CREATING DIGITAL LIBRARIES: A COLLISION COURSE WITH COPYRIGHT LAW Lolly Gasaway November 2011 IMPORTANCE OF THE ISSUE Libraries are eager to share their unique collections digitally
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Transcript CREATING DIGITAL LIBRARIES: A COLLISION COURSE WITH COPYRIGHT LAW Lolly Gasaway November 2011 IMPORTANCE OF THE ISSUE Libraries are eager to share their unique collections digitally
CREATING DIGITAL
LIBRARIES: A
COLLISION COURSE
WITH COPYRIGHT LAW
Lolly Gasaway November 2011
IMPORTANCE OF THE ISSUE
Libraries are eager to share their unique
collections digitally
Not
only larger academic libraries
Public
libraries
Local historical societies
Impact on scholars & other users
TYPES OF DIGITIZATION
PROJECTS UNDERWAY
Unique or scarce archival materials
May
be public domain
This
may be the most important materials to
digitize
But
may still be under copyright
Public domain books – no problem
Permissions are critical
Orphan works – may be problematic
Non-copyright concerns outside scope of
this presentation
WHY COPYRIGHT LAW IS
PROBLEM FOR THESE PROJECTS
Copyright law across the world gives to owners
the rights to their works
Includes the right to reproduce & distribute the work
in copies as well as to display & perform the work
publicly
Owners want to control how, when and where their
works are made available
Is this crazy?
No, it is what the law permits
Why have librarians gone forward without
publisher permission?
Maybe many publishers are jerks
Maybe we have let our wishes control any evaluation
of what the law actually permits
Maybe a combination
HAS THE LAW CHANGED?
Only in minor aspects
Will it change?
Perhaps
Copyright
Register’s 3-year priorities include
relevant 2 items:
Orphan
works
Section 108 Study Group Report
MAJOR PROJECTS UNDERWAY
Google Books
15 million books scanned
end of 2010
130 million remaining –
will scan by end of
decade….
Lent by academic
libraries which received
a digital copy from
Google
Little concern about
whether the works were
under copyright
Public domain fine
Publishers objected
Settlement agreement
failed
Still could be some
agreement perhaps
Unlikely
Reasons for failure
Judge though it was too
broad
Problems with class
action – should be opt
in not opt out
Antitrust concerns
Private ordering of
public issue
Usurping role of
Congress
Internet Archives
Digital
library of
free books,
movies, music
3 digital million
books available (917-11)
Seeks
permission
for in copyright
works
Lends to one
person at a time
Digital Public
Library of America
Big
thinking
Contours
much
less certain
Recognizes
copyright law
problems
Has a legal work
stream already
active
HATHI TRUST
International
community of
research libraries
UNC & TRLN are
members
Currently digitized
almost 10 million
total volumes
Source of these
digital copies
Orphan works
project
Sought to make
works determined to
be orphans available
Sued by Authors
Guild – Hathi
procedures
questionable
Trust recognized the
problems
WHY COPYRIGHT HOLDERS
OBJECT TO DIGITAL PROJECTS
Object only to projects that involve in
digitizing copyright works without permission
The works are their property
Changing business models for publishers
Especially crucial for university presses
Digital storage of their works
Works may not ever again be out-of-print
Print on demand
Digitizing their publishers’ own files
Also, some publishers have their own databases of
works that they license to users
COPYRIGHT BASICS
Form of expression not facts, ideas
Originality & creativity - § 102(a)
Fixation - § 102(a)
Registration – new fees ($45)
Deposit
NOTICE OF COPYRIGHT
§ 401 (b)
1.
© , COPYRIGHT, or COPR., and
2.
Year of first publication and
3.
Name of copyright holder © 2011
L. GASAWAY
TERM OF COPYRIGHT
1909
28 years
+ 28 years
56 years
1976 Act Section 202
Personal Author
life
+ 50 years
?
1998 Amendment
life
+ 70 years
?
RIGHTS OF THE COPYRIGHT
HOLDER
Reproduction
Distribution
Adaptation
Performance
Display
Public
performance of
sound recordings
by digital
transmission
APPLYING FAIR USE TO
DIGITIZATION PROJECTS
Section
107
…“the fair use of a copyrighted work,
including such use by reproduction in
copies … 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
…“the fair use of a copyrighted work,
including such use by reproduction in
copies … 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 FACTORS
Purpose and character of the use
Nature of the copyrighted work
Amount & substantiality used
Market effect
SECTION 108(b)
The rights of reproduction and
distribution under this section
apply to three copies or
phonorecords duplicated if:
The purpose of such duplication
of an UNPUBLISHED work is for
preservation, security or for
deposit for research in another
library and if.....
1. The copy or phonorecord reproduced
is currently in the collection, and
2. Any such copy or phonorecord that is
reproduced in digital format is not
otherwise distributed in that format & is
not made available to the public in that
format outside the premises of the library
or archives.
SECTION 108(c)
The rights of reproduction and distribution
under this section apply to three copies or
phonorecords of a work duplicated if:
The purpose of
such duplication
is to replace a
PUBLISHED damaged,
deteriorating, lost, stolen
or obsolete copy and if....
1. After the library makes a reasonable effort to
determine that an unused replacement
cannot be obtained at a fair price and
2. Any copy or phonorecord that is reproduced
in digital format is not made available to the
public in that format outside the premises of
that library or archives in lawful possession
of such copy.
Further, for purposes of this subsection, a
format shall be considered obsolete if the
machine or device necessary to render
perceptible a work stored in that format is
no longer manufactured or is no longer
reasonably available in the commercial
marketplace.
SECTION 108 STUDY GROUP
REPORT
Recommendations on preservation
Revising
(b) and (c) re three copies
Preservation-only exception for publicly
distributed digital works
Website preservation
www.section108.gov
ORPHAN WORKS
Google tried fix
Hathi Trust tried fix
for its contents
Must be a statutory
change
After good faith
search for owner
No liability for
damages if owner
later shows up
Will ease many
problems dealing with
locating missing
owners for
permissions
Will not eliminate need
to seek permission
Now a Register’s
priority
WHAT WILL IT TAKE TO FIX
THIS?
Working with
copyright holders
Not ignoring their
property rights
Willingness to
compromise (glass
½ full)
Amend § 108 as
recommended or
suggest other
changes
Move forward on a
governmental orphan
works solution
Best practices on
seeking permission
for digital projects
Group licensing
Work with copyright
lawyers who do not
take such extreme
positions