This week, Scholarly Commons graduate assistants Zhaneille Green and Ryan Yoakum, alongside Copyright Librarian Sara Benson, appeared as guest writers for the International Federation of Library Associations and Institutions’ blog as part of a series for Copyright Week. Their blog post looks at how the current copyright tools on platforms such as YouTube and Facebook allow large corporate or governmental entities to silence and suppress individual voices. You can read the full blog post on the IFLA blog website.
In June 2020, the United States Copyright Office put out a request for public input on issues related to states’ liability in cases of copyright infringement. This topic was brought to public attention in March during Alan v. Cooper, where the Supreme Court found it unconstitutional to repeal state’s sovereign immunity in cases of copyright infringement since there was not enough evidence to justify this action. This means that creators whose copyright is violated by the state do not have clear next steps for how to proceed with litigation.
To determine how to move forward, the U.S. Copyright Office was asked to study the extent to which states violate copyright, whether there is a remedy for the creator, and whether the violation is a result of intentional or reckless behavior. The study will inform the decision to repeal this immunity enjoyed by states, which would certainly have consequences for institutions like universities and libraries.
As a state-funded, land-grant institution, the University of Illinois system is a major stakeholder in this conversation. The University system both consumes and creates a huge amount of copyrighted material and has a responsibility for making sure our community is following copyright law. We also need to make sure we have the freedom to use and share copyrighted materials to help foster the scholarly and educational mission of the institution.
So, Sara Benson, Copyright Librarian and interim head of the Scholarly Commons, and Scott Rice, Deputy University Counsel, submitted their own response to the United States Copyright Office on behalf of the University of Illinois system. They are currently awaiting a response, which is due by October 22, 2020. In this document, Sara describes some of the ways she educates our community on issues of copyright in her role at the library to help us all contribute to a culture of copyright awareness. This is because the responsibility for following copyright law primarily falls to individual people to make the right choices.
And, for the most part, we do! Sara and Scott say that the University system only experiences 3-6 copyright infringements a year, and that these infringements are not the result of intentional or reckless behavior. The University of Illinois community makes a good-faith effort not to infringe copyright, and will continue to be diligent in face of potential legislation that might increase our liability for copyright violations.
Maintaining our ability to use copyrighted materials in our teaching and research is a group effort. So what can you do to be a good copyright actor? Here are a few tips to get you started:
- Cite your sources! Including attribution shows a good-faith effort to credit the original creator. While this doesn’t necessarily protect you from claims of infringement, it is helpful for showing that the work wasn’t used maliciously.
- Learn about Fair Use! Fair Use is a great way to think through whether your use of copyrighted materials is permissible. But, keep in mind that only a lawyer can give you advice on whether your use is a fair use.
- Ask for help! When in doubt, asking for a second opinion is a good way to avoid copyright infringement. Email Sara Benson at firstname.lastname@example.org with your copyright questions (please note that Sara cannot provide legal counsel).
Check out the library’s Copyright Reference Guide for even more tips on how to be a good copyright-actor!
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.