A Dozen and One Things to Know About Copyright
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Transcript of A Dozen and One Things to Know About Copyright
A Dozen and One Things You Need to
Know(about copyright)
Rogan Hamby Manager York County
Headquarters Library
Reference / Outreach /
Circulation / Collection
Development
Still a Systems Librarian
Title 17 www.copyright.gov/title17/
Relies heavily on judicial interpretation
Extremely busy field
This is only thirteen arbitraryelements of current eventswith a bias towards libraries
Depends heavily on legislative intent
Disclaimers
I’m going to skim a lot. There is easily content I am going to skip over that could make another twenty hours of presentations so I apologize in advance.
IANAL should be IANACL or I Am Not A Copyright Lawyer. Most Lawyers are not Copyright Lawyers.
Put five copyright lawyers in a room and you’ll get at least seven different opinions. This is why the courts are so busy.
If I sound like a nut case alarmist it’s only because I care.
1
Fair Use Is Resilient
Section 107, Title 17Limitations on exclusive rights: Fair use
Broad and highly open to interpretation
The principles derive from the opinionsof Joseph Story, Folsom v. Marsh (1841)
Was only common law until Copyright Act of 1976(Statute of Anne, 1709)
Basics“for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”
To be considered:
(1) The purpose and character of use, commercial or for non-profit education
(2) The nature of the copyrighted work(3) The portion used in relation to the copyrighted work
as a whole(4) The effect of the use upon the potential market or
value of the copyrighted work
A Legal Defense Judges must consider the elements of fair use but
will decide case by case what applies and doesn’t
This is being contested constantly right now from ring tones to scholarly papers
May 2012, Cambridge University Press, Oxford University Press and SAGE Publications vs. Georgia State University – 99 counts of infringement, found only 5 in favor of the publishers
Took four years and ruling was granular analysis in 350 pages
2
The Library Is Protected
Section 108 of Title 17 provides limitations on exclusive
rights of reproductions to protect libraries and archives
8,440 characters long
The legend that you can make one copy rule has
caveats
o Items must be open to public or specialized researchers
o Must provide copyright notices if not already present
You can make three copies under very broad criteria!
o You can do this for lost, stolen, or format is obsolete
Exemptions to copyright
would bea presentation in it’s
own right!
3
The DMCA Is Useless
A number of library specific exemptions but most are pretty useless
The temporary copy exemption only applies to circumventing protection mechanisms not to copying the work, i.e. DMCA not Title 17
The infamous “photocopier” rule and knowledge of willful infringement
4
© Has Geographic Boundaries
Laws still vary widely nation to nation as to scope covered and penalties
Enforcement varies widely nation to nation as well
As a result things like Project Gutenburg have national chapters because a book perfectly legal in Australia may still be covered by copyright here in the United States
The U.S. is a member of the Buenos Aires & Berne Conventions
The Berne Convention Instituted by Victor Hugo, heavily influenced by
French “right of the author” which isn’t the same as copyright
The U.S. joined in 1988 after they allowed it to make statutory damages and attorney’s fees only available for registered works
Provides a series of baselines for what is covered
Requires that nations recognize copyright as France did
Coverage is automatic and does not require registration
The Berne Convention 165 countries have signed including most of the
developed world
The Priority Watch List
Every year the Office of the United States Trade Representative (USTR) does a Special 301 report
Every year the IIPA representing the BSA, MPAA, RIAA and others submit recommendations to the USTR
This year they recommended most countries for hosting cyberlockers
This year they recommended thirteen including …
Canada
5
There Is a Vision
“One copyright trade agreement to bring them all
together,
One copyright trade agreement to in the darkness
bind them”
The New Copyright Remember me saying that one thing that varied a
lot was enforcement?
The answer is ACTA, the Anti-Counterfeiting Trade Agreement
Opponents argue that it goes far beyond enforcement to rewriting copyright laws under the guise of a trade agreement which doesn’t have the same congressional scrutiny
And can be kept private from the public
ACTA Countries
6
Copyright is Non-Partisan
© Law is Not Slowing Down
Copyright Act of 1790 - 14 years with 14-year renewal
Copyright Act of 1831 – 28 years with 14-year renewal Copyright Act of 1909 – 28 years with 28-year renewal Universal Copyright Convention Copyright Act of 1976 – 75 years of life of authors plus
50 years Berne Convention Implementation Act of 1988 Copyright Renewal Act of 1992 Uruguay Round Agreements Act of 1994 Copyright Term Extension Act of 1988 – 95/120 years
or life plus 70 Digital Millennium Copyright Act of 1998
COICA / SOPA / PIPA PIPA is the Protect IP Act
Broadly expands the power of copyright holders to act against potentially or allegedly infringing material
Largely seen as a US version of ACTA
Already DMCA tools are dangerous – President Obama’s speech, birds apparently sound a lot like heavy metal
What do you think it will do to research?
The Police of the New World
ICE – Immigrations and Customs Enforcement
They used to seize cargo containers of pirated books from China. Now they seize domain names
84,000 domains at mooo.com wereaccused wrongly of having child pornography
Has seized domains with legitimate content
8
The © Office
Founded in 1870 when Congress removed it from
the court system and placed it with the Library of
Congress
450 employees
In 2011 they processed more than 700,000 claims
The © Register
Title 17 section 701 gives critical power to
Register of Copyrights including involvements in
all levels of discussions
Often given other
arbitrary powers
Maria A. Pallante
www.copyright.gov/docs/priorties.pdf
Fighting the Good Fight
9
There is An Orphan Crisis
“Orphan works are works whose copyright holders
cannot be identified or found – and are not made
publicly available by libraries for fear that rights
holders will come forward, initiate legal action, and
demand statutory damages of up to $150,000 a
work.”
- ALA
A Different Kind of Orphan
Orphaned Works
Although everyone agrees that orphaned works are a
problem (EFF, ALA, researchers, publishers, readers,
congress) little is done. No legislative effort has
happened in the 111th or 112th Congress so far.
When legislative change happens to protect current
commercial works it tends to make orphaned works
even less accessible.
Singularity & Co.
It’s Not Paranoia If …
Libraries have been sued for libel when digitizing
and republishing content and that’s even where
copyright is clear!
10
Copyright is Elastic Copyright has expanded.
In 1856 Congress expanded copyright to include public performances for playwrights. Over time that has expanded to include other kinds of performance.
Those same laws are applied to re-transmissions now and affecting cloud based businesses.
Cable telecommunications and copyright have become a black hole of esoteric regulation that logic can’t escape from.
The Band Snaps Back While Netflix and Hulu are fighting over what is a
cable company and what side of the fickle FCC sword they want to grab …
Judge Posner in MPAA vs. Flava Works ruled that embedding video is not copying and viewing is not copying
This means that there is a type of public performance that is not covered by copyright law
11
© Law Has Become A Catalyst
Copyright cases have been filed over Rolling Stones songs and advance copies of Harry Potter books
But it has been the adult industry suits that have filled up the industry in the last ten years
A Multitude of Precedents
A multitude of lawsuits against John and Jane Does users have caused conspiracy laws to be reviewed and the limits of blanket lawsuits and judicial limits (geographically)
Wifi has been reviewed as a public property with responsible access laws applying
Statutory damages are in constant flux
Common carrier and provider protections are being tested against publishers like Tumblr
The Law Strikes Back
Some suit happy parties are finding that their methods are earning the ire of the courts, and they are being charged with racketeering and being disbarred
Judges are increasingly wise about these issues and the technical issues are being broken into legal translations
Liuxia Wong vs. Hard Drive Productions is challenging if certain works can be copyrighted
Richard Posner
12
Code is Covered by ©
Jailbreaking When you buy an electronics device you aren’t
just buying hardware – you’re buying software that can’t be functionally separated.
If you want to modify your device you have to be able to change the code – these modifications are often called rooting or jailbreaking.
While copyright of digital files are challenged under the doctrine of first ownership this is a whole other problem.
Maria Returns Since copyright also includes the right to create
derivatives you can’t modify a modern device (say your smart phone) without violating copyright
Right now we can do that because the U.S. Congress opened up that privilege and it can go away
Who is in charge of making the recommendation to extend it?The Register of Copyrights at the Library of Congress
So long as …
… we are talking about code
Did you know that while an algorithm can’t be copyrighted a search result can be?
In fact any evaluation or ranking can by copyrighted
Ironically, the less useful a result is the more you can protect your copyright on it!
+1
The Reports of ©’s Death
Have Been Greatly Exaggerated
Maria Pallante: “Without enforcement like SOPA … the US copyright system will ultimately fail.”
She has said that copyright policy has to start with enforcement, not with insuring the rights of researchers and the public.
Where are the Losses? From Napster to Megaupload the major copyright
policy advocates, those paying the biggest lobbyist, have said that the Internet would destroy their income
In fact their past estimates have become so unreliable that their language has changed to “inhibit growth” from “piracy will destroy us”
In Fact:
Pays better than most American jobs
Has outperformed the US economy through the recession
Sells record-setting amounts of product overseas, earning more foreign revenue than the entire US food sector or US pharmaceutical industry
Source, IIPA Report
New Models
In fact the copyright industries are adapting to new
markets
Just as they’ve done before when new licensing
needs were created to respond to new technologies
Once both Juke Boxes and Radio were
considered to be the death of
copyright – now the very things being
defended
Questions?