Random Facts: Copyright Edition

Source: Openclipart

This post was guest authored by Scholarly Communication and Publishing Graduate Assistant Paige Kuester.


Just in case “Copyright” is one of the categories when you finally make it on Jeopardy!

  1. Facts aren’t copyrightable

Generally, unless there is some creativity in the expression associated with them, facts aren’t copyrightable. Even if you were the first person ever to know that particular fact, unless you express it in a creative fixed way, there’s no way that copyright can attach to facts.

  1. Monkeys have yet to successfully go to court and claim copyright

While this fact seems like a statement of the obvious, if you are not familiar with the Monkey Selfie case, you’ll be surprised to learn that accomplishing this was the goal of PETA recently. It’s probably a good thing that the case settled (though unsuccessfully in the eyes of monkeys that are garnering for copyright everywhere) with the owner of the camera agreeing to donate a percentage of proceeds gained from the picture to habitat protection, because how else would we have gotten access to some of these images? However, it is questionable if images taken by animals are even copyrightable at all.

  1. Just because you can’t find the © symbol, does not mean that a work does not have copyright.

Since 1989, works no longer require a copyright symbol to have copyright attached to them. Which makes having a copyright easier than in previous eras, but makes it less obvious that a work in copyrighted in general. Of course, there are benefits to including one.

  1. Plagiarism doesn’t just plague the lazy.

Apologies in advance.

  1. You own a copyright.

At least, if you have ever written anything creative down in a fixed medium that was your own idea, you own one. Probably more than one, including marker scribbles and grocery lists and papers that you wrote in high school. As long as you don’t transfer your rights, you will hold that copyright for your entire life plus seventy years.

Make sure you share your winnings with us.

For more information about copyright, check out this undergraduate journal library guide, this Author’s rights guide,  or contact our copyright librarian, Sara Benson.

Sources:

Bailey, Jonathan. (2010). 5 Things that Can’t Be Copyrighted. Plagiarism Today.  Retrieved from https://www.plagiarismtoday.com/2010/01/08/5-things-that-cant-be-copyrighted/

Bailey, Jonathan. (2015). 5 Great People Who Plagiarized. Plagiarism Today.  Retrieved from https://www.plagiarismtoday.com/2015/02/10/5-great-people-who-plagiarized/

New Media Rights. (2011). II. What Can and Can’t Be Copyrighted? New Media Rights. Retrieved from https://www.newmediarights.org/business_models/artist/ii_what_can_and_can’t_be_copyrighted

Post, David. (2017). No Monkey Business Here: The Monkey Copyright Case is Over–For Now. Washington Post. Retrieved from https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/17/no-monkey-business-here-the-monkey-selfie-copyright-case-is-over-for-now/?utm_term=.1624b07a5524

Public Domain and Creativity

This post was guest authored by Scholarly Communication & Publishing Graduate Assistant Nicole Moriah Rhodes.


The first American copyright law protected works for fourteen years after they were published and gave the copyright owner the opportunity to renew the copyright for another fourteen years. Few did, and works passed quickly into the public domain.

The copyright term is much longer now–it varies, but you, a human, will likely own many copyrights until 70 years after you die. Some people argue that a long copyright term increases the incentive to make creative work.

However, despite the longer term, statistical analysis of the number of copyright registrations through changes in population, economy, US law, and available technology doesn’t find that increasing copyright protection increases the number of copyrighted works. Raymond Shih Ray Ku, Jiayang Sun, & Yiying Fan (2009) find that the people advocating for broader copyright laws probably aren’t advocating for an increase in the amount of creative work: the best indicator of the number of new creative works among the variables in their study is population. Their data suggest that “Laws that reduce or otherwise limit copyright protection are actually more likely to increase the number of new works” (1673) than laws granting more protection.

Such a long period of copyright protection leaves a lot of content unusable to other creators. This comic about documentary filmmakers demonstrates how stringent copyright protections can prevent creative remixing and impede the accurate representation of the world. Work in the public domain can be shared freely, but our real lives are full of content protected by copyright, and people trying to make documentaries can be inhibited by copyright even on incidental work. When they want to use copyrighted material under the fair use doctrine, the threat of lawsuits can have a chilling effect.

Lawrence Lessig (2004) uses the phrase “Walt Disney creativity” to describe “a form of expression and genius that builds upon the culture around us and makes it something different” (24). Disney’s Cinderella, Disney’s live-action Cinderella, fanfiction, and The Lizzie Bennet Diaries could all be considered examples of Walt Disney creativity. But Disney had access to fairly recent work in his time. As Lessig writes:

“Thus, most of the content from the nineteenth century was free for Disney to use and build upon in 1928. It was free for anyone— whether connected or not, whether rich or not, whether approved or not—to use and build upon.

“From 1790 until 1978, the average copyright term was never more than thirty-two years, meaning that most culture just a generation and a half old was free for anyone to build upon without the permission of anyone else. Today’s equivalent would be for creative work from the 1960s and 1970s to now be free for the next Walt Disney to build upon without permission. Yet today, the public domain is presumptive only for content from before the Great Depression.” (24-25)

Michael Hart, the creator of Project Gutenberg and a longtime Urbana resident, viewed copyright law as impeding the abundance that technology could create, beginning with the very first copyright laws after the invention of the Gutenberg Press. While Ku, Sun, & Fan (2009) do find that copyright law helps create and protect both wealth and jobs and allows creators to be rewarded for their work rather than requiring sponsorship, they advocate for reducing copyright protection where it impedes distribution or creativity.

“Because copyright law works in the negative—effectively saying ‘do not use this work, do not copy this work, do not imitate this work’—we are not sending a message that society values the creation of new works. We are only sending the message that we should stay away from those works already created” (1722).

Creative Commons is one venture designed to allow creators to share their work for other creators’ use while preserving the level of protection they choose. However, the default is still a system that restricts access to cultural works past the time when the creator might care, and can even keep works from being preserved so they will be usable when they enter the public domain. Creators should be able to benefit from the work they create, but increasing protections does not necessarily increase those benefits. Excessive copyright terms keep us from being able to discuss and rethink our common culture.

Copyright as a Tool for Censorship

This post was guest authored by Scholarly Communication & Publishing Graduate Assistant Nicole Moriah Rhodes.


Copyright should be used to encourage speech and not to silence it. The stories below demonstrate that copyright can be used to limit the rights of technology users and censor criticism.

“In practical terms, the DMCA legalized technical controls on access to electronic works; it renders obsolete traditional rules for reading and sharing print materials and, simultaneously, enables content owners to implement a pay-per-use system that controls who has access, when, how much and from where. So, for instance, you can lend a paperback to friends, but you aren’t allowed to do the same thing with an electronic book.”

“The database shows that Ares Rights has filed at least 186 complaints since 2011, with 87 made on behalf of politicians, political parties, state media, and state agencies in the Americas.” (CPJ)

“They were received by political commentators who used images of Correa, transmitted on Ecuadoran public television, in videos uploaded to YouTube, in order to make visible the resistance of local communities to the onslaught of mining communities in the country’s inland provinces. The same thing happened with videos that used stock footage to illustrate the inconsistencies of the President’s statements together with videos of protests against the exploitation of Yasuní national park, and images of repression against students.” (Derechos Digitales)

  • Electronic Frontier Foundation: To be eligible under the DMCA’s safe harbor provisions, companies must comply with legitimate takedown notices. But many hosts end up taking down content that can be legally shared. Copyright takedown notices can be used to hassle critics. Punishing bogus claims is difficult, and the damages for failing to comply can be severe.

“According to the latest numbers, Twitter does not comply with nearly 1 in 4 takedown notices it receives; Wikimedia complies with less than half; and WordPress complies with less than two-thirds. Each organization explains in its report that the notices with which they don’t comply are either incomplete or abusive.”

Closed Doors or Open Access?: Envisioning the Future of the United States Copyright Office

Copyright Librarian Sara Benson

It’s Copyright Week! For today’s theme of “transparency”, Copyright Librarian Sara Benson discusses her thoughts on the Copyright Office activities to review Section 108.


In 2005, the Copyright Office, under the guidance of the Register of Copyrights at the time, Mary Beth Peters, called for a Study Group to convene and review possible amendments to Section 108. A follow up meeting was held in 2012. These meetings were not unusual, but what followed them, was both strange and unsettling.

The procedures after the Study Group, which took place in the summer of 2016 under the guidance of Maria Pallante, were unusual in that they took place in face-to-face meetings between concerned citizens and members of the Copyright Office rather than in a call for online communications between citizens and the Office. On the one hand, this gave the members of the Office a chance to engage in a dialogue with the concerned citizens. On the other, it meant that generally only those with the resources to travel to Washington, D.C. were privileged with the ability to engage with the members of the Office. However, the Office did note that it would engage in telephone conversations, if necessary. In any event, none of these conversations were ever made public.

At that time, it seemed that the Copyright Office was making an intentional move away from a public debate about copyright to a cloistered room with a privileged few. In my view, that move was undemocratic and should be discouraged in the future. Indeed, although the Copyright Office did publish a list of individuals and organizations it met with to discuss Section 108, but the actual subject and content of those discussions remains a mystery.

Notably, shortly after taking office as the new Librarian of Congress, Dr. Carla Hayden removed Maria Pallante from her position as Register of Copyrights. Does this signal a move away from the process that was undertaken to review Section 108? Likely it does, as Librarian of Congress Dr. Hayden has recently taken further steps towards listening to the views of the multitude by openly polling the public about what we would like to see in the next Register of Copyrights.

This is an exciting time to engage with the Copyright Office under Dr. Hayden’s leadership. I encourage everyone reading this essay to add your voice to the ongoing discussions about the changes to the Office, including the selection of the new Register of Copyrights and beyond.

An Introduction to Traditional Knowledge Labels and Licenses

NOTE: While we are discussing matters relating to the law, this post is not meant as legal advice.

Overview

Fans of Mukurtu CMS, a digital archeology platform, as well as intellectual property nerds may already be familiar with Traditional Knowledge labels and licenses, but for everyone else here’s a quick introduction. Traditional Knowledge labels and licenses, were specifically created for researchers and artists working with or thinking of digitizing materials created by indigenous groups. Although created more educational, rather than legal value, these labels aim to allow indigenous groups to take back some control over their cultural heritage and to educate users about how to incorporate these digital heritage items in a more just and culturally sensitive way. The content that TK licenses and labels cover extends beyond digitized visual arts and design to recorded and written and oral histories and stories. TK licenses and labels are also a standard to consider when working with any cultural heritage created by marginalized communities. They also provide an interesting way to recognize ownership and the proper use of work that is in the public domain. These labels and licenses are administered by Local Contexts, an organization directed by Jane Anderson, a professor at New York University and Kim Christen, a professor at Washington State University. Local Contexts is dedicated to helping Native Americans and other indigenous groups gain recognition for, and control over, the way their intellectual property is used. This organization has received funding from sources including the National Endowment for Humanities, and the World Intellectual Property Organization.

Traditional knowledge, or TK, labels and licenses are a way to incorporate protocols for cultural practices into your humanities data management and presentation strategies. This is especially relevant because indigenous cultural heritage items are traditionally viewed by Western intellectual property laws as part of the public domain. And, of course, there is a long and troubling history of dehumanizing treatment of Native Americans by American institutions, as well as a lack of formal recognition of their cultural practices, which is only starting to be addressed. Things have been slowly improving; for example, the Native American Graves and Repatriation Act of 1990 was a law specifically created to address institutions, such as museums, which owned and displayed people’s relative’s remains and related funerary art without their permission or the permission of their surviving relatives (McManamon, 2000). The World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has began to address and open up conversations about these issues in hopes of coming up with a more consistent legal framework for countries to work with; though, confusingly, most of what Traditional Knowledge labels and licenses apply to are considered “Traditional Cultural Expressions” by WIPO (“Frequently Asked Questions,” n.d.).

To see these labels and licenses in action, take a look at how how these are used is the Mira Canning Stock Route Project Archive from Australia (“Mira Canning Stock Route Project Archive,” n.d.).

The main difference between TK labels and licenses is that TK labels are an educational tool for suggested use with indigenous materials, whether or not they are legally owned by an indigenous community, while TK licenses are similar to Creative Commons licenses — though less recognized — and serve as a customizable supplement to traditional copyright law for materials owned by indigenous communities (“Does labeling change anything legally?,” n.d.).

The default types of TK licenses are: TK Education, TK Commercial, TK Attribution, TK Noncommercial.

Four proposed TK licenses

TK Licenses so far (“TK Licenses,” n.d.)

Each license and label, as well as a detailed description can be found on the Local Contexts site and information about each label is available in English, French, and Spanish.

The types of TK labels are: TK Family, TK Seasonal, TK Outreach, TK Verified, TK Attribution, TK Community Use Only, TK Secret/Sacred, TK Women General, TK Women Restricted, TK Men General, TK Men Restricted, TK Noncommercial, TK Commercial, TK Community Voice, TK Culturally Sensitive (“Traditional Knowledge (TK) Labels,” n.d.).

Example:

TK Women Restricted (TK WR) Label

A TK Women Restricted Label.

“This material has specific gender restrictions on access. It is regarded as important secret and/or ceremonial material that has community-based laws in relation to who can access it. Given its nature it is only to be accessed and used by authorized [and initiated] women in the community. If you are an external third party user and you have accessed this material, you are requested to not download, copy, remix or otherwise circulate this material to others. This material is not freely available within the community and it therefore should not be considered freely available outside the community. This label asks you to think about whether you should be using this material and to respect different cultural values and expectations about circulation and use.” (“TK Women Restricted (TK WR),” n.d.)

Wait, so is this a case where a publicly-funded institution is allowed to restrict content from certain users by gender and other protected categories?

The short answer is that this is not what these labels and licenses are used for. Local Contexts, Mukurtu, and many of the projects and universities associated with the Traditional Knowledge labels and licensing movement are publicly funded. From what I’ve seen, the restrictions are optional, especially for those outside the community (“Does labeling change anything legally?,” n.d.). It’s more a way to point out when something is meant only for members of a certain gender, or to be viewed during a time of year, than to actually restrict something only to members of a certain gender. In other words, the gender-based labels for example are meant for the type of self-censorship of viewing materials that is often found in archival spaces. That being said, some universities have what is called a Memorandum of Understanding between a university and an indigenous community, which involve universities agreeing to respect the Native American culture. The extent to which this goes for digitized cultural heritage held in university archives, for example, is unclear, though most Memorandum of Understanding are not legally binding (“What is a Memorandum of Understanding or Memorandum of Agreement?,” n.d.) . Overall, this raises lots of interesting questions about balancing conflicting views of intellectual property and access and public domain.

Works Cited:

Does labeling change anything legally? (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/project/does-labeling-change-anything-legally/
Frequently Asked Questions. (n.d.). Retrieved August 3, 2017, from http://www.wipo.int/tk/en/resources/faqs.html
McManamon, F. P. (2000). NPS Archeology Program: The Native American Graves Protection and Repatriation Act (NAGPRA). In L. Ellis (Ed.), Archaeological Method and Theory: An Encyclopedia. New York and London: Garland Publishing Co. Retrieved from https://www.nps.gov/archeology/tools/laws/nagpra.htm
Mira Canning Stock Route Project Archive. (n.d.). Retrieved August 3, 2017, from http://mira.canningstockrouteproject.com/
TK Licenses. (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/tk-licenses/
TK Women Restricted (TK WR). (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/tk/wr/1.0
What is a Memorandum of Understanding or Memorandum of Agreement? (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/project/what-is-a-memorandum-of-understandingagreement/

Further Reading:

Christen, K., Merrill, A., & Wynne, M. (2017). A Community of Relations: Mukurtu Hubs and Spokes. D-Lib Magazine, 23(5/6). https://doi.org/10.1045/may2017-christen
Educational Resources. (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/educational-resources/
Lord, P. (n.d.). Unrepatriatable: Native American Intellectual Property and Museum Digital Publication. Retrieved from http://www.academia.edu/7770593/Unrepatriatable_Native_American_Intellectual_Property_and_Museum_Digital_Publication
Project Description. (n.d.). Retrieved August 3, 2017, from http://www.sfu.ca/ipinch/about/project-description/

Acknowledgements:

Thank you to the Rare Book and Manuscript Library and Melissa Salrin in the iSchool for helping me with my questions about indigenous and religious materials in archives and special collections at public institutions, you are the best!

If Creative Commons Licenses Were Cookies

A plate of cookies (not licenses). This image, however, is licensed under CC-0, and is part of the public domain.

NOTE: This post is not meant as legal advice, but as a humorous piece.

Creative Commons is a licensing scheme set up to supplement copyright and help creators allow others to use their work, and to have more control over the ways that the work is used. These licenses have become increasingly recognized in courts around the world and yes, people have gotten sued for not following the terms of CC licenses. Cookies, known to the rest of the English speaking world as biscuits, are delicious sugary circular wonderfulness. But what could they have in common? More than you may think.

CC-0 Public Domain:

A brigadeiro is technically a cookie because it’s round and sweet; however, it is more of a part of the greater category of desserts, much like saying something is public domain is less of a licensing statement than a revocation of the rights guaranteed under copyright law.

CC-BY:

When your content is under a CC-BY license you can build whatever you want out of it, much like gingerbread. This could include men, houses, reindeer, or whatever, but you still recognize your creation as gingerbread.

CC-BY SA:

Anzac Day cookies are a defining dessert in Australian cuisine and are used to celebrate either Anzac Day or Australian heritage, but you can add your own local twist on this favorite like frosting, much like using a CC-BY SA license, so your new creations have to be licensed the same way like how you wouldn’t make “Anzac Day” cookies for the Fourth of July.

CC BY-ND:

Like the famous or perhaps infamous Berger Cookies of Baltimore MD, this license will let you make your own content and even sell it, but the creator wants the content the same no matter what. Some people say trans fats are dangerous, but Berger Cookies says they are absolutely necessary and will fight you if you say they should change their recipe.

CC-BY-NC:

Similar to Speculoos, which are traditional and standardized cookies in regard to shape and flavor, but spawned a popular American cookie spread also called Speculoos, CC-BY-NC content can’t be commercial but the derivatives can be different and licensed differently from the original as long as they stay noncommercial.

CC BY-NC-ND:

Girl Scout Cookies have been around for exactly 100 years. The most restrictive type of CC license can, of course, be compared to the most restrictive type of cookie. The Girl Scouts retain a lot of control over their cookies: who can make them, who can sell them, what time of year they are sold, to the point where the recipes remain hidden, though they are presumably not made with real Girl Scouts.

Don’t forget to check out the CC licensing documentation to learn more and see examples that won’t make you hungry!

https://creativecommons.org/share-your-work/licensing-types-examples/licensing-examples/

More Resources:

http://guides.library.stonybrook.edu/copyright/home

What are your thoughts on Creative Commons?  What are some other cookies that remind you of Creative Commons licenses? Are brigadeiros cookies? Let us know in the comments!

Works Cited:

100 Years of Cookie History – Girl Scouts. (2017). Retrieved June 16, 2017, from http://www.girlscouts.org/en/cookies/all-about-cookies/100-years-of-cookie-history.html

Chase, D. (2017, January 25). Research & Subject Guides: Copyright, Fair Use & the Creative Commons: Home. Retrieved June 16, 2017, from http://guides.library.stonybrook.edu/copyright/home

Glyn Moody. (2016, July 13). Festival uses CC-licensed pic without attribution, pays the price. Retrieved June 16, 2017, from https://arstechnica.com/tech-policy/2016/07/creative-commons-photo-misused-lawsuit/

Gorelick, R. (2013, November 22). FDA trans-fat ban threatens Berger cookies. The Baltimore Sun. Retrieved from http://www.baltimoresun.com/entertainment/dining/baltimore-diner-blog/bs-fo-berger-cookie-trans-fat-ban-20131122-story.html

Licenses and Examples. (n.d.). Retrieved June 16, 2017, from https://creativecommons.org/share-your-work/licensing-types-examples/licensing-examples/

Lynne Olver. (2015, March 18). Food Timeline: food history research service. Retrieved June 16, 2017, from http://www.foodtimeline.org/index.html

Review: Practical Copyright for Library and Information Professionals by Paul Pedley

Here at the Scholarly Commons, we have resources to learn about copyright. For starters, you can check out our author’s rights and copyright page. You can also contact Copyright Librarian Sara Benson with further questions. Today, I’ll be reviewing Practical Copyright for Library and Information Professionals by Paul Pedley.

This book looked like a practical read, (after all, it even has the word “Practical” in the title) and turned out to be one of the more unique finds on the Scholarly Commons shelf. This is a guide to British copyright, pre-Brexit, written by Paul “not a lawyer” Pedley of the Chartered Institute of Library and Information Professionals, which is the equivalent of the American Library Association, but across the pond.  It is a fantastic resource for anyone interested in an overview of British copyright law, or learning more about librarianship around the world.

British Copyright Basics:

“Copyright is automatic. As soon as a work is created and meets the requirements for protection (that it is original, that it is fixed in a material form, that it is by a British citizen or was first published in the UK, and that it fits into the protected categories or species) the work will automatically be protected by UK copyright law”

-(Pedley 2015, 3).

 

“Copyright protects works that can be categorized as being one of the following: literary works, dramatic works, musical works, artistic works, sound recordings, films, broadcasts”

-(Pedley 2015, 2-3).

#FeeltheBerne or an attempt to standardize copyright law around the world.

Unlike a patent, which has no global standard (though the EU is trying to make unified patent application and court system called the Unitary Patent), copyrights are automatically protected by the Berne Convention and “Each of the Berne Union’s 168 member countries is required to protect works from other countries to the same level of works originating in its own country” (Pedley 2015, 4). Nevertheless, although there is a Berne Convention, which originates from the 1880s, (an international treaty that the United States did not sign until nearly a hundred years later), there are still differences in copyright law and what you can do with it in different countries, though a lot of aspects remain the same around the world.

What is important to understand about British copyright law?

According to the back cover, “The UK’s copyright legislation has been referred to as the longest, most confusing and hardest to navigate in the world.” I agree with Pedley. The reason why British copyright law is so overwhelming is in part to do with with efforts to smooth out the variety of different legal systems that the UK has to juggle. To start, the UK is a common law country while the rest of the EU tends to be civil law. There are also differing conceptions of copyright within the EU. For example, some EU countries consider certain works as more than just property (the closest thing we have here are the special rights for the creators of paintings and other visual art work under the Visual Rights Act of 1990, which you might have heard about from the ongoing Fearless Girl controversy). All of this smoothing of legal system differences was done in order to have a Single Market, which started with the European Communities and then moved to the European Union. Under British law,  the order of which decisions to listen to on legal matters such as copyright is EU case law, then British case law, and then finally British law. Therefore this book is chock full of lots of interesting cases from the EU, UK and even from the Commonwealth!

Comparing UK and US Copyright Law: some similarities and differences

  • American and British copyright law are both based around common law, which can be complex, and confusing
  • Software is considered to be a literary work
  • Librarians, along with archivists and museum curators, have special rights in their role in preserving cultural heritage and making it accessible all for the greater good of society
  • The UK has “Fair dealing” as opposed to the United States’ “Fair Use”; though, they are applied in different ways (“Fair Dealing vs Fair Use, n.d.).
  • In the UK there are more types of licensing agreements, including those for government created works, while in the US government created works are usually in the public domain
  • From my understanding, maps are considered art in the UK, with the rights that come with that — I imagine a map library is a different experience in the UK!

To learn more take a look at this book!

Disclaimer: This is a blog post and is not legal advice. Neither the author of this post nor the author of the book being reviewed are lawyers. 

Works Cited:

European Patent Office. (2017, April 10). Unitary Patent & Unified Patent Court. Retrieved June 1, 2017, from https://www.epo.org/law-practice/unitary.html
Fair Dealing vs Fair Use. (n.d.). Retrieved June 12, 2017, from https://www.uleth.ca/lib/copyright/content/fair_dealing_week/fair_dealing_vs_fair_use.asp
Kaplan, I. (2017, April 13). Fearless Girl Face-off Poses a New Question: Does the Law Protect an Artist’s Message? Retrieved June 1, 2017, from https://www.artsy.net/article/artsy-editorial-fearless-girl-face-off-poses-new-question-law-protect-artists-message
LibGuides: Brexit. (n.d.) Retrieved June 1, 2017, from http://guides.library.illinois.edu/c.php?g=558659&p=3842099
Pedley, P. (2015). Practical copyright for library and information professionals. London : Facet Publishing.
WIPO-Administered Treaties. (n.d.). Retrieved June 1, 2017, from /treaties/en/ShowResults.jsp

The Georgia State University Copyright Case

Georgia State University logo.

This article was written by Scholarly Communication and Publishing Graduate Assistant Treasa Bane and Copyright Librarian Sara Benson.

Introduction

The ruling in the Georgia State University copyright case will have ramifications for rights holders and library users across the United States. If libraries have the most gain, libraries will have more guidance in making fair use decisions—at least with respect to online course reserves. But, if publishers have the most gain, they will gain more control, and annual academic licenses from the CCC will become more important and costly. However, making any sort of correlation or conclusion has proven to be difficult in this case, which has been alive for nine years strong.

History of the Case

In April 2008, Cambridge University Press, SAGE Publications, and Oxford University Press filed suit against Georgia State University (GSU) for “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials” through the library’s e-reserve system (Smith 2014, 73). When a drafted federal court complaint letter regarding uncontrolled digital copying was sent to about a dozen institutions indicating the complaint would be filed unless they contacted lawyers representing the Association of American Publishers, several institutions complied by adopting policies at the faculty senate level, but GSU did not (73). GSU said the excerpts were short and were not substitutes for textbooks; this practice was fair use. Publishers had a problem with this, saying large numbers of readings reproduced in a systematic way was not fair use.

On May 11, 2012, Judge Evans at the District Court found copyright violations in only 5 of 99 excerpts, finding that the university’s policy was a good faith interpretation of fair use (Smith 2014, 80). Judge Evans rejected the 1976 guidelines for classroom copyright; she introduced an amount of work that is “decidedly small” (79). And then on August 10, 2012, Evans rejected the plaintiffs/publishers’ severe injunction, requiring them to pay GSU’s attorney fees, which were over 2.9 million (81). The publishers were not pleased. They appealed the District Court of Northern Georgia’s ruling to the Eleventh Circuit Court of Appeals, and on October 17, 2014, the Eleventh Circuit Court of Appeals reversed and remanded the District Court’s decision in favor of the publishers (81).

On March 31, 2016, the Judge Evans reanalyzed the allegedly infringing works according to the directions of the 11th Circuit Court of Appeals and found 4 cases of infringement among 48 works, designating Georgia State the prevailing party (Smith 2014, 89). The publishers filed again in order to collect evidence about GSU’s practices because they need to know the most current conduct at GSU when dealing with the four infringements. This time, Evans estimated the weights of the four factors. Factor one, the purpose and character of the use: 25%. Factor two, the nature of the copyrighted work: 5%. Factor three, the amount or substantiality of the portion used: 30%. Factor four, the effect of the use on the potential market: 40% (2016). Evans pointed out that there was no case for copyright infringement because the publishers could not show they held the copyright, and there was no evidence that any students had used the excerpts. Another finding was that GSU’s e-reserve service was a fair use of copyrighted material purchased by its library; it was modeled on a broad consensus of best practices among academic libraries.

But the fight continued! On August 26, 2016, the plaintiffs filed a Notice of Appeal, which has been granted. Because of this, the Court of Appeals must to return to the fair use analysis for the 48 infringement claims. John Challice, Oxford University Press and Vice President and Publisher for Higher Education was quoted in “Georgia State is Going Head to Head with the Country’s Top Publishers” and summarized the desires of publishers:

We want Georgia State University (and any university that seeks to emulate Georgia State University) to change their checklist to something reasonable and legal. … We want to make it really clear to our marketplace, which are academic institutions in the US in this case, that there is no difference between copyrighted content made available in digital format or that made available printed on paper when it comes to licensing it.

More recent analysis has given factor four additional weight and factor two less weight. In instances where permissions were available and not paid, factor four strongly disfavored fair use. In cases when factors one and two favored GSU and three and four favored the publishers, a tie was created, and the court then considered the evidence of damage to the market. As a result, an overwhelming number of the cases found factor two to be neutral or in disfavor of fair use. Factor three and four were also disfavored several times. At least 4 excerpts did not favor fair use overall; however, at least 19 did favor fair use, the majority of which favored factor one, then factor four, and then factor three (2016).

Critical Points and Predictions

In order to stay relevant and maintain the same monetary expectations they had with print materials, publishers are damaging their relationship with libraries. This leaves librarians no choice but to seek other alternatives, such as open educational resources and library publishing. But more importantly, as long as librarians practice fair use, they will not lose it. Fair use is a right.

This case, which is now referred to as Cambridge University Press et al. v. Patton and Cambridge University Press et al. v. Becker (individual academics rather than GSU as a whole), will hold oral arguments through the 11th Circuit Court on July 27. As this date approaches, we should consider whether the demand for excerpts was so limited that repetitive unpaid copying would have been unlikely even if unpaid copying was a widespread practice. Additionally, we should consider whether the portion of the market captured by unpaid use was so small that it would not have had an effect on the author or publisher’s decision to produce work. Proving these will result in a stronger pull for fair use factor four and would therefore favor GSU’s academics and librarians, which would be a win for all educational institutions.

Sources

Cambridge University Press et al. v. Becker, Civil Action No. 1:08-CV-1425-ODE (U.S. Dist., March 2016).

“Georgia State is Going Head to Head with the Country’s Top Publishers.” The Signal. September 7, 2016. http://georgiastatesignal.com/georgia-state-going-head-head-countrys-top-publishers/

National Association of College and University Attorneys. Cambridge University Press w. Georgia State University: The 11th Circuit Ruling. Kevin L. Smith. October 2014: 87-91. Redacted from the Scholarly Communications @ Duke Blog.

National Association of College and University Attorneys. Georgia State University Copyright Lawsuit. Kevin L. Smith, J.D., MLS. 73-85.

Copyright Librarian Sara Benson’s YouTube Channel

Copyright Librarian Sara Benson

Guest post written by Treasa Bane

Sara Benson—lawyer, librarian, and assistant professor—is UIUC’s secret weapon. Within the Scholarly Communications and Publishing department, she provides consultations, workshops, lectures, and guides concerning copyright. As research methods and means of accessing reliable information rapidly change, copyright grows more complex. Every institution needs an intermediary between information producers and consumers to reliably and accurately educate others about the ethical use of copyrighted materials, and UIUC has one: Sara Benson.

As a library science student, I’m aware of Sara’s vital role at our university, but most other UIUC students in other disciplines may not be. Combining the worlds of copyright and librarianship results in a set of service skills applicable for all disciplines that academics can and should use. A student should not struggle through the process of building his or her ideas for a project, nor should new professors and researchers get all the way to the stage of publishing their work and not know how to negotiate a contract.

If you are an author, educator, researcher, student, or community member (Sara doesn’t close her doors to anyone not affiliated with UIUC), and you cannot find the time the attend one of Sara’s workshops or read one of her LibGuides in its entirety, but you’re overwhelmed with what you need to learn about navigating copyright, you should start with Sara’s YouTube Channel. Sara’s YouTube channel is an excellent supplement to her services and is an introduction to what she offers UIUC.

Warning: Sara’s videos might make you more interested in law-related material than expected. Sara’s videos are instructional, digestible, and engaging and conversational. While your understanding of copyright increases, you will not find yourself bored by legalese. Her first video on her YouTube channel defines copyright and the requirements in order to own it, the rights attached to it, and then how those rights are protected while also making a work available. While this particular video may be more appropriate for students and beginners, new authors might also want to review what rights apply to their work.

As someone who attended her fair use workshop, I found that her ten-minute Fair Use video manages to cover the most important aspects of Fair Use about as well as a full-length workshop. The “Do You Know Your Fair Use Rights?” video demonstrates how to weigh the four factors of fair use—for example, the more commercial a project is, the less likely it is to be in fair use, but the more educational it is, the more likely it is to be in fair use. To demonstrate transformative use, she explains the differences between parody and satire—an important and also complicated factor to determine in court cases. In the end, she summarizes her most important point that fair use is a right. Even if you ask for permission to use something and your request is declined, you can still use it if it’s sufficiently transformative—whether it’s for commercial use or you make copies or you use an entire work. Again, the nice thing about Sara’s guides are that they apply to anyone, but her fellow librarians might find this a particularly succinct resource to use or point to when advising patrons.

Her “1923-1978 and public domain” video navigates the copyright challenges brought on during this period, which entails how the copyright symbol was used, giving reasonable notice of copyright protection, and registration and renewal at the copyright office. Not only does she chart what’s in the public domain herself based on these criteria, but she directs you to cheat sheets and databases, such as the Stanford Copyright Renewal Database, and shows you how to navigate within and between them. She ends by pointing to one of her LibGuides called Copyright Reference Guide.

Ethical practice plays a huge role when you’re producing and sharing your work, whether it’s working with records, computer programs, publications, media, or chemical or biological materials. Check out Sara’s YouTube Channel—while new, she’s quickly adding videos—or reach out to Sara herself in order to build your confidence by better understanding Creative Commons licensing, international markets, university policies, orphan works, the TEACH Act, patents, registered and unregistered copyright, and more.

Spotlight: Open Culture

The Open Culture logo.

The Internet is the world’s hub for culture. You can find anything and everything from high-definition scans of sixteenth-century art to pixel drawings created yesterday. However, actually finding that content — and knowing which content you are free to use and peruse — can prove a difficult task to many. That’s why Open Culture has made it its mission to “bring together high-quality cultural & entertainment media for the worldwide lifelong learning community.”

Run by Lead Editor Dan Colman, director & associate dean of Stanford’s Continuing Studies Program, Open Culture finds cultural resources that include online courses, taped lectures, movies, language lessons, recordings, book lists, syllabi, eBooks, audio books, text books, K-12 resources, art and art images, music and writing tips, among many other resources. The website itself does not host any of the content; rather, Colman and his team scour the Internet looking for these resources, some of which may seem obvious, but also including many resources that are obscure. Posting daily, the Open Culture team writes articles ranging from “Stevie Nicks “Shows Us How to Kick Ass in High-Heeled Boots” in a 1983 Women’s Self Defense Manual” to “John F. Kennedy Explains Why Artists & Poets Are Indispensable to American Democracy (October 26th, 1963”. Open Culture finds content that is useful, whimsical, timely, or all three.

The Open Culture website itself can be a little difficult to navigate. Links to content can seem hidden in the article format of Open Culture, and the various lists on the right side of the screen are clunky and require too much scrolling. However, the content that you find on the site more than makes up for the website design.

Have you used Open Culture before? Do you have other ways to find cultural resources on the web? Let us know in the comments!