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 

Report
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

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