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Hot Issues in Copyright
Ebooks, orphans, first sale …
Massachusetts Library SystemWednesday Jan 30, 2013 at 12:00 PM
Presented by Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
• Legal information
• Not legal advice!
Legal Disclaimer
Agenda
Ebooks
Lending content
Litigation:Google Books, Hathi Trust
Other issues
E-reservesStreaming videos UCLA, YouTube
Changing formats
Lending ContentCopyright v. Licenses
Specific Copyright Exception:
FIRST SALE
Lending ContentCopyright v. Licenses
Specific Copyright Exception:
FIRST SALE
PART OF PUBLIC LAW
Lending ContentCopyright v. Licenses
Specific Copyright Exception:
FIRST SALE
PRIVATE CONTRACT overrides copyright law
(almost always)
What is Copyright FIRST SALE?
Loan books
Sell used books
Copyright Law17 U.S.C. Sect. 109
Don’t take for granted! First Sale Doctrine in United States
• Public Lending Right
Euros © Will Spaetzel 2004. Some Rights Reserved. Attribution-NonCommercial-ShareAlike 2.0 Generic www.flickr.com/photos/redune/5073664/
Not true everywhere!Public Lending Right =
authors paidwhen books are loaned
First Sale: Under ReviewCase to watch
Capitol Records v Redigi (New York Southern District)
http://dockets.justia.com/docket/new-york/nysdce/1:2012cv00095/390216/
Is there a right to sell used digital music?
If yes, ebooks next
Massachusetts based MP3 resellerDeletes MP3 from user’s computer
Digital First Sale?
Outdated law.
Rights triggered when copy is made, even if original is deleted.*
*may make INCIDENTAL OR FAIR USE argument, depending on circumstances
First Sale: Under Review
Case to watchKirtsaeng v. Wiley (U.S. Supreme Court)
http://www.web2carz.com/trends/offline/1545/the-supreme-court-may-make-resale-illegalSee also First Sale Fast Facts for Libraries / Library Copyright Alliance Jan. 18, 2013
http://www.librarycopyrightalliance.org/bm~doc/lca-tp-firstsale18jan13.pdf
Are copies printed abroad subject to First Sale?
If no, possible erosion of print loans, library booksales
works made overseas
LENDING CONTENT Copyright Safe
OK:
• Public Domain
• Creative Commons
• Permission(e.g. local author)
New rights modelsunglue.it – creative commons
Rights holders set dollar mount, readers pledge $ to “unglue”
Success =Creative Commons License
Licenses
Licenses
understanddefault copyright
rights before signing
understanddefault copyright
rights before signing
Douglas County Libraries and Califa:
Statement of Common Understanding
Uses copyright law, not license
Describes how copyright law applies
One user-One loan
LITIGATION: Hathi Trust Book Scans as FAIR USE
OK for
preservation searching text mining print disabled users
Now on appeal.
Orphan works program suspended, not currently at issue
Authors Guild v. HathiTrust
LITIGATION: Google Books Scanned over 20 million books with library partners Search “snippets”
2005 Authors and publishers sued Google
Proposed settlement:
BOOKS RIGHTS REGISTRY (sell orphans)
Court REJECTED
Current status: publishers settled authors have not
Authors Guild v. Google
Not at issue:
2 million public domain books
2 million previews with publisher agreements
http://www.librarycopyrightalliance.org/bm~doc/googlebookslitigation-familytree.pdf
Google Books
Authors Guild v. Google
For
updates
thepublicindex.org
Institute for Information Law and Policy at New York Law School.
Orphans: Public Comment Period Deadline Feb. 4, 2013
http://www.copyright.gov/orphan/
Updating library co
pyright
Feb 8 Columbia Univ
Updating library co
pyright
Feb 8 Columbia Univ
http://tinyurl.com/Sec108
Agenda
Other issues
E-reservesStreaming videos UCLA, YouTube
Changing formats
E-Reserves
Cambridge University Press v. Becker
COURT (May 2012):
26 not registered or de minimis44 FAIR USE 5 Infringing
Look to amount and market harmRejected CLASSROOM GUIDELINES
Reasonable limits: One chapter of book with 10+ chapters 10 % of book less than 10 chapters
On appealSee ARL Issue Brief by Brandon C. Butlerhttp://www.arl.org/bm7Edoc/gsu_issuebrief_15may12.pdf
http://dockets.justia.com/docket/georgia/gandce/1:2008cv01425/150651/
Streaming Videos: UCLA Case
UCLA converted DVDs to streaming for in course management system
November 2012: Court found it could be FAIR USE – the streaming did not substitute for purchase and did not cause market harm.
January 2013 : Second amended complaint dismissed
Assn for Information Media & Equipment v. University of Californiahttp://dockets.justia.com/docket/california/cacdce/2:2010cv09378/489296/
May We Show YouTube Video?
Copyright and YouTube Terms of Service
Copyright Law – Specific exception
OR MAKE FAIR USE CASE
Performance by instructors or pupils in face-to-face teaching activities of nonprofit educational institution in classroom or similar place devoted to instruction
See also TEACH Act for distance ed
17 U.S.C. Sect. 110(1)and (2)
May We Show YouTube Video?
Copyright and YouTube Terms of Service
Copyright Law – Specific exception
OR MAKE FAIR USE CASE
• Performance or display to the public on apparatus commonly
used in private homes permissible unless– Direct charge to audience or further transmission to the public
• OK for non food/drinking establishments with less than 2,000 sq ft
if no more than six loudspeakers (no more than four per room) (for audio only)
no more than four audiovisual devices (no more than one per room) and diagonal screen size no greater than 55 inches
17 U.S.C. Sect. 110(5)
YouTube Terms
http://www.youtube.com/t/contentid
YouTube Terms of Service4. General Use of the Service—Permissions and Restrictions
YouTube hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
A. You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).
B. You agree not to alter or modify any part of the Service.
C. You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate.
D. You agree not to use the Service for any of the following commercial uses unless you obtain YouTube's prior written approval:
the sale of access to the Service;
the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same
page and is of sufficient value to be the basis for such sales.
E. Prohibited commercial uses do not include:uploading an original video to YouTube, or maintaining an original channel on YouTube, to promote your
business or artistic enterprise;
showing YouTube videos through the Embeddable Player on an ad-enabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; or
any use that YouTube expressly authorizes in writing.
(For more information about what constitutes a prohibited commercial use, see our FAQ.)
http://www.youtube.com/t/terms?hl=en
Copyright Geek Time: Changing Formats
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
17 U.S.C. Sect. 101
To be copyrightable, a derivative work must differ sufficiently from the original to
be regarded as a new work or must contain a substantial amount of new
material. Making minor changes or additions of little substance to a preexisting
work will not qualify a work as a new version for copyright purposes. The new
material must be original and copyrightable in itself. Titles, short phrases, and
formatting are not copyrightable. http://www.copyright.gov/circs/circ14.pdf
Agenda
Ebooks
Lending content
Litigation:Google Books, Hathi Trust
Other issues
E-reservesStreaming videos UCLA, YouTube
Changing formats