Do we need to worry?
Update on copyright matters
affecting digital libraries
DPLA FEST
WASHINGTON DC ~ APRIL 14, 2016
KRISTA COX, DIRECTOR OF PUBLIC POLICY
INITIATIVES
ASSOCIATION OF RESEARCH LIBRARIES
CARRIE RUSSELL, OITP PROGRAM DIRECTOR
PUBLIC ACCESS TO INFORMATION
AMERICAN LIBRARY ASSOCIATION
“The Next Great Copyright Act”
 Immediate concern, Dear God in Heaven!






Sure it sounds good on paper…
Lobbying effort, 20+ hearings, numerous reports and NOIs
Congress: “Stakeholders (please) agree on something”
“Thought contagions”
 The artist vs the free-riding Internet companies
 Concern for “the creatives,” woe the poor artist, those select few inspired
to create
 Piracy and enforcement
Expansion of exclusive rights
 making available, moral rights, performance rights, streaming rights -sometimes the business model comes first, and the associated rights
follow
Kids these days…
Fair use run amok
Andy Dunaway - http://www.flickr.com/photos/soldiersmediacenter/2333229360/in/photostream/ Public Domain
“The Next Great Copyright Act”
 Immediate concern, Dear God in Heaven!






Sure it sounds good on paper…
Lobbying effort, 20+ hearings, numerous reports and NOIs
Congress: “Stakeholders (please) agree on something”
“Thought contagions”
 The artist vs the free-riding Internet companies
 Concern for “the creatives,” woe the poor artist, those select few inspired
to create
 Piracy and enforcement
Expansion of exclusive rights
 making available, moral rights, performance rights, streaming rights -sometimes the business model comes first, and the associated rights
follow
Kids these days…
Fair use run amok
Bigstock.com
Copyright is Highly Political
In general, Content vs. Internet Companies
Legacy players want to maintain status quo
Legacy players want internet companies to police the web
New companies want flexibility in testing new business models
Civil society groups stand on principles, sometimes without
representing any group
 The Library Copyright Alliance (LCA) wants to preserve existing
exceptions, broaden understanding of fair use, do no harm
 New creators want copyright to not stand in their way




Little attention paid to the educators, learners, innovators, new creators, computing specialists, and end users who are
impacted by copyright everyday
Freak Out Nation, “Woman goes all second amendment on shoplifters”
/
http://freakoutnation.com/2015/10/michigan-woman-goes-all-second-amendment-on-shoplifting-suspects
Copyright is Highly Political
In general, Content vs. Internet Companies
Legacy players want to maintain status quo
Legacy players want internet companies to police the web
New companies want flexibility in testing new business models
Civil society groups stand on principles, sometimes without
representing any group
 The Library Copyright Alliance (LCA) wants to preserve existing
exceptions, broaden understanding of fair use, do no harm
 New creators want copyright to not stand in their way




Little attention paid to the educators, learners, innovators, new creators, computing specialists, and end users who are
impacted by copyright everyday
Recent(ish) Fair Use Cases
 Authors Guild v. HathiTrust (2014)
 Creation of full-text search database and providing access to
the print disabled are fair uses
 Rejects idea that Section 108 restricts fair use
 Authors Guild v. Google (2015)
 Creation of searchable database and display of snippets fair
use and providing copies to partner libraries not infringement
 Cambridge University Press v. Becker, also known as
the Georgia State e-reserves case (2016)


11th Cir. rejects bright line rules; affirms non-transformative
use with nonprofit educational purpose can be fair use
Trial court again found the vast majority of claims are fair use
Digital First Sale
 Supreme Court Kirtsaeng v. John Wiley & Sons, Inc.
confirmed that first sale applies to copies made abroad
 U.S. Copyright Office 2001 DMCA Section 104 Report –
no need for digital first sale, technology safeguards
embryonic
 U.S. House Judiciary hearing – no need, licensing is a
benefit to the public, has provided more content
 USPTO Task Force – “Copyright Policy, Creativity, and
Innovation in the Digital Economy” White Paper 2015 –
no need, business models are evolving
Orphan Works
 Shawn Bentley Orphan Works Act of 2008
 Passes Senate only
 Copyright Office begins roundtables/study
 Roundtables held in 2014
 Report released in 2015
 Copyright Office report
 Legislation recommended
 Is legislation really necessary?
 Changed landscape:
Better fair use jurisprudence/clarity
 Best practices

Mass Digitization
 Copyright Office releases report on mass digitization
 Recommends extended collective licensing approach (ECL)
 Issues notice of inquiry on ECL pilot program
 ECL program framework
 Scope of works: 1) literary; 2) pictorial/graphic adjunct to
literary works; and 3) photographs


Uses for nonprofit education or research purposes
Proposal of fair use savings clause
Concerns on ECL
 Impractical
 Little support
 Cost
 Complexity in distribution of royalties
 Inappropriate policy choices
 “Depression era photographs”
 Limitation to commercially unavailable works for non-profit
educational and research uses
 Possibility of orphan works/mismanagement by CMOs
Wonk: Section 1201 Rulemaking
 Triennial review by the Copyright Office



to identify when circumvention of DRM is allowed in order to make
lawful uses of classes of works
allowed for a three year period only
exemption expires and review begins again from scratch
 Since 1999…
 Increasingly



more complex
more resources and legal expertise necessary
performance art,” ludicrous process
 Recent call to comment on the 1201 process
 Generated in part by the Internet of things (tractors?)
 Potential for reform = probably
Wonk: Section 512 NOI
 DMCA provision to protect online service providers
from third party liability
 Libraries, universities are OSPs


Want to keep liability protection
But problems with the process – bogus claims, overreach, no
prior thought given to fair use
 Libraries tend to cave and pay the fine when
contacted
 New revenue stream for rights holders


win-win, no court ruling, presumption of guilt, collect $$
piracy is a permanent part of landscape
Licensing
 Access over ownership movement in late 1990s


libraries were on board
unintended consequences
 Users always on the weaker side of negotiation with rights holders
 Non-negotiated licenses for consumer products prevent libraries from
acquiring digital only resources


End User License Agreements (EULAs)
strip copyright exceptions from library buyers
 Direct negotiations with rights holders? fruitless
 Legislative solution?


ideally, contracts cannot override exceptions guaranteed in the copyright law = not likely
but international copyright efforts
 Need for institutional EULA


“market failure”
should we assume fair use, ignore the contract?
Marrakesh Treaty for Print Disabilities
 Addresses “book famine”
 Minimum standards for limitations and exceptions to
copyright
Broad beneficiaries
 Creation and distribution of accessible formats
 Circumvention of TPMs


Cross-border sharing
 Ratification status
Thanks!
For more information, see:
The Library Copyright Alliance (LCA)
librarycopyrightalliance.org
Krista Cox (ARL) [email protected]
Carrie Russell (ALA) [email protected]