AALL Again Urges Reform to Incorporation by Reference System

February 6, 2014

By Elizabeth Holland

As detailed in Emily’s recent post, “Congress Considers the Scope of Copyright,” AALL has consistently urged for reform of the incorporation by reference system to allow for greater openness and transparency. Following up on our June 2012 request to the Office of Management and Budget, AALL signed on to a January 31 coalition letter to request the Office of the Federal Register (OFR) issue a final rule that goes beyond the meager changes in the Notice Of Proposed Rulemaking and requires that standards incorporated by reference in proposed rules and in final rules be available for free on the Internet.

As the letter states, AALL “strongly believes that standards incorporated by reference into federal regulations should be widely available to the public, without charge, and that such standards should be deemed in the public domain rather than subject to copyright restrictions.” Twenty groups signed on to the letter, which was sent in response to the OFR’s proposed rule  to amend regulations governing the approval of agency requests to incorporate material by reference into the Code of Federal Regulations.


Congress Considers the Scope of Copyright

January 14, 2014

By Emily Feltren

The House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet met today to consider the “scope of copyright protection.” The hearing covered the need for a making available right and a broadcast right, and the availability of state laws, technical standards, and codes under copyright. The witnesses were David Nimmer, Of Counsel, Irell & Manella, LLP and Glynn S. Lunney, Jr., McGlinchey Stafford Professor of Law, Tulane University School of Law on a making available right; Mark F. Schultz, Associate Professor of Law and Director of Faculty Development, Southern Illinois University School of Law and James Love, Director, Knowledge Ecology International on a broadcast right; and Patricia Griffin, Vice President and General Counsel, American National Standards Institute and Carl Malamud, President, Public.Resource.Org on copyright of state laws, standards, and codes.

While the hearing covered several important topics of interest to law librarians, the testimony and follow-up questions on copyright and accessibility of state laws, standards, and codes were particularly noteworthy. Underlying the discussion was the Fifth Circuit’s correct finding in Veeck v. Southern Building Code Congress that “a continuous understanding that ‘the law,’ whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright.” Several members of the Judiciary subcommittee expressed support for this idea, including Reps. Darrell Issa (R-Calif.), Blake Farenthold (R-Tex.), Hank Johnson (D-Ga.), and Zoe Lofgren (D-Calif.). As Rep. Lofgren said, “It seems to me very clear that you cannot have secret law.”

AALL’s Government Relations Policy clearly articulates the need for public access to legal materials. It states: “Government information, including the text of all primary legal materials, e.g., judicial and administrative decisions, statutes, and regulations, must be in the public domain and available to the public without restriction.” On June 1, 2012, AALL joined other open government organizations on a letter to the Office of Management and Budget urging reform of the incorporation by reference system. The letter stated, “We believe it is imperative that the law be readily accessible for all to read and use. That is a central requirement of our democratic system. Accordingly, we strongly agree that standards incorporated by reference into federal regulations should be widely available to the public, without charge, and that such standards be should deemed in the public domain rather than subject to copyright restrictions.” Recently, AALL promoted Malamud’s petition for an amendment to the Copyright Act that would make clear that edicts of government have no copyright in the United States. A number of law librarians signed the petition, which was discussed during the hearing.

This week, AALL is taking part in the Electronic Frontier Foundation’s Copyright Week, six days of discussion about key principles that should guide copyright policy. Appropriately, the topic for today is the public domain. The principle states, “The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.” AALL strongly supports this principle, and we’re pleased to be participating in Copyright Week. For more on copyright issues impacting law libraries, please visit AALL’s Copyright Committee’s blog and follow them, and the GRO, on Twitter. And stay tuned for more on Copyright Week!


Congress Kicks Off Copyright Hearings

May 17, 2013

By Elizabeth Holland, Public Policy Associate

Following up on House Judiciary Committee Chairman Bob Goodlatte’s April announcement to undertake a comprehensive review of copyright law, the Courts, Intellectual Property and the Internet Subcommittee held its first hearing yesterday. Titled “A Case Study for Consensus Building: The Copyright Principles Project,” the hearing featured five witnesses who had participated in the three-year Copyright Principles Project (CPP):

  • Jon Baumgarten, retired Proskauer Rose attorney, former General Counsel of the U.S. Copyright Office, and noted litigator on copyright matters, including music and movie issues
  • Laura Gasaway, Professor, University of North Carolina Law School, co-chair of the Section 108 Study Group, and AALL past president
  • Daniel Gervais, Director, Vanderbilt Law School Intellectual Property Program, with a focus on international issues
  • Pam Samuelson, Professor, University of California at Berkeley Law School, and convener of the CPP
  • Jule Sigall, Assistant General Counsel for Copyright, Microsoft and former Associate Register for Policy and International Affairs of the U.S. Copyright Office

The CPP concluded its work in 2010 with a 68-page report of recommendations for copyright reform. Though certainly not without disagreement, Chairman Bob Goodlatte (R-Va.) touted the CPP’s work as a starting place for the conversation on copyright. He also made clear that the committee is “not in a rush” to focus on specifics in copyright reform without first fully understanding the fundamentals of copyright.

In his opening statement, Rep. Goodlatte stated that he is particularly interested in the following questions:

  • How do we measure the success of copyright and what metrics are used?
  • How do we ensure that everyone’s voice is heard?
  • How is copyright working for individual artists?
  • How is copyright working for our nation’s economy?

You can find the written testimonies of the witnesses available online. AALL past president Lolly Gasaway used her time to make a compelling case for libraries, museums, and archives, focusing on three areas for reform: 1) Total revision of the Copyright Act to make it flexible and technology neutral; 2) Repeal Sec. 108 and rely on Sec. 107; and 3) Enact and update the Sec. 108 Study Group recommendations, particularly focused on orphan works and mass digitization.

During the course of questioning, Subcommittee Chairman Howard Coble (R-NC) asked all witnesses to identify their top priorities for copyright reform. Notably, all five witnesses named orphan works as a priority issue. Other priorities included Section 108, statutory damages, licensing structure, and reformalization. Surprisingly, at no point during the course of the hearing was the topic of shortening copyright terms discussed. In response to a question by Rep. Suzan Delbene (D-WA) on the changes in copyright since the 2010 report, the panel noted the role of the courts on fair use and public dissemination, particularly in the Second Circuit. Witness Jule Sigall, Assistant General Counsel for Copyright Microsoft Corporation, noted the decision in Kirtsaeng v. Wiley as an “unpredictable” change in the copyright discourse since the 2010 CPP report. Others noted the proliferation of mass digitization projects as a predictable but important change

Other interesting discussion focused on barriers in copyright for students and faculty. Gasaway noted that while law schools’ licenses with Thomson Reuters and Lexis enable access to law texts, multimedia resources are not always available to students, nor do smaller institutions or public libraries have licenses.

At various points, members of the committee expressed disappointment at the exclusion of “creators” from the CPP, though Subcommittee Chairman Howard Coble (R-NC) noted that the committee will receive testimony from creators in hearings in the months ahead.

The Chairman did not specify a timeline for future hearings but it seems it will be an exciting few months ahead. Stay tuned to this space and AALL’s Copyright Committee blog for updates.


The Copyright Reform Report That Wasn’t

November 20, 2012

By Elizabeth

Last Friday, the House Republican Study Committee (RSC) released a policy brief titled “Three Myths About Copyright Law and Where to Start to Fix it,” lauded by the tech community and cause for celebration among copyright reform advocates.  Less than 24 hours later— and after what we can assume was severe backlash from the content industry—the brief was retracted, with RSC Executive Director Paul Teller issuing a statement that the memo had been “published without adequate review.”

So what gives? The paper offered a surprisingly progressive look at copyright reform from a highly influential group. The Republican Study Committee is a caucus consisting of more than 160 conservative Republicans in the House of Representatives, a majority of the party, and acts as an internal think tank for the group. Thus, an RSC endorsement of sweeping copyright reform would mark a turning point in the national copyright debate.

The report rebuts 3 “myths” of copyright law that are often asserted by the content industry:  1) that the purpose of copyright is to compensate the creator of the content; 2) that copyright is free market capitalism at work; and 3) that the current copyright legal regime leads to the greatest innovation and productivity. The paper’s author suggests several reforms, including reforming statutory damages, expanding fair use, punishing false copyright claims, and limiting the term of copyright to 12 years, with options for periodic renewals in return for increasing fees. The report offers a clear and detailed look at problems with copyright law today. It is also unequivocal. Of note is the final line: Current copyright law does not merely distort some markets — rather it destroys entire markets.

It’s safe to assume that the RSC was flooded with calls from entertainment and content industry lobbyists. An RSC spokesperson stated in an email, “This Policy Brief presented one view among conservatives on U.S. copyright law. Due to an oversight in our review process, it did not account for the full range of perspectives among our members.” Nevertheless, we’re hopeful the report (and its retraction) has raised the profile of this conversation on copyright reform and opened opportunities for action. Given its source, it’s a fascinating read and one definitely worth checking out.

 

Read more:  “Republican Study Committee issues, then pulls, Copyright Policy Brief,” AALL Copyright Committee Blog


Copyright Today: An Interview with Tracy Thompson-Przylucki

November 1, 2012

This is the first in a series of interviews with the 2012-2013 chairs of AALL’s three policy committees: the Copyright Committee, Digital Access to Legal Information Committee, and Government Relations Committee.

Tracy Thompson-Przylucki is the Executive Director of the New England Law Library Consortium (NELLCO) and Chair of the Copyright Committee. The Government Relations Office recently sent Tracy a number of questions about the status of copyright today. Here is what she had to say:

The courts have recently handled several cases affecting copyright and mass digitization projects, including Authors Guild, Inc v. Hathi Trust and Authors Guild, Inc v. Google Inc. What is the impact of these cases on law libraries?

The evolution from a print to a digital information world has forced us all to rethink the application of copyright laws to the business of libraries. What may once have seemed like settled law is no longer sufficient to address the rights and interests of information stakeholders in a wired, global marketplace. Freeing information from the limits of the bound volume, and access from the limits of brick and mortar has led to a series of copyright challenges in the courts over the past several years.

The decisions coming out of these courts suggest a trend that is generally favorable to libraries’ interests. The two you mention, as well as the Georgia State case and Kirtsaeng (see below), all have copyright implications that impact libraries. Hathi and Georgia State, both decided within the last six months, dealt with fair use exception claims under section 107 of the U.S. Copyright Act.

Oxford and Cambridge University Presses and Sage Publications brought suit against GSU in 2008, arguing that GSU’s e-reserves system exceeded fair use in violation of copyright. In Hathi, the Authors’ Guild sued in 2011, claiming that HathiTrust’s mass digitization efforts and Orphan Works Project were not compliant with the library exceptions carved out in sections 107 and 108, and therefore infringed on the copyrights of Guild members.

Determining what constitutes fair use is no simple matter, and requires courts to apply a four factor analysis. The four factors are:

(1) purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) nature of the copyrighted work;

(3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) effect of the use upon the potential market for or value of the copyrighted work.

The decisions in these two cases, both of which are subject to appeal, favor a more expansive definition of fair use and provide guidance to libraries to help shape future digitization and distribution activities. Two points of particular interest to libraries emerged from the Hathi decision. Judge Harold Baer, finding in favor of Hathi Trust, soundly rejected the plaintiffs’ claim that the library exceptions included section 108 limited libraries’ ability to claim fair use exceptions under section 107. This is an important clarifying precedent that should preempt any future attempts to erode libraries’ rights in this way. Judge Baer also paid careful attention to balancing the goals of our copyright regime with the rights of copyright owners. In his decision he states:

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP [Mass Digitization Project] 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 ADA.

Judge Evans authored an exhaustive 350 page decision in the GSU case. In that case, plaintiffs claimed 99 specific incidents of copyright infringement. After a comprehensive analysis and application of each of the four fair use factors above, the Judge found only 5 infringing instances. The remaining 94 incidents were deemed to be acceptable fair uses and legitimized GSU’s reliance on the fair use exception to support their e-reserve program.

In her decision, Judge Evans also established a rule for factor #3 (amount of work used) which sets 10% (for works with fewer than 10 chapters) or one chapter (for works over 10 chapters) as the acceptable amount of a work that can be used under fair use. While this provides some guidance for libraries, it may set an arbitrary standard that in practice is more rigid than libraries would like.

The legacy of the Google Books case remains unclear. Two separate cases, Authors’ Guild v. Google and McGraw-Hill v. Google, filed in 2005, were merged into this single, class action suit.Google was launching a mass digitization project, the ambitious goal of which was, as stated by Google’s Adam M. Smith, “. . . to make the full text of all the world’s books searchable by anyone.” To that end, Google had established a project which included the Books Rights Registry (BRR); an opt-out regime for copyright holders of the works Google was digitizing. Google proposed to digitize everything without prior approval of copyright holders. Through the Registry they would respond to any take down demands and/or compensate copyright holders who came forward.  Their model shifted the onus of protecting copyright onto the copyright holder, and also effectively circumvented the orphan works problem.

The Google Books case went through several failed settlement proposals, but in early Oct. 2012 the parties in the McGraw-Hill (publishers) piece of the litigation finally reached an out-of-court agreement. It is not clear what the terms of the agreement are (some of which are confidential), except that the opt-out requirement seems to have survived. The parties to the agreement recognize that they have reached a settlement without addressing any of the underlying legal issues.

The Authors’ Guild is still moving forward in its class action suit against Google. Hopefully some of the legal issues, such as the status of orphan works, legality of the opt-out regime, compensation of rightsholders, will be resolved in the course of that litigation.

The Supreme Court will hear arguments in Kirtsaeng v. John Wiley & Sons, Inc. on October 29. What is the potential impact of Kirtsaeng

The Copyright Committee published an issue brief last week on Kirtsaeng. Thanks to our colleagues George Pike and Amy Ash for their work on this. The facts of the case tell the story of a student from Thailand, Mr. Kirtsaeng, attending college in the U.S. Kirtsaeng began purchasing text books in his home country and selling them for a profit to fellow students in the U.S. Wiley contends that this violates Wiley’s distribution rights. Kirtsaeng’s defense is that his actions are protected by the First Sale Doctrine.

The First Sale Doctrine of copyright protects the rights of property owners to resell, lend or otherwise dispose of items which contain copyrighted elements, and which have been acquired in the first instance with the permission of the copyright holder. The Doctrine, among other things, enables libraries to lend copyrighted works without violating copyright. The question in Kirtsaeng is whether the Doctrine applies only to goods manufactured in the U.S.

If the court decides that First Sale applies only to goods manufactured domestically, libraries would be required to track the origin of each and every item that they lend, sell or otherwise dispose of, or risk copyright infringement claims. Even if libraries had the resources to comply with this sort of requirement, the origin of manufacture of any item is not necessarily readily discoverable. The impact on library work flows, gift management, and acquisitions would be enormous. The impact on library users’ ability to gain access to information could be severely curtailed. The efficiency and utility of libraries could be undermined.

While Kirtsaeng has the attention of the library world, its impact is actually much further reaching. First Sale applies not only to those things we typically think of as copyrighted materials (books, articles, etc.) but also to almost all goods in the consumer sphere. This is known as the ‘gray market’ impact of Kirtsaeng. When a consumer purchases a car, an article of clothing or a cell phone, each of these may contain copyrighted elements. However, the copyright owners have authorized that first sale, and subsequently the owner may lend or resell that item at will. If Wiley were to prevail in Kirtsaeng the whole downstream disposition of consumer goods, not just library materials, comes under fire.

Given the tenor of the oral arguments this week, the Justices are acutely aware of the ‘horribles’ that could result in the event that the Wiley interpretation is embraced by the Court, not just for libraries but for the entire marketplace of consumer goods. A reading of the transcript suggests a decision that will be favorable to libraries. Justice Kennedy reminded petitioners that common sense demands that the Court explore the potential consequences of a ruling. Now we wait to see how they balance the competing interests in this case.

Are there other copyright issues law librarians should be watching? 

In addition to all of these cases that have bubbled up on the copyright landscape, the Copyright Office has begun exploring a more active approach to the orphan works problem. Orphan works are those published materials still in copyright for which no rights holder can be located. Earlier this month, the Copyright Office issued a notice of inquiry inviting comment by the public. According to the notice, they are “interested in what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.” I encourage AALL members from all library types to seize this advocacy moment and comment. The special expertise of lawyer librarians can really help to inform the efforts of the Copyright Office with respect to orphan works. The comment period is open through Jan. 4, 2013.

Please tell us about any other initiatives that the Copyright Committee is working on this year.

The Copyright Committee formed 3 sub-committees this year to address some of the work that we need to get done. The first sub-committee is Education. Alicia Brillon and Kelly Leong took the lead on that front. They worked to get our 2 program proposals in shape and submitted by the deadline. Given that the program selection process is blind this year, I’ll refrain from telling you about these excellent submissions until after the selection process is over!

The second sub-committee is Current Awareness. Meg Kribble (Chair-elect), Amy Ash and I are focusing our efforts here. This group will be working to keep the membership informed about copyright issues through issue briefs, list postings, and the Copyright Committee Blog. Members can set up an RSS feed to be notified of new blog postings. The sub-committee has also discussed the development of a copyright toolkit for law librarians. That’s something we plan to explore further this year.

Finally, the Web Content sub-committee, consisting of D.R. Jones and Kevin Miles, is taking a close look at the organization of all of the copyright materials hosted on the AALLnet website. Since the content from the old site was imported to the new site there hasn’t been a systematic review and inventory of both the content and the structure of the information. We’d like to make it easier for users to navigate information about AALL’s copyright policies, the Copyright Committee, and copyright issues of interest to members. We also want to make it easier to determine the currency of materials posted on the site. We’ll be working with you in the Government Relations Office to accomplish this work.

What resources would you recommend to AALL members who would like to learn more about copyright issues?

So many good resources out there! Of course, there is the content on the AALL website and the Copyright Committee Blog that I’ve already mentioned. And members should monitor the Copyright Office website. Laura (Lolly) Gasaway, a past-president of AALL, has made significant contributions to the copyright arena. Her regular “Copyright Column” in Against the Grain is a must read.  Another copyright librarian to follow is Lesley Ellen-Harris (@copyrightlaws on Twitter). Lesley is well-versed in both Canadian and U.S. copyright law. She edits The Copyright and New Media Law Newsletter, maintains the website copyrightlaws.com, and offers web-based copyright courses for librarians, including Certificate in Copyright Management: Principles and Issues, offered through SLA’s Click University.  James Grimmelmann, a faculty member at NYLS, pays careful attention to copyright and blogs about current copyright cases at the Laboratorium.

The University of Michigan Copyright Office has some great Copyright Libguides available. Columbia University’s Copyright Advisory Office maintains an excellent site under Ken Crews’s leadership, and I’d be remiss if I didn’t urge every librarian reading this to add Ken’s Fair Use Checklist to your copyright compliance toolkit. Kevin Smith’s blog, Scholarly Communications @ Duke is bookmark-worthy. ALA’s page of copyright resources, and the Library Copyright Alliance, a joint effort of ALA, ARL and ACRL, are also notable.

I’ve just scratched the surface here but this should be a good start.

Thanks, Tracy!


Staying Informed on Copyright and Fair Use

April 30, 2012

The 3rd Annual World’s Fair Use Day (WFUD) is this Fri. May 4, 2012. The day-long, free event will be held at the Pew Charitable Trusts Conference Center in Washington, DC. Sessions throughout the day will examine fair use in a number of creative contexts, including poetry, fashion, music and journalism.

WFUD attendees will also explore the aftermath of the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011rotect Intellectual Property Act (PROTECT IP Act or PIPA), both of which were grossly overreaching efforts of Congress to protect copyright holders. The threat to First Amendment freedoms, creative expression, and the advancement of knowledge posed by these bills was so great that the public responded swiftly. Both bills were soundly thwarted by widespread, grassroots social media efforts. WFUD organizers hope to sustain the momentum from these efforts and keep the public and content creators engaged in the dialogue.

The AALL Copyright Committee will be exploring SOPA as well during a unique program at the upcoming AALL Annual Meeting in Boston. On Sun. July 22 at 3:45 the Committee hosts program C5 Hot Topics in Copyright for Librarians. This program will offer updates on three timely copyright issues; orphan works, copyright as applied to state and local documents, and recent developments in copyright legislation (SOPA/PIPA) and litigation (Google Books, GSU, etc.). Annual Meeting attendees may also be interested in Using Creative Commons Licenses, sponsored by the M/AV Special Interest Section on Tues. July 24 at 3:45 pm. Librarians, as both creators and consumers of information, have a responsibility to be well-informed in matters of copyright and fair use, and should take advantage of these upcoming learning opportunities.

Guest post by Tracy L. Thompson-Przylucki, Vice Chair, AALL Copyright Committee


Librarian of Congress Announces Updated Exemptions to DMCA § 1201 on Circumvention of Copyright Protection Systems

August 3, 2010

On July 27, the Librarian of Congress issued a set of updated copyright regulations, including one that greatly expands permissible uses of short clips from DVDs and responds to a request  we made in testimony before the Copyright Office in May 2009 on behalf of AALL, the Medical Library Association and the Special Libraries Association.

In 2006, film and media studies faculty in colleges and universities were given a new exemption permitting them to circumvent DVD control technology for the purpose of making short clips for educational use in their classroom. In our 2009 testimony and follow-up response to questions from the Copyright Office relating to the possible use of screen capture software as a substitute for extracting clips directly from DVDs, we explained that, at the time, none of the screen capture software options provided a reliable way to capture good clips.

We are very pleased that the 2006 exemption has now been expanded to include all college or university professors, irrespective of discipline. In addition, the exemption now also includes use for documentary filmmaking as well as noncommercial videos.

For an explanation of all the exemptions to § 1201 of the Digital Millennium Copyright Act (DMCA), read our latest AALL Issue Brief: Exemptions to DMCA § 1201 Circumvention of Copyright Protection Systems.

For more information and all official materials relating to the section 1201 rule-making, visit the United States Copyright Office Web site.

We are very pleased that the DVD exemption has been expanded to all disciplines in higher education, and we believe the new exemption will be of significant value to law school faculty. We hope to post additional materials to help explain the contours of the DVD exemption.

[Submitted by Roger Skalbeck, AALL Copyright Committee Chair]


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