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OVERVIEW
• Higher ed and © in historical perspective
• What’s happened to make © so much salient to
higher ed now
• What’s at stake for higher ed in © cases nowpending in the courts?
• What is likely to happen if Congress decides to
undertake comprehensive © reform?• Will open access policies save us?
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PRIOR TO 1976 © ACT
• Copyright was an “opt-in” regime
– Works of authorship were in the public domain unlessauthors complied with formalities (e.g., registration
and notice on copies) – Public domain works can be made freely accessible
• Duration of © was more modest
– 28 years, renewable for another 28 years if author
registered for it – Most ©s were not renewed
• If same rule was the law now, all works before 1957, & mostworks before 1985 would be in public domain
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OTHER LIMITS
• Public performance right for most worksonly covered for-profit uses
• “First sale” rule allowed libraries to lend
books to students and faculty
• “Fair use” covered some copying for
research and teaching
• Reprography technology wasn’t so good
for 1st half of 20th c, but then it got better
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PHOTOCOPYING
• “Gentleman’s Agreement” between
publishers & Higher Ed & libraries for some years
• Williams & Wilkins v. U.S. (1973):publisher challenged NIH for itswillingness to make photocopies of
research articles for patrons – 4-3 appellate court ruled it was fair use
– 4-4 split in US Supreme Court
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1976 ACT CHANGES
• Automatic protection from first fixation
– Switch to opt-out regime
• Longer duration: life of author + 50 years – Existing works got longer terms tacked on
– 20 more years tacked on in 1998
• Public performance right broader – But exception for face-to-face teaching
• Except as to movies and audiovisual works
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1976 ACT CHANGES
• Fair use & first sale codified
• Libraries & archives got special rules to enablecertain types of copies to be made for stated
purposes• Broader educational use privilege debated but
no consensus
– Classroom guidelines negotiated (floor or ceiling?)
– Most educ’l use copying left to fair use
• Some issues spun out to CONTU
– Interlibrary loans, digitizing books by computer
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FAIR USE
• Fair uses are not infringements
• 4 factors typically considered:
• Purpose of D’s use
• Nature of ©’d work • Amount & substantiality of taking
• Harm to actual & potential markets for the work
• Favored uses include research, scholarship, &teaching
– “Productive” uses favored over “consumptive” uses
– Noncommercial uses favored over commercial uses
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AGU V. TEXACO (1995)
• Publishers sued Texaco because its researcherswere having photocopies made of technicalarticles in journals to which Texaco subscribed
– Texaco argued fair use, relying on W&W – Appellate court, by 2-1 margin, ruled this copying was
unfair • Not “productive,” but “consumptive” use
• Market failure “cured” by CCC licensing
• Universities worried they’d be next
– Partly were, “coursepack cases” went vs them
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CURRENT LITIGATION
• Electronic reserve policies at universitiesare under challenge in CUP v. Becker
• Library digital preservation practices arealso under challenge in AG v. HathiTrust
• Ability of libraries to lend foreign bookswas at stake in Kirtsaeng v. Wiley
• Whether exhaustion rules apply totransfers of digital copies tested in ReDigi
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CUP v BECKER
• Cambridge University Press sued Becker, whoworks for Georgia State University, over GSU’s
policy & guidelines for uploading of in-©
materials for electronic course reserves• Becker raised fair use defense
• Trial judge in 350 pg opinion ruled in B’s favor
• CUP has appealed with amicus briefs filed insupport by the Authors Guild & AAUP
• Matter now before an appellate court
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BECKER’S FAIR USE
+ Purpose: educational, noncommercial
+ Nature of works: most written to promote
learning, not to make $
+ Amount: less than 10%, 1 chapter from books
(although not textbooks)
+ Harm: no existing convenient licensing system
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CUP’s RESPONSE
- Purpose: non-transformative, consumptive use
- Nature of work: texts created and disseminatedfor educational markets
- Amount: substantial amounts taken; often the“heart” of the work
- Harm to the market: willing to license through
CCC; equivalent to coursepacks- Anything beyond §108 bears heavy burden of
proof that the use is fair
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IMPLICATIONS
• A win for Becker would enable educational usesof materials by higher ed, research libraries
– It would also help with other educational uses of in-©
works – It would help with fair use for digitization of orphan
works
• A win for CUP will help CCC’s strategy to license
all uses of ©’d works in university settings – Never followed up on American Geophysical Union v.
Texaco vs. universities, but it’s always been a goal
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AUTHORS GUILD v. HT
• HathiTrust is a consortium of research librarypartners of Google
• HathiTrust is the repository of library digital
copies (LDCs) that Google supplied to itspartners of books from their collections scannedfor the Google Book Search (GBS) project
• Authors Guild has sued HT & UC, among others,claiming that the LDCs are infringing copies
• HT won at trial court on fair use; AG hasappealed
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AU GUILD: NOT FAIR USE
- Purpose: commercial, non-transformative
- Nature of work: creative works of all genres,
- Amount: whole works copied, systematically,
stored permanently, copies given to librarypartners
- Harm: Presume it because lack of control, riskof loss from inadequate security; plus we want to
license such uses- Very nature of © to require users to get
permission in advance
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WHY HT WON FAIR USE
• Purpose of use = “transformative”
• Preservation of works in research library collections
• Computational research (e.g., digital humanities)
• Enhanced access for print-disabled persons
• Nature of ©’d works: mostly nonfiction
• Amount copied: reasonable in light of purposes;sometimes necessary to copy whole works for purposes
• Impact on market: no quantifiable harm to date – Harm to future licensing markets = speculative
– Prohibitively expensive to license on book-by-book basis for preservation, computational research & disabled access
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MASS DIGITIZATION AS FAIR USE?
• Google aimed to bypass © obstacles to mass digitizationof in-© books through fair use – Fair use to scan for purposes of indexing – Fair use to scan for purpose of providing snippets
• With links to sources from which the books could be purchased or
borrowed• No advertising unless RH agreed• Willing to exclude works if RHs asked for this
– Implicitly also claiming fair use to make non-expressive uses,such as analytics aimed at improving search and translationtools
– Fair use to give LDCs to library partners for preservation,privileged uses – Over time, G might have been willing to make the full texts of
orphan books available, either as fair uses or on termsauthorized by Congress through orphan works legislation
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KIRTSAENG v. WILEY
• Kirtsaeng’s family bought copies of textbooks lawfully
made and sold in Thailand, shipped the books to him atCornell, where he resold them on eBay; this helped himpay his graduate school expenses
• Wiley sued K for infringement alleging that he unlawfullydistributed copies of its works
• K raised 1st sale/exhaustion defense; lost at trial; $600K judgment vs. him (statutory damages)
• Wiley claims 1st sale only applies to copies lawfully madeon U.S. soil
• SCT ruled in Kirtsaeng’s favor
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CAPITOL v REDIGI
• ReDigi developed software to enable a marketfor “resale” of digital music
– Transferred file from seller’s computer to cloud
• Capitol sued for © infringement because copiesmade using R’s sw in course of resale
• ReDigi raised 1st sale defense
• Capitol argues 1st
sale inapplicable; only limitsdistribution right, not reproduction right
• Trial judge ruled for Capitol
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IMPLICATIONS
• A win for Kirtsaeng has put university libraries at ease – A win for Wiley would have meant that foreign-published books
in library collections could not be lawfully lent to patrons
– Legislation to address exhaustion seems likely
• A win on appeal in ReDigi would mean 1st sale/exhaustion is applicable in digital environment
• License v. sale issue not posed in ReDigi , but alsounsettled in the U.S.
• Some libraries have been digitizing out-of-print books intheir collections, lending them with DRM – Victories in CUP & ReDigi would help with their fair use defenses
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NEXT GREAT © ACT?
• © Register Pallante has announced her interestin working on comprehensive © reform
– Facilitate access to orphan works
– More access for print-disabled – Update library, archive privileges
– Guidance to educ’l institutions
– Exemption for some incidental copies
– Review DMCA safe harbors
• Hearings in March, May & June in the House;Rep. Goodlatte leading this effort
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“ORPHAN WORKS”
• Millions of works are still in-© but rights holder isunknown or unfindable after a diligent search
• Copyright Office study in 2006 recommended legislationto limit liability for those who reuse orphan works (OW)
after search attempt; renewed interest in this in 2013
• Recent EU Directive would authorize libraries to makesome types of OWs available
• Berkeley Digital Library Project has five “white papers”
on OW subjects
• Especially troublesome to track down foreign works – In the U.S., ©s were “restored” for works long thought to be in the public
domain for failure to comply with formalities (required notices on copies)
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FAIR USE FOR OWs?
• Purpose: transformative because increasedaccess to knowledge
– Nonprofit higher ed, libraries could emphasize
benefits to research & learning as favored uses• Nature of work: orphans; out-of-print
• Amount copied: whole thing cuts vs. but shouldnot be given too much weight
• Harm to market: none because RH not there toestablish a market for these works
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OBSTACLES
• Legacy works
• Mindsets of authors & others
• Special problems for some creators
• Sustainability
• Preservation
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LEGACY
• Many works were published before open accessnorms & practices were developed
• Libraries house many of these legacy artifacts
• Many libraries would like to digitize collectionsand make them available online
• © may stand as an obstacle to this
• Some authors could exercise reversion &termination rights to make past works availableon open access basis, but inertia slows this
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MINDSETS
• Many academic authors are used to thestatus quo, have benefited by it
• Academic advancement often depends onpublishing in proprietary journals, presses
• © is unfamiliar terrain, & authors don’t
want to think about it or be bothered by it
• Scholarly societies may depend on journalsubscriptions to support services
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OTHER PROBLEMS
• Some academic authors find open accessmandates to be objectionableinterferences with their freedoms
• Some academic authors have specialdifficulties because they have to clear rights to images or photographs for their
publications – Not in a position to agree to open access
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OTHER MOVES
• Work with professors, academic presses, universities,other open access advocates – Professors can insist going forward that their books be available
in digital libraries, can request their publishers to agree to librarylicenses for past books, particularly OOP
– Professors may well have e-book rights under the RandomHouse v. Rosetta decision to make available in digital libraries
• What if major university presidents announced that their university presses would allow CC-licenses for all OOP
books & encouraged faculty to do this? – Might set good example for others to follow – Send link to faculty to click here “I agree to CC license for the
following books for a digital library repository”
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