Shared links: Intellectual property news related to archives
by Aprille McKay
In a 6-3 decision in Kirtsaeng v. John Wiley & Sons, the US Supreme Court upheld consumer's ability to legally resell copyrighted content purchased abroad. A graduate student from Thailand, Supap Kirtsaeng, had imported textbooks legally printed overseas and sold them on eBay. The publisher claimed that Kirtsaeng's actions violated its exclusive right under section 106(3) to distribute its works and to contol imports under section 602. The case was important to libraries, because they rely on the "first sale doctrine" to loan materials to their patrons regardless of where the materials were manufactured. Justice Breyer's opinon specifically mentions the American Library Association's brief.
Register of Copyright, Maria Pallante, testified before the House Judiciary Committee on March 20, 2013. In her comments she suggested that copyright law needs an overhaul. She states: "If Congress considers copyright revision, a primary challenge will be keeping the public interest in the forefront, including how to define the public interest and who may speak for it." In a more extended version of her remarks, delivered at Columbia University on March 4, she suggested that the current term of copyright "is long and the length has consequences." "Perhaps," she said, "the law could shift the burden of last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering." Many of her other ideas were less appealing. Mike Masnick's preview of her testimony is here.
The 9th Federal Circuit held that the producers of the musical Jersey Boys were allowed to use a seven-second clip from "The Ed Sullivan Show" as a matter of fair use. SOFA Entertainment, Inc. v. Dodger Productions, Inc., filed March 11, 2013. The court affirmed the district court's summary judgment in favor of the producers and its award of $155,000 in attorneys fees in their favor.
Dunlap Codding, Emily E. Campbell and Joseph P. Titterington, "Federal copyright law trumps state Freedom of Information Act," lexology.com, March 4, 2013. The Connecticut Supreme Court addresses the interplay between citizen's rights to government information and copyright. The court held that copyright holders can lease their content to the state of Connecticut without automatically subjecting that content to disclosure under the state's FOIA.
Jennifer Schuessler, "Suit Says Sherlock Belongs to the Ages," New York Times, March 6, 2013. And see, also, Glenn Fleishmann, "Public domain: Who owns Sherlock Holmes?" The Economist, Feb. 20, 2013 which quotes our own Peter Hirtle.
The Copyright Office at the Library of Congress sent out a Notice of Inquiry on October 22, 2012 in an effort to reopen the orphan works issue. Many organizations, including the Society of American Archivists, submitted comments for the February deadline, and many reacted to the original comments in replies submitted March 6, 2013.
The Electronic Frontier Foundation and co-counsel David Halperin are representing Public.Resource.Org, in a case against the Sheet Metal and Air Conditioning Contractors filed February 22, 2013. Public.Resource.Org is Carl Malamud's non-profit organization that improves the public's access to laws and codes. In a press release on the EFF website, Malamud argues, "The public has a right to meaningful access to the laws that govern their lives. Technical standards like the ones in this document have the force of law, and people need to know them in order to compy with regulatory obligations, keep the public safe, and avoid costly penalties." The complaint asks the court to rule that posting the standards does not infringe copyright. The defendant Sheet Metal Contractors had claimed that posting a 1985 standard on air-duct leakage violated copyright and had demanded that it be taken down.
Deborah R. Gerhardt, "Freeing Art and History from Copyright's Bondage," UNC Legal Studies Research Paper No. 2213515, February 7, 2013.
On December 12, 2012, William Faulkner's estate settled a lawsuit against Northrup Grumman and the Washington Post for using a Faulkner quote in a newspaper ad. The estate objected to the use of the phrase: "We must be free; not because we claim freedom, but because we practice it" in a 4th of July ad for the defense contractor. The terms of the settlement have not been disclosed. A separate lawsuit, against Sony Pictures, for a Faulkner quote in the Woody Allen movie, "Midnight in Paris," is ongoing. In that film, Owen Wilson's character slightly misquoted the Faulkner line "The past is never dead. It's not even past." from Requiem for a Nun. Instead, Wilson's character said "The past is not dead. Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."
On November 7 many of the provisions in Bill C-11, the Canadian Copyright Modernization Act (CMA) were proclaimed and became effective. Lesley Ellen Harris summarized the changes in a blog post, "Copyright Modernization Act = New Canadian Copyright Laws," Copyrightlaws.com, 7 Nov. 2012.
The Kernochan Center for Law, Media and the Arts at Columbia Law School is planning "A Daylong Discussion of Copyright Issues Surrounding Mass Digitization" on Friday, November 2, 2012 in New York.
The Copyright Office is soliciting public comments in conjunction with a new review of the Orphan Works problem. The IPWG will make recommendations to SAA council for a response. Other interested citizens and organizations are also strongly encouraged to submit comments. The deadline is January 4, 2013.
The Copyright Office issued a group of exemptions to the prohibition on circumvention of technical devices in the DMCA on 26 Oct. 2012.
Aisha Harris, "The Past is not dead. In fact, it's suing," Slate.com, 26 Oct. 2012. The Faulkner Estate is suing Sony Pictures because in the Midnight in Paris movie, Owen Wilson paraphrases a 9 word passage from a Faulkner novel. Outrageous and ridiculous!
"The Memory of the World in the Digital Age: Digitization and Preservation" conference sponsored by UNESCO has a track on Intellectual Property Infrastructure initiatives for digital heritage. A second track is Intellectual property and the protection of traditional knowlege. Vancouver, 26-8 Sept. 2012.
Mike Masnick leads an interesting discussion about the Internet Archive's decision to make years of TV News Broadcasting available online, at TechDirt (18 Sep. 2012).
Monika Ermert, "European Parliament Passes Orphan Works Directive," Intellectual Property Watch, 13 Sept. 2012. Unfortunately, this directive only covers published or broadcast works, leaving unpublished works out in the cold. Amendment 54 for Article 11, paragraph 1 holds out some hope that at a future date, unpublished works may be included as well.
Kevin Smith, "A Not-very-appealing Appeal," Scholarly Communication at Duke, 11 Sept. 2012, discusses the plaintiff publishers' appeal of the latest Georgia State University decision.
Peter Hirtle, "When is 1923 Going to Arrive and Other Complications of the U.S. Public Domain," Searcher, Sept. 2012. Peter explains some of the more subtle calculations that are included in his "Copyright Term and the Public Domain in the United States" chart.
In the most recent edition of Current Cites, IPWG member Peter Hirtle plugs Kenneth Crews article, "Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching," in the Fordham Intellectual Property, Media & Entertainment Law Journal, (July, 2012) which criticizes the sometimes inflated copyright claims of museums.
Jennifer Rothman is an attorney who argues against the idea that community standards can help define fair use when expressed in best practice documents. Though we might disagree with her ideas, they're worth reading.
In a new and troubling fair use decision, Monge v. Maya Magazines, Inc. (14 Aug 2012) the 9th Circuit refused to hold that publishing a stolen wedding photo of two Latino stars was acceptable under fair use. The court stated: "Waving the news reporting flag is not a get out of jail free card in the copyright arena." The court cited Harper & Row v Nation Enterprises for the proposition that fair use rights in unpublished works are very limited and highlighted that the entire photograph was used. There is a spirited dissent from Judge Milan Smith Jr.: "Under the majority’s analysis, public figures could invoke copyright protection to prevent the media’s disclosure of any embarrassing or incriminating works by claiming that such images were intended only for private use. The implications of this analysis undermine the free press and eviscerate the principles upon which copyright was founded." Hear, hear!
Steve Kolowich, "The Prevailing Party," Inside Higher Ed, Aug. 13, 2012. Georgia State prevails over the Association for American Publishers and the Copyright Clearance Center, which were ordered to pay Georgia State's attorneys' fees in the case. In May, Judge Evans had held that the vast majority of violations alleged by the publishers qualified as educational "fair use."
The Library of Congress has issued an RFI for Third Party Digitization Initiatives and is seeking public comments. Responses are due back by September 7, 2012. Two provisions to note: there is no provision for digitizing things under fair use or based on risk assessment. It is in the public domain or the vendor must get permission. Second, the Library will consider allowing the vendor to have exclusive distribution access for a limited time (generally less than three years) though embargo periods are in general, disfavored.
Nick Poole, "The PSI Directive & Cultural Institutions," Collections Trust, Jan. 2012. A white paper analyzing the pending revision of the European Commission's Directive on the re-use of public sector information (Directive 203/98/EC) which would bring European cultural institutions, including archives, under its scope. It concludes that though covered institutions are supposed to provide PSI at cost and not impose any restrictions on its subsequent reuse, cultural institutions could still charge a reasonable price for use of their materials, and still negotiate to allow a private firm exclusive rights "where an exclusive right is necessary for the provision of a service in the public interest."
Megan Geuss, "Leaked: US proposal on copyright's limits," Ars technica, Aug. 5, 2012. The Trans-Pacific Partnership treaty by nine Pacific Rim countries include negotiations over the terms of fair use. The US and Australia proposed a "rightsholder friendly" three-step test to determine what exceptions to copyright are allowable.
- For more about the TPP and the Berne three-step tests in fair use, see, Mike Masnick, "TPP Text on Fair Use Leaks; US proposals are really about LIMITING fair use, not expanding it," techdirt, Aug 6, 2012
- Peter Jaszi, "Public statement on the U.S. Proposal for a Limitations and Exceptions Clause in the Trans-Pacific Partnership," infojustice.org, Aug. 3, 2012.
Timothy B. Lee, "MPAA 'embedding is infringement' theory rejected by court: Judge calls on Congress to update copyright law for the online video era," ars technica, Aug 3, 2012, analyzing a 7th Circuit opinion authored by Judge Richard Posner. "Posner argues that when you view an infringing video on a site such as YouTube, no one -- not you, not YouTube, and not the guy who uploaded the infringing video--is violating copyright's reproduction or distribution rights."
- Eric Goldman, in "Video embedding site isn't a contributory copyright infringer, but sideloading could be direct infringement--Flava Works v. myVidster,"disapproves of the decision.
- Mike Masnick, "Judge Posner: Embedding infringing videos is not copyright infringement, and neither is watching them," is less critical.
William New, "WIPO still on course for instruments on copyright exceptions, broadcasting," Intellectual Property Watch, Jul. 26, 2012. Reports on the July 2012 meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR) where they discussed copyright exceptions for libraries and archives (Section 108-type exceptions).
- Tim Padfield made a statement on behalf of the International Council on Archives (ICA) (about a third of the way down) and there is a video interview of him on You Tube.
- Mike Masnick has a depressing analysis of the politics at play: "Shameful: US secrecy holding up treaty to help blind access copyrighted works," techdirt.com 19 Jul. 2012 and "We should stop calling fair use a 'limitation & exception' to coyright; its a right of the public," techdirt.com, Jul. 23, 2012.
"Procedural sparring slows WIPO Traditional Cultural Expressions Talks," Bridges Weekly, Jul. 18, 2012. Reports on the World International Property Organization (WIPO) negotiations regarding Traditional Cultural Expressions (TCE's).
- See also, William New, "WIPO folklore talks headed to assemply; treaty negotiations unlikely in 2013," Intellectual Property Watch, Jul. 13, 2012.
- The draft articles that were prepared for the talks.
- Peter B. Hirtle, Anne R. Kenney, Judy Ruttenberg, Digitization of Special Collections and Archives: Legal and Contractual Issues
- Model Deed of Gift
- Model Deed of Gift, including Mixed IP Rights
- Model Digitization Agreement
- Kevin L. Smith, Copyright risk management: Principles and strategies for large-scale digitization in special collections
Nancy Situ, "IP Owners Join USPTO: Copying for patent applications is Fair Use," Intellectual Property Watch, June 19, 2012.
Kevin Smith, "The GSU decision -- not an easy road for anyone," Scholarly Communications @ Duke, May 12, 2012.
Terence Killeen, "Joycean joy after library says 'yes'" Irishtimes.com, May 7, 2012. The National Library of Ireland has put its collection of James Joyce manuscripts online.
Claire Bond Potter and Renee C. Romano, Doing Recent History: On Privacy, Copyright, Video Gamers, Institutional Review Boards, Activist Scholarship and history that talks back, University of Georgia Press, April 25, 2012.
- Laura Clark Brown and Nancy Kaiser, "Opening Archives on the Recent American Past: Reconciling the Ethics of Access and the Ethics of Privacy"
- Gail Drakes, "Who owns your archive? Historians and the challenge of intellectual property law"
Larry Rohter, "Music Film is Delayed by Fees for Songs," NYT April 25, 2012. This story of a music documentary is a perfect example of the failure of fair use.
Deborah R. Gerhardt, "Copyright Publication: An Empirical Study," 87 Notre Dame L. Rev. (2011). Gerhardt undertakes a study of what constitutes "publication" under copyright law, including the effect of placing works in public archives.
- In the opening session the problem of unpublished orphan works was presented powerfully by Brewster Kahle, Kenny Crews, and Rick Prelinger.
- Maria Pallante announced that the Copyright Office was going to be proposing new orphan works and 108 legislation to Congress for the session starting in January.
Scott Graham, "Are College Professors and Librarians Digital Pirates?" Law Technology News, March 30, 2012.
Kevin Smith, "A masterpiece of misdirection," Scholarly Communications @ Duke, March 5, 2012. Smith analyzes the Authors Guild's February 28, 2012 memorandum in support of partial judgment in the Hathi Trust lawsuit.
James G. Neal and Dawn M. Mueller, "Fair Use is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library," Declaration of Interdependence: The Proceedings of the ACRL 2011 Conference, March 30-April 2, 2011, Philadelphia, PA.
The College Art Association has a new resource page on its website entitled "Intellectual Property and the Arts." At its 2012 annual conference in Los Angeles, the Executive Board of the College Art Association endorsed the following two Fair Use position statements:
- Visual Resources Association (VRA) Statement on the Fair Use of Images for Teaching, Research, and Study, http://vraweb.org/organization/committees/ipr/ipr_resources.html
- Association of Research Libraries (ARL) Code of Best Practices in Fair Use for Academic and Research Libraries, http://www.arl.org/pp/ppcopyright/codefairuse/index.shtml
The Association of Research Libraries, the Center for Social Media at the School of Communication of American University, and the Program on Information Justice and Intellectual Property at the Washington College of Law of American University have released the Code of Best Practices in Fair Use for Academic and Research Libraries.
Supreme Court of the United State, Golan v. Holder, Opinion, Jan. 18, 2012. Transcript of oral arguments, Oct. 5, 2011. The plaintiff argued that when section 514 of the Copyright Act was enacted, taking works out of the public domain, the first amendment rights of millions of Americans were violated. Unfortunately, the Supreme Court did not agree, and held that Congress may re-copyright public domain works. See, coverage of the opinion in Wired and the New York Times. The arguments were covered in the New York Times, and the SCOTUS Blog, and the Amicus Brief of the ALA, ACRL, ARL, University of Michigan Libraries, the Internet Archive and Wikimedia is informative.
Peter Hirtle and Deb Schiff, Peter Hirtle Weighs in on SOPA, Here and There, January 19, 2012.
Mark O'Connell, "Has James Joyce Been Set Free?" The New Yorker, Jan. 11, 2012, which implicitly critiques and corrects columns such as “An end to bad heir days: The posthumous power of the literary estate” by Gordon Bowker, The Independent, Jan. 6, 2012.
Peter Hirtle. Public Domain Day was January 1, 2012. On that day, unpublished works by authors who died prior to 1942 entered the public domain. That means that if you have works in your collection by authors such as James Joyce, Louis Brandeis, Virginia Woolf, and Sherwood Anderson, they may now be in the public domain. There are two important caveats. First, these works must never have been published; just having a manuscript version in your collection is not enough. Second, the works cannot be "works made for hire." Something that Louis Brandeis wrote as part of his employment would be protected until 120 years after the date of its creation. Archives and Archivists Listserv, Jan. 3, 2012.
Copyright Clearance Center, "BTB #263: Google Book Settlement: Good Riddance or Lost Opportunity?" Beyond the Book Podcast series, December 4, 2011. James Grimmelmann of New York Law School, Edward Rosenthal who represents the Authors Guild in the HathiTrust suit, Mary Rasenberger of the Library of Congress's Copyright Office presented their views at the recent "Copyright and Technology" conference.
Nina Mantilla, The New Hawaiian Model: The Native Hawaiian Cultural Trademark Movement and the Quest for Intellectual Property Rights to Protect and Preserve Native Hawaiian Culture, Intellectual Property Brief, November 29, 2011. Argues that the Disney movie Lilo & Stitch misused Native Hawaiian chants and argues for IP protection for Hawaiian culture based on an amalgam of the New Zealand and Hawaiian model.
Mark Tratos, "Informal Formalities: The Government's Attempt to Find Famiies for Orphan Works," Intellectual Property Brief, November 29, 2011.
Joshua Benton, "Wired releases images via Creative Commons, but reopens a debate on what "noncommercial" means," Neiman Journalism Lab, November 8, 2011.
Office of the Register of Copyrights, "Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document," October 2011.
Michael Kelley, "Copyright Office Announces 17 Policy Priorities," Library Journal, Oct. 25, 2011. Maria A. Pallante, Registrar of Copyrights announced 17 priorities in copyright policy for her office through October 2013. They include copyright exceptions for libraries and archives (Section 108), exceptions to allow breaking technological controls under the Digital Millenium Copyright Act (DMCA), mass book digitization, open works, and legal treament of pre-1972 sound recordings.
David Kravets, "US copyright czar cozied up to content industry, e-mails show," Wired, October 14, 2011.
Marc Parry, "Judge dismisses lawsuit against UCLA over use of streaming video," Chronicle of Higher Education, Oct. 4, 2011. Judge Marshall found that UCLA could rely on sovereign immunity to shield it from being sued without its consent in federal court. This decision may be persuasive to the court hearing the HathiTrust suit, which presents simliar issues.
- Authors Guild v. HathiTrust, University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University, Complaint, USDC Southern District of NY, Sep. 12, 2011, amended October 6 to add new plaintiffs. A conference with Judge Harold Baer is scheduled for November17, 2011.
- "Statement from Paul Courant, university librarian and dean of libraries," University Record, Sep. 14, 2011; HathiTrust Statement, Sep. 15, 2011; U-M library statement, Sep. 16, 2011.
- "Library Copyright Alliance Statement on Authors Guild, Inc., et al. v HathiTrust et al.," Sep. 14, 2011.
- James Grimmelmann, "The Orphan Wars," Sep. 12, 2011, "HathiTrust Single-Handedly Sinks Orphan Works Reform," Sep. 15, 2011, and "The Procedural Swamp," Sep. 26, 2011, The Laboratorium.
- "University of Michigan suspends HathiTrust Orphan Works Project. Claims 'proposed uses of orphan works are lawful,' and promises a reboot," the Authors Guild, Sep. 16, 2011.
- C.E. Petit, "Google book Scan Author Guild v. HathiTrust: Just when you thought is was safe to go back to the library," Scrivener's Error, Sep. 27, 2011.
- Emily Ford, "(The universal interrogative participle)* is going on with the Authors Guild," In the Library with the leadpipe, Oct. 12, 2011.
Robert B. Townsend, "Could history become an 'Information risk'?" American Historical Association, AHA Today, Sep. 28, 2011. Discusses a recent proposal to overhaul the rules covering institutional review boards (IRB's) and its potential serious impact on archival research.
Dugie Standeford, "Breakthrough gives EU principles for digitising out-of-print books," Intellectual Property Watch, Sep. 20, 2011. A memorandum of understanding defines works that are "out of commerce," and outlines procedures for negotiating collective licenses for them.
Electronic Frontier Foundation, "California Supreme Court agrees to hear electronic public records case," Sep. 16, 2011. California trial and appellate courts says that public information stored in a computer is software, and not records subject to FOIA. The California Supreme Court will hear an appeal.
Barbara Stratton, "Seeking new landscapes: A rights clearance study in the context of mass digitisation of 140 books published between 1870 and 2010," The British Library, 2011. The study found that manual rights clearance of works on an individual, item by item basis is unworkable in the context of mass digitzation.
Marc Hoit, Kevin Smith and Siva Valdyanatha, "EDUCAUSE Live! The Georgia State Copyright Case: Issues and Implications," Sep. 8, 2011. Though this case deals with e-reserves in a course management system, the decision in this case will likely have strong implications for the interpretation of fair use in a higher education digital context, and sovereign immunity of state institutions from copyright liability.
Debra Schiff, "Interview with Peter Hirtle, Senior Policy Advisor, Cornell University Libraries on silos, the HathiTrust Digital Library, and orphan works," Here and There Blog, Jul. 31, 2011. (IPWG member)
Ray O'Hanlon, "BC archives case headed for US Supreme Court?" The Irish Echo, June 23, 2011. Coverage of this case in the NYTimes: Katie Zezima "Boston College Fights Subpoena of interviews tied to I.R.A." June 9, 2011, and Jim Dwyer, "Secret Archive of Ulster Troubles Faces Subpoena," May 13, 2011.
Andy Baio, "Kind of Screwed," Waxy.org, June 23, 2011. A great discussion of fair use of images. A copyrighted photograph of Miles Davis was used as source material for a pixelated version of the image.
David Rapp, "Orphan Works Wager: University of Michigan Giving Scholars On-Campus Access," LibraryJournal.com, June 22, 2011. "When UM staff, after research, are unable to determine the copyright holder for a work, its bibliographic information will then be placed on the UM Library website and in the online HathiTrust Digital Library for 90 days; if no rights holder comes forward, the work will be deemed an orphan and made accessible to the UM community."
Jeffrey Pomeranz, "My Copyfight," PomeRantz, June 14, 2011. Narrates the perils of negotiating with a journal publisher to allow open access to preprints. Archivists considering publishing articles should be sure to read their publishing contracts closely and walk away if the publisher will not allow them to retain the rights they want.
Jenni Terry, "Washington Hotline," C&RL News, June, 2011. The Library Copyright Alliance, composed of ALA, ACRL, and the ARL isssued a statement May 16, 2011 that expressed pessimism that an acceptable legislative solution to the problem of orphan works could be achieved.
Gail Clement and Melissa Levine, "Copyright and Publication Status of Pre-1978 Dissertations: A Content Analysis Approach," portal: Libraries and the Academy. The authors argue that deposit of dissertations into a library constituted publication under the 1909 law, and hence divested those dissertations of copyright and placed them in the public domain. Peter Hirtle notes that the "deposit" argument might be problematic for archivists -- does that mean that if a copyright owner gave his/her works to an archives, that work then entered the public domain? There is some basis for that assumption in the Copyright Office's Compendium I, which states that "The deposit of a manuscript in a public library (including the Library of Congress) for unrestricted access by the publis will be accepted as constituting publication."
Mike Masnick, "Would it Really be so Bad if the Beatles were in the Public Domain," "RIAA: Changing Copyright Term on Recordings is Unconstitutional (But only if it's Shorter)," "Entertainment Industry Lawyer: The Public Domain goes against Free Market Capitalism," "RIAA says There's No Value in the Public Domain," and "The One Situation Where Record Labels Fear Federal Copyright: Old Sound Recordings," Techdirt.com, June 3-6, 2011.