Shared links: Intellectual property news related to archives

by Aprille McKay (with suggestions from IPWG members)

January 2019

January 9, 2019.  SAA's American Archivist has published "Rights Review for Sound Recordings: Strategies Using Risk and Fair Use Assessments" by my Bentley colleagues, Jeremy Evans and Melissa Hernández Durán about the Bentley Historical Library's risk-based approach to making sound recordings available. (Subscription required)

September 2018

September 18, 2018:  The Senate unanimously passes the Music Modernization Act.  Look out for an article in Archival Outlook that summarizes the impact on archives in early 2019.  Here's NPR's summary of the impact of the law on the music industry. The Senate's version of the bill has quite a few improvements for archives over the version of the bill the House passed.  Next, step, the bill goes back to the House for approval, which will likely happen quickly, and to President Trump, who has signaled he approves.

August 2018

August 28, 2018: The Canadian Council on Archives (CCA) submitted a brief outlining its position on copyright to the Canadian Committee on Industry, Science and Technology to put forth the archival perspective on the statutory review of the Copyright Act.  Topics include:

  • Technical Protection Measures
  • Crown Copyright
  • Termination (or reversion)
  • Indigenous Knowledge
  • Orphan Works
  • Term Extension
  • Fair Dealing

August 28, 2018:  Kendra Albert at Harvard's Berkman Klein Center posted a hilarious series of tweets about a case (Kenneth M. Stern v. Does, 978 FSupp. 2d 1031 (C.D. Cal. 2001)) in which a lawyer sued people for copyright infringement for forwarding his email.  He lost -- the judge saw no creativity and hence no copyright in the email.  The judge awarded fees to the defendants because the plaintiff's claim was "patently meritless" and "folderol"

August 27, 2018: The International Federation of Library Associations (IFLA) has released a statement calling for copyright literacy among librarians and listing recommendations aimed at governments, libraries, library associations, and library educators to support members' advocacy efforts.

August 22, 2018:  The 9th Circuit Court of Appeals (that's California) has rejected a district court decision that said a digitally remastered pre-1972 analog recording warranted a new copyright.  See Lorelei Laird's article in the ABA Journal, here.  The court said: 

“A remastering, for example, of Tony Bennett’s ‘I Left My Heart in San Francisco’ recording from its original analog format into digital format … retains the same essential character and identity as the underlying original sound recording, notwithstanding the presence of trivial, minor or insignificant changes from the original,” (ABS Entertainment, Inc v. CBS Corp.)

May 2018

May 10, 2018:  Curious about how European cultural heritage institutions are dealing with orphan works?  The Study on Current Best Practices among Cultural Heritage Institutions when Dealing with Copyright by EnDOW researchers Victoria Stobo, Kris Erickson, Aura Bentoni and Flavia Guerrieri summarizes orphan works practice at 15 cultural heritage institutions across the UK, the Netherlands and Italy.  It finds that rights clearance remains expensive and that institutions are unsure about how to apply the diligent search requirements of the EU's Orphan Works Directive.

June 2017

June 22, 2017:  The Copyright Office has issued its study report on Section 1201 of the Copyright Act.  Section 1201 is the anti-circumvention prohibition of the Digital Millenium Copyright Act.  Every three years the Copyright Office considers exemptions to the operation of the section.  Back in February 2016, President Dennis Meissner submitted comments on behalf of SAA which argued that anti-circumvention provisions of 1201 impede archivists work.  The Copyright Office's response is disappointing and reads, in part:

The Office appreciates that TPMs can affect legitimate interests of libraries, archives, and other memory institutions and believes that a permanent exemption tied to activities authorized by section 108 is worthy of consideration and debate, but finds it is premature to recommend specific legislative reforms

March 2017

March 15, 2017 is the deadline for submissions for a special issue of the Journal of Scholarly Publishing on the topic of Open Access.  The editors welcome submissions of 1500 to 6000 words from "those engaged with open access who can shed light on this economic and moral concept now playing out across the scholarly communication ecosystem."  Suggested themes include: case studies of open access projects, initiatives and ventures and analyses of open access policies and practices across disciplines and publication types, publishers and users.  It would be swell to include an archival voice among the others!  For more information:

December 2016

December 20, 2016: SiriusXM wins their appeal against the Turtles in Flo & Eddie, Inc v. Sirius XM Radio, when the Second Circuit holds that there is no common law public performance right for creators of sound recordings under New York law.  Although copyright is a matter of exclusive Federal jurisdiction, before 1972, sound recordings were governed by state law. The court held that with respect to sound recordings “copyright prevents copying of a work, but does not prevent someone from using a copy, once it has been lawfully procured, in any other way the purchaser sees fit.”  This is good news for archives who may want to allow streaming access to recordings in their collections.  In California, Flo & Eddie won a ruling against Sirius XM based on California law and an appeal is currently pending before the Ninth Circuit.  The Eleventh Circuit in Florida is also considering the question.  For more information, see "New York's Landmark Ruling on Pre-1972 Sound Recordings Brings Digital Music Providers Holiday Cheer and Leaves Recording Artists with a Lump of Coal" by Greenberg Traurig. For the perspective of the Association for Recorded Sound Collections, see their amicus brief for the Ninth Circuit case (thanks to Eric Harbeson).

December 14, 2016:  Ever wonder what lawyers advise their clients who are writers about how to handle estate planning and the appointment of a literary executor?  Here's the advice of Lloyd Jassin and Ronald M. Finkelstein, from their blog, Copylaw: Publishing and Entertainment Law, "Selecting a Literary Executor."

December 8, 2016:  House Judiciary Committee leaders proposed to begin the process of amending the Copyright Act by separating the Copyright Office from the Library of Congress.  You can read the one page statement, or watch the YouTube video from Reps. Goodlatte and Conyers.

November 2016

Nov. 14, 2016:  Copyright expert Brandon Butler has a new blog, The Taper:  Copyright and Information Policy at the UVA Library, which we recommend SAA folks follow.  His post on the content industry's hysteria over the firing of Maria Pallante as Register of Copyrights is spot on.

The hew and cry over Pallante’s ouster is a remarkable admission that the content industry saw Pallante as on their side rather than as a neutral arbiter in the copyright ecosystem. . .We Jeffersonians know better. Copyright is not a natural right, entitled to protection at the expense of the public good. A government official who defends exclusive rights against the public interest has lost track of why we have copyright in the first place.

October 2016

October 7-8, 2016:  The 2016 Midwest Archives Conference Fall Symposium, “Archivists and Copyright,” will take place in Ann Arbor, Michigan, at the Hilton Garden Inn. The instructors are Melissa Levine, lead copyright officer, University Library, and IPWG Chair, Aprille McKay, assistant director for university collections and records management, Bentley Historical Library, University of Michigan.  This one-and-a-half-day workshop will explore strategies for managing risk and for balancing often-competing demands for access.  There will be time for participants to work on institution-specific questions in group discussions guided by the experience of the instructors.

September 2016

September 26, 2016:  Brandon Butler reports on the legal "morass" surrounding software in this post related to the Software Preservation Network's 2016 forum at Georgia State in August: "Software Preservation Network:  Legal and Policy Aspects of Software Preservation," Bloggers! The Blog of SAA's Electronic Records Section.

September 19, 2016:  Some uncommonly good news for archivists interested in copyright!  A new peer-reviewed journal -- The Journal of Copyright in Education and Librarianship (  Here's the announcement:

 The journal, founded by Carla Myers (University of Colorado, Colorado Springs), Tucker Taylor (University of South Carolina), and Andrew Wesolek (Clemson University), is a peer-reviewed open-access publication for original articles, reviews and case studies that analyze or describe the strategies, partnerships and impact of copyright law on public, school, academic, and digital libraries, archives, museums, and research institutions and their educational initiatives. The Journal’s founding Editorial Board includes some of the nation’s foremost experts in copyright and higher education, including: Kyle Courtney (Harvard University), Kenneth  D. Crews (Gipson Hoffman & Pancione), Donna Ferullo (Purdue University), Christine Fruin (University of Florida), Isaac Gilman (Pacific University), Dick Kawooya (University of South Carolina), Tomas Lipinski (University of Wisconsin-Milwaukee), Lisa Macklin (Emory University), Sarah McCleskey (Hofstra University), and Kevin Smith (University of Kansas).

The first issue features papers based on presentations delivered at the 2016 Kraemer Copyright Conference, held this past Spring at the University of Colorado, Colorado Springs as well as an essay from Editorial Board member Kenneth D. Crews about the considerations the Board made in drafting the author agreement.  


The Journal will be published bi-annually in the fall and spring and welcomes submissions for future issues, including original research and practitioner experience papers, legal analysis, as well as submissions in alternative formats. The Journal appreciates the sponsorship of University of Colorado, Colorado Springs and the support of the University of Kansas, Clemson University, and the University of South Carolina.


The first Issue features a relevant article, "Copyright and Digitization and Preservation of State Government Documents: A Detailed Analysis," by Brett D. Currier, Anne Gilliland and David Hansen.

September 3, 2016:  There are not many cases about the enforcement of the contacts that archives users sign when they are granted access to collections.  Recently, Harvard's Peabody Museum brought suit against an author, Steve Elmore, who accessed Hopi pots in Harvard's collection, took photos and used them for his book In Search of Nampeyo: The Early Years 1875-1892.  Elmore had signed a contract that allowed him to photograph Nampeyo pots in the Peabody's Keam Collection for his own personal research but prohibited him from displaying or publishing the images.  The Peabody sued for breach of contract and infringement of copyright.  In August 2016, US District Judge Robert C. Brack ruled against Elmore and ordered him to pay $10,000 for breaking the contract.  The parties reached a settlement the next day under which Harvard forgave the $10,000 and agred to let him sell "limited copies of his book with a statement correcting the misattributions and other problems with the photographs."  See Anne Constable, "Santa Fe art dealer, Harvard reach deal over book's photos," Santa Fe New Mexican.  Earlier Harvard had lost a copyright infringement suit against the same author who had turned photographs for another publication into line drawings.  See Brandon J. Dixon, "Harvard Loses Copyright Infringement Claim," Harvard Crimson, and the author's side of the story at the "Free Nampeyo" blog.

August 2016

August 16, 2016:  "Copyright in a Nutshell for Found Footage Filmmakers," by Brian L. Frye (Found Footage Magazine No. 2) argues that copyright doctrine is unacceptably indeterminate and restrictive in relation to the use of found footage. Frye concludes that “courts should define transformativeness more broadly, and should abandon the distinction between published and unpublished works, in order to enable the productive use of historically significant motion pictures.

August 12, 2016:  The Harvard Office for Scholarly Communications has published a comprehensive literature review on strategies for digitizing orphan works for open access by David Hansen of UNC.  He was one of the primary facilitators of the project to create the Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives and Other Memory Institutions, released in December 2014.

August 4, 2014:  Documentary photographer Carol Highsmith has filed a $1 billion lawsuit against Getty Images for "gross misuse" of 18,755 of her photographs.  Highsmith donated her work to the Library of Congress for use by the public but, according to her lawsuit, she discovered that Getty Images has been selling licenses for her work and holding themselves out as the exclusive copyright owner.  Carey Dunne, "Photographer Files $1 Billions Suit Against Getty for Licensing Her Public Domain Images," Hyperallergic.  Steve Schlackman's article in Art Law Journal, "Carol Highsmith Sues Getty for $1 Billion But Can She Win?" analyzes her case and concludes that it's not a slam-dunk for Highsmith.

August 1, 2016:  Mike Masnick has written an article for TechDirt about the Copyright Office's plans to modify Section 108, even though the library community thinks it's good the way it is, thank you.  In "Copyright Office Intent on Changing the Part of Copyright that Protects Libraries & Archives, Even Though No One Wants it Changed," he quotes at length from SAA's statement as well as from those of the Library Copyright Alliance and the American Library Association.  SAA sent a delegation to Washington DC to meet with the Copyright Office in early July including President Dennis Meissner and IPWG members Peter Hirtle and Jasmine Jones.

The SAA Annual Meeting in Atlanta (July 31-Aug 6) has lots of opportunities to talk about copyright with other archivists.  

June 2016

June 7, 2016:  The 4 day Summer Educational Institute for Visual Resources and Image Management at the University of North Carolina will kick off with a presentation by copyright expert Nancy Sims.  This session will include an update on Fair Use, new case law that may impact the use of images for education, specific digital and web issues, a vocabulary for professional use, and a discussion of specific examples.

May 2016

May 30, 2016:  A federal trial court in California in ABS Entertainment, Inc. v. CBS Corp, has held on summary judgment that remastering a pre-1972 sound recording is itself enough of a creative act to generate a new copyright in the derivative work.  We're concerned because it seems to call into question the rule that making an essentially duplicate copy, no matter how much "sweat of the brow" it entails, does not result in a copyrightable work.  

May 17, 2016:  Pamela Samuelson, in "Colleges Shouldn't Have to Deal With Copyright Monitoring," Chronicle of Higher Education discussed the unreasonable burden the court in the Georgia State University case placed at the door of colleges and universities to monitor faculty uploads to course repositories.

May 12, 2016:  The Belgian Cour de cassation decided that the right to be forgotten applies to electronic archives of newspapers in P.H. v. O.G. (in French).  This involves the suit of a person who was convicted after a traffic accident who wanted the notices about his conviction to be deleted from the newspaper archives.  This case demonstrates the grave danger the right to be forgotten poses to the archival (and the historical) endeavor.

May 9-13, 2016:  WIPO's Standing Committee on Copyright and Related Rights (SCCR) met in Geneva. (See Advice and Advocacy page for details on William Maher's representation of SAA).

May 10, 2016:  The American Library Association (ALA) Office for Information Technology Policy (OITP) named the Copyright Review Management System)—a product developed by staff at the University of Michigan’s HathiTrust digital library with the contributions of volunteers at libraries across the country— this year’s winner of the L. Ray Patterson Copyright Award.

May 2, 2016:  A new resource -- Copyright in Highter Education Elements Resources (CHEER) created by Furman University, Clemson University and the University of South Carolina offers a repository to share copyright education and awareness resources among higher ed institutions.

April 2016

April 26, 2016: Andrea Wallace (University of Glasgow) and Ronan Deazley (Queen's University Belfast) have created Display At Your Own Risk as a celebration of the extraordinary efforts of museums, galleries, and archives in making their collections available online. This project also explores the legal risks and challenges involved in making this digital cultural heritage available to all. The open source exhibition features 100 digital surrogates (a digital copy of an original cultural artifact created for preservation or archival purposes) selected from internationally-renowned institutions around the world, and invites and enables users to curate their own exhibitions.

April 18, 2016: A symposium entitled "Authors, Attribution, and Integrity:  Examining Moral Rights in the United States" was co-sponsored by the United States Copyright Office and George Mason University School of Law, will have proceedings published by the George Mason University Journal of International Commercial Law.  IPWG views the possible introduction of European moral rights concepts into the US copyright regime as damaging to the interests of the public and archives and libraries. We do not need to add another layer of rights to an environment already overly constrained.

April 14, 2016:  The Digital Public Library of America and Europeana launched  which has a goal of providing cultural heritage institutions with simple and standardized terms to summarize the copyright status of Works in their collections. provides 11 standardized rights statements that can be used by cultural heritage institutions to communicate the copyright and re-use status of digital objects to the public. Emily Gore and Greg Cram will present a two-part workshop webinar on May 10 and May 17 at 3:30 Eastern Time to explain the ambitions of the project.

April 14-15, 2016:  The Mayrent Institute for Yiddish Culture held a conference, World Records 2016 at the University of Wisconsin-Milwaukee, featuring in part, a talk by law professor Shubha Ghosh entitled, "Sound Recording Copyright and the Road to Digitization." 

April 12, 2016:  Some of us are reading Bruce Epperson's recent article in the John Marshall IP Law Review, entitled, "From the Statute of Anne to Z.Z. Top: The Strange World of American Sound Recordings, How It Came About, and Why It Will Never Go Away." 15 J. Marshall Rev. Intell. Prop. 1 (2015).

April 8, 2016:  At the 2015 Copyright Update session at SAA's Annual Meeting IPWG member David Sutton pointed to the British Library's Spare Rib website as an important implementation of the UK's new Orphan Works legislation.  Since then, however, the BL has scaled back its reliance on this provision, and has redacted 20% of the issues of this early feminist publication, pending solicitation of permissions from authors.

March 2016

IPWG member Heather Briston and OCLC Research's Merrilee Proffitt published "Time to Open Up:  The Why and How of Opening Up Archival Finding Aids and the Unintended Consequences of Being Closed" in the March/April 2016 issue of Archival Outlook (at p. 11).

March 24, 2016: A recent case may have implications for allocation of copyrights in oral histories and radio interviews.  Eriq Gardner covers the Lost Boys Foundation v. Alcon Entertainment lawsuit for the Hollywood Reporter in "Judge Lets 54 Sudanese Refugees Pursue Copyright and Fraud Claims Over Reese Witherspoon Film." The plaintiffs claimed they were joint authors of taped interviews containing their life stories (which were the basis of the screenplay).  They excused their lack of copyright registrations by blaming the other side's refusal to provide a copy to them to deposit with the Copyright Office.  The judge dismissed the complaint giving the plaintiff a chance to amend, but in the interim granted injunctive relief and allowed discovery to proceed.  It seems likely that the case will settle, but if the case proceeds, it could have interesting implications.

March 21, 2016:  Eleonora Rosati at IPKat provides a thorough summary of the UK case England and Wales Cricket Board Ltd & Anor v. Tixdaq Ltd & Anor in the blog post, "Unauthorized reproduction and making available of 8-second clips of sports events? A copyright infringement, rules Arnold J." The defendants operated a Vine-inspired app that allowed users to share 8 second sports news snippets. They defended a claim of infringement as fair dealing for the purpose of reporting current events and lost.

March 18, 2016:  The Program on Information Justice and Intellectual Property at American University's Washington School of Law presented a symposium entitled International and Comparative User Rights in the Digital Economy.  

February 2016

February 22, 2016:  An interesting new paper by Jonathan Band comparing EU and US approaches to orphan works, “Thanks, but No Thanks: Evolving Library Perspectives on Orphan Works Legislation in the European Union and the United States"  discusses how US libraries (and archives) have decided to follow a fair use approach to making orphan works available.

February 22-26, 2016:  Fair Use/Fair Dealing Week 2016

January 2016

January 28, 2016:  The US Department of Commerce recommends minor changes to statutory damages provisions in the Copyright Act in its "White Paper on Remixes, First Sale, and Statutory Damages."

January 22, 2016:  Erin Engle, "Intellectucal Property Rights Issues for Software Emulation:  An Interview with Euan Cochrane, Zach Vowel and Jessica Meyerson," The Signal, Library of Congress.

December 2015

December 17, 2015: A decision from the Southern District of New York in TCA Television Corp. v. McCollum concerns whether the play, "Hand to God" infringed on the copyright in Abbott and Costello's "Who's on First" routine.  The court found it to be a fair use.

November 2015

November 13, 2015:  Hey that's the IPWG in Archival Outlook! David Sutton, Heather Briston, Peter Hirtle and William Maher delivered our bi-annual Copyright Legislation and Litigation Update session at the meeting in Cleveland this year.

David Sutton, Heather Briston, Peter Hirtle and William Maher give Copyright Update at SAA Annual Conference 

November 12, 2015:  Judge Pierre N. Leval of the US Court of Appeals for the Second Circuit spoke on "Fair Use in the Digital Age:  Reflections on the Fair Use Doctrine in Copyright Law," at American University's Washington School of Law.  Brandon Butler wrote an excellent synopsis of the lecture for TechDirt, with his own charming illustrations.  IPWG's Peter Hirtle, said of the talk: "What I loved was Leval’s spirited defense of his decisions in the Salinger and L. Ron Hubbard cases.  Basically he said that you can’t do history if you can’t quote unpublished material, and argued that the appellate court had gotten things very, very wrong. . .What does it mean for us?  I continue to wonder if limited access to unpublished copyrighted works via a 'virtual reading room' scenario might be ok in Leval’s world. "

October 2015

October 16, 2015: Google wins a complete victory before the Second Circuit where its book scanning project is ruled to constitute a transformative fair use.  Google scanned millions of books without permission from the copyright holders, providing searchers snippets of text that show that individual books may answer a research need.  Providing an index in this way was ruled to be a transformative fair use.

October 14, 2015:  The WIPO General Assembly met in Geneva, Switzerland October 5-14, 2015.  There was some talk that the work of the Standing Committee on Copyright and Related Rights would discontinue work on a treaty on exceptions to copyright for libraries and archives.  Happily, that did not transpire.  Instead, the 31st meeting on the SCCR will occur as planned in Geneva, December 7-11, 2015.  Although SAA did not send a representative to the General Assembly, IFLA represented our interests by arguing that the proposed treaty should remain on the agenda.  The best coverage of the meeting can be found at Intellectual Property Watch.

October 13, 2015:  Should the Copyright Office be removed from the Library of Congress?  Steven Tepp & Ralph Oman argue that it should in their Hudson Institute whitepaper, "A 21st Century Copyright Office:  The Conservative Case for Reform."  They claim that because of the current organizational structure the library interest group exerts too much power in shaping copyright policy.  Hmmm. Guess they don't live in our world!

October 9, 2015:  Wikileaks has released the text of what is believed to be the current and essentially final version of the intellectual property chapter of the Trans-Pacific Partnership agreement. Krista Cox, director of public policy initiatives for ARL authored a helpful analysis of the treaty as it relates to libraries.  Prior to the relase of this text, SAA released its own Issue Brief opposing the TPP. Some of the provisions which SAA had most feared are NOT included in the final text.  For example, the term of copyright was fixed at life of the author plus 70 years, not extended to life of the author plus 100 years as was indicated as possible outcome in the leaked May 2015 draft. 

October 7, 2015:  Jennifer Rothman of Loyala Law School, Los Angeles has a forthcoming book, from Harvard University Press entitled A Right is Born:  The Right of Publicity, Celebrity and Privacy in a Public World.  She has created a terrific website that maps differences from state to state in Rothman's Roadmap to the Right of Publicity.

September 2015

September 25, 2015:  Dave Hansen's guest article for the DPLA Blog encourages comments on the Copyright Office's proposed Mass Digitization Pilot.  He explicitly links to SAA's submitted comment.  Other important linkers to our comment include BoingBoing's Cory Doctorow and Teleread.

September 23, 2015:  Ninth Circuit opinion in DC Comics v. Towle rules that the batmobile is a character that should be afforded copyright protection.  Therefore, someone who made replica batmobiles without permission of DC Comics engaged in copyright infringement.

Franky Abbott of the Digital Public Library of America is creating short modules to aid institutions that are engaging in digitization projects.  One of the modules is titled "Understanding Copyright," and consists of an hour long lecture with slides.  It is intended for a beginner audience.

September 17, 2015:  In a symposium entitled "Public Interest Copyright Advocacy and Fair Use Education: 1995-2015" at the American University Washington College of Law, our own UCLA University Archivist Heather Briston presented on the topic of Best Practices in Fair Use.

September 14, 2015:  Remember the "dancing baby" case?  This is the one where mother Stephanie Lenz posted on YouTube a home video of her child dancing to Prince's song "Let's Go Crazy" and Universal Music sent her a takedown notice?  Well, hooray, it has finally been resolved by the Ninth Circuit in the opinion, Lenz v. Universal Music Corp.  The court held in Lenz's favor that copyright holders must consider fair use before issuing takedown notices for content posted on the internet.

September 1, 2015:  A new ePub, entitled Rights and Reproductions:  The Handbook for Cultural Institutions has been published by the Indianapolis Museum of Art and the American Alliance of Museums.

August 2015

August 25, 2015:  A new opinion of the US District Court for the Southern District of New York in Fox News Network v. TVEyes has some text that supports archives.  The court held that "archiving" is a fair use where users are permitted to "archive" clips to their personal storage space and keep them indefinitely.  The court noted that "TVEyes is transformative because it 'convert[s] copyrighted works into a research tool to further learning," allowing its subscribers to 'research, critici[ze], and comment.'"  Archives might argue that we convert our holdings into a research tool for further learning when we digitize them.  Another good quote from the opinion:  "Democracy works best when public discourse is vibrant and debate thriving.  But debate cannot thrive when the message itself (in this case, the broadcast) disappears after airing into an abyss."  

You want to know what to be really frightened about?  The possibility that the Trans Pacific Partnership Agreement (you know, the one that is being negotiated in secret?) will include provisions that signatory countries must extend the term of copyright to life of the author plus 100 years. Or that it could lock in our current provision of life plus 70 and make it nearly impossible for future legislatures to roll back.  On August 5 KEI leaked a copy of the draft agreement as it stood in May 2015.  

Krista Cox has posted a good analysis of the terms as they apply to libraries on the ARL blog.  Jamie Love, of KEI, released his own statement and notes that the proposed copyright remedies would prevent Congress from limiting remedies for infringement in cases of Orphan Works proposed in the Copyright Office's June 2015 report. Back in 2013, SAA was one of a number of organizations that joined a lobbying effort to discourage the extension of the term of copyrightin TPP, but the secrecy of the negotiations makes political action difficult.

Why is this particularly frightening?  Because in June President Obama received Fast Track authority to bypass Congressional oversight in negotiating the agreement.  Legislators will not be able make amendments but will have a limited time for an up or down vote on the entire trade agreement.  The Fast Track procedures require that the bill must be introduced in the House immediately after it is transmitted by the president, and would have to go through the entire committee and debate process for both houses within 90 days.  Filibuster is expressly prohibited.  

Here's an article by Matthew Rimmer of Queensland University of Technology with an Australian perspective on the agreement.

August 6, 2015:  A CopyTalk webinar entitled "University Copyright Services" hosted by the Office for Information Technology Policy's Copyright Education Subcommittee featured Sandra Enimil, Program Director, University Libraries Copyright Resources Center from Ohio State University, Pia Hunter, Visiting Assistant Professor and Copyright and Reserve Librarian from the University of Illinois at Chicago, and Cindy Kristof, Head of Copyright and Document Services from Kent State University.  CopyTalk webinars occur on the first Thursday of every month at 11am Pacific/2pm Eastern.

July 2015

July 2, 2015:  Will the Copyright Office break away from the Library of Congress?  A bill, called the Copyright Office for the Digital Economy (CODE) Act is being sponsored by Rep. Chu from California and Rep. Marino of Pennsylvania.  Kevin Smith provides a good analysis of the issues surrounding the proposed move in a Library Journal article, arguing that the only "problem" that such a move would solve would be to free the Copyright Office from "antiquated notions of 'promoting the progress of science and the useful arts'" by allowing it to be more "subservient to the desires of the publishing and entertainment industry for a stronger monopoly."

SCCR30 at WIPO in Geneva (June 29 - July 3) once again discussed library and archives exceptions to copyright and IPWG member Bill Maher was there to represent SAA.  Although the delegates sensed that progress had been achieved, the meeting did not manage to agree on recommendations to be delivered to the WIPO General Assembly in October. (See, Catherine Saez, Intellectual Property Watch, "No Directions for WIPO Copyright Committee, Despite Positive Mood."Bill's public statement emphasized the value of uniform standards to allow preservation copying. Here is the slightly buggy transcribed statement of the United States representative.

June 2015

June 14, 2014: Back in 1997 Congress extended Mickey Mouse's copyright for twenty more years.  In 2017 will the term of copyright be extended once again?  Not if SAA has anything to say about it!  Robert Brauneis's new article, "A Brief Illustrated Chronicle of Retroactive Copyright Term Extension" shows that the last time someone published something and actually received the maximum copyright term expected on the date of publication was on 1 July 1867.  From that day forward, everyone has gotten a longer term of protection. Let's make sure it doesn't happen again!

June 12, 2015: Kenneth Crews authored an internationally influential study on library and archives exceptions to copyright back in 2008 and updated it in 2014.  Now he has prepared a new version in preparation for the 30th meeting of the Standing Committee on Copyright and Related Rights at WIPO.

Two opportunities for public comment have been posted by the Copyright Office:  on Mass Digitization (comments due August 10), and on Visual Works (comments due July 23).  Stay tuned for SAA's official response.

So on June 4 the Copyright Office released a new report on Orphan Works and Mass Digitization, but don't get your hopes up. Mike Masnick and Kevin Smith have weighed in with spot-on comments.


May 2015

Can archivists and digital librarians in different countries agree on standard metadata to express rights status?  It's a tall order, but representatives from Europeana, DPLA and Creative Commons have put together two white papers that make recommendations for establishing a group of rights statements.  They are actively soliciting feedback untl June 26.

There's a new coalition in town that archivists should be aware of -- ReCreate: Innovators, Creators and Consumers United for Balanced Copyright (what a great acronym!)  Member organizations include ARL, ALA, Center for Democracy & Technology, Computer & Communications Industry Association, Consumer Electronics Association, Electronic Frontier Foundation, Media Democracy Fund, New America's Open Technology Institute, Public Knowlege and R Street Institute. ReCreate has advanced an agenda that supports innovators, creators and consumers. Go to their website and sign up on their mailing list to get regular updates and information about events (happy hour if you're in DC).

April 2015

Joseph Goebbel's estate is suing Random House imprint Siedler over the use of his diaries in the book, Goebbels, (2010) by Peter Longerich. The arguments to be heard on April 23.  The author notes: "If you accept that a private person controls the rights to Goebbels' diaries, then - theoretically -- you give this person the right to control research."

You'd think that the New York Times would understand the concepts of newsworthiness and Fair Use as applied to the Walter Scott video, but apparently not.  See, the Forbes comment by Sarah Jeong, posted 4/17/2015.

A Broadway play called "3C" that parodies the old "Three's Company" television show was a "highly transformative parody of the television series" and represented a significant enough departure to pose "little risk to the market for the original," according to the court of the Southen District of New York.  In a New York Times article the lawyer for the playwright stated that the ruling "shows a continuing evolution of courts being comfortable with fair use and recognizing it."

March 2015

Give your Fair Use skills a workout with this quiz, published by MIT libraries.

IPWG members are authors!  

  • Jean Dryden's pamphlet "Demystifying Copyright: A Researcher's Guide to Copyright in Canadian Libraries and Archives" has been published. It has been completely revised and updated to the 2012 amendments and the case law supporting fair dealing. It can be ordered from the Canadian Library Association at

  • Heather Briston and Aprille McKay, together with colleague Menzi Behrnd-Klodt have published Rights in the Digital Era, with a foreword by Peter Hirtle.  The volume is part of SAA's Trends in Archival Practice Series, and can be purchased from the SAA bookstore.

February 2015

Brandy Karl, Copyright Officer, Penn State University Libraries in her blog post, Recontextualizing History:  Fair Use in Archives #WeAreFairUse argues that scrapbooking is a recontextualizing activity and thus digitizing them is a protected fair use. 

December 2014

December 16, 2014:   In Devil's Advocate, LLC v. Zurich American Insurance Co., a dispute arose over a litigant submitting copies of an expert witness' resume as part of a court filing.  The expert witness claimed that his copyright was infringed.  The court held that this was a fair use.  First, it held that the purpose of this use (a court filing providing notice of a potential expert witness) was different than a resume's primary purpose, which is to secure a job for the writer.  The nature of the work was primarily factual, and thus favored a finding of fair use.  Although the whole resume was copied, the court held amount and substantiality of the use did not prevent a finding of fair use because it served an important judicial function.  Finally, the court found that the impact on the potential market for the resume was non-existent.

In connection with the Standing Committee on Copyright and Related Rights (SCCR) at WIPO, Ken Crews has updated and expanded his 2008 report comparing the statutes of WIPO member states as to exceptions for libraries and archives.  For more information about SAA's participation in the debate about a possible international agreement, see the IPWG's Advice and Advocacy page.

IFLA has issued new annual reports on copyright activities related to libraries and archives in various countries.  The reports include changes in national copyright legislation, lobbying and educational activities, law cases and strategic plans.  The report for the United States was prepared by Janice T. Pilch and Tomas D. Lipinski and covers the period Aug. 1, 2013 - July 24, 2014.

October 2014

October 17, 2014.  The 11th Circuit Court of Appeals has overturned the Georgia State University e-reserves case.  Some excerpts from the Court's opinion:

Thus, we are persuaded that, despite the recent focus on transformativeness under the first factor, use for teaching purposes by a nonprofit, educational institution such as Defendants’ favors a finding of fair use under the first factor, despite the nontransformative nature of the use.

The District Court’s blanket 10 percent-or-one-chapter benchmark was improper. The fair use analysis must be performed on a case-bycase/ work-by-work basis.

As previously explained, licensing poses a particular threat that the fair use analysis will become circular, and Plaintiffs may not head off a defense of fair use by complaining that every potential licensing opportunity represents a potential market for purposes of the fourth fair use factor.

See, coverage in TechDirt.

October 15, 2014.  William Maher, IPWG member and SAA's representative at WIPO presented the paper "Can Archives and the Creative Industries Coexist?  The Need to Create Breathing Room for Archives," at ICA's meeting in Girona, Italy.  Intentionally provocative, Maher gives specific examples where the archival mission directly conflicts with copyright law.  He urges archivists everywhere to contact the ministers responsible for intellectual property in their counties to impress upon them how important it is to create archival exceptions to copyright.

June 2014

The Digital Public Library of America (DLPA) has announced that it will receive a $300,000 grant from the John S. and James L. Knight Foundation for its “Getting it Right on Rights” project.  DPLA willl create a simplified and more coherent rights structure for digital items, making access to, and use of, items found in large scale digital collections easier and more straightforward for users.  Full info:

June 10, 2014.  Hot off the press -- the 2nd Circuit rules in favor of HathiTrust in the appeal of the Authors Guild case!

April 2014

The House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet had a hearing on the Preservation and Reuse of Copyrighted Works on April 2.  Witnesses included Gregory Lukow, Richard Rudick, James Neal, Jan Constantine, Michael Donaldson and Jeffrey Sedlik.

March 2014

On March 10 and 11, the Library of Congress held a Roundtable on Orphan Works and Mass Digitization.  IPWG members Eric Harbeson and Jean Dryden attended as the official representatives of SAA.  We had originally submitted comments on the topic back in January of 2013 and Dryden and Harbeson relied heavily on the recently approved advocacy position brief on Orphan Works.

Kevin Smith, "Nimmer on infringement 2.0" Scholarly Communications @ Duke, Mar. 30, 2014, reviewing and summarizing copyright treatise author David Nimmer's Frey Lecture on Intellectual Property at Duke, "Infringement 2.0."  Smith summarized the most intriguing piece of Nimmer's talk as follows:

He asserted that the foundational principles of international copyright agreements -- the prohibition of formalities and so-called "national treatment" -- simply do not make sense in the Internet age, where potential copyright infringements nearly always cross national borders, and copyright owners are often impossible to locate.  He suggested that this out-dated approach be replaced by something the U.N. and the W.I.P.O. could do very well -- a searchable worldwide registry for copyright owners that Nimmer called a "panopticon."

The Digital Public Library of America has submitted a proposal to the Knight News Challenge to develop rights metadata that governs digitized reproductions.  The effort is led by Dan Cohen, Emily Gore and Paul Keller. There is much to love in their statement about who would benefit from such work:

The main beneficiary of the project is the general public, which yearns for clear indicators of unfettered access to historically significant content for education, enlightenment, research, and pleasure. The public already widely uses digitized content of the type found in these national and international digital libraries, in schools and at home, for serious work and for fun in venues like social media. The institutions involved—libraries, archives, and museums, and cultural heritage sites—will also benefit from much clearer guidance about the kinds of rights designations that should be assigned to the items in their collections as these collections inexorably go online.

 February 2014

The ARL Policy Notes Blog reports on recommendations issued by the Australian Law Reform Commission for changes to Australian copyright law.  One recommendation is that Australia adopt the fair use or significantly revise the current fair dealing provision.  Another recommendation is to prohibit contractual provisions that restrict libraries and archives from exercising specific library and archives exceptions.  This last recommendation is one which is also currently under consideration by the Standing Committee on Copyright and Related Rights as it considers the creation of an international instrument (perhaps a treaty) in a series of meetings at WIPO this year.

December 2013

Victoria Stobo, Ronan Deazley and Ian Anderson, Copyright & Risk:  Scoping the Wellcome Digital Library Project (Dec. 2013)

November 2013

Hooray!  Google wins its suit against the Authors' Guild.  Here's the opinion of Judge Denny Chin of the Southern District of New York.

The Department of Commerce recently issued a Green Paper on Copyright Policy, Creativity and Innovation in the Digital Economy and invited public comments.  Comments submitted by the Library Copyright Alliance reflect some of the concerns that archivsts would have with this change.

October 2013

Columbia University's Wiener Music & Arts Library held an event, "The New York Philharmonic Digital Archives:  Fair Use online and New Sources for Digital Humanities."  A video of the discussion features Jane Ginsburg (at about 24:30) taliking about the copyright issues associated with the project.  She concludes that digitizing the archives is a fair use and cites two major reasons.  First, the archives has made a good-faith effort to prevent users from using the digitized scores as substitutes for published ones by using TPM's.  Second, she acknowledges that public policy favors this sort of endeavor.

September 2013

The IPWG's own Peter Hirtle will be among the speakers on September 27 at a symposium of the UK's Archives & Records Association called "Archives and Copyright:  Developing an Agenda on Reform."  Other speakers include Simon Chaplin, Ronan Deazley, Lesley Richmond, Robin Stout and Tim Padfield.

The TIMBUS project is offering a half-day tutorial at the 10th International Conference on Preservation of Digital Objects (iPres) 2013 in Lisbon, Portugal on 2 September 2013:  Legal Challenges in the Preservation Lifecycle -- How to Address and how to Solve them!.  The presentation will focus on legal issues in digital preservation and European copyright and data protection laws.  The instructors, Rihards Gulbis, Barbara Kolany, Silviya Yankova, Elisabeth Weigl and Daniel Draws hail from Latvia, Austria and Germany.

Yxta Maya Murray, "From here I saw what happened and I cried:  Carrie Mae Weems' challenge to the Harvard archive" in 8 Unbound: Harvard Journal of the Legal Left, and Loyala-LA Legal Studies Paper No. 2013-31, Sept. 11, 2013

August 2013

Come see Tulane Law Professor Elizabeth Townsend-Gard and archivists William Maher and Peter Hirtle discuss the latest news archivists need to know about copyright litigation and legislation 8-9:30am on Saturday, August 17 at SAA's annual meeting in Grand Ballroom D, Hilton New Orleans Riverside.

July 2013

A nine-word Faulkner quote in the Woody Allen movie, "Midnight in Paris," is Fair Use, according to a federal judge in Missisippi.  In the 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."  See the ruling, in Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc.

Marcella Favale, et al. Copyright, and the Regulation of Orphan Works:  A comparative review of seven jurisdictions and a rights clearance simulation, UK Intellectual Property Office.

June 2013

June 28, 2013 delegates to the World Intellectual Property Organization (WIPO) adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled.  51 member states signed the treaty and 129 signed the final act of the treaty. Signing the treaty at the end of a diplomatic conference does not necessarily bind a country to its provisions.. The treaty enters into force once it has received 20 ratifications.

Hooray!  It's finally happened -- someone is challenging Warner Chappell in its claim to own the rights to Happy Birthday.  The case looks pretty good, too!   See, Eriq Gardner, 'Happy Birthday' for All:  Filmmaker Aims to Free Song from Copyright Grip, The Hollywood Reprter, June 13, 2013.

Congress is gearing up for a comprehensive review of copyright law.  We know the law needs to be updated to recognize digital realitiies, but the parties opposuing greater public access are strong ones.  See comments by Registrar of Copyrights Maria Pallente.  House Judiciary Chairman Bob Goodlatte (R-Virginia) has begun holding hearings.  

May 2013

IPWG member Jean Dryden has a new article out:  "Cavalier or Careful?  How Users Approach the Rights Management Practices of Archival Repositories," Journal of Archival Organization, 10: 3-4 (2012).  It presents a user study about how researchers view the copyright-like restrictions archives sometimes place on their holdings and the extent to which they want to be educated about copyright.  She also gave a paper at ACRL:  "But are the Grateful?  Educating Online Users about Copyright?"

An excellent New York Time's article, "Masterworks for One and All" by Nina Siegal (May 29, 2013), details the Rijksmueum's decision to forego reproduction and use fees and provide downloads of high-resolution images to the public for free.

April 2013

University of Chicago law professor Randy Picker has turned his mind to an issue archivists think about often -- the difference in how copyright and terms of use regulate reuse of intellectual works in the public domain.  See his presentation of this published paper, "Access and the Public Domain", University of Chicago Institute for Law & Economics Olin Research Paper No. 631 (February 8, 2013).

March 2013

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,", 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.

February 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.

December 2012

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. 

November 2012

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,", 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. 

October 2012

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,", 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!

September 2012

"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.

August 2012

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.  

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."  

July 2012

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).  

"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).  

June 2012

Research Library Issues 279:  Special Issue on Special Collections and Archives in the Digital Age. June 2012

  • 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.

May 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'", May 7, 2012.  The National Library of Ireland has put its collection of James Joyce manuscripts online.

April 2012

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.

Berkeley Law School hosted an Orphan Works Symposium, April 12-13, 2012. In preparation for the symposium, the Berkeley Digital Library Copyright Project issued a series of white papers.

  • 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.  

March 2012

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:  

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.

January 2012

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.

December 2011

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.

November 2011

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.

October 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.

September 2011

HathiTrust lawsuit:

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.

July 2011

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)

June 2011

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,", 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,", 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,", June 3-6, 2011.

copyright_reform_2.pdf202.45 KB
Opinion.pdf386.71 KB
SAA-Statement-PreservationTopic.pdf12.31 KB
AGvGoogle.pdf333.42 KB
2015-08-25_tveyes-opinion.pdf294.75 KB
TC Television v McCollum.pdf408.01 KB
C.D.Cal_._2-15-cv-06257_104_0.pdf151.81 KB
Droit a l'oubli arret.pdf166.01 KB
Copyright Reform White Paper.pdf111.54 KB
CA9 Amicus Brief FINAL.PDF339.98 KB
CCA-CopyrightBriefEN_August28-2018.pdf800.87 KB