Presentation by Dr. Lolly Gasaway, UNC, at seminar sponsored by Oklahoma chapter of SLA
Copyright = the right to make copies; legally secured right to publish and sell the substance and form of a literary, artistic, or musical work
Copyright law protects: 1) authors, 2) publishers and producers, and 3) the public. There’s a tug of war going on among these three groups. Anyone who produces a work is an author in the legal sense (photographers, choreographers, etc.). Most of the money is in the hands of the publishers and producers, who take good care of themselves by influencing politics. Librarians and teachers are stand-ins for the public, traditionally, but with RIAA, p2p file sharing, etc., the consumers are paying more attention.
US Constitution, Article 1, sec. 8, cl. 8 = the one that gives to Congress the power to promote science and arts through legal protections.
History of copyright starts in 1710 in Britain, with Statute of Anne, which allowed copyright to authors instead of the publishers. It also limited the time for which copyright could be held. First US law was 1790 and very similar. 1909 Copyright Act’s main purpose was to regulate importation of international editions (libraries, booksellers, and publishers were fighting even then). Since mid-30′s, introduction of ability to reproduce works changed the way libraries thought about copyright, but biggest change started happening in 60′s with widespread adoption of photocopiers. 1976 Copyright Act (effective 1978) had to deal with a lot of new technology–film, video, computers–and did so relatively successfully, trying to be at least partially technology-neutral.
Term of copyright under 1909 was 28 years, with possibility of additional 28 with application, so after max of 56 years things were in the public domain (over 80% were not renewed). In 1976 it changed to life of the author plus 50 years. Could no longer tell from looking at the book whether it was still in copyright–introduction of uncertainty. Also, copyright attaches at fixation, not at publication.
In 1998, the 1976 act was amended (Sunny Bono term extension act) to life plus 70 years, retroactively, in order to harmonize with EU law. There was litigation (Eldred vs. Ashcroft) but it was upheld.
If the author is a corporation, anonymous, or pseudonymous, copyright is 95 yrs after date of first publication or 120 yrs after creation, whichever comes first. Fine arts and visual arts created after 1990 are for the life of the creator only.
See her website: www.unc.edu/~unclng/public-d.htm for chart of what’s covered when.
To get copyright, the work must have some bit of originality or creativity and be fixed in a tangible medium of expression. Registration requires only filling out a form and $45. The certificate mailed back gives the author the right to sue for infringement, with a statute of limitations of 3 years even if haven’t registered yet. It also requires deposit of 2 copies with the Library of Congress.
“Notice of copyright” is term of art referring to the circle-C, year of publication, and name of holder. It is no longer mandatory that the notice be included on the piece. In 1909, if you didn’t use the notice, it was assumed the work was meant for the public domain. The 1976 act gave the opportunity to correct and error of omission within 5 years. But in 1989 notice became optional. This is important because so many people assume that things on the internet are not copyrighted because of lack of notice.
Protectable works: 1) literary (includes databases and computer software as well as books and journals), 2) musical, 3) dramatic (not tv sitcoms, for ex), 4) pantomime and choreography, 5) pictoral, graphic, and sculptural (the largest category; includes maps, scientific drawings, consumer trade goods with a design element [games, fabric patterns, etc.]; copyright is sold separately from the work, so buying an original painting does not give you rights), 6) motion pictures and AV (public performance rights attached to these), 7) sound recordings, 8) architectural (added when we joined the Bern Convention; covers both blueprints and buildings themselves; for design as whole, not individual elements).
Rights of copyright holder: 1) reproduction, 2) distribution (first two very important as that’s where most of the money is), 3) adaptation (includes derivative works like film adaptations of books, translations, and new editions), 4) performance, 5) display (purchase of copy includes right of display), 6) public performance of sound recordings by digital transmission (webcasting was added in 1998 DMCA to include record companies and performers, where before it all went to the composer; so two sets of royalties for stations that have both radio and web broadcasting).
Visual Artists Rights Act gave rights of attribution and integrity–such as to not have a Calder mobile repainted to match the new decor at an airport. This applies to works with fewer than 200 signed and numbered copies.
First Sale Doctrine makes it so that no more royalties are necessary for second-hand transactions. Crucial to libraries or we wouldn’t be able to lend works without payment.
Public Display of Copies lets us put up bulletin boards of book jackets, but disallows transmission or web display.
Public Domain: 1) expired copyright, 2) materials in which author never claimed copyright (pre-1976 act; there is currently no way for an author to declare a work in the public domain, although you can say it’s ok to use without payment [Creative Commons]), 3) materials produced by federal government (for outside contractors, it depends on the contract).
Fair Use: protects criticism, comment, news reporting, teaching (including multiple copies), scholarship, or research. Courts say this is illustrative, not set in stone. Factors: 1) purpose and character of use (nonprofit is favored over commercial, but it isn’t absolute; courts favor transformative use), 2) nature of the copyrighted work (for example, copying a short factual piece vs. a large creative piece), 3) amount and substantiality use in comparison to whole (smaller is better to the courts; Texaco case is the one that gives copyright to journal article independent of issue, but copyright law claims it of the issue as a whole), 4) market effect (potential, not absolute; hard to judge with online at this point). Meetings are included, but quantity will still matter. ***A link to the publisher’s site is not a reproduction.***
Multiple copies for classroom use: Guidelines developed by copyright holders and educational groups in concert, and only applies to nonprofit educational organizations. Public vs. private doesn’t matter–just the tax code. Tests for use: 1) brevity (there are hard guidelines [2500 words], but they don’t take discipline into account), 2) spontaneity (last-minute decisions by the teacher), 3) cumulative effect (for one course, one per author or three per issue/collected work; no more than 9 per term and not repeated the next term; these are safe harbor guidelines), 4) notice of copyright, 5) no charge beyond cost of copying.
Coursepack cases: BasicBooks v. Kinkos; Princeton UP v, Michigan Documents Service. Both said that course packs in the hands of the commercial services are not fair use, even though if the student compiles them they’re fine. Permissions are required by the commercial stores. Uni-owned bookstores have more leeway, but still better to obtain permissions and pay royalties.
Alternative rights: 1) Open archives movement (NIH, institutional repositories), 2) Creative Commons license (most common one is free use with attribution; different licenses for different countries). However, if a musician wants to be represented by one of the big companies, the music must be registered for copyright.
Library Exceptions: 1) Section 108(a) for copies of unpublished works for patrons (one copy, non-commercial, when the collection is open to public or researchers in the field; must include notice of copyright, or we have to add one), 2) Section 108(b) for copies of unpublished works for us (up to three and in collection and if digital is not available outside the walls of the library) 3) Section 108(c) for copies of works we own (3 copies, damaged/stolen/obsolete; reasonable effort to replace; digital not available outside premises).
Obsolesence is in effect when the tech necessary to render a work perceptible is no longer available (so VHS isn’t quite yet obsolete, but BETA is). Also, if the work is available in new format then have to buy the new format, such as with song on 8-track now on cd. Can not digitize LPs. Do not have to search for used tech, only new.
Reasonable effort is variable but normally requires utilizing known trade sources, contacting copyright holder if known, and using authorized reproduction service.
Fair price is original format at latest suggested retail price (per ALA). But AAP’s definition is more complicated.
Copies for users: Section 108(d) for when work has been published. No more than one article from a work. Copy becomes property of user (library cannot retain copy for further use), library does not know it will be used for profit, and library displays notice of warning of copyright. “Reproduction” is used, not “photocopy,” so digital copies are covered here. Section 108(d) allows for copying and distributing of whole or larger parts of a work if another copy is not available otherwise (same rules apply as above). [mostly libraries don't do this; we use ILL instead. trying to find one to buy is too much trouble, usually]
Reserves guidelines (for print) from ALA are generally the same as for copying for classroom use: not recurring every semester; one copy per student; no fee beyond copying; include copyright notice. Multiple copies should have reasonable amount of material (ie, not all material for the course), reasonable number of copies, notice of copyright, and not be detrimental to the market for the work.
Electronic reserves suggestions: keep material restricted to students in the course; catalog under course/faculty information only; leave on reserve for only on semester w/ permissions for later use; include copyright notice plus notice that no further electronic transmission is permitted.
Section 108(f)(1): no liability for unsupervised use of reproduction equipment as long as notice of copyright law is displayed nearby. (2): individuals are still liable. Also, nothing here affects fair use, but any license agreement signed by the library trumps all.
Section 108(g): isolated and unrelated and spontaneous copying is ok. Systematic copying and distribution is not. See US Telephone vs. Readers Digest for nonprofit ruling on this. Also, Legg Mason vs. Lowry’s Reports.
ILL: Section 108(g)(2): it’s ok as long as it doesn’t substitute for subscription or purchase. CONTU guidelines call for requesting no more than five requests from a periodical title from the most recent 60 months of the title (five years), unless the title is owned but missing, or it’s on order. Non-periodicals get five requests per year over term of copyright. But since these are just suggestions, each library has to determine what’s right for them (if historical research is more common at your library, for example).
ILL responsibilities mostly fall on the borrowing library, certifying that the request is within guidelines and maintaining records for three calendar years (do *not* keep longer, as they can come back to bite you if subpoenaed). Lending library shouldn’t send it if the request clearly exceeds the five, unless they tell you that they’re going to pay royalties.
Alternatives on 6th request: 1) no, come back Jan 1 (especially works in academic libraries), 2) order copy from document delivery service, 3) pay royalties directly or through CCC, 4) subscribe to title, 5) “once in a blue moon” exception–make the copy.
For digital ILL, license agreements prevail. If the requesting library receives an e-copy, they can place it on a password-protected site and time limit the availability, then delete.
Copyright Clearance Center created in 1978 w/ currently over 10,000 publishers; publishers set the prices. Two options for libraries: pay-per-use and campus-wide license (UTx did this) based on headcount charge. [she thinks we'll all end up with these licenses eventually] Does cover both print and digital.
Section 108(h) added from Sonny Bono act: in last 20 years of copyright term, rights are loosened under these criteria: 1) work is not subject to normal commercial use, 2) copy cannot be gotten at a reasonable price, 3) owner provides notice that neither of above apply. Won’t be something we do often, but for unique items will be worth it. Includes ability to digitize and put on web, but does not apply to subsequent use by others.
Section 108(i) means that 108 only applies to text media (not music, movies, etc.), with an exception for preservation and non-text items within a text (such as illustrations).
Orphan works: Proposed register would not eliminated need to seek permission–good faith. No liability if owner shows up later, after good faith search. This legislation did not pass because of photographers, since pictures are generally published without copyright notice. No one knows why they just didn’t write it w/out photographs, but she thinks it’ll be back due to Google Books settlement.
Section 108 Study Group Report (she was a part of this):
- things wrong with it: 1) designed for analog, 2) not working as libraries adopt digital tech (“touching” digital work requires copy, plus issues of upgrades for format changes)
- changing: 1) library practices (works originally in digital, users wanting digital ILL, preservation and access), 2) technology (ubiquitous computing; costs decreasing; scanners common; users have their own scanners and digital cameras), 3) issues for rights holders, 4) publishing practices (article-level pricing)
- recommendations: 1) add museums!, 2) permit outsourcing (for commerical photocopying and digitization, w/ no copy kept by them), 3) allow digital copies for preservation or to curate websites, 4) no recommendations on copies for users because of differences between academic and public user communities and how to define them
Google Books Settlement
- So far, 12 million books. Does this scanning infringe copyright? Full works without permission–so most experts say Yes! Google may not let them out, but what happens when the company is sold?
- Settlement is having significant problems (currently in 2nd iteration). It’s overly broad, addressing more than the scanning.
- Orphan works provisions essentially create monopoly for Google.
- Class action problems. Claims to cover all publishers (except Europe) w/ an opt-out clause (class actions are usually opt-in).
- Foreign works not included in 2nd version.
- What can partner libraries do with the electronic copy? [nothing! no money to even keep up with format changes, and everything in copyright can't leave building]
