students Have Copyright to Their Own Notes?

Page 44: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 44

With regards to the duration of copyright:

what of corporate copyrights

(Thinking of Disney, of course)

Section 302(c) says:

“Anonymous Works, Pseudonymous Works, and

Works Made for Hire.—In the case of an

anonymous work, a pseudonymous work, or a

work made for hire, the copyright endures for a

term of 95 years from the year of its first

publication, or a term of 120 years from the

year of its creation, whichever expires first.”

Page 45: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 45

If a work has two authors, when will it

pass into the public domain?

Section 302(b) says:

“Joint Works.—In the case of a joint work

prepared by two or more authors who did not

work for hire, the copyright endures for a term

consisting of the life of the last surviving author

and 70 years after such last surviving

author’s death.”

Page 46: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 46

I am a musician. If I cover someone

else's work in a coffee shop, is that indeed

still a breaking of copyright law?

• Yes, if the venue does not have a license for the music performed within the establishment.

• What is your or the venue’s risk of being caught?

• Video, YouTube, Facebook live

• Someone with a grudge

• Perhaps there is no risk?

Articles of interest:

Copyright and Your Band: Cover Songs (Part One)

Copyright and Your Band: Cover Songs (Part Two)

Page 47: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 47

A favorite book of mine, published in 1972, no

longer in print, author deceased - not yet 70 years

- how can I find out who holds the copyright?

1. Who published the book?

• Is that publisher still in business?

• If yes, can you contact them and ask who now holds the rights? (It could be them.)

• If no, what the publisher purchased by someone else?

• If yes, can you contact them and ask about the rights?

• If no, is there any trail about what happened to the publisher’s works?

2. What do you want to do with the book? Does that use fit under Fair Use?

Page 48: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 48

Agreement on Guidelines for Classroom

Copying in Not-for-profit Educational

Institutions with Respect to Books and

Periodicals

• Circular 21, pp. 6-7

• Guidelines not law

• May be implemented in a strict or restrictive way

• Better to understand what is in the law itself, than

to rely solely on guidelines.

Page 49: Understanding and Defending Copyright in Your Library: An Introduction (Part 2)

Jill H-W • p. 49

Time for questions?