Transcript Fair use and Libraries Dave Hansen March 20, 2012 Berkeley Digital Library Copyright Project Goal: “to investigate copyright obstacles faced by libraries and other.

Fair use and Libraries
Dave Hansen
March 20, 2012
Berkeley Digital Library Copyright Project
Goal:
“to investigate copyright obstacles faced by libraries and other like-minded
organizations in their efforts to realize the full potential of present and
future digital library initiatives. Our efforts are concentrated on both the
obstacles themselves and the range of possible legal, technological, social,
and market-based solutions to overcome them.”
Issues:
• orphan works
• library privileges
• digital lending
• metadata ownership
http://www.law.berkeley.edu/12040.htm
“This symposium will offer a fresh look at orphan works and mass
digitization by examining the existing obstacles, including legal and practical
concerns of both owners and potential users, and opportunities to enable
greater access and new uses for these works.
http://www.law.berkeley.edu/orphanworks.htm
DPLA West—taking place on April 27, 2012 in San Francisco—is the
second major public event bringing together librarians, technologists,
creators, students, government leaders, and others interested in building a
Digital Public Library of America.
http://dp.la
Structure of Copyright
Exclusive rights of author (§ 106)
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Reproduce
Prepare derivative works
Distribute to public
Perform publicly
Display publicly
For sound recordings,
perform over digital network
Limitations on exclusive rights
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§ 107 – Fair use
§ 108 – Libraries and Archives
§ 109 – “First sale”
§ 110 – Non-profit Performances
§§ 111-122 – further refinement
Title 17, United States Code: http://www.law.cornell.edu/uscode/text/17/
Statutory Damages
From $750 to $150,000 in damages per work infringed
Jamie Thomas-Rasset -- $1.92 million for sharing
24 songs
Joel Tennenbaum -- $675 thousand for sharing
31 songs
Limitations on Damages
Good Faith Assertion of Fair Use
§ 504(c)(2) – “The court shall remit statutory damages in any case where an
infringer believed and had reasonable grounds for believing that his or her use
of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library,
or archives acting within the scope of his or her employment who, or such
institution, library, or archives itself, which infringed by reproducing the work
in copies or phonorecords.
Limitations on Damages
Sovereign Immunity
Fair Use
§ 107 – “Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work . . . for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright.”
Fair Use
§ 107 – “In determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.
E-Reserves
Principle: “It is fair use to make appropriately tailored course-related content
available to enrolled students via digital networks.”
E-Reserves
Limitations:
• Closer scrutiny should be applied to uses of content created and marketed
primarily for use in courses such as the one at issue (e.g., a textbook,
workbook, or anthology designed for the course).
• The availability of materials should be coextensive with the duration of the
course or other time-limited use (e.g., a research project) for which they
have been made available at an instructor’s direction.
• Only eligible students and other qualified persons (e.g., professors’
graduate assistants) should have access to materials.
• Materials should be made available only when there is a clear articulable
nexus between the instructor’s pedagogical purpose and the kind and
amount of content involved.
E-Reserves
Limitations:
• Libraries should provide instructors with useful information about the
nature and the scope of fair use, in order to help them make informed
requests.
• When appropriate, the number of students with simultaneous access to
online materials may be limited.
• Students should also be given information about their rights and
responsibilities regarding their own use of course materials.
• Full attribution, in a form satisfactory to scholars in the field, should be
provided for each work included or excerpted.
E-Reserves
Enhancements:
• Prompt instructors, who are most likely to understand the educational
purpose and transformative nature of the use, to indicate briefly in writing
why particular material is requested, and why the amount requested is
appropriate to that pedagogical purpose.
• To assure the continuing relevance of those materials to course content,
libraries should require instructors of recurrently offered courses to
review posted materials and make updates as appropriate.
Cambridge Univ. Press v. Patton (Ga. State Univ.)
• Cambridge University Press, SAGE Publications, and Oxford University
Press filed lawsuit in 2008
• Copyright Clearance Center apparently funds 50% of the suit
• Named as defendants four Georgia State University administrators and
managers
• Contested Georgia State University e-reserves system for providing access
to copyrighted works