transformativetidbits:

reasonsimsinglealsobutts:

librarianheygirl:

Thank you Gwen!

Oh be still my heart.

Yes.

By Greg Cram, Rights Clearance Analyst, The New York Public Library

On March 4, 2013, Maria Pallante, the 12th United States Register of Copyrights, delivered “The Next Great Copyright Act” at Columbia Law School. In the lecture, Register Pallante reflected on the history of other major comprehensive revisions to United States copyright law. She argued that the time has come for the next general revision to begin by noting the complexity of current copyright law and its failure, in some areas, to stay current. She highlighted the work the Copyright Office has already undertaken in preparation for the next act, including reports on Digital First Sale, Orphan Works, Pre-1972 Sound Recordings, Mass Digitization, and others. Finally, she laid out a number of issues that are on the table for consideration in the next round of comprehensive revision.

The content of the next comprehensive copyright act is important to libraries and library patrons. Copyright law impacts library services at all levels, from the basics of making unsupervised copiers available to patrons to the complicated digitization of works in library collections. In the lecture, Register Pallante highlighted a few issues important to libraries, including the first sale doctrine, the libraries and archives exception, the blind and print disabled exception, and the length of copyright protection. The next copyright act is certain to implicate many library services, not to mention the general flow of content in modern society.

Because of the importance of this lecture, I am sharing my notes below. The lecture was recorded, but is not yet available on the Kernochan Center’s website. I strongly recommend watching the recording when it is available. I labored to take accurate notes and do not intend to misrepresent the content of the lecture. Even with my diligence, these notes should not be understood to be an official record or transcript of the lecture.

My notes on “The Next Great Copyright Act”

The next comprehensive review should begin soon. A comprehensive review is needed for two main reasons. First, courts are asking Congress to fix copyright law (see, e.g., Golan, Google Books, Tenenbaum). Second, more people need help navigating a complex law and shouldn’t and army of lawyers to understand copyright law.

There should be two main themes for the next great copyright act. First, it should be forward thinking, but flexible. Second, authors’ rights to enjoy control and exploit works needs to be meaningful. Authors are not the counterweight to the public interest because protecting authors is in the public interest. A copyright act that did not protect authors would be illogical. But, the law needs to recognize that some authors are different by giving weight to Creative Commons licenses and public domain declarations.

The issues on the table for the next comprehensive review include:

1. Incidental Copies

   —Not all copies are the same

   —Perhaps there could be discrete exceptions for certain incidental copies

   —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

2. Public Performance Right for Sound Recordings

   —Copyright Office is a “strong supporter” of a public performance right for sound recordings

   —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

3. Stronger Enforcement

   —The new law must respect the integrity of the internet, including free speech

   —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online

   —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

4. Small Claims

   —The Copyright Office is studying this issue

   —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive

   —The Copyright Office could, potentially, take a lead role in administering small claims

5. Statutory Damages

   —Review registration requirements

   —Look at statutory damages from all angles

   —Statutory damages are important part of copyright act and should be retained

   —Need to provide guidance to courts about how statutory damages should be applied

6. The Digital Millennium Copyright Act

   —The Internet has evolved since DMCA passage in 1998

   —Congress should review the § 512 safe harbors

   —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones

7. Registration and Deposit of Published Works

   —The deposit requirements for registration should remain in next copyright act

   —Congress should review the legal incentives for registration

   —How can the Library of Congress add born digital works to its collection through this process?

   —The policies surrounding mandatory deposit should not be driven by the collection building activities of the Library of Congress (see the ACCORD Report for more information)

8. First Sale

   —Digital first sale will be an issue on the table

   —Physical first sale may also need to be reviewed, depending on the outcome of the Kirtsaeng v. John Wiley & Sons case currently before the Supreme Court

9. Other Exceptions/Limitations

   —The libraries and archives exception in § 108 should be updated

   —Update exceptions for the blind and print disabled in § 121 for the digital world

   —Explore new exception for higher education institutions

   —Personal space-shifting

10. Licensing

    —Need to review growth of licensing schemes

    —Review mechanical licenses

Now the “bold” issues:

1. Term of 50 years, renewable for an additional 20

   —The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

   —However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

   —This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

   —Modeled after § 108(h), something the Copyright Office is very fond of

   —This proposal would be acceptable under various international treaties, including the Berne Convention

2. Opt-Out v. Opt-In

   —Extended collective licensing could potentially solve many problems

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.

Laurie Monahan is a professor on a mission. She’s an art historian at the University of California, Santa Barbara, and for years she’s been working with colleagues to develop an open access policy for the entire University of California system. Monahan compares UC faculty negotiating publishing contracts to the classic pop artists exploited by record labels in the 1950s and ‘60s: they sign away their rights because they are alone and intimidated by exotic legal contracts. By joining together to create a system-wide OA policy, faculty present a united front and ensure wider access to their scholarly work. It’s a powerful image, and one that’s taking hold on campuses around the country.

Part of the proposed UC policy is depositing all UC-generated scholarship in an open institutional repository (IR) to make scholarly work available to the public, but that raised a red flag for some of Laurie’s art history colleagues. Their scholarship often involves embedded images that are subject to copyright, and they wondered, reasonably, whether those images could be used in an article that’s freely available to the public online. This concern should sound familiar to any librarian who administers an IR. Concerns about embedded third-party content can even cause graduate students and professors to change their research plans, focusing on subjects that raise fewer copyright concerns.

Laurie took those concerns seriously, and used the Code of Best Practices in Fair Use for Academic and Research Libraries to defend the use of third-party content in publicly available research. Principle Six of the Code states that it is fair use for a library to receive material for its IR, and to make deposited works publicly available in unredacted form, including items that contain copyrighted material incorporated on the basis of fair use. The kinds of uses made by art history scholars, who need images in order to explain, illustrate, and support their theses, are likely to be supported by a strong fair use rationale, and Principle Six simply affirms that this rationale will be sufficient to allow publication in an IR. Her email explaining how fair use applies to the IR has made the rounds in the UC community, and hopefully Principle Six will help UC move closer to effective collective action to correct the dysfunctions in scholarly publishing.

This is the fourth blog post in a [series](TAG LINK) highlighting some of the fair use success stories we’re beginning to hear from librarians using the Code to move past fear and uncertainty and into positive action using their fair use rights. As with every Code of Best Practices, the #librarianscode can, will, and should be applied differently by different people and institutions in different situations. It is not one-size-fits-all. Some will be more conservative than the consensus described in the Code, while others may go further, depending on local circumstances. These stories are not meant to highlight ideal or best applications of the Code, as there is really no single right way to use the document. Rather, these stories show libraries moving from inaction to action thanks to the encouragement and support that the Code provides. How will you use the Code? If you have a story to share, please email socialmedia@american.edu.

Research libraries have a stake in MOOCs - who owns the course content, what kinds of materials are incorporated into the virtual classroom and assigned for outside reading, what happens to the data they generate about online learning, whether the courses are accessible for all kinds of learners, and on and on. The laws that shape how we use content in traditional courses may apply in new and unusual ways to these courses, further sharpening the need for active library engagement.

In a relatively short Issue Brief (PDF), I’ve outlined some of the legal questions relevant to library collaboration in MOOC teaching, as well as the related policy issues these new courses raise. A discussion draft was circulated to ARL members prior to the fall membership meeting, and benefitted substantially from their input during the meeting. The draft was also revised in some key places to reflect holdings in the wonderful HathiTrust fair use decision. We hope this will be helpful for anyone in the library world who is thinking about how research libraries fit into the MOOC landscape.