recent developments for copyright in higher education (december 5, 2012)
DESCRIPTION
In the past year courts have handed down dramatic decisions in a number of major cases across the nation. These decisions have changed the way we understand fair use, streaming media, archiving, and accessibility in libraries. Kevin Smith, Duke’s Director of Copyright and Scholarly Communication and William Cross, NCSU’s Director of the Copyright and Digital Scholarship Center, will lead a discussion about these cases and the far-reaching impact they will have on libraries and library services in the 21st century.TRANSCRIPT
Four Cases.
Kevin Smith – Duke University
and
William Cross – North Carolina State University
Georgia State University is sued by publishers for
not seeking © permission
Sovereign Immunity = No damages
Funded by CCC to force all libraries to pay permission fees
Georgia State
Guidelines for Classroom Copying
Coursepack cases
Subsequent semester rule
Permission fees as heart of publisher business
Copyright Conventional Wisdom
Guidelines for Classroom Copying
Coursepack cases
Subsequent semester rule
Permission fees as heart of publisher business
Copyright Myths
Purpose and Character:
Strongly favors nonprofit, educational use
Nature of Original: Favors use of non-fiction
Amount & Substantiality:
Favors use of 10%/one chapter
Market Harm: Favors user unless “readily available” at a “reasonable” price in a
“convenient” format
Fair Use Framework
GSU wins on 70 of 75 items
De Minimus Non Curat Lex
Libraries are favored entities acting in good faith
Not binding: persuasive authority only
Already being appealed
Georgia State - Takeaways
But . . .
Hathi & 5 university
partners sued over alleged infringement in preservation and access activities of Trust
Ambiguous role of orphan works
Author’s Guild v. HathiTrust
AG claimed that § 108, library
copying for preservation and ILL, foreclosed a fair use defense.
Activities such as mirror sites, allowing access to snippets or for print-disabled go beyond 108.
Judge rejected this argument
Sweeping victory on fair use for HathiTrust
Implications for library digitization projects
No fair use for you!
In the HathiTrust case, judge said mass digitization
was transformative. Different purpose justified finding, in spite of exact
copying.
Copying & distribution via HathiTrust clear fair use where purpose was: Indexing
Preservation
Access to “snippets”
Access for text-disabled
Different from GSU
“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.”
Nevertheless, the Authors’ Guild is appealing
Issue of access to orphan works was not decided!
An easy case
UCLA streaming AIME’s Shakespeare videos
without permission
Litigation two-step leads to dismissal earlier this year
Order filed in November explaining the dismissal
AIME v. UCLA
Standing – Plaintiff doesn’t own the content
Sovereign Immunity – Like in Georgia State
Qualified Immunity – Need constructive knowledge
that library actions are “clear violations of
established copyright law.”
Case Dismissed
Purpose and Character:
Favors nonprofit, educational use
Nature of Original: Creative but used educationally
Amount & Substantiality:
Entire works but “time shifting” like in Sony
Market Harm: No harm because of analogy to classroom use
Fair Use - At Least ‘Ambiguous’
UCLA - Takeaways
No final word on fair use and streaming – but another good data point for fair use in libraries
Controlled by licensing
“Qualified Immunity”
Can a student resell textbooks purchased abroad?
Lower courts said no – “First Sale” applies only to works manufactured in the US.
“Lawfully made under this title” and the impact of the manufacturing clause.
Supreme Court split on similar issue two years ago; heard this case on October 29.
Kirtsaeng v. Wiley
Libraries partner with variety
of businesses that rely on re-sale to defend first sale.
Can I resell my Toyota?
Asking Court to find that first sale applies to an goods manufactured with authority of rights holder (i.e., not pirated).
Recognize changed situation due to international © treaties.
Owners’ Rights Initiative
First sale is cornerstone of library lending.
Do we know where our books are manufactured?
Exceptions in manufacturing clause not clear or comprehensive.
Does importation for lending actually allow lending?
Are foreign-made videos “library use only”?
What about materials purchased domestically but made elsewhere?
Bad decision could be devastating.
For libraries, students, resellers of all kinds.
The stakes for libraries
Court likely to hold for Wiley.
Will probably add language to protect libraries.
Clarify that exceptions in manufacturing clause allow lending.
Invoke fair use.
Probably will defer to Congress on broader issue.
Would leave students in a bad place
Chrystal Ball time
Presented by Dave Shumaker,
Clinical Associate Professor, School of
Library and Information Science, Catholic University of America
January 23, 2013
2:00-3:00pm, Eastern
Stay tuned for more information
Join us for the next LMD webinar on Embedded Librarianship