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Transformative Use of Video Gets Another Win with DMCA Rulemaking
The Librarian of Congress has just released the most recent round of exemptions to the anti-circumvention provision of the Digital Millennium Copyright Act. During prior rulemaking rounds, the Librarian has carved out exceptions for the use of clips from DVDs for educational purposes, initially by film studies professors only but then expanded to faculty from any discipline. In this most recent round of rulemaking, the Librarian has recognized an exemption “where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.” The Librarian clarified, however, that the exemptions do not apply to the use of motion picture excerpts in fictional films, as the Register of Copyrights was unable to conclude that such use is noninfringing. In the Notice, the Librarian explains:
[The Register of Copyright] noted that such uses fall within the favored purposes referenced in the preamble of Section 107 and, especially in light of the brevity of the excerpts used, are likely to be fair uses. More specifically, the Register determined that the proposed uses tended to be transformative in nature, employing short clips for purposes of criticism, comment, teaching, and/or scholarship, rather than for the works’ originally intended purpose. Despite thecommercial aspect of uses by documentary filmmakers and multimedia ebook authors, the Register noted that when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard. While the Register did not conclude that a court would find each and every one of proponents’ examples to be transformative, she did find that
the record amply supported the conclusion that a substantial number of the proffered examples likely would be considered transformative fair uses.
The Librarian further noted that the Register found no merit to opponents contention that licensing or screen capture technology should be utilized to accomplish the desired uses. Requiring licensing for the use of clips for the stated purposes would be contrary to judicial precedence of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) that such transformative uses were fair uses of copyrighted works.
Three Strikes: Are Publishers Finally Out in Frivolous Litigation Against Libraries?
Publishers and distributors of copyrighted content have struck out in their attack on libraries and fair use. First, in May, the copyright infringement lawsuit filed by several publishers against Georgia State University for its e-reserves practices was decided in favor of fair use (and the University). Then, in late September, the re-filed action against UCLA by AIME was dismissed, again, for lack of subject matter jurisdiction and failure to state a claim (a written order is forthcoming, which should state whether this time dismissal was with prejudice). Now, last week, the trial court in the suit filed against HathiTrust and several universities by the Authors Guild found in favor of the former in a copyright infringement action challenging their mass digitization project.
At issue in the Authors Guild’s lawsuit against HathiTrust and the universities was the creation, with the assistance of Google, of a shared digital repository of nearly 10 million works, the majority of which are still protected by copyright. The digital scans were used for three specific uses: (1) keyword searching of full text scans without display of the full text for purposes of identifying relevant works, (2) preservation of works in the event of deterioration or natural disaster, and (3) provision of access to works for persons with print-disabilities. The trial court refused to weigh the merits of the orphan works project, which was also challenged by the Author’s Guild, because that project was not yet fully functional and usable and thus not ripe for adjudication. Assessing and weighing the four factors of § 107 of the Copyright Act, the trial court found that the three uses qualified as fair uses of the copyrighted works:
Purpose and Character of the Use
The trial court found that the stated goals of the three uses of the digital scans — scholarship and research, preservation, and access by persons with disabilities — tilted significantly in favor of those uses. Further, the uses were transformative because the digital scans served an entirely different purpose than the original copyrighted works.
Nature of the Copyrighted Works
The trial court acknowledged that the majority of the works scanned were fiction or otherwise creative in nature (a distinction from the facts of the Georgia State University lawsuit) and that use of creative works was less likely to be fair use than use of factual works. However, the transformative uses of the digital scans weighed this factor in favor of HathiTrust.
Amount of the Works Copied
Although fair use typically favors using small and limited portions of copyrighted works, the use of the entire work is fair where necessary to carry out the stated purposes in this case — facilitation of keyword searching and access for individuals with a print-disability.
Impact on the Market for or the Value of the Works
Author’s Guild’s argument that economic harm would result from the defendants’ uses was based largely on speculation. No present collective licensing scheme existed for the large body of works that had been scanned nor was it likely that an economically viable scheme would exist in the near-future. Further, there was no evidence that the digital scans could easily be accessed by anyone, and thus result in avoiding purchase of a copy of the work, through circumvention of the security in place. Rather, the full-text works were only accessible by those print-disabled individuals with authorization and only snippets of the scans were available to those doing full-text searches.
While the fair use ruling is a critical one, another important holding in the trial court’s judgment is the determination that a university is an “authorized entity” under the Chafee Amendment (§ 121 of the Copyright Act). The Association of American Publishers has argued that universities and academic libraries are not “authorized entities” and thus cannot under § 121 provide full text copies of copyrighted works to persons with disabilities for their use. This ruling not only resolves this issue but also lends further credence to the Code of Best Practices in Fair Use for Academic and Research Libraries, which states that academic libraries may provide materials to persons with print-disabilities under fair use.
With these three important rulings in favor of libraries and fair use, one hopes that publishers will take a step back and reevaluate their complaints and reassess the importance of partnering with libraries instead of working against them.
Across the Border and Across the Pond
Important copyright and open access news has come out of Canada and the UK in the past several days:
Supreme Court of Canada Issues Several Copyright Rulings
On July 12th, the Supreme Court of Canada issued its rulings in five separate copyright cases. Four of the five cases concerned music royalties and the fifth case concerned the charge of royalties for photocopying short excerpts of works for use in education. (The controversy over assessment of this tariff was previously discussed on this blog.) In sum, the Court’s rulings established a broader reading of “fair dealing” — a phrase nearly equivalent to “fair use” under U.S. copyright law. Specifically, the Court held that photocopying textbooks for or by students for private study, even if in the context of instruction, or research is fair dealing, thereby dismantling the expensive licensing scheme put into place by Canada’s version of the CCC, Access Copyright. Duke University Scholarly Communications Officer Kevin Smith made a nice analogy of the Canadian Court’s ruling to the recent decision in the Georgia State University e-reserves case. He writes:
Another important part of these decision about instructional copying is that [Supreme Court of Canada] Justice Abella found little or no harm to the market for published work caused by this copying. The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales. This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses. I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional revenue stream for publishers is.
The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case. The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not. By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us. In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study. In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience. Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.
UK and EC Mandate Open Access for Government Funded Research
The Research Councils of the United Kingdom (RCUK), a body representing the UK’s seven government-funded grant agencies, announced on July 16th that it had approved a policy mandating that all publications produced from grant funded research have to be made public 6 months after publication beginning in April 2013. (The blog for the journal Nature provides a great summary of the policy and its effects.) A day later the European Commission announced that it would similarly mandate open access. Its proposal endeavors to open up all the work funded by its Horizon 2020 research program, set to run in the European Union from 2014 to 2020 and disburse €80 billion (US$98.3 billion). The EC says that it is aiming for 60% of all European publicly funded research articles to be open access by 2016. Meanwhile, in the United States, the National Institutes of Health remains the sole federal agency mandating open access for grant funded research, and a bill (FRPAA) proposing to expand this mandate to all federal agencies remains in limbo until after the November 2012 elections.
At Long Last…a Decision in Georgia
Four years since the filing, one year since the trial, and 350 pages of opinion later…we have an opinion in the closely watched copyright infringement action against Georgia State University. The case pitted prolific academic publishers Sage, Cambridge and Oxford against the GSU provost, Library Dean and others, with the publishers claiming that the policy and practice of GSU’s Library allowed faculty to post, in violation of the publishers’ copyrights, scans of book chapters in the University’s e-reserve and course management systems. In response, GSU contended that its actions fell within the Fair Use provision of the Copyright Act, which the publishers contended that the postings, in the absence of permission or payment of license fees, far exceeded the bounds of fair use, which they argued were defined by outdated guidelines. In the end, the judge found largely in favor of GSU, and in doing so, she crafted a fair use framework (although for the time-being is only legally binding upon persons living in the Northern District of Georgia) that libraries and publishers alike will be analyzing and implementing in the months to come.
The Fair Use Framework of the GSU Case
Under §107 of the Copyright Act, a use of a copyrighted work without permission of the copyright holder is permissible when such use is for the purposes of teaching, research, commentary, news reporting, parody, or criticism, and the balance of four enumerated factors weighs in favor of a finding of fair use. Those four factors as set forth in the statute are: (1) the purpose and nature of the use, (2) the nature of the copyrighted work being used, (3) the quantity of the copyright work being used, and (4) the effect of the use upon the potential market. The application of these four factors to the posting of copyrighted works to electronic reserves systems has long been the subject of scholarly debate; however, this case is the first time that a court has undertaken to apply the fair use factors to such use. The judge’s application of the fair use factors in the context of e-reserves can be summarized as follows:
Purpose and Nature of Use – Because a college or university’s library is a non-profit and educational user, the court found that this factor weighed heavily in favor of a finding of fair use.
Nature of the Copyrighted Work: Because the works at issue in the case were all scholarly, non-fiction works (and many of them reference-type handbooks), the court found that this factor also weighed in favor of a finding fair use.
Quantity of the Copyrighted Work Being Used: Most of the excerpts posted in GSU’s course reserves were 10% or less of the book. The court held that this factor weighs in favor of fair use where no more than 10% of a work with less than 10 chapters or no more than one single chapter in works of more than 10 chapters is used. In amounts greater than this, this factor weighs in favor of the copyright holders. The court also reiterated that where the portion used represents the “heart of the work,” the balance tips in favor of the copyright holder.
Effect Upon the Potential Market for the Work – Where there is a reasonably priced and readily available license for a digital excerpt of the copyrighted work, this factor tips in favor of the copyright holder. This factor also weighs in favor of the copyright holder where the amount used is so great that it substitutes purchase of the entire work.
Answers, Yes, but Also More Questions
Through her careful reasoning and explanation, the judge in the GSU case answered many questions that have been pondered by copyright scholars and academic library practitioners. In particular, she held:
- The posting of copyrighted works in an electronic reserve or course management system is not analogous to the production of print course packs by a copy shop or other commercial entity. Thus, many points in the Kinkos case are not applicable to e-reserves.
- The posting of copyrighted materials in an e-reserve system is not a transformative use. In recent years, a finding of transformativeness has been key to deciding fair use cases.
- The 1976 Classroom Photocopying Guidelines are too restrictive and thus inconsistent with fair use. Further, the judge expressly rejected the “subsequent semester” rule that is an outgrowth of the Classroom Guidelines. Thus, use of the same excerpts for a course from one semester to the next does not mitigate against a finding of fair use.
- No or minimal use can mean no infringement. Where items posted to course reserves are never accessed by students, there is no infringement.
- When calculating the number of pages in a work (for purposes of determining what constitutes 10%), the entire work is counted, including the table of contents, foreword, and index pages.
However, the decision also left scholars and librarians with more questions to ponder:
- What about journal articles, images, videos, etc? The decision in GSU only dealt with monographs; however, many faculty utilize these other categories of works in their courses and request their institution’s library to post these materials in the course reserve system.
- What constitutes a “readily available and reasonably priced” license? And, if the copyright holder does not have a license or permission system available for the work or its excerpts, does this mean its fair use to use it anyway? In the wake of this decision, more publishers will likely either contract with Copyright Clearance Center or invest in devising their own license and permission systems. Does this mean libraries will end up paying more for less?
It will be interesting to see what answers folks on all sides off these issues will propose in the weeks to come and what the next moves of the publishers and their litigation funders will be in response to the judgment.
There is Strength in Numbers, But is There Also Change?
Whether it began with the civil rights marches of the 60s or the Vietnam War protests of the 70s, the modern method of working to bring about change is by communities of like-minded or similarly-situated citizens joining in a single act of defiance of an identified “evil.” Last year we witnessed the rise of the “Occupy Wall Street” movement, a gathering of citizens in protest to the greed and corruption in the financial sector of our society. Although the movement has received much attention in the press and experienced expansion and presence in cities across the country, there is question of whether this collective activity can bring about real change. Similarly, researchers, librarians, and other academics have been engaged in collective action intended to bring about a change in proposed and existing intellectual property laws, including copyright and fair use.
Last fall, two separate bills (the Stop Online Piracy Act or SOPA and the PROTECT IP Act or PIPA) were introduced in Congress to address the problem of copyright infringement online. The bills’ opponents claimed that the net effect of the enforcement scheme outlined in the bills was a violation of First Amendment freedoms. On January 18th, nearly 50,000 web sites intentionally went dark in protest to SOPA and PIPA. Millions of citizens expressed opposition to SOPA and PIPA through social media venues, email, and other forms of digital communication. As a result of this mass online outcry, several U.S. Senators switched their position on the bills. And within three days of the blackout, the sponsor of the SOPA bill tabled the bill indefinitely. In the short term, it appears that this form of Internet-fueled democracy has resulted in a desired change. However, this does not mean that other bills will not be proposed or that more dangerous legislation, such as ACTA which is currently under vote in the EU, won’t soon be threatening our rights.
Another avenue through which change has been attempted is through development of community-based fair use best practice codes. The Center for Social Media, in partnership with various communities of users of copyrighted content, has created a series of best practice codes outlining principles for the fair use of copyrighted material by those particular communities. One of the most successful best practices codes was developed by the Center and documentary filmmakers. Following interview and survey of numerous notable and veteran documentary filmmakers and distributors, the documentary filmmakers’ best practices code “makes clear what documentary filmmakers currently regard as reasonable application of the copyright “fair use” doctrine.” That is, other filmmakers can rely upon the code for guidance in determining what is fair use of copyrighted content and when permission should be sought. As a result of this community-based approach, the number of infringement claims arising from documentary film making has decreased and errors and omissions insurance have more readily offered coverage for fair use claims.
Last week, the Center, along with the Association of Research Libraries, released the long-awaited Code of Best Practices in Fair Use for Academic and Research Libraries. This Code is the product of nearly two years of surveying and interviewing librarians regarding their employment of fair use in their daily work. To date, librarians have relied upon various fair use guidelines that have cropped up since the enactment of the Copyright Act. However, unlike some of these other guidelines, the Code did not solicit the input or buy-in from those most often on the other side of the fair use debate with librarians, publishers standing as rights holders. Further unlike the prior guidelines, the Code does not attempt to set forth quantifiable fair use limits, which have only served to impede and limit the employment of fair use. The Code, as fully admitted by its authors, is not the silver bullet many librarians were hoping for since learning of the project; as stated in the introduction, this Code is “not a comprehensive or exhaustive guide to all possible applications of fair use in and around libraries.” Rather, the Code enumerates eight scenarios in which clear consensus regarding fair use was identified. However, each of these scenarios, or “principles” as the Code refers to them, is accompanied by a series of limitations and enhancements, which merely articulate the nuances librarians routinely grapple with and try to reconcile within and without the strictures of existing fair use guidelines. The eight principles also include a couple principles that I believe to be “no brainers” and not the subject of debate or confusion among my peers, namely reproducing materials for disabled patrons and digital preservation of at-risk items. Nevertheless, I am not surprised by the limited guidance and clarification in this new Code; as I predicted last January, without “a judicial or legislative clarification of fair use as applied to the ever-evolving modes of publishing and content delivery” a best practices document will not be an effective vehicle for change.
A final example of an academic community trying to bring about change through numbers is the recent call by researchers for a boycott of publishing giant Elsevier. In support of the scholarly prize-winning mathematician Tim Gowers recent scolding of Elsevier for its high journal prices, strong-arming of libraries to buy bundled subscriptions, and support of the Research Works Act, as well as SOPA and PIPA, an Internet petition was formed where researchers can publicly declare their intent to no longer write for, referee, or edit any Elsevier journal. At the time of this writing, nearly 2900 faculty members, scholars, and scientists from around the globe have signed this petition.
The rapid increase in petition signatories and the growing press attention to the petition and the problems it highlight leads one to believe that a positive change is imminent; however, this may not be the case. As well-known technology writer Glyn Moody recently noted, this is not the first (or the biggest) attempt that a collective effort to change the business model of scholarly publishing. In 2001, 34,000 scientists signed onto a letter put forward by the founders of the Public Library of Science calling for the establishment of an online public library that would provide the full contents of the published record of research and scholarly discourse. Many of those same signers pledged to boycott those publishers who did not participate in this endeavor, but very few actually followed through with their boycott pledge. Going back even further, when the Internet was created in 1991, it was for the stated purpose of better facilitating scientific communication and the dissemination of scientific research. “Put another way, the Web was designed to disrupt scientific publishing.” Finally, if change in Elsevier’s (or any similarly operating publisher) business practices does not occur, what “collateral damage” may occur as a result of a boycott, and is this damage something we are prepared to deal with?
I fully support open-access, as a librarian, an author, and a tax-payer. I do not condone the practices of the Elseviers of the world. I believe that change can occur through collective action. However, we need to be mindful of what efforts may truly be needed to bring about the desired result and what consequences may exist if that desired result occurs.
A Case of Open and Shut
Since its introduction in October of last year, the Stop Online Piracy Act (SOPA) has captured immense attention from legislators, online business proprietors, copyright experts, and privacy proponents. From the intense exchanges of opinion both on Capitol Hill and among non-politicos, an unlikely champion has arisen in Republican Congressman Darrell Issa. Promoting citizen participation in the legislative process, Issa launched a web site, based upon a theory of crowdsourcing, for the public editing of a bill called the OPEN Act (Online Protection & ENforcement of Digital Trade Act). The bill advocates approaching the piracy problem through international trade law and not through local law enforcement measures.
However, while publicly standing as for open government through citizen participation and an open internet economy, Issa quietly took a step last month to shut the doors on access to government-funded research. Entitled the “Research Works Act,” the Issa-sponsored bill, a poorly repackaged version of the failed “Fair Copyright in Research Works Act,” would, if enacted, prohibit all federal agencies from adopting, implementing, maintaining, or continuing any policy or program that provides for the online and public dissemination of commercially published and peer-reviewed research without the publisher’s consent. The effect of the bill would be the termination of the NIH public access policy and the foreclosure upon the idea of broadening the scope of that policy’s application.
Not surprisingly, although disturbingly, the Association of American Publishers (AAP) issued a press release applauding the bill. AAP President Tom Allen is quoted as stating “America’s [Professional and Scholarly Division] publishers are making more research information available to more people, through more channels, than ever before in our history. At a time when job retention, U.S. exports, scholarly excellence, scientific integrity and digital copyright protection are all priorities, the Research Works Act ensures the sustainability of this industry.” The release further asserts: “Journal articles are widely available in major academic centers, public libraries, universities, interlibrary loan programs and online databases. Many academic, professional and business organizations provide staffs and members with access to such content.”
The AAP’s statements are factually misleading. The academic entities referenced cannot afford to provide access to the large body of research that is available exclusively through commercial publishers; it is no secret that libraries and other institutions have had to make difficult budgetary decisions about maintaining subscriptions to these publishers’ publications and databases. Further, authors and researchers do not publish in AAP’s members’ journals for monetary gain and often give up all of their own intellectual property rights in exchange for publication. As a result, access by the author’s employing institution and its students is often also bargained away. Further, the AAP’s stance ignores the fact that additional publishable works, for which they can recover subscription fees, are produced as a result of the increased discoverability and collaborations that occur when there is public access to research, particularly in places where there is no possibility of access except through public channels. There is no evidence that policies such as that of the NIH have economically hurt publishers to such a degree as to outweigh the benefits realized through open and public access to scientific research.
Issa, in a statement posted on his OPEN Act web site, proclaims that Americans have the right to benefit from their own creation. Shouldn’t the American public, then, have the right to benefit from the research that they have funded? Without the tax dollars paid by Americans, there would be no funding for federal research, and without federally funded research, publishers would suffer a sharp decline in publishable material that their readers want and need to read. Apparently Issa wants to be the American public’s doorman, determining when and for whom the door may be open and shut.
The Copyright Register’s Roadmap
Last week new Register of Copyright Maria Pallante issued the U.S. Copyright Office’s policy priorities for the next two years. Several of these priorities, as will be realized through published studies and legislative support, are relevant to the work of academic libraries, including orphan works status, mass digitization projects, and the § 108 exception for libraries.
Just a couple days after Pallante issued her report, the Copyright Office released one of the studies, referenced in the report, on mass book digitization. The study notes that mass digitization projects, whether involving a few titles or millions, implicates several sections of the existing copyright law. Acknowledging the expertise of entities such as Google and Internet Archive who have been actively involved in mass digitization and the diverse interests of the various stakeholders, the study suggests that federal cultural institutions involved in preservation, such as the Smithsonian and the National Archives, should also be consulted by Congress in determining the best framework for mass digitization projects. The study also notes issues to be addressed, including questions already raised in the Google Book Search case, and queries whether these issues are of sufficient national importance to warrant changes to the existing copyright law, namely sections 107 and 108 of the Copyright Act, which the study points out do not presently contemplate or adequately cover these types of projects.
After defining the research studies to be released, the report turns to the Copyright Office’s legislative priorities for the coming two years. Though, as the report suggests, the Google Book Search litigation has stymied legislative progress on orphan works and on the § 108 library exception, Pallante urges Congress and pledges support for resumption of discussion on these two important issues. To that end, the report sets forth a plan to proactively partner with members of the academic community for discussions and research on these issues. The scholarship produced as a result of these partnerships will be instructive not only to Congress but also to those navigating the current framework in efforts to preserve our intellectual history and make it available for personal study and academic pursuits. Also detailed is a plan to increase the public’s awareness of copyright law through outreach and education. This endeavor hopefully will serve as a balanced and unbiased presentation as compared to the alternatives presently available from both sides of the copyright and fair use debate.
V is for (small) Victory (and for Video)
The idiom “no good deed goes unpunished” has never felt truer. Lately, it seems that libraries and universities have made more hash marks on their legal scorecard in the lose column than they have in the win column. In this past year, the Second Circuit undermined the first sale doctrine rights of libraries, a federal court held a trial in Georgia that could determine the bounds of fair use with respect to electronic course reserves, and several authors groups have now filed a lawsuit against Hathi Trust and others engaged in the preservation of orphan works. However, a small victory came in a California federal court this week in the case against UCLA for its video streaming practices.
Last December, the Association of Information Media Equipment (AIME) filed suit against several UCLA officials and employees, including members of library and media lab staff, for copyright infringement after UCLA digitized and streamed DVDs produced by Ambrose Video. AIME asserted it had standing to file this action as an association representing its members, which includes Ambrose Video. In granting the UCLA officials’ motion to dismiss, the court disagreed. Because AIME is not the holder of any of the copyrights at issue in the case, it lacked standing to bring the action. “Having the rights over a copyright is essential to establishing a copyright infringement claim” the court stated in its order; thus, participation of an individual member who was also owner of one of the copyrighted films at issue in the suit, was required. Additionally, the court determined that the UCLA Regents and other officials were immune, under the 11th Amendment, from suit in their official capacities (although not necessarily in their individual capacities, the court pointed out). These two grounds for dismissal could similarly prove fatal for the recently filed action against Hathi Trust and several state universities. It will be interesting to see if the inclusion of a couple individually named authors (and presumably copyright holders), who are also members of the named author associations, will save that action on the question of standing.
The remainder of the ruling on the motion to dismiss concerned more substantive issues; although by no means was there any legally determinative interpretation of fair use or other elements of copyright law. Hence, why the victory here is a small one. For me, the most curious point of this section of the ruling was the court’s characterization of the license to publicly perform the copyrighted work. The court held, although without much discussion or justification in the existing body of law, that the copying of the DVD onto the UCLA server for streaming was that kind of “incidental copying” permitted by fair use. That is, in order to make use of its license to publicly perform the film, UCLA had to place the content onto its network. Although I have not seen the full text of the license entered into between UCLA and Ambrose, I have, in my time as a collection development director, read, negotiated, and executed many a public performance and streaming license. In nearly all the ones I have encountered, the streaming of a film is treated as a separate license from the one to publicly perform a film. In fact, some public performance licenses (whether it be a separate document included with the DVD purchase or a click through on the online shopping cart when purchasing a DVD) expressly exclude streaming for remote access or distance learning. Further, if the viewing of the streamed copy is done by a student in the privacy of his own home or dorm room and not by a class in a group setting, is this really a “public” performance? As such, I would caution libraries and universities from relying too heavily upon this court’s interpretation of public performance and instead turn to the language of the institution’s own agreement.
For UCLA, the ruling is certainly a victory. AIME has until the 17th of October to refile the case, and I predict that unless they have an individual copyright holder to join in the matter as well as substantial evidence to make a case against the named defendants in their individual capacities such a refiling will not occur. For the rest of us who have been sitting patiently waiting for a ruling in this matter, the case is neither a victory nor a loss, for there still remains unanswered questions regarding the fair use of streamed media in distance education.
Who Owns Copyright in Course Materials?
With classes back in session at most American universities and colleges, students may be looking for note taking or studying shortcuts to ease them through the semester. The sharing of course notes, lecture recordings, and exam copies has become more than a friendly gesture by former students; it has become a growing commercial enterprise by brick and mortar and online entities. A couple years ago the web site Course Hero began to attract scrutiny from teachers and administrators when it offered to students a monthly subscription to access its vast repository of uploaded course materials (or earn credits for access in exchange for uploading their own materials). Secondary to the concerns of academic integrity was the concern that the intellectual property rights of professors had been violated. Many educators are concerned that their original and creative work product, such as stylized lecture slides, detailed course handouts, and well-prepared syllabi, are being made available without their knowledge or permission. Course Hero, by its own admission, does not police content uploaded to its site. Rather it relies, much like You Tube, upon the vigilance of copyright holders to file with the company a take-down request pursuant to the Digital Millennium Copyright Act. To help counter the problem, universities have adopted policies prohibiting students from sharing course materials or have devised informational sites for faculty to assist them in locating infringing downloads and requesting take-down.
To date, no litigation has arose as a result of Course Hero or sites like it. However, a copyright infringement action is pending in a Florida district court concerning the sharing of course information and may answer the question of whether sharing of course materials actually qualifies as fair use. The lawsuit was filed after the lecture outlines and film study questions prepared by a University of Florida professor were copied and packeted for resale by a local copy shop. The professor had transferred his copyrights in the materials to a publisher, who filed the infringement action. This past June, the district court ruled on the cross motions for summary judgment. Recognizing that the text materials were protected by copyright, the district court denied the plaintiff’s motion for summary judgment on the infringement claims on the ground that questions of fact for a jury existed as to whether the copying constituted fair use. The court wrote:
Works that are original, fictional, and unpublished enjoy more protection than works that are derivative, factual, and published. [The] works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349…Other factors in determining fair use include the purpose and character of the use, the amount and substantiality of the portion used, and the effect of the use on the market or value of the copyrighted work. 17 U.S.C. § 107. The parties have presented various arguments for and against a finding of fair use. Genuine issues of material fact remain for a jury to determine regarding fair use.
The outcome of this case, much like the outcome in the Georgia State e-reserves lawsuit, has the potential to greatly impact our understanding and application of fair use. It will also impact the validity of sites like Course Hero and any other entity profiting from the sharing of course materials. (Note – the work for hire doctrine is not at issue in this case, even though a university as employer could claim copyright ownership in course materials because the university in the case had already disclaimed any interest in these materials.)
Scholasticus: Charging for the Public Domain
I would like to include late 19th century photographs of the Westward expansion in an article I’m writing but a historical society is claiming copyright in them and is requesting payment of a fee before granting me permission to include them in my publication. Do I have to pay these fees even if the photos are in the public domain?
Law professor Jason Mazzone describes this common practice as “copyfraud. In a 2006 New York University Law Review article, he wrote:
Copyfraud…refers to claiming falsely a copyright in a public domain work. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the putative “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use, or altering their creative projects to excise the uncopyrighted material….False assertions of copyright are everywhere. In general, copyright belongs to the author of a published work and expires seventy years after the author’s death. Yet copyright notices appear on modern reprints of Shakespeare’s plays, on Beethoven’s piano scores, and on greeting card versions of Monet’s Water Lilies. Archives claim blanket copyright in everything in their collections, including historical works as to which copyright, which likely never belonged to the archive in the first place, has long expired.
Unfortunately, there is nothing in U.S. Copyright law to prevent or penalize organizations, societies, libraries and publishers posting a copyright notice on items in which they do not hold copyright and proceeding to collect royalty from the unsuspecting and the fearful. Under U.S. law, the duration of copyright protection for items created (publication or registration are not required) after Jan. 1, 1978 is the life of the author plus 70 years. For items created before that date, the duration of copyright protection is not so simply summarized. Copyright protection terms varied prior to 1978 and were reliant upon registration and renewal requirements that are not part of the modern law.
Works first published or registered in the U.S. prior to 1923 are in the public domain. No entity can claim copyright or charge for use of these works. For works created between 1923 and 1977, the duration of copyright protection depends upon several factors: whether there was publication with or without notice, whether there was registration, and whether there was renewal. I recommend using the chart prepared by Cornell University for works created between these dates. It is also important to note, that what is discussed above applies to U.S. works only. Works created by foreign authors and published in their respective home countries are subject to their intellectual property laws.
Mazzone, Jason. “Copyfraud.” New York University Law Review. Vol. 81, No. 3 (2006): 1026-1100.
For more on the problem of Copyfraud, visit the Public Domain Sherpa.
(Thank you to my UF library colleagues for the idea for this post.)
