RAQs: Recently Asked Questions

Topic: Alternative, fair use solutions for when you can't host a virtual read-aloud - 7/14/2020
For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front ...
Posted: Tuesday, July 14, 2020 Permalink

MEMBER QUESTION

For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front lawn and took turns reading 6-7 books. Due to COVID, we can't hold this event in person this year. Our thought it that we could do it virtually - and instead of reading an entire book, we would ask readers to read the first chapter from one of their favorite books. They would film themselves reading (or we would film them) and then we would post the clip on our YouTube channel. One clip a day would be posted - for a total of 24 clips.

Our questions center around copyright infringement and fair use. Could we host such an event? Would this qualify under educational fair use guidelines?
Could we leave the videos up indefinitely -- or would it be better to have a specific time period and then they disappear?

Any guidance - even if it's a "don't do it!" would be helpful!

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Since the onset of pandemic restrictions, "Ask the Lawyer" has written a lot on different variations of this topic.[1]

Since I am tired of being the party pooper on this issue,[2] I am offering up something new.  Here it is:

Don't do it...unless you make it something new.

What do I mean by "something new"?  I mean a use that is so clever, so additive, that even though it uses a copyright-protected work, it creates a work with independent meaning.

Examples of this "something new" are:

  • Extensive[3] "color commentary" combined with the reading.
  • Replacing the characters in the books with people in your town to make a witty commentary about town life.[4]
  • Combining the reading with a special talent, such as reading each sentence of a travel book while traveling to a different yoga position, or reading a baking scene in a book while making a cake. 
  • Humorous juxtaposition, like reading the first scene of Moby Dick[5] while fishing, or reading a book about puppies to your cat.[6]

Despite all the wishful writing out there, the cloud of the pandemic did not bring us the silver lining of automatic expansion of fair use.  That said, it hasn't diminished fair use.  So, if your library:

  • Isn't using the event as a fund-raiser;
  • Is using the event to educate and engage the public;
  • Requires readers to not use the entire work; and
  • Requires a transformative use, like the examples given above...

...[7] there is a strong chance your event can go on as (virtually) planned. [8]

Good luck and happy reading!

 



[2] The answer is "Don't do it, unless you have permission or the work is in the public domain."

[3] "Extensive" means incisive comments at least every paragraph.

[4] Since I don't want to help you avoid a copyright claim only to wind up with a defamation law suit, if you do this, avoid using books that take deep and honest looks at human nature (No William Faulkner, no Maya Angelou, and certainly no Zadie Smith).  Use sunny books that make the best of things!

 

[5] This is a bad example because Moby Dick is in the public domain.  Which reminds me: you can also try using books in the public domain (published before 1924).

[6] Puppies and a cat?! 50% chance to go viral on day 1. 

[7] Which just happen to line up with the four factors of fair use.

[8] Just in case this suggestion appeals to readers, here is some suggested event recruitment text, based on the member's question:

It's time for our annual 24 hour read-aloud!  Usually, we have people camped on the front lawn but due to our work this year to keep everyone healthy, we can't hold this event in person.  Instead, we will do it virtually.

Here are the details for this year's readers: instead of reading an entire book, please work with us to film you reading from the first chapter from one of your favorite books, along with comments or a special related activity by you!  The final product will help us celebrate reading AND the personalities in our town.  Be as creative as you like, but the added content has to be related somehow to the book.

 

Tags: Copyright, COVID-19, Emergency Response, Fair Use, Library Programming and Events, Online Programming

Topic: Comments on Fair Use During COVID-19. - 4/2/2020
See below for Cole's statement on the Public Statement of Library Copyright Specialists. ...
Posted: Thursday, April 2, 2020 Permalink

MEMBER QUESTION

See below for Cole's statement on the Public Statement of Library Copyright Specialists.

WNYLRC ATTORNEY'S RESPONSE

Friends, lawyers, librarians: as my former law school faculty will tell you, my fair use cup is always half full.  I err on the side of information wanting “to be free.”  And if I wrote copyright law, it would be a very different-looking regime.[1]

That said, for those of you reviewing the Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research, and considering its application to your institution, I want to urge a very precise caution—a precise caution I do not see in the Statement, and an absence I believe could cause undue risk to many[2].

Before I get into the caution, I want to say:

  • I appreciate that “fair use” is in a constant state of warfare akin to a WWI fight for no-man’s land.[3]
  • I appreciate that now may be the time to strike a blow against exploitive publishers, whose actions exploit academic professionals providing content, while driving up costs for students.  
  • I appreciate that game-changing cases like Hathi Trust don’t happen unless someone decides to be bold.

But I am an in-the-trenches attorney.  I am not (and do not have the qualifications nor patience to be) an academic attorney nor a legislator.  In terms of this battle, I am a mere street-fighter.[4]  So here are my thoughts from the streets:

Fair use is a large concept, but its cases are fought on a case-by-case, content-specific basis.

So, if your institution chooses to accept the gambles posed by the Statement—that sometime in 2023, a court will find that a public health emergency impacts a fair use analysis, OR that in the coming recovery, academic publishers will be too wary of negative pushback[5] to sue a targeted few institutions to teach them a “lesson” about copyright[6]use your institution’s “fair use checklist”[7] to document that you have made the determination to use a particular work, at a particular time, in that particular amount, in good faith.

Why?  If you are an educational institution, under Section 504 of the Copyright Act, even if the Statement’s arguments for fair use are found not to hold water, your good-faith determination could limit your damages.[8] [9]  That, in turn, will position your lawyers to ensure the case never sees the inside of the courtroom.  This is especially true since for those 504 (c)(2) covers, the burden of proof is on the plaintiff (the publisher) to prove the bad faith of the defendant (who will hopefully not be you).  But again, this happens on a use-by-use, work-by-work basis.

I want to emphasize this step because in my experience, many smaller educational institutions and libraries do not have in-house copyright specialists, or lawyers, urging them to use a fair use checklist or similar documentation.  While for some institutions, a fair use checklist might be as assured a factor as, say, the fact that graduation happens in Spring,[10] at other places, the idea of documenting a fair use determination might not even be on the radar.

Of course, reading the signs in the wind,[11] my sense is that some people want this case to see the inside of a courtroom (and they are probably hoping for a 2nd, 7th, or 9th circuit judge). Further, based on past fair use battles, my guess is some institutions have decided they will be the frontline warriors in the fight.  For those warriors, I wish you god speed, a keen eye, and a sharp (legal) spear.

For the rest of you, if you decide to follow the guidance in the Statement,[12] I urge you to go into it with your eyes wide open, to use extreme caution, to show you are fully considering the four fair use factors--and if you decide, on a case-by-case basis, that you have a fair use, save the documentation.

 



[1] For instance, the exclusive rights held by non-original authors would diminish much, much sooner.  Fair use factors would also be much different.  Oh, and the whole area of law would consider modern technology. 

You know, some simple changes!

[2] Or rather, the select, targeted few the academic publishing companies will choose to teach a lesson.

[3] I am listening to the soundtrack for “Wonder Woman” right now, so trench warfare is on my brain.

[4] Many of the Endorsers and Signatories are Generals, or at least Captains, in this fight.

[5] A consideration for public regard I have not seen them overly cautious about, to date.  But who knows?  Maybe this will be their Ebenezer Scrooge moment.

[6] AKA in the publishing biz as “protecting our rights.”

[7] I have always loved this one: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf. Cornell, my friends (maybe it’s because I am from Central New York).

[8] Section 504(c)(2) provides that where 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, infringed copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant’s good faith should rest on the plaintiff.

[9]Yes, I am linking to Cornell’s site for the citation to 504, and the Statement has both a Cornell Endorser and a Signatory.  Cornell is a mighty copyright fortress and their participation is one of many signs that this document says “bring it.”

[10] Well, it used to.  We are dealing with uncertain times.

[11] A dramatic-sounding way to say “reading comments online.”

[12] Which many lawyers, including myself, will struggle with.  Lawyers can be creative and bold, but unless our clients tell us they are willing to take a risk, we are creatures of precedent.

Tags: COVID-19, Fair Use

Topic: Reproduction of Copyrighted Photographs - 3/19/2020
Is it considered fair use for a student to reproduce a copyrighted photograph for public display i...
Posted: Thursday, March 19, 2020 Permalink

MEMBER QUESTION

Is it considered fair use for a student to reproduce a copyrighted photograph for public display in an academic institution having cited the original published source but not having sought and received express permission from the copyright holder? The image is reproduced in its entirety with overplayed text added by the student. The posters are the product of an academic exercise. It has been proposed to display them for a period of 2 months in an area open to the public.

WNYLRC ATTORNEY'S RESPONSE

You, reader, will never know my answer to this question.

That’s because to truly answer it, I had to contact the member and get some more information.  The information I received, and the answer I gave in return, were so specific, the content was no longer suitable for a general-audience response.[1]

It had become legal advice, not just “guidance,” or “commentary,” or “analysis.”  It was confidential, tailored to one entity, and protected by attorney-client privilege.

This is the challenge with fair use questions: they turn on numerous precise details.

That said, I can say that the bare-bones scenario above gives a few reasons to be cautious.  The use of the entire work, and the display in a public area, are red flags.

But I also want to caution you about too much caution.  Both those risk factors: use of the entire work, public display—could be easily balanced by an exercise in compare-and-contrast, substantive criticism, or in-depth analysis.

This is why an educational institution should always use a “fair use checklist”[2] to address questions of fair use.  An educational institution that uses a checklist has a good chance of determining that a use is “fair,” and while doing so, also creates documentation showing that their conclusion—even if later ruled to be erroneous—was in “good faith.”  This exercise can limit damages, later.

The most recent case law involving use of a photograph in an academic setting, Reiner v. Nishimori,[3] did result in a finding of fair use, and is an instructive example.  In that case, students used the plaintiff’s copyright-protected stock photograph to practice making advertisements.

Here is the court’s analysis of the case, using the fair use “four factor” test:

  1. The first factor is “purpose and character of the use.”  For that factor, the court held that because the photo was not being used as instructional material, but rather as raw content for the generation of mock advertisements, the factor was in favor of fair use.
  2. The second factor, however, “the nature of the copyrighted work,” was found to weigh slightly against fair use, since the original work was “creative,” and the student use was also “creative.”[4]
  3. The third factor, “the amount of work used,” was against fair use because the students used entire photograph.
  4. The fourth factor, “the effect on the market for the copyrighted work,” was found to support a fair use claim.  Basically, in this precise instance, it was found by the court that no one who would have purchased or licensed the original would choose not to do so based on the students’ use.

That’s Reiner v. Nishimori, where fair use carried the day.  But with a few tweaks of the facts, it could have had a different outcome.

And that’s while you may never know the real answer to this question.

 



[1] This makes it sound like it was rated “R.”  I assure you, the content was PG.  It was just legal advice.

[2] A very good example can be found here: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf

[3] Reiner v. Nishimori No. 3:15-cv-00241 (M.D. Tenn. Apr. 28, 2017)

[4] This factor routinely messes up judges, and I personally disagree that “creative” works might qualify for more protection that laboriously and carefully assembled facts.  But I am not a judge!

 

Tags: Copyright, Fair Use

Topic: Using music videos for projects - 3/5/2020
An internationally known band released various music videos for the purpose of a contest they were...
Posted: Thursday, March 5, 2020 Permalink

MEMBER QUESTION

An internationally known band released various music videos for the purpose of a contest they were holding. Fans were asked to create a new video using the clips provided. One of our professors downloaded and saved the music videos and would like to share them with his students so they can use them for an editing project. He would like to post the copied files in his password protected class management system (Black Board.) However, we would also like his students to be able to share their projects either in an eportfolio or online.


My initial reaction is that he should get permission from the copyright holder / publisher for permission even though the band released the content for a contest. I see many danger zones.

WNYLRC ATTORNEY'S RESPONSE

Some of the trickiest copyright questions I get relate to student work.

Why are they tricky?  Because of a self-imposed rule I have: find a way for the work to be donedon’t let copyright interfere with art and science.[1]  In other words, our copyright glass of scholarship should be half full…of scholarship, not fear of lawsuits.

That said, most readers of this column will know that “educational use” does not justify the wholesale infringement of works, even if the purpose is scholarship.  To use a work without permission, the use must meet the criteria of “fair use.”[2]

But I’m getting ahead of the question.  Let’s bring it back to the beginning.

What’s the tricky issue here?  In this scenario, the band “released various music videos,” and asked the public to create new works based on the old, for entry into a contest.[3]

The band was essentially asking the public to create “derivative works,” which are new works based around a copyright-protected original (think movie sequels, musicals based on books, and paintings of paintings).

The faculty member plans to retain copies and direct students to use them after the completion of the contest, both for assignment and portfolio purposes.  Is that cool?

Now, if the band’s videos were expressly put into the “public domain” for the contest (meaning: no copyright protection) the question ends here. If the clips aren’t protected by copyright, the faculty member’s plans are just fine (it’s cool).[4]

Further, if the band gave a perpetual, irrevocable permission to any person who generates a new video using the clip, to use the clip for whatever reason they want, the question also ends here (again, retain the copy and using it as planned is cool).

But if instead, the band kept the videos protected by copyright,[5] and gave the public permission for only a limited amount of time (say, the duration of the contest), for a limited amount of purposes (say, for entering the contest), then yes, we are in a “danger zone” (not cool).[6]

However, before I agree that the ideal solution is to get the copyright owner’s position, I do want to make a case for fair use, which allows people to use copyrighted works in way that would otherwise be infringing (make copies, make derivative works, and even at times to sell them).

Based on the scenario described, it is not clear if the retention of copies as described in the scenario would be a fair use.  It would have to be justified under the four fair use factors, with the school and student being able to show that the retention of a complete copy and use of the clip for assignment and student portfolio purposes was justified.

The way for a school to do this is to use their fair use assessment form[7] and retain a copy.

To me, aside from the legal concerns, this is also an ethical issue.  A faculty member should not encourage a student to unknowingly infringe another’s copyright, especially if they know that student might include that work in an online portfolio of work.  This could put the student in legal trouble that is independent from the liability of the school.

Students, as individuals, do not have the same protections that higher education professionals have.  Schools, if they conduct a bona-fide fair use analysis, can limit the damages from alleged infringement.  Schools also usually have insurance for this stuff.  Newly-minted B.A.’s and M.F.A’s typically do not have the same resources.  This means, when the student gets sued, they are in a much riskier place than the school or the faculty member.

All that said, remember the mantra: find a way for the work to be donedon’t let copyright interfere with art and science.  What does this mean?  While being cautious to not promote infringement, a faculty member in a medium such as film, or music, should not let students operate in ignorance of fair use, which is so important to both mediums.  Without sampling, without artistic call-and-response, we suffocate creative innovation.

If that sounds complicated, it is!  I will be reaching out to this member to talk the specifics through (that part is confidential).



[1] Promotion of “science and the useful arts” is the reason we have IP law in the first place (see U.S. Constitution, Article I, Section I, Clause 8).

[2] Or Section 110(a) or (b) of the Copyright Act. But you can read out that here [INSERT PERMALINK].

[3] As gimmicks go, I like this one.  I wish my favorite author, Umberto Eco, had invited me to write a chapter of “The Name of the Rose.”  I would have had Adso and William fire-proof…uh, sorry, spoiler.

[4] I speak legally, not pedagogically.  I have no idea if this would be a good film class assignment; I was a Russian History/U.S. Constitutional law major at an experimental school with no grades or tests (Hampshire College).  Other than once attending a class on the classic film “Battleship Potemkin” and whatever skills can be gleaned from serially watching the musical “1776,” I have zero credentials to evaluate the curriculum of a film course.

[5] Which, by the way, the band might not even own.

[6] For the record, if I were the lawyer advising this band, the contest terms would have contained a clause allowing my client to revoke permission to use the clip and participate in the contest in the event an entry was contrary to their values (racist, sexist, transphobic, etc.). 

[7] More information using a Fair Use Assessment form can be found here: https://copyright.cornell.edu/fairuse

Tags: Copyright, Derivative Works, Fair Use, Music

Topic: Music Accompaniment - 1/16/2020
Can a music accompaniment part be recorded ahead of time for a performance as long as the school o...
Posted: Thursday, January 16, 2020 Permalink

MEMBER QUESTION

Can a music accompaniment part be recorded ahead of time for a performance as long as the school or library has a copy of the sheet music? Can a few modifications be added to the accompaniment as long as the heart of the work is preserved? Can this recording be shared among schools and libraries as long as each organization has a copy of the sheet music with performance rights?

WNYLRC ATTORNEY'S RESPONSE

This question came in from a school system, and it triggered a lot of memories for me.

My junior high school music teacher was a very nice man.  From deep within mid-1980's Central New York, he tried to cobble together an orchestra from an array of students whose skills and practice habits ranged from "Julliard-bound," to "who is torturing that cat in the third violin chair?"

Back in 1986 (when I was 13), I saw this guy as "old."  Because of the way he tirelessly started the music over (and over) until the brass section[1] entered at the right bar of "Star Wars", I also saw him as a font of endless tolerance.

Now that I am older, my memory portrays my former teacher as a pretty young guy (I think he was in his early 30's).  And by now I have worked with enough educators to know that his tireless tolerance of our incompetence was passion.

So, this question has stirred a feeling of nostalgic gratitude.  Because of that,[2] I want to give this member an answer that is really solid, helpful, and clear.  But as they say in the construction biz when people ask for a job that is quick, quality, and cheap: I can give you a combination of any two, but not all three.

Here is the part of the answer that is solid and clear: Making a recording of a copyright-protected composition, unless the recorder has the permission of the copyright owner, or the recording falls under an exception, is copyright infringement…even for educational purposes.

Is there helpful and solid authority on that?  Yes. Circular 21, the long-standing guidance on the relevant copyright laws,[3] makes it clear that for educators, only the following recording of musical compositions is allowed under "fair use":

A single copy of recordings of performances by students may be made for valuation or rehearsal purposes and may be retained by the educational institution or individual teacher.

[AND]

A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

So, at first blush, the answer to the member's first question (and thus, all the following questions) is: NO.

Now, the core guidance in Circular 21 is OLD.[4]  It pre-dates streaming, it pre-dates file-sharing, and depending on what start date you give the web, it pre-dates the Internet.  But insofar as case law and legal commentary is concerned, it abides.[5]

So, while I have to answer a resounding NO to the question just as it is asked, I can offer a few helpful and clear solutions.

First, it never hurts to ask.  Depending on the copyright holder, you may be able to get a "limited license" for the very thing you want to do.  Some owners might even be charmed.  Others, of course, will just refer you to their manager.  You never know until you try.  Just make sure you get it in writing.

Second, while the Circular 21 guidance quoted above gives clear examples of what fair use permits, on page 7 of Circular 21, just before listing those guidelines, it states "There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use."

So, if a version has been recorded for performance as part of a clever mash-up, for purposes of commentary and criticism, or another use that might meet fair uses' four factors, this approach is worth considering.  Sadly, since that is a case-by-case analysis, I can't say what precisely when that is allowed!  An education institution should perform such an analysis using its fair use form.[6]

Third--and I can't believe I am suggesting this--it may be that a combination of different licensing can arrange this precise permission for you.

We'll call this the "Two-Step Shuffle" solution.  It is meant to be helpful, and it is solid, but I am concerned it might not be too clear.  But let's give it a go.

NOTE: to use the "Two-Step Shuffle" solution, your institution MUST have a public performance license from a licensor like ASCAP or BMI.  So, if your school doesn't have one, just stop reading, right now.  But if you do…

Step one: see if the song you want to record is licensed for "covers" on a publicly accessible "host site" like YouTube.[7]  If the host site[8] has the license, you can record the accompaniment as a "cover," and put it on the host site.

Step two:  With your "cover" recorded, you can then play it from YouTube at any premises that has a license for public performance (this is why you need that license from ASACP or BMI…which is also what covers playing music at a high school dance, music over the loudspeaker during halftime, etc.).

Of course, this being an Internet solution, the "Two-Step Shuffle" solution could disappear at any moment!  But this being the Internet, something else will take its place.

Now, in suggesting a school to make use of a commercial video hosting service (like YouTube), I would like to take a moment to discuss those two important legal concepts: "Coulda," and "Shoulda."

Just because a school can upload content to a site like YouTube, and get a license for a cover, doesn't mean it should.  After all, when using a service like YouTube, an institution agrees with these terms:

By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors' and Affiliates') business, including for the purpose of promoting and redistributing part or all of the Service.

In other words, you're feeding the beast; you're commodifying the content you've chosen to share.  If it's student work, there are privacy and further intellectual property concerns (students own their copyrights, after all).  None of these are things an educator should take lightly.

That said, if approached with the right balance of attention to legal details and commitment to artistic excellence, the "Two-Step Shuffle" can also show future artists and performers how to respect copyright law and engage in self-promotion (which seems to be a critical skill  nowadays).  So "woulda, coulda, shoulda?"  If you undertake the "Two-Step Shuffle" solution, do it with an "ethics buddy" (preferably an administrator who has your back).

And of course, a "Two-Step Shuffle" solution can only be used if you can answer these questions in the affirmative, and you preserve the documents from which you derive your answers:

  1. Do you have express permission from the host site to make and post the recording on the host site?
    1. If "yes," keep a copy of that permission.
  2. Do you have express permission to perform the recording at the premises?[9]
    1. If "yes", keep a copy of that permission, too.

That second part pertains to any other school or place that wants to publicly use your recording, as well.

So, there you have it.  Was this solid and/or helpful and/or clear?  In keeping with my Junior High memories, I give myself a "B."

I do wish this answer was a little less like trying to get the brass to come in at the right bar of "Star Wars," but copyright, fair use, and licensing take time and attention to detail to get right.

That said, with enough passion to fuel the effort, I am confident you'll hit the right note.



[1] That was me.  I played trumpet.  And had braces. NOT a good combo.

[2] And because I have high standards.

[3] Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians," which has been in use since my days playing trumpet, and arguably, could use some updating.  You can find it here: https://www.copyright.gov/circs/circ21.pdf

[4] How old? It was first contained in a joint letter written by representatives of the Music Publishers’ Association of the United States, Inc., the National Music Publishers’ Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the "Ad Hoc Committee on Copyright Law Revision" on April 30, 1976.  Of course, if I tell my younger sister that something from 1976 is "old," I'll catch hell, but fortunately, she teaches religious education, not music.

[5] A scenario such as the one depicted by the member doesn't even get any slack from educators' other great copyright reprieve: section 110.  While 110 does allow a variety of exceptions for musical performances, it doesn't extend its tolerance to recording.

[6] Something no not-for-profit educational institution should be without, since it can help your institution limit damages under Section 504 of the Copyright Act.

[7] As of January 13, 2020, YouTube maintains a list of licensed songs you can record and upload at https://www.youtube.com/music_policies?ar=1578920053089&nv=1.  And, also as of this January 13, 2020, YouTube (unlike Netflix or HULU) enables businesses to use their services (rather than restricting them for "personal" and "home" use).

[8] Insofar as I know, only YouTube does this.  But I need to get out more, and of course, this type of thing evolves quickly in cyberspace.

[9] This is different than permission to perform the musical composition!

Tags: Copyright, Fair Use, Music, Circular 21, Online Programming

Topic: ResearchGate, PDFs, and Copyright - 12/12/2019
ResearchGate is often a place individuals will go to snag PDFs which are typically provided b...
Posted: Thursday, December 12, 2019 Permalink

MEMBER QUESTION

ResearchGate is often a place individuals will go to snag PDFs which are typically provided by authors, not publishers. It refers to itself as a community and network for researchers to share and discuss their research with others from around the globe. ResearchGate explicitly states that they are not liable for any copyright infringement, and that the responsibility rests with the individual; it is entirely up to the individual to either post the PDF to be downloaded freely, or to send the PDF to individuals upon request.

I have multiple questions surrounding the use of ResearchGate. Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons? I am personally very hesitant to refer anyone to ResearchGate as I find most faculty researchers are not aware of who truly holds the copyright to their published articles. Thank you!

WNYLRC ATTORNEY'S RESPONSE

I first heard about “ResearchGate” at a copyright training I was conducting for librarians. 

There I was, holding forth about Section 108 and Fair Use, when out of the blue, an academic librarian asked me: “What do you think of Researchgate?”[1]

This question triggered my number one rule for lawyering: never assume you know an answer; always do your research.  So even though my brain figured that “Researchgate” was a new scandal involving falsification of data,[2] I instead replied: “I have to admit, I am not familiar with that.” 

Good thing I followed rule number one!

Since that time, and in response to this question, I have had a chance to visit ResearchGate’s “About” page and their “Terms of Use” (for academics and students) page.  And I have developed some thoughts.

But first, here’s what I have learned:

Notably, as the member points out, ResearchGate’s “Terms” for submitters reinforces the rights of authors:

As a member, when you post full-text articles or supplementary materials on ResearchGate, you do not transfer or assign copyright to us. Rather, you make the content available to the public through ResearchGate.

…about encourages users to respect the rights of others:

If you choose to privately archive or publicly post content, we encourage you to first confirm your rights before doing so. … As we do not have any information about rights you may hold, or any license terms or other restrictions which might apply to such content, we necessarily rely on you to understand your rights and act accordingly. 

ResearchGate’s relationship with users is also governed by clauses on “Liability” and “Indemnification”—with ResearchGate attempting to pass all liability for a copyright infringement onto the users who supply content.

And finally, as also shown in their policies, ResearchGate also takes advantage of the “notice and takedown” provisions under the Digital Millennium Copyright Act to assure itself “safe harbor,” in the event a user posts infringing content.[3]

What I found at ResearchGate.com was what looks like a thorough attempt to dot all the “i”s and cross all the “t”s to respect intellectual property.  They probably have a very good lawyer.

But as I said, “always do your research,” so in addition to visiting their site, I also visited PACER to see if ResearchGate is being sued by anyone for copyright infringement.  And boy, are they ever.

ResearchGate GmbH (its corporate name in Germany, where it appears to be based) is being sued by Elsevier, Inc., Elsevier Ltd., Elsevier B.V. and the American Chemical Society (“ACS”).[4]  The basis for the suit, as set forth in paragraph “three” of the plaintiff’s complaint, is the ResearchGate’s use of “Published Journal Articles” (which the suit calls “PJA”s):

This lawsuit focuses on ResearchGate’s intentional misconduct vis-à-vis its online

file-sharing / download service, where the dissemination of unauthorized copies of PJAs

constitutes an enormous infringement of the copyrights owned by ACS, Elsevier and other

journal publishers. The lawsuit is not about researchers and scientists collaborating; asking and

answering questions; promoting themselves, their projects, or their findings; or sharing research

findings, raw data, or pre-prints of articles.

And, just in case that doesn’t sound too bad, here’s the next paragraph:

ResearchGate’s infringing activity is no accident. Infringing copies of PJAs are a

cornerstone to ResearchGate’s growth strategy. ResearchGate deliberately utilizes the infringing

copies to grow the traffic to its website, its base of registered users, its digital content, and its

revenues and investment from venture capital. ResearchGate knows that the PJAs at issue

cannot be lawfully uploaded to and downloaded from the RG Website. Nevertheless, in violation of the rights of ACS, Elsevier, and others, ResearchGate uploads infringing copies of

PJAs and encourages and induces others to do so. ResearchGate finds copies of the PJAs on the

Internet and uploads them to computer servers it owns or controls. In addition, ResearchGate

lures others into uploading copies of the PJAs, including by directly asking them to do so,

encouraging use of a “request full-text” feature, and misleadingly promoting the concept of “selfarchiving.”[sic]  ResearchGate is well aware that, as a result, it has turned the RG Website into a focal point for massive copyright infringement.[5]

Yikes, that sounds dire, right?  And very akin to the member’s concerns.

So, with all that established, I’ll share my thoughts, and address the member’s questions.

Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons?

Questions like this may be informed by law (and risk management), but must always start with ethics. 

The ALA Statement of Ethics[6] has very clear language regarding intellectual property: We respect intellectual property rights and advocate balance between the interests of information users and rights holders.

When it comes to a source like ResearchGate—ostensibly trying to operate within the bounds of the law, but alleged to have a seamier side—the ALA’s further musings[7] on this statement on copyright are also instructive:

 Library workers are increasingly critical resources for copyright information in their communities. Consequently, they should be informed about copyright developments and maintain current awareness of all copyright issues. Library workers should develop a solid understanding of the law, its purpose, and the details relevant to library activities. This includes the ability to read, understand, and analyze various copyright scenarios, including fair use and other copyright limitations, using both good judgment and risk mitigation practices.

Library workers should use these skills to identify their rights and the rights of their users. Further, they should be ready to perform outreach surrounding copyright topics and refer users with questions pertaining to copyright to reliable resources. However, library workers should avoid providing legal advice. They may provide information about the law and copyright, but should recommend that patrons consult an attorney for legal advice. [emphasis added]

I can’t answer the member’s questions for any particular library. But based on the ALA Statement of Ethics, its further comments on copyright, and risk management principles drawn from the law, I can suggest a methodology for a library to apply when asking them.

First, if a librarian, using their own observations, and applying ALA ethics, believes a source to be dubious,  it is clear that they are ethically obligated to “us[e] both good judgment and risk mitigation practices” about “relevant to library activities,” and to work with decision-makers at their institution to develop a clear position on that source.

This is not a simple nor easy exercise.  Further (and frustratingly, for some) it may vary from institution to institution.  Some libraries dance on the cutting edge of copyright.  Others err on the side of caution.  The decision to do either should be based on an informed assessment that considers the library’s mission, insurance, tolerance of risk, and its comfort level with the status quo.  

The member is already applying personal experience and modeling this balancing.  Remember the last part of the question: I am personally very hesitant to refer anyone to ResearchGate, as I find most faculty researchers are not aware of who truly holds the copyright to their published articles.

To that type of informed concern, there are two considerations I would add for libraries making this type of determination:

1) Under Section 108 of the Copyright Act, a library’s exemption from infringement can turn on their lack of awareness of a scheme to make exploitive commercial copies.  Your library’s insurance may also deny coverage if a library is knowingly referring users to an infringer.  So, if your institution is aware that a source is an infringer (which is different from suspecting a source is an infringer), that is a factor to balance.

2) On the flip side, libraries should not be willing (and generally have not been willing) to roll over to support the unchecked dominance of traditional commercial publishers.  Without pushback, rates will continue to go up, while terms will get more onerous.   But there is a difference between thoughtful pushback (like the current, organized fight against the McMillan Embargo[8]), and systematic copyright infringement (like Napster).  

Questions like this one show that librarians are thinking about the difference.  

Thanks for a great question.  It will be interesting to see if the case against ResearchGate goes the distance, and to see libraries decide where they stand.



[1] When this question first put the name in my brain, the “g” was lowercase.  

[2] For over ten years, I was in-house counsel at a university, and had a reason to read “The Chronicle of Higher Education,” every week.  Every year the Chronicle reported on one research-based scandal after another; it’s a miracle I didn’t hear the term “ResearchGate” before this!

[3] As of December 8, 2019, you can see this on ResearchGate’s Intellectual Property Policy.

[4] Am. Chem. Soc'y v. ResearchGate GmbH, 2019 U.S. Dist. LEXIS 98372, 2019 WL 2450976.

[5] Yes, this is one monster paragraph within the law suit. 

[6] As of December 8, 2019, found at http://www.ala.org/tools/ethics

 

Tags: Copyright, DMCA, Ethics, Fair Use, Laws, Photocopies

Topic: Music Lending Libraries and Copyright - 11/6/2019
A local county Music Educators Association has approached my BOCES and has asked if we would house...
Posted: Wednesday, November 6, 2019 Permalink

MEMBER QUESTION

A local county Music Educators Association has approached my BOCES and has asked if we would house & manage their music library. Apparently, the music library was at one point housed at this BOCES, but was then moved to one of the participating districts when BOCES said they would charge a fee for the service. It is my understanding that multiple school districts buy, share, make copies and physically loan choral and band sheet music to each other. One of the music teachers has indicated that the library consists of 581 choir pieces and that each piece has 100-200 copies (and that’s not counting the band music).

I’m concerned that the number of copies the teachers have made of each choir piece is a copyright infringement and also am unsure if it’s even legitimate to loan and share the original pieces among multiple districts for the purpose of shared usage and I’m hoping you can help point me in the right direction in terms of how a music lending library could work (legally!) in terms of copyright, licensing and fair use.

WNYLRC ATTORNEY'S RESPONSE

Yes, I can point you in the right direction…but I can’t take credit for drawing the map!

Since it pertains to a local “Music Educators Association,” this question brought me on a pleasant journey into the chartered territory of the “New York State School Music Association,” a/k/a “NYSSMA.”

NYSSMA is the organization for school music educators in New York.  Its mission is to “advance music education across New York State for its membership and students in member school programs.” 

Like libraries, schools, and BOCES, NYSSMA is chartered by the Regents of the State of New York.  To enable meaningful participation on a local level, NYSSMA is broken into 15 zones. 

In the member’s question, it sounds like a local zone of NYSSMA is asking a local BOCES for assistance.

Since both entities are chartered by the Regents, this makes sense; it’s like your cousin asking if she can store tools in your garage.  Except in this case…you aren’t sure where your cousin got the tools.  Or who might ask to borrow them.

As the member points out, this uncertainly could be cause for concern.  This is particularly true because under copyright law, a license is required to not only duplicate music, but to perform it, so an entity providing unauthorized copies could experience more than one type of liability.

Fortunately, there are many helpful resources to address this, and the basics are set out in plain language on the page of NYSMMA’s national affiliate, the “National Association for Music Educators (“NAfME”).

On their helpful page, found at https://nafme.org/my-classroom/copyright/, NAfME outlines the basics of managing a music library for NYSSMA members. 

As stated by NAfME:

“Unlike most educators, music educators must face copyright compliance frequently throughout their career. Although the thought of copyright can be intimidating and a complex subject, NAfME has a multitude of resources that can help you better understand U.S. copyright law.”

How does an institution considering providing this service get started? Any institution considering housing a music library (or script library, or an architectural plans library, or anything that will be licensed and/or loaned under particular conditions) for another entity needs to do these three things:

            1.  Research and assess the full scope of what will be required;

            2.  When the full scope is known, develop a budget, policies, job descriptions and a contract (or term sheet) to support what is needed; and

            3.  Finalize the arrangements in a way that mitigates risk,[1] and makes the service effective and sustainable.

Since this type of analysis can reveal the complexities of what may seem like a simple service, it is not surprising to hear that at one point a fee was required for it!

As the resources on the NAfME site show, housing and managing a music library is potentially a very detailed endeavor.  And while technology has made some aspects of the tasks involved easier, any institution providing such a service will need to make it a part of someone’s job.

So, after reviewing the basics on the NAfME site, it would be good to have a forward-thinking and specific discussion that addresses the following:

  • Whose property are the copies to be housed and managed?
  • Are there copies of the original purchase agreements and licenses?
  • How is the collection to be searched?
  • How is the music loaned out?
  • Who tracks copies on loan?
  • What is the approach for unreturned copies?
  • Who arranges for performance licenses, and who keeps copies of permission granted?
  • How are new works accessioned?
  • How are copies de-accessioned?
  • How are damaged copies replaced?
  • What is the value of the collection?
  • What is the cost of the service?

In addressing these questions, it is important to note that NYSSMA has access to numerous copyright-related resources as a member of NAfME.  For instance, as noted on the NAfME “copyright” page: “Through an agreement with ASCAP and BMI, NAfME (or MEA) sponsored groups are granted performance rights of music managed by these organizations. (This covers only performances sponsored by NAfME or federated state associations of NAfME.) However, if members wish to record their students’ performance of any work, permission must be obtained through Harry Fox Agency.” 

So awareness of NYSSMA’s rights, as parties explore how they could assist with housing and managing a NYSSMA-owned collection, would be critical.  Solid and well-coordinated compliance with license terms would also be important.

I know this is just the overture to a full answer, but thank you for a well-composed question.[2]

 

 


[1] For instance, if the collection is valuable, insurance coverage should increase.

[2] In researching this answer, I also enjoyed reading the discussion of the qualifications of a music librarian, found on the Music Library Association’s web site at https://www.musiclibraryassoc.org/page/MusicLibrarianship.  I don’t know if a person with music librarian skills is needed for a service like this (likely not), but only the analysis I set out above could confirm that.

Tags: Copyright, Music, School Libraries, Fair Use

Topic: Showing Films or Streaming Movies under Community Education Program at a School District - 10/31/2019
Our school district offers a Community Education program that offers courses on a broad range of t...
Posted: Thursday, October 31, 2019 Permalink

MEMBER QUESTION

Our school district offers a Community Education program that offers courses on a broad range of topics to the community. In some of these Community Education classes the instructor may want to show a DVD movie or stream a movie that is related to the course. Would this violate fair use and copyright? How would this also change the outcome if our school district has a subscription with SWANK Movie Licensing?

WNYLRC ATTORNEY'S RESPONSE

Flying at 10,000 feet, the answer to the first question is: if the class in in person (not online), AND the institution is non-profit, AND the only viewers are the instructor and the students enrolled in the class, AND the viewing is in the classroom or academic facilities, AND the content is part of the curriculum, AND the copy was legally obtained…then the showing is allowed under Section 110(1) of the Copyright Act (“110”).[1]

The answer to the second question is: if use of the precise copy is controlled by a SWANK license, then despite authorization under 110, the showing must be consistent with the terms of that license.  For that matter, the use of any other content service for viewing movies (Netflix, YouTube, etc.) must also conform to the terms of the service’s license.

Swooping a bit lower to the ground (but not into the weeds): exercising rights under 110 is why it is important that: 1) class syllabi show the relationship of materials to the goals of a course, 2) institutions maintain lists of enrolled students, and 3) institutions have designated spaces for instructional activities.

This is why reading the fine print on content licenses is important, since contractual obligations can over-ride rights otherwise granted by law.

How does a school librarian help instructors stay within the bounds of the law or the license?  A good rule for educational institutions is to have clear and pro-active policies and outreach[2] for instructors who need to show movies.  In this world where education gets hit with new laws, regulations, and policies every year, while clear policies are important, a simple message to instructors: “Need to show a movie in class?  Ask us how!” is a great place to start.

 


[1] Here is the full text of sub-section (1) of 17 U.S. Code Section 110: [Notwithstanding the provisions of section 106, the following are not infringements of copyright:] “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made….”

[2] What’s a sign that your institution’s policy is sufficiently “clear and pro-active?”  Instructors not using their own personal Netflix accounts is Exhibit #1.

 

Tags: Copyright, Fair Use, Movies, School Libraries, Swank Movie Licensing

Topic: Class Materials As Intellectual Property - 10/4/2019
I'm working on a research project with other librarians who work with nursing schools from acr...
Posted: Monday, October 7, 2019 Permalink

MEMBER QUESTION

I'm working on a research project with other librarians who work with nursing schools from across the United States.

Our research question involves the restrictiveness of requirements for articles used in student writing assignments, i.e. limiting to articles published in the past 5 years and one author must be a nurse.

Our data collection plan involves collecting syllabi and assignments for nursing school writing assignments to analyze for the criteria that articles must meet.

We would like to know before we begin, do syllabi and course assignments constitute intellectual property that is protected by copyright laws?

Thank you for your assistance with this!

 

WNYLRC ATTORNEY'S RESPONSE

Yes, syllabi and assignments can be protected by copyright, so long as they are of sufficient substance and originality.  

Of course, there is no precise formula for what constitutes “sufficient substance and originality.” However, a freshly-composed assignment of more than a paragraph or two should be enough to qualify for protection, and a typical syllabus—setting forth the course purpose, assignments, means of grading, and class-specific policies—should almost always qualify (even if wrapped up inside a larger institution-wide template to cover academic integrity, ADA accommodations, and grade appeal).

The trick, however, is know who—or what—owns that copyright.  Some institutions will claim ownership, since the content was generated by their faculty (a concept called “work for hire”).  But other institutions will expressly let their faculty own their work-product.  So, there is no one rule for determining ownership, and that means there is not one method for obtaining permission.

But do you need permission?  While that is always nice, in academia (just like anywhere else), not everyone is eager to have their own work assessed, and yet, there must be some way for analysis, commentary, and criticism of that work to be conducted.  Which bring us to every information professional’s favorite copyright concept: fair use.

Fair use is the ability to use copyright-protected materials for purposes of education, commentary, and criticism.  It was designed for projects like the one in this question.  But just like with determining ownership, there can be no cookie-cutter answer, for as one court put it: “Determining fair use is a mixed question of fact and law.”[1]

How can a project like the member’s address this “mixed question?” In a situation like the one presented by the member, here is a good approach:

Step 1:

Generate a careful summary or abstract of the project (which the member has done here), and the data collection methods. 

Step 2:

Consider how many copies of assignments/syllabi the project will need to make, how they will be stored, and the use your project will make of them.  If stored in hard copy, where will the copies be, how many must you create, and how will you restrict further duplication?  If digital, consider how the electronic copies will be accessed and secured, perhaps warning users on a user-limited shared drive to only use the copies for the purposes of the project, and to not disseminate them further. 

Step 3:

With all that assessed (but no copies yet made!), conduct and document a “fair use assessment,” using your institution’s policy and form for fair use (any research institution, or educational institution, should have these; for example, the great library team at Cornell has a well-developed checklist[2] for their faculty and staff to use when contemplating the use or partial use of copyright-protected materials).

Step 4:

If you determine the use will be “fair,” and decide to proceed with making only those copies you need for your project (and include only the content needed to prove your point in any final product) save the fair use assessment documentation, because under Copyright §504, a good-faith belief by a library, archives, or higher ed institution that it is making a fair use of protected materials can limit the damages in the event it is accused of infringement.[3]

So, to reiterate the answer to the core question: yes, assignments and syllabi can be protected.  But to expand from there: that protection should not be a roadblock to an academic work assessing them. While it might present a small “speed bump,” the law of fair use provides options that are consistent with good scholarship practices and rigorous inquiry.

I am curious to see your project’s conclusions.



[1] Hon. Cardamone, in Weissmann v. Freeman, in the United States Court of Appeals for the Second Circuit, 868 F.2d 1313, at 1324 (1989), ruling on a case of copyright infringement in academia, while also over-ruling a lower court judge who was a bit ham-handed in assessing the original case (even judges have a tough time with fair use!).

[3]  Or as the law puts it: “…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…

Tags: Copyright, Fair Use

Topic: Patron Streaming Content and Library as a Contributory Infringer - 9/3/2019
According to Motion Picture Licensing Corporation, "A library can even be held as a contribut...
Posted: Tuesday, September 3, 2019 Permalink

MEMBER QUESTION

According to Motion Picture Licensing Corporation, "A library can even be held as a contributory infringer simply for allowing patrons or guests to conduct unlicensed exhibitions on site. Innocuous activities, such as patrons streaming content from Netflix, Hulu, or Amazon Prime on library computers, require a public performance license."
 
There is a lot of variations in how a patron may access these sites - on a public computer; on a personal device; on library wi-fi; on their personal device using a personal data plan... Is this referring to public library computers ONLY, or any patron device that is accessing their private streaming accounts in the public library? We have a lot of people that come in and use our wi-fi, and download episodes to watch at home. We've always treated public computers as a private space.
 
Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?
 
Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?
 
Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
 
Any guidance would be appreciated.
 

WNYLRC ATTORNEY'S RESPONSE

As the member shows here, there are a lot of questions within the big issue of “contributory infringement” via use of the internet in libraries.  And because they all relate to legal liability, they are scary for library staff and leadership.

To take the edge off that fear while defining “contributory infringement,” please enjoy this bad joke:

“Knock-knock.”

“Who’s there?”

“Contributory infringer.”

“Contributory infringer who?”

“Contributory infringer who is liable if, knowing of infringing activity, induces, causes or materially contributes to infringing conduct of another.”

Ouch.  Sorry.  I know that really wasn’t funny.  I have been teaching knock-knock jokes to my 5-year-old daughter, and they are harder to write than you’d think. 

But while the joke was bad, the definition was good.  So, what is “contributory infringement?”  All (bad) jokes aside, contributory infringement—when a person/entity aids to infringement—is a recipe for serious liability, with the contributor “jointly and severally” liable along with the main infringer.

And yes, as the quote from the MPLA says, unlicensed exhibitions of movies in a library can result in a finding of liability for the library. However…

The MPLA is representing an industry.  This “warning” statement is a good example of an industry taking advantage of the complexity of the law to issue a statement that, unless carefully unpacked, will make the reader fear assertions that are grossly overbroad. 

Deconstruct the statement.  As the member fears, at a superficial level it seems to state that every copy of motion picture content accessed through a library’s wi-fi and played on any device might be a “contributory infringement” without a license.  Ouch.  That would be a recipe for disaster, indeed. 

But this is a typical industry over-step.  Fortunately, we fight such over-steps with information, and information is the librarian’s stock-in-trade.

Entire books, law journal articles, and Supreme Court opinions have been written on this topic, but I am going to focus on three bits of practical information that address the member’s concerns.

First, there are obviously sections of the Copyright Act that allow performances of audio-visual works in a library that would otherwise be infringing: Section 107, 108, and 110,[1] depending on the circumstances (including the type of library) can all apply.  I won’t unpack these sections here—the applications are too fact-specific—but let’s just say: “There are ways.”

Second, a user accessing content on a library computer may be doing so under their own personal license (Hulu being a possible example).  There is no requirement[2] in the Hulu license that a user access their personal Hulu account on a device they personally own; in other words, there is no concern if they access it on a library computer (so long as it is only for personal use).  On the flip side, there is no permission from Hulu to use my personal account, via my personal computer, to show a movie to 20 unrelated people and charge admission. So, it’s not so much about the streaming, as what I do with it.  This will vary from platform to platform, but the conditions of use will be in the license.

The third factor is the most important for this question, and is what the rest of this response is about, since it applies to the majority of the member’s hypothetical concerns.

To combat the fear that any re-posting or access to audio-visual copyrighted material via a library user account, website, database, or wi-fi connection is a potential infringement the library could be contributing to, every library should register under the Digital Millennium Copyright Act (“DMCA”), and have a policy for responding to reports of infringement.

Why?  Because under the DMCA, service providers may avoid liability for copyright infringement that occurs "by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." [3]

This arrangement allows services like news aggregators (think Huffington Post), content providers (think YouTube) and internet access providers (think Verizon) to function without performing a chilling gate-keeping function, giving them what’s called a “safe harbor” from contributory infringement. 

To qualify for this “safe harbor,” a library must be ready to show that it:

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement . . ., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So powerful is this “safe harbor,” that sites hosting infringing content are routinely found non-liable, so long as they designate a DMCA “agent” with the Copyright Office and meet the above elements[4], and can show they acted promptly when the agent was notified of alleged infringement.

Of course, any library considering this approach must do so with its eyes wide open.  The DMCA is not beloved by libraries; the ALA has some choice criticism of the advantages the “notice and takedown” process gives content owners, and the rough road the process presents to fair use.[5]  Nevertheless, the DMCA remains a legal tool that addresses all of the member’s hypothetical concerns and solutions.

To illustrate, let’s run through the member’s examples a bit. 

First, the member lists the different types of technology access and use that could be used as a basis for a claim of contributory infringement.  The member is right to be concerned, because regardless of the ownership or type of device used in the library (library computer, or patron-owned device, phone, tablet, desktop computer), if an unlicensed movie is being shown at the library (with or without the use of library wi-fi), it runs the risk of being an infringing performance.[6]  But so long as the library is not aware of someone using the library’s wi-fi or website to show, post or share infringing content (or the use is not so flagrant that the library “should have known”), and the library meets the other elements listed above, DMCA “safe harbor” can apply.

Of course, this means the library must be able to show it does not have “actual knowledge” that an infringing performance is happening.  If the library is hosting obviously infringing activity (like a person sitting on top of the reference desk ripping movies in plain view while singing “I am pirating a copy of “Lego Batman, hooray!”), “safe harbor” might not apply.  But if the library is hosting someone quietly accessing a copy of “Lego Batman” on their personal computer (perhaps with a future fair use defense due to using the content in a documentary on deconstructing traditional notions of masculinity via comic-book-based animated children’s movies), and the library has no knowledge of the action, it would be tough to show “actual” knowledge. 

NOTE: again, this tension, and the fact that what looks like infringement can often be a fair use, is one reason the ALA and others have an issue with the DMCA.

How does a library relying on the DMCA determine the line between genuine lack of awareness and what it “should know”?  A library’s bar on using library resources for obvious and intentional copyright infringement should be in both its internet use policy, and its patron code of conduct.  “Obvious and intentional” use of library resources to infringe copyright can include:

  • Making multiple unauthorized copies of articles;
  • Screening movies to a group without a license;
  • 3-D printing patent-protected medical devices.

These examples all bring serious intellectual property concerns, and libraries must be positioned through policy to deal with them.  But through a combination of the DMCA and respecting patron privacy, libraries do not need to consider blocking access or specifically restricting specific content to avoid contributory infringement.[7]

It’s an imperfect balance, to be sure.  The ALA and others are right to hold the line on concerns with the over-use of the “notice and takedown” provisions of the DMCA.  But within that imperfect system is the secret to the member’s concerns.

The member’s final three questions are:

Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?

Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?

Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
The answers to these questions are:

  • To limit liability under the Copyright Act, there is no requirement to block, seek out, or repeatedly warn against infringement.[8]
  • That said, outright theft of intellectual property should be prohibited through library policy and internet/computer access agreements, and observable violations should be addressed through a patron code of conduct.
  • Liability for contributory infringement can be reduced by following the DMCA.
  • Policies and design that ensure the privacy of users and the confidentiality of patron records can contribute to the reduced liability brought by the DMCA.

Thank you for a good, complex question.  For libraries that have not yet done so, a DMCA policy and registered agent are worth (very carefully) considering.



[1] Fair use, library-specific protections that apply to audio-visual news, charitable and educational exceptions.

[2] As of August 22, 2019!

[3] 17 U.S.C. § 512(c)(1).

[4] The process for designating an agent may be found at: https://www.copyright.gov/dmca-directory/

[5] A nice primer is also provided in this commentary by the Electronic Frontier Foundation.

[6] If your library is part of an accredited educational institution and the movie is being shown as part of a class, check out the exceptions under Section 110 of the Copyright Act!

[7] Library IT staff and leadership may, of course, consider blocking or granting lesser priority to certain types of online traffic (access to WorldCat v. access to Blizzard, for instance), simply for utility’s sake.  That is another topic beyond the scope of this response, but one I’d love to see a panel about.

[8] Higher education libraries, careful coordination with other operations may be needed on this, due to your institution’s obligations under 34 CFR 668.43, which does require certain warnings be given to students.

 

Tags: Copyright, Fair Use, Streaming, DMCA

Topic: Using Streaming Services (Hulu, Netflix) in the Classroom - 4/17/2019
In a public school...What are the possible legal consequences of showing Netflix or other digital ...
Posted: Wednesday, April 17, 2019 Permalink

MEMBER QUESTION

In a public school...What are the possible legal consequences of showing Netflix or other digital streaming services like HULU from a personal account in a classroom setting.

Can teachers legally stream Netflix services from their personal account in the classroom?

The "Educational Screenings of Documentaries" section of Netflix indicates to me that those documentaries listed are the only titles that would be allowed to be shown through a personal account and that all others are for personal use only, meaning that Fair Use would not apply.

I found a Lib Guide from the James E Tobin Library:( https://molloy.libguides.com/streaming/netflix ) that explains how the personal license overrules copy right exemption. I understand what the page is saying in its entirety and like their explanation, but would appreciate having a legal perspective on this issue.

Thank you for any help you can provide!

WNYLRC ATTORNEY'S RESPONSE

The relationship between a person and their streaming content service is almost always[1] governed by a type of contract called a “license.”

As the members states, such a license (often accepted by clicking to accept terms left unread) can over-ride the infringement exceptions like those found in 17 U.S.C. §§107, 108, and 110.[2]

In other words, once a user voluntarily agrees to a contract restricting use of content, rights they may have once by law may become inaccessible.

Use of streaming content in the educational setting is a good example of this.  While Section 110 of the Copyright Act may allow a teacher to show a movie in class (if the movie is shown in the physical classroom and if the content is part of the curriculum), that same movie might not be accessible under the teacher’s Netflix license.

Why? Content providers change the terms of licenses all the time, but one thing is pretty constant: restricting subscription access to personal use.

Here is how Hulu puts it:

3.2 Your License. Hulu is pleased to grant you a non-exclusive limited license to use the Services, including accessing and viewing the Content on a streaming-only basis through the Video Player, for personal, non-commercial purposes as set forth in these Terms.

Netflix has a similar-sounding restriction.  Even the “Educational Screenings of Documentaries” the member references (found at https://help.netflix.com/en/node/57695) license is pretty narrow (and actually a shrewd PR move for a commercial service):

Educational screenings are permitted for any of the documentaries noted with this information, on the following terms:

The documentary may only be accessed via the Netflix service, by a Netflix account holder. We don’t sell DVDs, nor can we provide other ways for you to exhibit the film.

The screening must be non-profit and non-commercial. That means you can’t charge admission, or solicit donations, or accept advertising or commercial sponsorships in connection with the screening.

Please don’t use Netflix’s logos in any promotion for the screening, or do anything else that indicates that the screening is “official” or endorsed by Netflix.

We trust our users to respect these guidelines, which are intended to help you share and discuss our documentary content in your community.

To the extent your institution requires you to demonstrate that you have a license for your screening, please show them this page.

 

So there you have it: the only Netflix content that may be shown for classroom use is, as the member states, per this permission.

But (to address the other part of the member’s question) what are the consequences for not abiding by the license?  Is there a growing body of case law to show the fines, terminated accounts, and jail time[3] people are doing when they violate the terms of their streaming service license?

There is not. 

Why?  Most of these license agreements have arbitration clauses, meaning that disputes are settled without the publicly accessible process found in a court of law. 

Here is part of the arbitration clause from Netflix:

7.1. If you are a Netflix member in the United States (including its possessions and territories), you and Netflix agree that any dispute, claim or controversy arising out of or relating in any way to the Netflix service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration or in small claims court. … Arbitrators can award the same damages and relief that a court can award…. [4]

So there may be a number of instances where a license has been violated, and Netflix has sought “…the same damages and relief that a court can award” via arbitration.  But I don’t have access to that information.  Most of us just don’t know.[5]

I do know, however, that violating a license is wrong, and can have consequences. [6]  Further, I would hope that in the educational setting, modeling casual disregard for personal contractual obligations is not encouraged.

Teachers are usually barred by the contract from streaming Netflix services from their personal account in the classroom.  Unless there is an express license to the school from a streaming service, or for a particular film, I encourage teachers to obtain physical copies of films/DVD’s from the library, and play them in class on a good old-fashioned TV and DVD player, as Section 110 of the Copyright Act allows them to do. 

Thanks for this perceptive question.

 


[1] I would say “always,” but there has to be some streaming service out there with no “terms of use,” or other contractual permissions.  They might not have any desirable content, but there must be at least one.

[2] Fair use, library exemptions, and certain educational/charitable exemptions, respectively.

[3] I am mostly kidding about this last one. 

[4] Interestingly, as of this writing, Netflix is hosting “The Arbitration,” a 2016 film where: “An arbitration panel is formed after a company CEO in Nigeria is sued for wrongful dismissal and rape by an employee with whom he had an affair.”  An arbitration over unauthorized commercial use of a streaming service would likely be a tad less dramatic.

[5] And the people who probably do know are locked into confidentiality.

[6] Is a mandatory arbitration clause like this fair?  Are highly-leverage content restrictions healthy for our society?  Many would say “no” to both.  But the member’s question was not about mandatory arbitration clauses and heavy-handed content contracts.  Just wait until we get that question!

 

Tags: Streaming, Fair Use

Topic: Fair Use and Restrictions of Song Parodies - 4/16/2019
We are parodying words to a popular song to create a video celebrating our library's anniversa...
Posted: Tuesday, April 16, 2019 Permalink

MEMBER QUESTION

We are parodying words to a popular song to create a video celebrating our library's anniversary. The song is 50 years old. We will be using the music but changing the lyrics. We will be videoing staff members singing. Can we post this video to our library website? Can we use it in public settings? Are there any restrictions on use? Thank you.

WNYLRC ATTORNEY'S RESPONSE

When this question came in, I called the member library to get a bit more information: What was the song?  Would the video would be used for fund-raising?   How is it being put together?

You know…boring lawyer questions.

Since libraries are NEVER boring, I of course got interesting answers and more information than I bargained on.  With the permission of the member, and since this answer is not confidential legal advice, I am going to share a dramatic re-creation of our discussion here:

LAWYER:  Hi!  I am Stephanie Adams, the attorney for the council’s “Ask the Lawyer” service.  I wanted to check in on a few things for your question here.

LIBRARIAN:  Oh! Thank you for calling. 

LAWYER:  My pleasure.  Now, I just have a few questions….what song are you thinking about using?

LIBRARIAN:  Well, our library is turning 50, and we want to celebrate it.  We thought we’d pick a song that was from the same year we started.  As it turned out, this was a bit difficult, because it’s a challenge to find a song from 1969 that isn’t depressing.

LAWYER:  An upbeat song from 1969?  Wow, now that I think about it, that probably is a tall order.

LIBRARIAN:  Yes!  But we found one.  “Sugar, Sugar” by the Archies came out in 1969.

LAWYER:  Aha!  “Da da DAda DA da…”  Yes, that is catchy.  What are you thinking about doing with it?

LIBRARIAN: Well, we want to do a version that [REDACTED TO PROTECT SURPISE].  So, just like I wrote, we want to know if we can use the original recording for the music, or maybe just play our own version…one of our librarians is in a band.  And we’d like to put it on Youtube, or perhaps our website.  Or maybe just play it on computers in the library?

LAWYER:  Hmmm.  Do you plan on using it in connection with any fund-raising?

MEMBER:  No, no.  Just for fun and celebration.

LAWYER:  Okay.  Well, that’s helpful.  But I can see why you sent in this question.

LIBRARIAN:  Yes.  I know there could be some copyright issues.  But everywhere I look, I see libraries doing their own parody video versions of songs.  The ALA even did a parody of a Taylor Swift song!  So I figure, there has to be a way.

LAWYER:  Many ways, in fact.  And of course, just like you say, many, many, ways to have some concerns.  Okay, I need to hit the books.  I’ll be back in touch soon!

[PLEASANTRIES]

[END CALL]

 

The first thing I did, after this call, was check out Youtube.  The member was right: the internet is alive with clever, original, library-produced parody videos!  How had I missed these?  I really need to crawl out of my law cave every now and again.

That said, after a few fun moments of sharing some library/parody videos with my office people, I crawled back into my law cave to address the question.

In general, what does a library making a parody video have to consider?

Although many people think doing a “parody” is an instant ticket to a Fair Use (section 107 of the Copyright Act) defense, the member’s caution was right-on: the use of a musical recording (which is also use of a musical composition and its written lyrics), must jump multiple hurdles before it meets 107’s criteria.

As Justice Souter put it in the famous “2Live Crew” case[1]:

Parody, like other comment and criticism, may claim fair use. Under the first of the four §107 factors, "the purpose and character of the use, including whether such use is of a commercial nature . . . ," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors. [emphasis added]

In other words, parody doesn’t mean an automatic ticket to a Fair Use defense; the new work has to create a new message while also partly commenting on the old.  This is a high bar, even when the other factors (like a non-commercial use) may be in a library’s favor.

2 Live Crew’s version of Roy Orbison’s “Pretty Woman,”  which used both the music and AND (some of the) lyrics of the original, hit that bar: “It is th[e] joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works,” wrote Souter in 1994. 

Only this “joinder of reference and ridicule” protected 2Live Crew as they made use of Orbison’s musical composition and lyrics.  Had they left that “reference and ridicule” out, had they simply recorded a cover version of the song and changed a few lyrics without engaging in true commentary about the original, that wouldn’t have had that protection, and their use would have been infringing.

So, when planning a parody video, a library has to be honest: is it a true parody allowing Fair Use, or is it a fun riff that should get a license? 

Using our “Sugar, Sugar” scenario, let’s explore the difference:

The original video for “Sugar, Sugar” shows Archie, Veronica, Sabrina and the gang at a fair in Riverdale.[2]  Archie’s band strums and sings “Sugar…Aw, Honey Honey,”  while Sabrina runs a kissing booth. The whole things is a montage of Sabrina transforming the attendees into various animals with her magical kiss (cost: $1.00).  It is charming (although of course rampantly sexist).

Now, for a comparison of a fun riff versus a true, Fair Use-defensible parody.

A fun riff on this cartoon music video would simply change some of the lyrics and create a new, non-referential video.  Perhaps the chorus, instead of “Sugar, Sugar,” would be “WorldCat.  Aww…WorldCat, WorldCat,” and the video would be a montage of people at computers singing about how exciting databases are.  It would be funny and make a point, but there would be no commentary on or ridicule of the original.

A fair use-defensible parody would go deeper, perhaps saying something like: “Budget.  Ow…Money, Money,” and the video would be a montage of librarians doing what it takes to raise money for supplies and transformative programming.  It would riff off the original to criticize budget cuts, but just as important (for our Fair Use analysis), it would be a comment on the exploitive but subversively transformative commercial nature of the kissing booth in the original.

Have I lost you yet?  I’m sorry.  Fair use is something not even federal judges get right, and the nuances of the case law make it a very unreliable defense for all but the most incisive parody-driven comment and criticism. 

The bottom line: When a library or other institution wants to do a fun riff on a song, the safest bet is to get a license.

So if your library decides your video will be a fun riff and not a fair use-packing parody, what are the options? 

The librarian mentioned another source in our discussion: YouTube.

YouTube has spent the last few years working with ASCAP, BMI and various other rights holders to license songs for their use on the video service.  Ads that run while YouTube videos feature these songs generate revenue that goes, in part, to the rights holders.  This enables “YouTubers” (i.e. content providers) to use the songs (although there are certain requirements for every license), and gives the rights holders a steady revenue stream.

I visited YouTube’s website and looked up “Sugar Sugar.”  Sure enough, “Sugar, Sugar” is licensed to YouTube for both direct play (i.e. to use as the music accompanying a video) or for a cover (for a YouTuber to generate and publish their own version of the musical composition).

Of course, any departure from the original recording or lyrics is not quite a “cover;” arguably, it is a derivative work, which is a separate right under the Copyright Act.  But when the YouTube license allows for either the song to be played, or a “cover” to be generated, YouTubers have a lot of options.  So whether the original version is used with fadeouts to the library’s custom recording, or the member library simply puts their voices over a copyright-protected musical recording, the YouTube license should cover it.

If YouTube is not your cup of tea, the other solution is to go to the rights holders (in the case of “Sugar, Sugar,” reportedly over 12 parties!), and ask for permission.  BMI has a license they offer to not-for-profits, which allows up to three songs per year at a rate of $00.08/1,0000 page hits.  This type of exercise could be tedious, but depending on what you want to do, could be the best option.

In Closing: A Comment About Fair Use

That said, I am mindful that an unacceptable by-product of all this “easy licensing” could be the erosion of Fair Use.  As just an example, one of my favorite parodies is a simple lip-synch and video re-creation of the Hall & Oates song, “Private Eyes”  (if you haven’t seen this, give yourself 5 minutes when you need a boost). 

Because of the keen mockery and recontextualization of the original video’s choreography and messaging, I would argue that, if sued, the parody’s creators would have a Fair Use defense.  But they don’t need one to make such a defense, because they operate with the YouTube license.   And their parody makes money for the song’s rights-holders every time the video is viewed[3].  That seems to be working out for everyone, but use of a work for legitimate commentary and criticism should not depend on the permission of the rights holder.

This is why all people who believe in the open flow of ideas and information must remain staunch defenders and users of Fair Use.  It is a critical asset that should be vigorously promoted whenever possible.

Thank you for a great question, and happy library-versary!



[1] CAMPBELL, aka SKYYWALKER, et al. v. ACUFF ROSE MUSIC, INC. (U.S. Supreme Court) No. 92-1292. Argued November 9, 1993 -- Decided March 7, 1994

[2] This was an enlightening moment.  I didn’t know that “Sugar, Sugar” was first played by comic book band “The Archie’s” on their TV show in 1969!  Or that “Sabrina the Teenage Witch” (a staple of my ‘90’s young adulthood) made her debut in the Archie comics in the ‘60’s.  Really, until I got this question, I was horribly ignorant of a critical area of Americana.  I blame my parents, who only let me watch PBS and Canadian television during my childhood.

[3] Fair Use is alive on YouTube!  It just has to clearly meet the formula.  Check this commentary and criticism by “Ted in the Shadows” out; none of the samples in this cite a YouTube license: https://www.youtube.com/watch?v=OR53NMVQ19s

Tags: Copyright, Fair Use, Online Programming, Parodies

Topic: Digital Controlled Lending - 2/4/2019
I have been reading the legal arguments undergirding the Controlled Digital Lending initiative (co...
Posted: Monday, February 4, 2019 Permalink

MEMBER QUESTION

I have been reading the legal arguments undergirding the Controlled Digital Lending initiative (controlleddigitallending.org). The legal arguments are outlined in the white paper here: https://controlleddigitallending.org/whitepaper.

Our library has a DVD collection that has been heavily used over the years for teaching, research, and recreational use. Circulation of that collection has been restricted to members of our campus. There are fewer and fewer DVD players available on campus now and so we are facing significant sunk costs with a collection that may become unusable. Hence, I am wondering whether we could reformat DVDs that we have purchased over the years, put those physical copies in a dark archive (i.e., no longer circulating), and stream the digitized copies one user at a time to verified members of our campus (current students, staff, and faculty). Would the doctrines of 1st sale and Fair Use apply, given that there would be a one-to-one relationship between the physical copy purchased and digital copy loaned, as well as noncommercial use?

WNYLRC ATTORNEY'S RESPONSE

This is a great and important question, and it rests on an critical issue. 

With that in mind, before you delve into this answer, I encourage readers of “Ask the Lawyer!” to check out the CDL “Statement” on www.controlleddigitallending.org/statement.

[Small break.]

Okay.  Did you check it out? Interesting, right?  Now, on to the answer….

Controlled Digital Lending (“CDL” ) is an effort to assert the rights of content users—as opposed to those of content owners—in the next regime of copyright law. 

As described in the CDL “Statement”:

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization.[1]

Rallying librarians from an impressive array of institutions[2], CDL asserts an extension of current copyright doctrines and seeks to confirm rights critical to the world of information management. 

But although it is a hybrid argument of Fair Use and the First Sale Doctrine, CDL is not the law.  Rather, it is a concerted effort to influence—and perhaps become—the law. 

As I see it, CDL is also a deliberate and potentially powerful answer to the established trend of content providers using contract law to impose limitations on copyright’s “First Sale” doctrine.  Here are some examples of this trend:

  • Terms for an “instructor’s copy” from an academic publisher barring re-sale or requiring the book be listed in the syllabus;
  • A license for a DVD’s “downloadable copies,” requiring a user to verify that the are the owner of the original hard copy; 
  • Textbooks that come with access codes for additional, but essential, digital content.

Because of the billions of dollars in revenue such contracts protect, the entertainment, publishing, and other IP industries will fight tooth and nail to not only resist CDL, but any extension of Fair Use and the First Sale doctrine.  Considering the lobbying power and commercial heft of these industries, the CDL position will need all the recruits and allies it can get.  It will be a showdown fought through usage, lawmaking, and most likely, law suits.

The CDL’s organizers know this might be hazardous combat.  Right in their “Statement” is the caution:

Because the following analysis is general, any library considering implementing controlled digital lending should consult a competent attorney to develop an appropriate program responsive to the specific needs of the institution and community.

This warning in the Statement is well-justified.  The stakes for generating infringing copies (which is what copyright owners will argue CDL digital copies are) and distributing them (which is what copyright owners will argue CDL-using libraries are doing) can be high, with the violator liable for damages and attorney’s fees, and stuck in a courtroom battle for years.

So what would a “competent attorney” advise their client to do in this case?  I don’t speak for all competent attorneys, but in a case like this, I would strongly advise an institution NOT to make “CDL” copies unless the action was part of a highly assessed, planned, and well-calculated strategic plan that considers the benefits and accepts the risks.

How does an institution do that?  Any institution seriously considering CDL should form a “CDL Committee” consisting of the institution’s librarian, risk manager/insurance liaison[3], a representative of the institution’s academic wing (if applicable), and an administrative decision maker (an officer of the institution).  The group should consult with (but not necessarily include) a lawyer. 

The group would assess what use their institution could make of CDL, get advice from the lawyer about those specific uses and the risks, check their insurance coverage, assess what is being done at peer institutions, and (perhaps most important) consider how this overall issue impacts their mission.  There would possibly be, at some of the bolder institutions, some acceptance of calculated risk.

If the group’s overall assessment leaned toward CDL, the committee could create a “CDL Assessment and Use Policy” to govern all its uses of CDL.  This way, the decision to use CDL would be rooted in the institution’s mission, while the process would be informed by the library’s assets and users’ needs.  This is critical because if the institution was ever sued for infringement, a good array of back-up material, showing a bona fide belief in Fair Use, and consistent with that of other participants’ in the CDL effort, could help them assert their position and limit financial damages.

With regard to the member’s particular scenario (trying to get more use out of an extensive collection of aging DVD’s), if I were the lawyer consulting with a committee, I would probably advise against that particular use for CDL.[4]  Unless the transmission is per section 110 of the Copyright Act, the risk of a suit for unlicensed transmission of a motion picture is just too high.  But I’d also want to assess each movie on a case-by-case basis.   While the combination of First Sale and Fair Use might not simply allow the restricted streaming, other solutions (a news exception, a license) might. 

I am sorry I cannot give a more definitive answer, but as the CDL organizers themselves point out, CDL is on uncertain ground.  The authors of the “Statement” don’t come right out and say it, but they are trying to fight fire with fire…offering a bold and critical counterpoint to the current copyright scheme through which rights owners tightly control digital dissemination of works in print. 

Libraries, these days, occupy ground zero of many of society’s struggles, and the next regime of IP law is one of those.  On the battlefield of intellectual property, troops are massing at the no-man’s land between digitization and the First Sale Doctrine.  Led by librarians, there is an army that hopes to not only hold the First Sale line, but officially extend it to a practice that is more convenient, green, and aligned with current technology: CDL. 

Does your library want to join that battle? Does it want to explore making select works available, under closely controlled circumstances, without requiring a person to pick up a hard copy?  By making a deliberate, well-planned decision to have a CDL policy, your institution can answer the famous question:

“There’s a war coming…are you sure you’re on the right side?” [5]



[1] https://controlleddigitallending.org/statement

[2] The signature list is like a “Who’s Who” of library world.

[3] The person at your institution who makes sure you have insurance, and transmits claims information when there is an issue…or that person’s supervisor.

[4] At least until a heavy hitter wins a case or two using the CDL argument.

[5] Wolverine to Storm in X-Men, movie (2000).  I wish I had it on DVD.

Tags: Copyright, Digital Access, Fair Use, First Sale Doctrine

Topic: Fair Use and the Ten Percent Rule - 1/8/2019
A teacher would like to reproduce an entire article from a published magazine. They state that bec...
Posted: Tuesday, January 8, 2019 Permalink

MEMBER QUESTION

A teacher would like to reproduce an entire article from a published magazine. They state that because it is only 10% of the entire magazine, it falls under fair use. My interpretation has been that it is 10% of the article, since the article is a published work on its own.

WNYLRC ATTORNEY'S RESPONSE

The “Ten Percent Rule” has been kicking around the world of education for decades!  This is a good chance to bust this myth, since as we’ll review, it is not a reliable stand-alone formula for “Fair Use” (copying without needing permission). 

But we’ll start with another area of the law.  This question involves not only Fair Use, but Section 108 of the Copyright Act, which applies specifically to libraries.

Under Section 108(d), the teacher (or any library user) may make one copy of:

no more than one article or other contribution to a copyrighted collection or periodical issue…if

(1) the copy becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

So in this scenario, if the other above-listed criteria are met, the teacher can make one copy of one hundred percent of the article.

But after that one Section 108 copy is made, unless the school obtains a license to duplicate the article, the only subsequent copies can be those authorized by Section 107 (“Fair Use”).  This question asks: does copying an article from a larger publication meet Section 107’s criteria?

The answer is “it depends” (in law, that is often the answer!).  But what does it depends on?  If only the answer was a simple “Ten Percent Rule” (whether ten percent of the article itself, or ten percent of an original compilation)…. but it isn’t, even in the educational environment.  Instead, the overall circumstances, when viewed through the lens of the four Fair Use “factors,” are what govern this answer.

There are many excellent model policies out there on how to apply Fair Use in academia[1], an every academic institution should have their own.  So I will not use this “Ask the Lawyer,” response to duplicate what’s already out there, but I will take this opportunity to emphasize:  duplication based solely on the rationale that what is being copied is only 10% of a larger article or publication is not determinative of Fair Use, even in an educational, not-for-profit setting. 

A string of recent cases, delving deeply into how the four “Fair Use” factors are applied when making excerpts available in academia, shows things just aren’t that simple.  Commonly called “Cambridge I, II, III, and IV,” these cases involve claims by Cambridge University Press, Oxford University Press, and Sage Publications against  Georgia State University, and showcase the most in-depth, frustrating wrangles about Fair Use in academia ever to be seen.

The most recent ruling in this saga, Cambridge University Press v. Albert (“Cambridge IV”), was issued on October 19, 2018.  If you feel like reading the clear, cogent writing of a federal judge obviously frustrated by another federal judge’s inability to figure out Fair Use, check it out.

As re-emphasized in Cambridge IV, the third factor of Fair Use is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  But the opinion goes on to clarify that the amount used (ten percent or otherwise) is not a factor to be considered in isolation.  Rather, all four factors are to be applied in a way that reinforces the purpose of the Copyright law: promoting the progress of scholarship and creativity[2].   And in academic publishing, the opinion makes clear, the impact on the market  for an article can be just as determinative as that unlicensed copies’ not-for-profit context or academic purpose.

So how can the member’s issue be resolved?  When confronted with a scenario like the one submitted by the member, a librarian should not feel the need to argue with a teacher.  Rather, the librarian should rely on their institution’s attorney-vetted Fair Use policy and form to enable the teach conduct and document their own assessment of Fair Use.

Why do this?  First, a good Fair Use policy and form will walk the teacher through the Fair Use analysis, saving the librarian time (and sanity!).   Second—but just an important—the creation of a written record documenting a good-faith determination of Fair Use will potentially help both the teacher and the institution by mitigating any damages for infringement.  And third, in education, getting these things right is a good example for students.

So once the teacher in this scenario makes their one 108 copy, provide them with a copy of the institution’s Fair Use policy and form.  If your institution doesn’t have a policy or form, this is a good time to get one, since these days, even municipal entities can be found liable for copyright infringement.



[1] I like the one here: https://copyright.cornell.edu/fairuse.  The careful reader will note that the form Cornell maintains does list 10% as a guideline for assessing Fair Use, but cites that factor as but one of many aspects to consider and document.

[2] Or as the Constitution calls them in Article I, Section 8, clause 8 “science and the useful arts.”

Tags: Fair Use, Copyright, Photocopies

Topic: Copyright & Posting Images of Artwork From Collections - 10/29/2018
We are planning to put together a public page with information on various artworks donated to ...
Posted: Monday, October 29, 2018 Permalink

MEMBER QUESTION

We are planning to put together a public page with information on various artworks donated to our university. We'd like to post an image of the art, information on where it is on campus, information on the artwork itself, etc. 


Our question is with regard to copyright. I know the artist still holds the copyright, so my question is whether there is an exception to the copyright law that will allow us to post an image of the artwork for these purposes? We're looking into adding a watermark to the image and setting it to not allow users to save the image directly (although we know they could still take a screenshot). 

Thank you in advance for your advice!

 

WNYLRC ATTORNEY'S RESPONSE

This sounds like a great project…a public page providing a guided tour of art throughout the campus, with maps, information, and pictures to help the viewer find the works.

But you’re right, if they haven’t expired, the rights are still the property of the artist—or their heirs, or any third party they were sold to.  And the digital image you create could infringe those rights.

There is no one catch-all “exception” to copyright that completely avoids this, but there are some steps you can take to keep your institution on the safer side of the law. 

Here they are, in descending order of strength and certainty:

1.  Verify that the works are actually still protected by copyright.  Anything from before 1923, for instance, is no longer protected.  If you want to showcase 50 works, and 25 of them are from before 1923, you’ve just reduced your concerns by half!

2.  If your campus has an art registrar (a position distinct from an admissions registrar, but with a similar flair for detailed record-keeping), ask them if the donation came with any assignment or license of copyrights.  Sometimes, the donor—especially if they were the artist—will give limited duplication and display rights for purposes of promoting the work.  While by no means a certainly, it is worth checking out.

3.  If the rights are still valid and no license has been obtained previously, it is possible to ask for permission now.  A simple letter—perhaps sent in coordination with your department for Institutional Advancement—could ask:

Your lovely work, TITLE, was donated to our university in YEAR.  We are hoping to secure your permission to duplicate the work so we can show a full-color reproduction on our website.  The image would be used to illustrate an online and print guided tour that showcases our more valued works of art, including TITLE (the “Work”). 

If you still own the copyrights and can give permission, please check one of the circles below, sign in the space below, and return this letter in the accompanying self-addressed, pre-stamped envelope:

o   I hereby license the university to use the Work without any restrictions, in any medium whatsoever, for any purpose whatsoever.

o   I hereby license the university to duplicate, publish and display the Work solely for the use described in this letter, in both print and via the internet, with no further restrictions or conditions.

o   I hereby license the university to duplicate, publish and display the Work per the following terms:_________________________________________________ ______________________________________________________________.

Thank you for considering this courtesy to our university.

Very truly yours,

 

[YOUR NAME]

ACCEPTED AND SIGNED:________________________      

                                                            [ARTIST NAME]

on __________________

               DATE    

4.  “Claiming Fair Use,” version 1: This takes advantage of the formula for using a copyrighted work without permission, created by Section 107 of the Copyright Act.  Here’s what you do: carefully write out a description of your initiative, and why it is important that the public know of and have a visual cue be able to find these works.  Then take a photo of each artwork…not head-on and alone, but at an angle and with a live person—perhaps a student—interacting with the work.  Make sure the art is not duplicable from the digital image, and make sure that image is more about the person viewing the work, and its location, than the art itself.  Generate a description of this image that speaks to what is happening in the photo, including how people interact with the work.  Include not only the image, but these observations in your guide, letting people know they can see the actual work in person.  Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages1.

5.  “Claiming Fair Use” Version 2: This is also an approach under 107.  Generate very low-resolution, watermarked images as described in the member’s question, and again, document the value of being able to use a limited visual element to help people find that specific work.  Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages.

And there you have it: no magic bullet, but some options that, if combined, can help you create an infringement-free, beautiful guide to the art on your campus.  Of the five options, “1,” “2,” and “3” are by far the most prudent, so try those first, and then, only if you need to, consider options “4” and “5.”

I hope fate is kind, and some of your artworks pre-date 1923, or their owners are generous and easy to find.  Good luck!



1 17 U.S.C. 504(c)(2)

Tags: Copyright, Donations, Fair Use

Topic: Digital Movie Codes - 10/15/2018
Question 1 Recently, a patron asked what our library does with the digital movie codes that come...
Posted: Monday, October 15, 2018 Permalink

MEMBER QUESTION

Question 1

Recently, a patron asked what our library does with the digital movie codes that come with some of the DVD and Blu-ray disc we purchase. We have been throwing those codes out, so he wanted to know if we could give those codes to him (he would be willing to purchase them).

I would like to know the legality of selling them to patrons to raise funds for the library. What about including them in prizes? Is it covered by the First-Sale Doctrine? What if the fine print on some read "sale or transfer prohibited?" The discs are purchased with tax-payer money, does that further complicate the situation?

 

Question 2

When purchasing DVDs/Blu-rays at a library there are often alpha-numeric Digital Movie Codes available to receive a digital copy of the movie. These licenses seem to be tied to a single person that cannot be used or circulated in any easy way. Is there anything a library could use these licenses for, such as public viewings (as long as they are covered under the appropriate movie license) or giveaways at the library. Or are these Digital Movie Codes best to be thrown away because of the copyright restrictions surrounding digital content? 

WNYLRC ATTORNEY'S RESPONSE

Two questions about a creative use of resources!  Truly a joy to behold.  Unfortunately, this is one of those questions where I have to be a killjoy.

Before I dig into why, let’s clarify: both members have asked about the “Digital Movie Codes,” or alphanumeric keys, on (or in) the packaging of certain DVD’s, Blu-rays, and 4K/UHD discs.  Through a process called “redemption,” the holder of such a code can download a copy of the movie in the package. 

After “redeeming” the code, the holder can download the film to their phone, tablet, or computer.  The idea is that once you’ve paid for the hard copy, even if it is copyright-protected, the purchaser should be able to view the movie on the medium of their choice.[1]

So, can these fantastic codes be used, transferred, or raffled off by a library?  Because of the diversity of licensing terms[2], there is no one, definitive answer.  But my time researching showed that a growing number of these codes are supported at the back end by a company called “Movies Anywhere.” 

Sensing their model is vulnerable to access code re-sale, Movies Anywhere’s Terms of Use firmly state:

Digital codes originally packaged in a combination disc + code package (for example, a combination package that includes a DVD, Blu-ray, and/or 4K/UHD disc(s) and a digital code) are not authorized for redemption if sold separately. By redeeming one of these codes, you are representing that you, or a member of your family, obtained the code in an original disc + code package and the code was not purchased separately. Your representation is a condition of redemption of the code and of your obtaining a license to access a digital copy of the movie. To read all terms and conditions applicable to using your Movies Anywhere account, click here. If you agree, click the REDEEM button above.

See that clause “you…obtained the code in an original disc + code package”?  THAT is what kills the joy and puts the kabosh on the clever transfers and re-uses posed by the members.  Simply by redeeming the code, the person who acquired it from the library (whether by gift, purchase, or luck of the draw) would be in violation of the terms of the license…not a very patron-friendly practice (although some patrons might disagree)!

But wait, there’s more.

Wouldn’t it be nice if the library could have a DVD-viewing room where the digital content of purchased movies was watchable?  That, too, is likely forbidden, since as of this writing, participation in “Movies Anywhere” is limited to “individuals.”[3]  “Companies, associations and other groups may not register for a Movies Anywhere account or use the Movies Anywhere Service,”  states Section 1.a.  Libraries, while not generally thought of in such terms, are “companies,” so arguably, even redeeming the codes to put the content on library-owned technology is not allowed.

Of course, when it comes to these codes, check the fine print.  If they are through a service that doesn’t bar transfer (or on the flip side, doesn’t require the actual purchaser of the package to be the redeemer), you may be able to proceed as envisioned.  That said, I doubt many movie companies will depart from the Movies Anywhere model.  Content providers have had almost two decades since the “RIAA[4] wars” to get this right, and they don’t want to leave any revenue on the table. 

How enforceable are these license restrictions?  We’ll see.  The industry is suing when the terms are violated, and defendants are fighting back (see ongoing case Disney Enterprises, Inc. et al v. Redbox Automated Retails, LLC, in federal court in the Central District of California).  That said, libraries are in a different place than most “companies,” when it comes to restrictions on information.  If there is ever a compelling, information-access reason—or a disability accommodation reason—to use one of the codes, that should be explored. 

P.S. I saw a lot of reasons why libraries can’t give away or sell these codes, but I saw nothing that stops patrons from buying the hard copy, using the code, and eventually donating the hard to the library.  THAT would be within the “First Sale” doctrine.  So while I know that’s the obverse of what the members envisioned, perhaps that can restore some joy to these questions.

Thank you.


[1] Of course, “redemption,” which requires an account, also means the content provider gets a view into your movie choices, viewing habits, and choice of media.  But I will save a privacy rant for another day!

[2] Disney, Lionsgate, Fox…each studio has its own special formula for redeeming these codes. 

[3] Who are “legal residents” of the U.S., no less.

[4] The fight over digital copying of music, eventually leading to many fans swearing off Metallica.

 

Tags: Fair Use, Digital Access, First Sale Doctrine

Topic: Inter-library Audio Files - 5/24/2018
More than once we have received requests to provide digital copies of audio files from institution...
Posted: Thursday, May 24, 2018 Permalink

MEMBER QUESTION

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.
Some of the questions raised from this issue: 

  • What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?
  • Does it matter if audio is provided via headphone or open speakers?
  • Does it matter if an entire recording is played vs. an excerpt?
  • Are excerpts of certain duration allowable regardless of securing permissions?
    If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?
  • As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

WNYLRC ATTORNEY'S RESPONSE

This one is tricky.

It’s tricky because it stands on a no-man’s land comprised of fair use, library law, contract, and licensing.  This is a place where libraries boldly go on a routine basis, but lawyers fear to tread.  But we’ll try and parse it out.

To do so, we need to remember some “Considerations”:

Consideration #1: Section 108 (d) of the Copyright Act allows a library to duplicate and distribute, for non-commercial use, a “small part” of an audio recording based on a request of a patron or another library.

Consideration #2:  Section 108 (e) of the Copyright Act allows a library to duplicate and distribute, again for non-commercial use, the entirety of an audio recording based on a request of a patron or another library, IF a replacement copy cannot be purchased for a reasonable price.

Consideration #3: Disappointingly and tragically (but predictably), musical works are excluded from Section 108.  What does that mean?  Here’s an example: a recording of Robert Frost reading a poem may be duplicated under 108...but a recording of that same poem set to music may not. 

Consideration #4: Although Congress legislated that 108 protections don’t apply to musical works, it has also stated[1]:

…it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works. In the case of music, for example, it would be fair use for a scholar doing musicological research to have a library supply a copy of a portion of a score or to reproduce portions of a phonorecord of a work. Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes. [emphasis added]

Which brings us to…

Consideration #5:  A library can make a partial or complete copy if it is a “fair use.”  Fair use is determined on a work-by-work basis, applying the four factors[2] set out in Section 107 of the Copyright Act. 

Consideration #6:  An initial “fair use” can meet the requirements of 107 (say, 10 bars of music contrasted with another in a documentary film), but a subsequent, related use might not (the same 10 bars in an TV ad for the same documentary).

Consideration #7:  None of this matters if the copy is coming from a license (a contract) that imposes greater restrictions a library.

 

Bearing these seven “Considerations” in mind, let’s check out the member’s questions in relation to the scenario they provided:

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.

Question: What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?

Answer: If the work is protected by copyright, and they can’t justify a fair use, they need a license to play the audio at their exhibition.  As the member points out, if the library providing the copy is not also the rights holder, the requesting party needs to work with that third party for permission to play the copy in public (unless it is a fair use).

But that is a secondary consideration for the library who might be providing the copy.  Remember “Consideration #6:” the initial basis for the request could be allowed under 107 or 108, even if a latter use in not allowed. Combine that with what we established in “Consideration #4:” Congress knew that subsequent uses might not be legitimate.  So, to protect libraries, and to protect the sharing of knowledge for purposes of scholarship and creativity, they made it very clear: if the first basis for the copy is legitimate, and the providing library has no knowledge of plans for infringing uses, the providing library will not be liable for infringement.

This is hard, because librarians are both helpful, and tend to be relentless gatherers of information.  If a patron requests a copy and discloses an infringing use for that copy, it cannot legally be provided.  This is true even if the requester subsequently gets a license (since there is no guarantee the license would retroactively extend to the providing library), although at that point, any damage claim would likely be moot. 

Question: Does it matter if audio is provided via headphone or open speakers?

Answer: The number of speakers (headphone or otherwise), the location of the devices, the size of the audience, and the capacity of the venue matter can all matter to an analysis of fair use.  But again, unless the exhibition is the only reason for the request, that information should not impact a providing library’s 108 or 107 analysis, unless the precise use is disclosed as part of the immediate basis of the request.

Question: Does it matter if an entire recording is played vs. an excerpt?

Answer: If the requesting institution is relying on a fair use defense, absolutely, yes.  The amount of the work used is one of the four factors.

Question: Are excerpts of certain duration allowable regardless of securing permissions?

Answer: Recent case law[3] shows that even the tiniest duration can be infringement, if fair use factors are not met.  But don’t let that stop you from providing a 107 copy!  If the fair use factors are met, it is conceivable that a person could use the entire work.  There is no set formula; fair use can only be assessed on a work-by-work basis.

If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?

This is not a binary question, it is an algorithm.  Here we go:

  • The holding institution should try to ascertain if the work is still protected by copyright.  As the member points out, this depends on dates and publication status.  If it is still protected…
  • The holding institution should establish what type of copy it is providing: 108(d), 108(d) or 107. 
  • If it’s a 108 (d) copy, the institution should document that the 108 (a) and (d) factors are met, and if they are, may copy a “small part” (but remember, 108 doesn’t apply to a musical work).
  • If it’s a108 (e) copy, the institution should document that the 108 (a) and (e) factors are met, and if they are, may copy the entire work (by now, you surely remember that 108 doesn’t apply to a musical work).
  • If it’s a 107 (fair use) copy, after applying the factors, only copy what’s justified; when in doubt, seek legal advice.  This is tough to give guidance on, because “fair use” can only be assessed on a case-by-case basis.  For the example provided, there is no clear answer.  Sometimes, even if the access to the work is free, the use isn’t “fair,” while sometimes, even if money is charged, the fair use factors are met.  So if you go down the 107 road, be sure to get information relevant to the factors, stick to the use at hand (not potential later uses), and apply the factors.  This is true for both commercially released recordings and for archival, unpublished recordings (although publication status is part of the second fair use factor).

Question: As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

Answer: As quoted above, it was the intent of Congress that a library not be liable for subsequent unlawful use.

For a 107 copy, this starts and ends with the library’s assessment of the fair use for the copy at the time of the request.  Your forms should solicit information only about the immediate need for the copy, and assess if the request is within your institution’s comfort zone.  Your forms should not ask about prospective future uses, which may be beyond your control, nor should you feel any obligation to police the use, which is impossible.

 

Here is food for thought: forms should promote making a 108 copy whenever possible.  108 protection, while narrower, is far less subject to debate; 108 factors are clear and easy to document.  “Fair use,” on the other hand, is often in the eye of the beholder.  Judges must not only apply four factors of analysis, but as recent case law has recently re-affirmed[4], the four factors are not so much weighed, as considered in relation to each other.  It’s a tough analysis that unfortunately inspires erring on the side of caution.  So use 108 whenever it can apply.

A lot of questions, a lot of answers, and a lot of food for thought.  This is a rapidly evolving area of law, so check back in on this issue in a year or so.  The Copyright Office, various library organizations, and Congress all know that the law isn’t quite up to the challenge of technology (108 still uses the word “phonorecord,” which my Spellcheck actually refuses to recognize), so this complex web will continue to evolve. 

And in the meantime, if someone requests a copy of audio by Anthony Barré, use it as an excuse to read Estate of Anthony Barré and Angel Barré v. Carter, et al.  (a/k/a Beyoncé and Jay-Z), because it’s a good illustration of why this response is so very, very convoluted!



[1] House Report 94-1476.

[2] The factors are:

(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.

[3] Estate of Anthony Barré and Angel Barré v. Carter, et al. No. 17-1057 (E.D. Lou. July 25, 2017).  In this case, pop star Beyoncé used very small clips from Anthony Barré’s recorded spoken word performances in the song “Formation;” the court ruled that while the amount of Barré’s work used very small, and was but a small part of the song, the overall factors did not make the use fair.

[4] Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016)

 

Tags: Copyright, Fair Use, Laws, Music

Topic: Educational films without a license - 4/24/2018
A couple committees at the college my library is at want to present copyrighted films in the theat...
Posted: Tuesday, April 24, 2018 Permalink

MEMBER QUESTION

A couple committees at the college my library is at want to present copyrighted films in the theatre as part of an educational film series. They are under the impression that as long as there is an "educational component" to the screening that it falls under fair use.
 

The showings would not be part of a course, although there are brief lectures by Faculty introducing films and related concepts. The screenings are open to the public. No admission is charged. 


Does this fall under fair use? 

WNYLRC ATTORNEY'S RESPONSE

The short answer is: no, this scenario is not a “fair use.”

But that’s not the end! “Fair use”—which is found in Section 107 of the Copyright Act—is not the only exception to copyright infringement.

There is another way.  Section 110 of the Copyright Act provides:

[T]he following are not infringements of copyright:

(1)performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made[.] [emphasis added].[1]

 

In the cold, scary, expensive world of copyright infringement, section 110 is breath of fresh air.  Unlike section 107, which creates a four-factor “fair use” formula so esoteric, you can consult three lawyers and get six opinions, Section 110’s exceptions are well-defined and clear. [2]

So, can a gathering of instructors and students in a theater on a college campus meet these clear 110 requirements?  Yes! 

But.

The problem is, as used in 110, the term “students” is not broad enough to apply to the member’s precise scenario.  While the 110 term “instructors” includes guest lecturers (if their instructional activities remain confined to the class location and syllabus), the 110 term “pupils” is generally regarded as meaning only enrolled members of a class[3]  In addition, it is best if the syllabus for the course, whether for credit or a certificate, supports a conclusion that the viewing context really is a class—not recreation (even if it is enlightening recreation) masquerading as academia.  110 is a powerful exception to infringement, but it has its limits.

107 and 110 exceptions to infringement can sometimes get conflated.  Here are some examples of how they do (or do not) apply, using one of my new favorite movies:

1.  “Black Panther” uncut and shown on campus as part of an open-to-all, educational film series about would not be allowed under either fair use or 110.  Any such showing must be licensed.  

2.  “Black Panther” partially evoked in very small, carefully-chosen selections for an open campus forum on “Women in Major Motion Picture Fight Scenes” could be allowed under “fair use,” but film stills and excerpts must be limited to only what is needed to make a point.

And finally…

3. “Black Panther” shown in its entirety to students enrolled in a “Comics and Society” class would be allowed under 17 U.S.C. 110 (1)…so long as the movie genuinely contributes to the substance of the course, is shown only to enrolled students, and the copy they watch is not pirated. 

What’s the take-away?  Educators should apply “fair use” when needed, but remember that section 110(1) creates exceptions to infringement, too.  It’s no vibranium[4], but is a powerful part of an educator’s arsenal.


[1] Care must be taken to ensure there is no re-transmission of the content.  Another section of 110 does allow for limited re-transmission for online learning, but to qualify, the institution must adhere to all TEACH Act requirements.

[2] There are more than this, and of course, they all come with rules.  Read the statute before relying on 110 to protect you from infringement.

[3] See House Report 94-1476

[4] Special rare metal in “Black Panther;” also, what Captain America’s shield is made from.

 

Tags: Copyright, Fair Use

Topic: Digitizing and hosting audio recordings containing copyright-protected material - 12/27/2017
When digitizing radio broadcasts of cultural significance (such as a talk show confronting social ...
Posted: Wednesday, December 27, 2017 Permalink

MEMBER QUESTION

When digitizing radio broadcasts of cultural significance (such as a talk show confronting social issues), must a library, museum, or archive remove any separately copyrighted songs before posting the recordings?

This question assumes that the library, museum, or archive owns or has a license to use the overall recording of the broadcast.

WNYLRC ATTORNEY'S RESPONSE

When digitizing radio broadcasts for online (not-for-profit, academic) access, there are a number of legal issues to consider: intellectual property, contract, privacy, preservation, etc.  But the question focuses on copyright, so this answer does, too. 

And that answer is…yes, including copyright-protected songs[1] in digitized broadcasts poses a risk of an infringement claim--but that risk does not need to trump the basis for preserving the broadcast in the first place.

How does the law help a digital archive strike that balance?  Here are some options:

Option 1: If the copyrighted songs are not important to the broadcast, and can be removed without affecting the integrity of the broadcast, remove them.

If the basis for preserving and providing access to the broadcasts (capturing a moment in time, showing a spirit, confirming an approach) is not served by the presence of the songs, the best legal option might be to remove them, noting the redactions in a manner appropriate to the archive.

That said, I can only imagine a few scenarios where this is this case.  So, next we have…

Option 2: Ask for acknowledgement of Fair Use, and permission

If not onerous, asking the copyright holder to acknowledge the Fair Use of their valid copyright, and to consent to such use in case later rights holders disagree, can be a wise step. 

HOWEVER, as it can alert an owner to a potential claim, this should only be attempted with careful, customized input by an attorney, with due consideration as to how to avoid making an adverse admission, and what the implications could be if the rights to the song are later transferred (since one person’s Fair Use is another person’s rip-off). 

Most importantly, such acknowledgement should only be sought prior to the recordings being posted.  That is because the library, museum, or archive may want to protect their ability to simply claim…

Option 3: Fair Use

Including the songs could be non-infringing if the use meets the requirements of “Fair Use.”[2]  This is a posture taken by many online archives, and with good reason: Fair Use is a creature of both case law, and convention, so for most scholars and librarians, it is important to hold the Fair Use line, letting the world know that this important exception to infringement is alive and well.

That said, a “Fair Use” defense is assessed via a four-factor analysis (see the footnote); in this type of case, each broadcast recording and song would be subject to its own analysis.

While there is no case law directly on point, the recent case of Bouchat v. Baltimore Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013), which involved the use of a proprietary logo during a documentary film, states “[f]air use…protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” [emphasis added].

Using option 3 will require some clear-eyed assessment by the project leaders and institutional decision-makers.  Is the entire song truly necessary to preserve the integrity, spirit and tone of the original?  Does the overall recording transform the song into something different than its original?  Does the manner in which the recording is presented make is difficult for the new version to supplant the market for the original? If not, the library, museum, or archive might want to consider…

Option 4: Fair Use “Lite”

With the Fair Use “Lite” approach, the institution would redact all but the first and last moments of the copyright-protected song (leaving any parts the hosts/guest are talking over) claiming Fair Use for the remaining portions.  This could be done by a fade-in, fade-out technique, or another aural cue that the recording is departing from the original.

If it doesn’t destroy the integrity of the project, “Fair Use Lite” is worth considering, because the smaller the portions of the songs, the stronger your Fair Use claim might be, since factor 3 will weigh more in your favor.  If there is any original dialogue over the song, that, too, can be left, with a claim that the content is “transformative” (factor 1).

If the decision is made to keep the recordings intact, or to use at least part of them, it may be helpful to have the basis for the claim available to the public; something like:

These recordings capture an important moment in time.  The songs played, content shared, and material included in these revealing broadcasts were all selected by the original broadcasters for a reason; these digital versions are valuable because they paint an accurate and complete picture of the sound and feel of the times.

To the extent any proprietary material is present, its inclusion in this larger work is a Fair Use, warranted by the importance of presenting the material as a whole.  Critically, please note that this use is not-for-profit, for educational purposes, and no commercial use of this content is made, nor allowed.  If any content or restriction in this archive concerns any person, please contact NAME, at EMAIL.

And finally: prior to posting any digital archive, if it is an option, an institution should consider registering the copyrights to the MP3 files.  This will position the institution to enforce any restrictions it places on use of the sound recording (like disallowing commercial use)…even if the purpose of the digital archive is to promote access and dissemination of the material!

As more audio content is archived and stored for cultural, historic, and academic purposes, this issue will grow.  I expect we may have some case law directly on point soon.



[1] When confronted with this issue, it is worthwhile to take a close look at the songs involved.  Some pre-1972 sound recordings do not have copyright protection, an issue playing out in what is known as the “Flo & Eddie” line of cases (just look up Floe & Eddie, Inc. v. Sirius XM Radio, Inc., and you’ll see what I mean).  Of course, the underlying musical composition might be protected, even when the recording is not…but the recording may be less protected than you think!

[2] Congress provides a list of four factors that guide the determination of whether a particular use is a fair use. Those factors are: (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. 17 U.S.C.S. § 107. These factors cannot be treated in isolation from one another, but instead must be weighed together, in light of the purposes of copyright. This balancing necessitates a case-by-case analysis in any fair use inquiry. The United States Court of Appeals for the Fourth Circuit's precedents have placed primary focus on the first factor. A finding of fair use is a complete defense to an infringement claim: the fair use of a copyrighted work is not an infringement of copyright. 17 U.S.C.S. § 107.

 

 

Tags: Copyright, Digitization and Copyright, Fair Use, Music

Topic: Sharing supplemental textbook resources 11/17/2017
Can a faculty member, who no longer requires students to buy a textbook, duplicate and share (with...
Posted: Friday, November 17, 2017 Permalink

MEMBER QUESTION

Can a faculty member, who no longer requires students to buy a textbook, duplicate and share (with the students) the supplemental instructional resources provided by the publisher? The resources can be both digital and hard copy.

WNYLRC ATTORNEY'S RESPONSE

Sometimes, an instructor will try and solve both these problems by removing the book from the syllabus, while keeping a few choice materials on hand from the instructor copy supplied by the publisher. This seems like a win-win: the students have one less book to buy, while the lecture notes, visual aids, and LMS can carry forward the valuable content retained by the instructor. But is this scenario allowed?

The answer lies in the specific product’s license. And while there are countless publishers with every permutation of license, that answer will probably be: NO.

How can this be? Isn’t it Fair Use? Didn’t the institution or instructor already buy the materials?

This is where things get interesting.

First: how can this be? It is a very deliberate tactic by the publisher. Responding to a market resisting expensive textbooks, academic publishers are always developing new ways to incentivize purchasing. One technique is selling student materials “coupled” to instructor-side materials via a license. The license conveys a copy, rights of duplication, and perhaps digital sharing for instructor-side materials, conditioned on a requirement that the textbook be “adopted” (officially required) in the course syllabus. The instructor, who is getting free materials, adds the book, and the contractual requirement is met (until it isn’t).

This approach is some pretty clever lawyering (and marketing), since it uses copyright, often some trademark, and a lot of contract law to give instructors more rights than they have under copyright law (to duplicate, upload, etc)…and then yanks those rights away, if the book is no longer required. The fact that these rights are financially under-written by students is one of the unsung tensions of higher ed.1

Second: Fair Use. There are many circumstances in which limited duplication of instructor-side materials could qualify as Fair Use (teaching a course critically analyzing instructor-side materials would be one of them). But simply continuing to use the rights from a license the purchaser has departed from (by no longer adopting the textbook into the syllabus) is not one a Fair Use…it’s just a violation of the contract, and potentially, of copyright. Both could bring penalties; one contractual, and one statutory.

Finally, “First Sale Doctrine”: Some rights to the instructor-side hard copy might be retained under the “First Sale Doctrine,” which allows purchasers to re-sell, read, and retain physical copies once they are in the market.2 But beware…the license could contain a contractual requirement to return the instructor-side materials when the license is no longer valid (this would be done through a rental or other restricted acquisition provision).

The answer to a question like this is almost always in the specific license from the publisher.3 Deviation from those terms, unless there is a very clear case of Fair Use, is not wise.

 

1 My tone is cynical, but on the flip side, this is how the authors and creators of instructional works get paid. We can discuss the equities of this system another day!

 

2 The First Sale Doctrine is taking a beating from the increasing reliance on digital copies. But that is yet another topic, for another day!

 

3 Something our member suggested, when posing the scenario. WNYLRC has savvy members.

 

Tags: Copyright, Fair Use, Textbooks, Photocopies

Topic: Skating the Line between Helpful Information and Legal Advice - 9/19/2017
This answer was inspired by some recent questions… In the quest to give excellent service...
Posted: Tuesday, September 19, 2017 Permalink

MEMBER QUESTION

This answer was inspired by some recent questions…

In the quest to give excellent service and maximum access, librarians must apply intellectual property guidelines--a skill the average person has not honed. Library users, observing this skill (or having been alerted to a copyright concern by a librarian), may then ask for legal advice. 

Here’s an example:

WNYLRC ATTORNEY'S RESPONSE

LIBRARIAN:  We have that copy Moulin Rouge you wanted!

PATRON:  Thank you!  I am planning to generate a version of it with my commentary over it. 

LIBRARIAN:  How interesting.  Are you planning to get permission, or claim Fair Use?

PATRON:  Um…?

LIBRARIAN:  Perhaps you would be interested in this book on copyright, too.   

It is professionally appropriate for librarians to promote awareness of copyright, trademark, and the other laws that govern the use of content.  But what can happen next can be risky:

PATRON:  Thank you for the copyright book!  I am pretty sure my use will be considered “Fair.”  What do you think?

LIBRARIAN:  I am so glad you found the book helpful.  As to any use of the DVD we provided…that is a question for your lawyer.

Unfortunately, the most attentive librarians are often the closest to this exposure, since they are the most dogged about providing access—exploring the furthest reaches of Fair Use and Section 108 to do it.  However, it also means that the pressure to go one step beyond, and advise the patron about what they intend to do with the materials, may be frequent.  When it occurs, librarians must emphasize the boundary between good service and legal advice.  Here is a formula for that:

I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided. 

In the event any of the service happens in writing, it is helpful to confirm this in writing.  This doesn’t have to read like an official “notice,” but can simply be a nice note:

Hi [NAME].  We were glad to help you find [RESOURCE].  As I mentioned, if you have legal concerns about the material you borrowed, you should consult an attorney.

By that way, I am not suggesting that every patron question needs a disclaimer! But for those areas where librarians are actively applying intellectual property law, or providing access to law-related resources, the boundaries of excellent service and legal advice can blur.  Users, who have a high-trust relationship with their librarians, might not appreciate that boundary. Tightening the focus and emphasizing it protects the patron, protects the institution, and protects the librarian.

Tags: Copyright, Fair Use, Laws

Topic: Cookbook recipes as textbooks - 8/29/2017
An instructor has loaded many scanned pages from a cookbook (possibly multiple cookbooks) into her...
Posted: Tuesday, September 5, 2017 Permalink

MEMBER QUESTION

An instructor has loaded many scanned pages from a cookbook (possibly multiple cookbooks) into her class Blackboard page so that students do not have to purchase a textbook. In the samples I've received, I don't see any acknowledgements of the original author(s). Is this permissible? Thank you!

WNYLRC ATTORNEY'S RESPONSE

[Note:  The syllabus, which set out the basis for compiling recipes from a variety of regions and cooking styles, was also provided as part of this analysis.]

At first glance, this looks like a simple “Fair Use” question: is it okay, for use in a class, to copy and compile recipes from different sources and regions?  But this scenario is also a stealth “Section 102”[1] question: what exactly constitutes copyrightable subject matter?

We’ll take the “102 Question” first: is what the instructor duplicated entitled to copyright protection by a potential plaintiff? 

Answer: Since the duplicated materials are very simple recipes, without photos, lengthily narratives, or illustrations, probably not.  Per well-established case law[2], a plain, unadorned recipe, which is effectively a set of instructions with very little creative expression, is not sufficiently original to warrant copyright protection.[3]

We’ll take the Fair Use question next: if any of the recipes do have enough original expression to be protected by copyright (let’s say one has a cool picture of Jacques Pepin in the background), is copying them and compiling them together a Fair Use?

Librarians know, perhaps better than anyone, that Fair Use is a shifting exception to copyright infringement where the purpose, character, amount, and effect of the use all must be weighed to arrive at an answer.  In this case, with the recipes taken from a variety of sources, and arranged to support a compare-and-contrast cooking experience at a not-for-profit educational institution, if only very little from each original source was taken, there is a strong Fair Use argument to be made.  And of course, that argument would only need to be in defense of a claim based on content meeting the requirements of Section 102!

So, back to the original questions: is the posting permissible?  The answer is: most likely, yes!  However, the safest thing for the faculty member and the institution to do, going forward, would be to generate newly typed, bare-bones versions the recipes[4] (it’s one thing to know you’re right, it’s another to not get sued in the first place).  I would also advise they leave any maps, images, or other separately copyrightable materials that can easily be sued on, out, unless they have permission to use them.

And finally, regarding the issue of acknowledgment: unless the original author or publisher used a “Creative Commons” license allowing duplication with attribution, there is no need to attribute the source…if anything, attribution is helpful evidence for a plaintiff, and not particularly helpful to a defendant.  So there is most likely no benefit to crediting the source…although in academia, of course, citation is at the very least a professional courtesy, as well as a gateway to credibility.



[1] 17 U.S.C. Section 102 is the section of the Copyright Code that defines and lists copyrightable subject matter.

[2] Publications International, Limited, v. Meredith Corporation, U.S. Court of Appeals for the 7th Circuit…a case is worth reading both for its clear explanation of the idea/expression dichotomy, and for the Judge’s commentary on the yogurt-based recipes allegedly infringed by the defendant.

[3] This is why cookbooks often have photos, fun commentary, and a stylized way of giving instructions…the author and publisher are making sure they can protect the work.

[4] This is rather liberating advice to give.  In most cases, I can’t advise generating re-typing versions of a publication to avoid a claim of infringement.  But if you’re just listing “required ingredient and the directions for combining them to achieve final products,” (see the above-cited case) without taking someone’s original narrative, pictures, or other creative elements, and not copying their web site or other digital elements, you’re home free.

 

 

Tags: Copyright, Fair Use

Topic: Coursepacks and Copyright - 8/10/2017
I have had several requests by faculty to approve the coursepacks they have put together. All of t...
Posted: Thursday, August 10, 2017 Permalink

MEMBER QUESTION

I have had several requests by faculty to approve the coursepacks they have put together. All of them contain articles from various journals; some contain book chapters (1 chapter or less than 10%) as well, and they are intended to be sold in the campus book store to recoup copying costs. The rationale given to me is that they can do this for the 20 or more students in their classes because it is educational use. I have repeatedly pointed out Federal rulings on coursepacks, the difference between a single copy and multiple copies, but am usually met with disbelief, consternation, and occasional comments as to my qualifications for my job. Therefore, in case I am indeed wrong in my thinking, I thought I'd ask your advice and your opinion regarding coursepacks.

WNYLRC ATTORNEY'S RESPONSE

You are not wrong in your thinking.  You are protecting your institution.   Further, by educating your faculty, you are helping them educate students.

That said, you are up against a tough issue.  It is one of the strongest copyright myths out there: the strident belief that if a copy is for educational and/or a not-for-profit use, it can’t be an infringement.[1]

Of course, all myths come from somewhere, and the origin of this one is easy to pinpoint: Fair Use—an exemption from infringement—considers educational and commercial factors. 

But librarians and other information professionals know that Fair Use involves additional factors, and requires case-by-case analysis.   To Illustrate this (and helping faculty), many larger higher education institutions maintain excellent, easy-to-use guides. 

Here are some of the better ones I couldn’t presume to improve upon:

NYU

Columbia

Stanford

Harvard

Given the wealth of excellent material out there already, I have nothing new to add, unless you would find posting this short, punchy bit of doggerel helpful:

When it comes to coursepacks, here’s the rule:

Copyright applies in school.

Sure, not-for-profit education

Can help a “Fair Use” designation,

But articles, books, and chapters used

Without a license can get us sued.

Ten percent is no sure guide…

Fair Use factors slip and slide!

So if the work’s not satirized,

Nor juxtaposed, nor criticized--

But copied just to help them learn--

Then I’m afraid we must be stern.

Don’t become some lawyer’s mission!

Let us help you get permission.

(After all…

If someone used your dissertation,

Perhaps you’d want some compensation?)

You have a license from me to post this, if it will help.  Sometimes a short couplet can succeed where charts and paragraphs fail (but maybe leave off that last part). 

I wish you a strong heart, and much support, as you protect and guide your institution.

Comments and shaky poetry © Stephanie Adams (2017)

https://creativecommons.org/licenses/by-nc-sa/4.0/

___________________________________

[1] This is unfortunate, because Fair Use does offer a great deal of protection to academia, as can be seen in the recent case https://www.copyright.gov/fair-use/summaries/cambridgeuniv-becker-11thcir2016.pdf.  But it is not a simple or over-arching protection!

 

Tags: Copyright, Fair Use, Photocopies

Topic: Copying VHS/Changing format/due diligence - 6/29/2017
We have several VHS tapes that our anthropology professors use in the classroom. Our campus will b...
Posted: Thursday, June 29, 2017 Permalink

MEMBER QUESTION

We have several VHS tapes that our anthropology professors use in the classroom. Our campus will be phasing out VHS as the players break down. We would like to send these to a vendor to create DVDs or digital files. We feel we have done the due diligence searching for a replacement. In most academic libraries media materials are purchased for distribution to the classroom for educational use. Making a copy would be of little benefit if use is not allowed in classroom, face to face instruction.

WNYLRC ATTORNEY'S RESPONSE

WNYLRC ATTORNEY’S RESPONSE

From: Stephanie C. Adams

Date: June 27, 2017

This question starts with 17 USC 108(c), which allows for duplication of “obsolete,” formats, but limits the accessibility of digitized copies “to the premises” of the library. 

The inquiring library set out the other 108(c) factors: the obsolescence of VHS (manufacture stopped in 2016), the lack of commercially available copies, and the published nature of the work.  So as you say, what’s left to determine is:  Does the “premises” of a library in an educational institution include the whole campus?

“Premises” is not defined in the Copyright Code, nor is it commented on in the lawmaking notes (vis-à-vis this question).  I found no case law directly on point.  So we’ll go to the lawyer’s last resort: common sense.

Section 108’s bar on digitized preservation copies leaving the premises of the library is very rigid, and it is likely the boundaries of your library are, too.  If the library has a finite space that is reported in things like strategic plans, accreditation reports, and campus maps, then the “premises” would most likely be deemed to end at the door, not flow throughout the campus.  A quick search on this issue show this is the emerging consensus.  So yes, the DVD’s you make as a result of this format shift are, at first, trapped in your library[1].

This creates a ridiculous conundrum: you need to shift the format so the educational material may be accessed, now that the format is no longer supported.  But in transferring the information to a digital format, you are shackling it to the premises.  How can you provide access?


[1] The Section 110 exemption for “classroom use,” requires that the viewed copy be “lawfully made,” and your digital copy, to be “lawfully made,” must stay on site.  So I do not feel safe advising you to use that route…although it is uncharted territory.

 

You have two options:

First, it is important to remember that the shift of format does not necessarily change the license your institution purchased when it first acquired the VHS tapes.  This is a point strongly emphasized in both 108, and the lawmaker notes accompanying it.  If your institution had a license to use the copies for classroom room, directly from the owner/publisher, that license might survive the shift.  That could be determined from the purchase records or license text on the video itself.

Second, the Association of Research Libraries’ “Code of Best Practices in Fair Use for Academic and Research Libraries” was drafted, in part, to address this situation (see page 18).  In the Code, the ARL posits that when a preservation copy is made, further access can be granted under Fair Use.  This does come with limits however: “off-premises access to preservation copies circulated as substitutes for original copies should be limited to authenticated members of a library’s patron community, e.g., students, faculty, staff, affiliated scholars, and other accredited users.”  Further, the Code states that preservation and Fair Use copies should not be accessed simultaneously, and technology controls should be used both label the copy as required by 108, and to restrict further duplication.

This Fair Use solution to your problem has been adopted into the published policies of many institutions (here are a few examples[1]).   As there is no case law on point, I cannot say it is a slam-dunk defense, but I can say that if you adopt your own policy for carefully following this emerging standard practice, and then document that you follow it as you embark on this journey to ensure continued access to educational material you rightfully purchased, you will be in good company if content owners decide to sue for infringement, and recent case law about fair use will likely weigh in your favor.

There is a good deal of writing and advocacy on this issue, and hopefully in another few years, I will have a more definitive answer to give you!

 

Tags: Copyright, Fair Use, Preservation, VHS

Topic: Legal Request - 6/14/2017
A law practice in is litigating a case.  They have contacted us asking for all relevant mater...
Posted: Wednesday, June 14, 2017 Permalink

MEMBER QUESTION

A law practice in is litigating a case.  They have contacted us asking for all relevant materials.

We have provided considerable materials from our records and archives, however, we have stopped short of providing a full digital copy of a book that might still be under copyright (based on publication date).

If they sent a representative to our archives, we would allow them access to the book.  They would be able to read it and even make their own copies of relevant sections.  I believe this is covered under the "fair use" provisions of the copyright law(?).

However, this is not the case, they want us to send them a full digital copy version of the book and I don't believe this is permissible under "fair use" or any other clause.  What is your understanding?

WNYLRC ATTORNEY'S RESPONSE

Aside from my general admiration of libraries, one of reasons I relish “Ask the Lawyer” is the chance to answer questions that might never otherwise come my way.  This question is one of those!

Could duplication of an entire copy of a work for use in a court case meet the requirements of Fair Use?

Case law says… yes, it could. In a 2003 case[1], a court found that duplicating an entire copy of a plaintiff’s autobiography, so it could be submitted as evidence of his bad character (he admitted to intentional homicide), was a Fair Use.   In 2014, it was found that duplication of extensive content from a blog, introduced as evidence of an alleged ethics violation, was Fair Use[2].  And back in 1982, bootleg copies of erotic films, created to bolster a nuisance claim, were also found to be “fair.”[3]

These cases, and others like them, draw from legislative history and precedent stating that the reproduction of copyright-protected works for litigation or other judicial proceedings


[1] Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), cert. denied 540 U.S. 820

[2] Denison v. Larkin, 64 F. Supp. 3d (N.D. Ill. 2014)

[3] Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982)

often meets the “Fair Use” criteria.  So…the lawyers who have made this request of your archives, if they make this copy, should be able to defend their actions.

That said, Fair Use depends on the complex interaction of four separate “factors” which in this case will largely out of the library’s control.  What if the firm posts the content online?  What if it is used in PR material related to the case?  As a part of the chain of duplication, the library could then be implicated in an action based on a use not previously disclosed to them.

The right of libraries and archives to make whole copies, without worrying if the Fair Use criteria are met, is governed by Section 108 of the Copyright Code.  Section 108 provides a precise formula for making—and providing—one hard copy of a published work:

[T]hat the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

AND

[That] the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price;

AND

[That] the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research.*

Applying these criteria is tough.  While the advantage to be gained from the duplication is unlikely to be a direct “commercial advantage” (although perhaps there will be a commercial benefit to the court case), is the proposed use for litigation “private?”  Can it be determined if another, commercial copy is available? Further, the request that it be in digital format speaks to ease of further duplication, and this part of 108 is not about format-shifting.

The bottom line: unless you are satisfied that this “108 criteria” are met, since the Fair Use factors will be out of your archive’s control, the best bet is just what you suggest: let the attorneys make the copy themselves! 

*NOTE:  Different criteria would apply if this work was unpublished, or if the duplication was for preservation or ADA access purposes.

 

Tags: Copyright, Fair Use

Topic: Copying of College Textbook Chapters - 5/1/2017
Our question concerns the copying of college textbook chapters for students where the required tex...
Posted: Monday, May 1, 2017 Permalink

MEMBER QUESTION

Our question concerns the copying of college textbook chapters for students where the required textbook is either backordered by the bookstore day one of semester or where a late enrollees’ textbook is out of stock. 

One current solution involves a limited checkout of a text for the first four weeks of a semester, and only for library use for reading or photocopying. We keep a printout of the standard Copyright notice on the copier to warn against excessive copying. After four weeks, students must have access to the book on their own and textbook copies remain solely as desk copies for faculty. 

However, what is advised when multiple classes do not have textbooks in stock and late enrollees are more prevalent? What does copyright permit in terms of copying textbook chapters or providing e-links to textbook chapters on LMS (Blackboard, etc.) in such cases?

WNYLRC ATTORNEY'S RESPONSE

It’s 2017.  Digital access to academic resources having been a factor in academic life for over 20 years, it would be reasonable to think I would have clear, well-established guidance to give you.

However, as of 2016, the United States was still struggling with Fair Use, and the law doesn’t give us the bright-line rules we are hoping for.   Rather, particularly with regard to textbooks and digital access, recent case law has diminished them.

Very comparable to the circumstances you described is the case Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016).  In Cambridge, a court in Georgia, after trying to use a simpler, equally weighted Fair Use analysis, and relying on the ill-fated “10% standard” of duplication, ruled that when creating digital copies/excerpts of textbooks:

(1) the first factor, purpose and character of the use, weighs in favor of fair use because [a university] is a nonprofit educational institution;

(2) the second factor, the nature of the work, is “of comparatively little weight…particularly because the works at issue are neither fictional nor unpublished;”

(3) the third factor, the amount of work used, must be viewed through the lens of “the impact of market substitution as recognized under factor four, in determining whether the quantity and substantiality . . .of [d]efendants’ unlicensed copying was excessive;” and

(4) the fourth factor, the effect of the use on the potential market for the work, “concern[ed] not the market for Plaintiffs’ original works . . . but rather a market for licenses.”

This case shows that a when it comes to textbooks, while courts will give strong deference to educational institutions, there is no “magic formula” (like 10% of the content) they will apply to ensure Fair Use.  Rather, courts will apply a nuanced analysis that changes from work to work, and from use to use—making general guidance a challenge.

With all that in mind, my answer to the inquiry is:

First, the ability of the student/patron to physically access or check out the book is a great service by your library; with the required copyright notices posted, and no attempt by the library to collude with students in making prohibited copies, you are taking good advantage of section 108’s exemptions of libraries from liability for infringement.  In addition, providing access to textbooks within the structure outlined above is a great incentive for students to visit the library.

Second, your actual question—can my library use digital access to help students who were late registrants or otherwise unable to secure a physical or full digital copy?—requires application of the Fair Use factors on a work-by-work basis, which as we can see, is an increasingly intricate and fact-specific exercise.   You must apply the four factors not just on a work-by-work basis, but while considering the specific purpose of a particular use.

There are also some practical tips that can help you avoid being sued for infringement.

Tip #1: To answer questions like this, I always put myself in the shoes of the potential plaintiff.

· If I were the publisher, would I view the digitized access as cutting into my potential revenues? 

· Is there an easily obtainable license for the excerpt, that the library is just choosing to ignore?

· Can I, as the publisher, easily put a price on the damages? 

All these factors, if the answer is “yes,” can lead to the publisher instructing their lawyer to file suit. 

However, even if all of these are true, I, the publisher, would also ask…did every person who accessed the digital copy already have a copy on back-order (and not return it)?   If they bought my book, and were only using the digitization as a place-holder, I, the publisher, would tell my lawyer to look elsewhere for damages…especially since when I, the publisher lose, I am responsible for the legal fees of the other party (in the Cambridge case, the publisher was told to pay the fees of the university).

Tip #2: It is unfortunate that, like the courts, I can’t give a simple formula for Fair Use.  However, one way you can sometimes get a bit of “free” advice on this is to consult with your institution’s insurance carrier.  It is very likely your institution is insured for copyright infringement, and that they have a list of best practices they would like to ensure you, the insured, are following.  As a professional within the library, it is good to also confirm that this coverage will cover not only the institution, but you as an employee.  That can help you sleep at night.

Tip #3: And finally, if ever an entity notifies you that they are suing you for infringement, notify your insurance carrier right away.  Often times, they can provide counsel, and help you reach a quick, low-stress resolution.

Tags: Copyright, Digital Access, Fair Use, Textbooks, Photocopies

Topic: Sharing Articles - 3/29/2017
I encountered a situation in which a patron wanted to share an article that I sent to [a not-for-p...
Posted: Wednesday, March 29, 2017 Permalink

MEMBER QUESTION

I encountered a situation in which a patron wanted to share an article that I sent to [a not-for-profit organization’s] educational portal. As it happened, she had a very specific intended audience…which I thought fell within the "Fair Use" doctrine as, in addition to the information being educational, it was to be shared with [only] a small group.

However, it made me wonder how to approach a situation in which intellectual property was to be shared on such an electronic educational forum for the entire [not-for-profit] staff to sign off on having read. Would sharing with all [not-for-profit] staff for educational purposes be acceptable? 

WNYLRC ATTORNEY'S RESPONSE

This is a great question, as it occupies the crossroads of the specific exceptions for libraries and archives in the copyright code, the elements of fair use, and an essential aspect of a library’s mission: dissemination of information. So, I am a bit sorry to say the answer is most likely: NO.

That said, there is a “YES” along the way, and with careful analysis, the two answers can be kept separate.

How is that?  First, you have to see the query as not one question, but two.
 

  •  FIRST QUESTION:  Is a library allowed to provide a copy of an article to a patron? 
     
     ANSWER:  YES. With careful attention to the factors that apply only to libraries and archives (Section 108 of the  Copyright Code), a copy of the article can be provided.
     
  •  SECOND QUESTION: Is it a fair use for the patron to then distribute a digital copy via an access-restricted portal?

    ANSWER:  NO.  Even when the user is a not-for-profit trying to stretch budget dollars and educate its workforce, when a patron is essentially trying to provide broad access but circumvent a licensing fee,* the elements of fair use are not met.

 

LIBRARY COPIES V. FAIR USE

Part of this analysis depends on appreciating the subtle differences between Section 108 (exceptions for libraries and archives), and Section 107 (fair use).

Here is the formula for a library to provide an authorized copy of an article under Section 108:

  • The copy must become the property of the user;
  • The library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and
  •  The library or archives displays a warning of copyright as required by law.

Here are the factors used to analyze fair use under Section 107:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

Note the difference between Section 108’s simpler, formulaic elements (providing a bright-line rule for providing an authorized library copy), versus the complex, inter-connected fair use factors (which most will agree provide anything but a bright line). Commentary on the Copyright Code shows this is a deliberate difference, and the effect is a positive one for libraries: whether or not subsequent patron duplication of a “Section 108 copy” meets the elements of fair use, a section 108 copy is authorized so long as Section 108’s much simpler elements are met.

A library’s provision of an authorized copy does NOT depend on the patron’s subsequent fair use.  Section 108’s provisions stand alone, and on much easier-to-analyze ground.  However, absolutely key to Section 108 is the library’s lack of notice regarding a patron’s intent to use the copy for anything more than private study/scholarship.  

If, during the consultation, the patron discloses intent to use the copy to create their own mass distribution, the use will not qualify under Section 108, and infringement could be found. Just as critically, providing a copy once the library was aware of a further intent to copy could also run afoul of the fourth commitment in the Code of Ethics of the American Library Association: “We respect intellectual property rights and advocate balance between the interests of information users and rights holders.”

Because of this “notice factor,” Section 108 might be easier in theory than it is in practice. Patrons seeking information often use librarians as co-strategists in whatever project they are working on.**  During such quests, a librarian’s awareness of the full extent of patron needs can be helpful, so there is often a discussion of not only what is sought, but why. This type of discussion may lead to better service, but if it leads to notice of a patron’s intent to put an article on an intranet or portal, the librarian can be put in a legally and ethically awkward position. 

So…you are right to be cautious! Thank you for a great question.

*If the article isn’t commercially available, or the article is being parodied or provided as an example of “what not to do”--basically anything other than its simple face value as an educational tool--the fair use analysis would be different. But we’d need the precise factors from the patron.

**There is one other complication worth mentioning on this FAQ forum. For academic or other libraries operating within a larger institution, if the requesting party is simply another part of your organization, Section 108 is more difficult to credibly apply, so caution is needed. 

Tags: Copyright, Fair Use

Topic: Photocopying Music Scores - 11/08/2016
We have a request from a patron from another state for scans or photocopies of music scores that w...
Posted: Tuesday, November 8, 2016 Permalink

MEMBER QUESTION

We have a request from a patron from another state for scans or photocopies of music scores that we own and that are still under copyright. They are rare and only a few libraries have them across the country. The patron does not intend to perform the music, only to study the scores. Is it fair use to copy or scan them for the patron who is writing a doctoral thesis?

WNYLRC ATTORNEY'S RESPONSE

Short answer: The proposed copying would not be a permitted, duplication or Fair Use without some additional steps consistent with the four Fair Use factors.

Long answer: This is a great question, as it marries the practical consideration of access with the scary question of a liability for infringement.  To answer it, there are a few initial points of priority….

First, it is critical to note that Section 108 (a) of the Copyright Act, which would normally allow for one copy of a work to be provided to fulfill this request, expressly excludes musical works (see Section 108 (i)).

Second:  Because of the Section 108 (a) exclusion, it is important to distinguish: while the patron may have a Fair Use defense if they duplicate the work for the purposes of scholarship, the library, in simply making the copy to provide easier access to a remote patron, might not.  

Third, as plaintiffs can sue “innocent infringers,” careful steps should be taken to ensure the library could not be viewed as a part of the chain of infringement, if the patron ends up not having a valid Fair Use defense for any copy or derivative work they generate.

Fourth, while this scenario does not state the original copy requires archiving, it sounds as if you have a rare and precious copy, so we’ll draw a bit from the law, case law and guidance covering the protection of deteriorating/rare documents.

And now…how do you enable the proposed access, but keep the library safe?   By ensuring 108(c) and the “Fair Use” factors are on your side, whether you send them a scanned copy, or loan a physical copy.   

Digital copy
Informed by the latest case law and guidance, the following steps could help claim Fair Use for providing the proposed copy digitally:

Step 1: As the Code of Best Practices for Fair Use in Academic and Research Libraries (www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices) puts it: “Providing [digital] access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all.”  It is essential to verify that the works, or a licensed copy, are not commercially available.  This is essential for 108(c), too.

Step 2:  It is best if the transformation of format is not an ad hoc effort, but rather is part of an effort to promote a special resource of your library.   Making the digital copy a part of “special collection”—for instance, of rare music scores—will give you a stronger Fair Use defense.

Step 3: Again from the Code: “The Fair Use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.”  In other words, once you have the collection digitized, don’t let it be just that ad hoc project—promote it.

Step 4: Use appropriate technological controls (digital watermarks, etc.) to restrict the access, limit duplication, and ensure proper attribution of materials in the collection.  That way, any eventual copying or derivative work generated by the patron is separate and distinct from the access provided by the library.

Step 5: As with any digital collection, make sure the library has an easily found way for people to register privacy or intellectual property concerns related to digital collections.

Physical copy
What if you just want to provide them with a physical copy?  Following Section 108(c)’s rules for duplicating deteriorating copies, you can generate a copy for preservation purposes, loaning it to them with the expectation that it will be returned.  Just take care that the work is not commercially available, and that the original copy is not available while the preservation copy is out on loan.

[NOTE: 108(c) bars a digital copy made on this basis from leaving your institution.]  

Overall 
The bar on Section 108 (a) applying to musical works makes this a bit more challenging than the usual duplication request, but with some care, access can be provided.

Further, if the patron wants to make a copy of what your library loans them (either digitally, or in hard copy), if their use is as you describe, they may have their own Fair Use defense.  This will mean both the library and the patron can stand on separate, but solid, copyright ground. 

Tags: Copyright, Fair Use, Photocopies

Topic: Reformatting VHS - 10/17/2016
We are shifting away from VHS here on this campus (along with everywhere else), and have a questio...
Posted: Monday, October 17, 2016 Permalink

MEMBER QUESTION

We are shifting away from VHS here on this campus (along with everywhere else), and have a question from an instructor about transferring a VHS tape to DVD. She's not able to get the tape on DVD or streaming, but knows that it's under copyright. Are there any loopholes to allow for making a digital backup of a VHS tape because VHS is an obsolete medium? Does going through a good-faith effort to find a digital version give some protection or leniency? Should we encourage the instructor to contact PBS or the show's producers to obtain copyright clearance for making a digital copy?

WNYLRC ATTORNEY'S RESPONSE

We’ll start out with the best advice: unless you stand on the legal high ground of a disability accommodation or a crumbling single copy unavailable in the original medium, when it comes to creating a new format of a work, written permission from the copyright owner is always best.  That is the gold standard.  If you have permission, the blood, sweat, and tears (or stress, more likely) of a Fair Use analysis are not needed.

This scenario does not occupy any legal high ground.  For a library in this position—dealing with the increasing rarity of VHS players—there is great guidance out there from the Association of Research Libraries’ “Code of Best Practices in Fair Use” (http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf): Here is what the code has to say on this issue…

Even when libraries retain the originals of preserved items, digital surrogates can spare the original items the wear and tear that access necessarily inflicts. Section 108 of the Copyright Act authorizes some preservation activities, but does not address some of today’s most pressing needs…[including] the transfer to new formats of materials whose original formats (such as VHS magnetic tape) are not yet obsolete (as the term is narrowly defined in section 108(c)) but have become increasingly difficult for contemporary users to consult.

Case law also acknowledges this VHS problem, but gives no relief: “Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.” (University Studios et al v. Corley, U.S. Court of Appeal 2nd Circuit, 2001).  This case is 15 years old, which means a lot has happened in the world of technology, but is still good law.

So the answer is, for now, unless you are making a disability accommodation, or faced with a crumbling copy, there is no iron-clad loophole or clear precedent to allow the proposed conversion to be a “fair use.” 

That said, if you have a deteriorating copy, a good-faith effort to re-purchase it in the original medium will certainly contribute to a fair use defense if you duplicate it to preserve this resource.

To help both you and your institution show that you have gone through this exercise, when you address such questions, I advise that you compose short emails to yourself, documenting the question, process, and conclusion.  A simple:

“Instructor stopped by today and asked if we could convert VHS in the collection to DVD for ease of access.   I let her know we’ll try to purchase a copy on DVD or seek permission of the copyright holder to make a copy on DVD.” 

 OR

 “Instructor stopped by today and asked if we could convert VHS to a format that would allow Deaf student to view closed-captioned version; we are arranging conversion solely to allow reasonable accommodation under the ADA.”

 OR

“Instructor pointed out that VHS tape in collection was not working right.  [Co-worker] and I verified the condition.   As best practices state it is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials, the library will create a back-up copy, UNLESS a fully equivalent digital copy is commercially available at a reasonable cost.  We will of course not provide access to or circulate original and preservation copies simultaneously.”

This July, various news outlets reported that the world’s last manufacturer of VCR’s has cease production.  Please check back on this issue; we’ll update this entry in the FAQ when we have better guidance, which should be coming soon.  Congress is working on new guidelines, and was recently told by the Register of Copyrights, Susan Pallante: “In its current state, Section 108 is replete with references to analog works and fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries.”

 http://www.copyright.gov/laws/testimonies/042915-testimony-pallante.pdf

 

Tags: Copyright, Digitization and Copyright, Fair Use, VHS, Movies

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The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.