CREATING DIGITAL LIBRARIES:  A COLLISION COURSE WITH COPYRIGHT LAW

Lolly Gasaway November 2011

IMPORTANCE OF THE ISSUE Libraries are eager to share their

unique collections digitally Not only larger academic libraries

Public libraries Local historical societies

Impact on scholars & other users

TYPES OF DIGITIZATION PROJECTS UNDERWAY

Unique or scarce archival materials May be public domain

This may be the most important materials to digitize

But may still be under copyright Public domain books – no problem Permissions are critical Orphan works – may be problematic Non-copyright concerns outside

scope of this presentation

WHY COPYRIGHT LAW IS PROBLEM FOR THESE PROJECTS Copyright law across the world gives to owners

the rights to their works Includes the right to reproduce & distribute the

work in copies as well as to display & perform the work publicly

Owners want to control how, when and where their works are made available Is this crazy? No, it is what the law permits

Why have librarians gone forward without publisher permission? Maybe many publishers are jerks Maybe we have let our wishes control any

evaluation of what the law actually permits Maybe a combination

HAS THE LAW CHANGED?

Only in minor aspects Will it change?

Perhaps Copyright Register’s 3-year priorities

include relevant 2 items: Orphan works Section 108 Study Group Report

MAJOR PROJECTS UNDERWAY

Google Books 15 million books

scanned end of 2010 130 million remaining –

will scan by end of decade…. Lent by academic

libraries which received a digital copy from Google

Little concern about whether the works were under copyright

Public domain fine Publishers objected

Settlement agreement failed Still could be some

agreement perhaps Unlikely

Reasons for failure Judge though it was

too broad Problems with class

action – should be opt in not opt out

Antitrust concerns Private ordering of

public issue Usurping role of

Congress

Internet Archives Digital library of

free books, movies, music

3 digital million books available (9-17-11) Seeks permission

for in copyright works

Lends to one person at a time

Digital Public Library of America Big thinking

Contours much less certain

Recognizes copyright law problems

Has a legal work stream already active

HATHI TRUST

International community of research libraries UNC & TRLN are

members Currently digitized

almost 10 million total volumes Source of these

digital copies

Orphan works project Sought to make

works determined to be orphans available Sued by Authors

Guild – Hathi procedures questionable

Trust recognized the problems

WHY COPYRIGHT HOLDERS OBJECT TO DIGITAL PROJECTS

Object only to projects that involve in digitizing copyright works without permission The works are their property Changing business models for publishers Especially crucial for university presses

Digital storage of their works Works may not ever again be out-of-print

Print on demand Digitizing their publishers’ own files

Also, some publishers have their own databases of works that they license to users

COPYRIGHT BASICS

Form of expression not facts, ideas Originality & creativity - § 102(a) Fixation - § 102(a) Registration – new fees ($45) Deposit

NOTICE OF COPYRIGHT

§ 401 (b)

1. © , COPYRIGHT, or COPR., and

2. Year of first publication and

3. Name of copyright holder© 2011

L. GASAWAY

TERM OF COPYRIGHT1909 28 years

+ 28 years 56 years

1976 Act Section 202 lifePersonal Author + 50 years

?

1998 Amendment life+ 70 years ?

RIGHTS OF THE COPYRIGHT HOLDER

Reproduction Distribution Adaptation Performance Display Public

performance of sound recordings by digital transmission

APPLYING FAIR USE TO DIGITIZATION PROJECTS

Section 107 …“the fair use of a copyrighted

work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

FAIR USE § 107

…“the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

FAIR USE FACTORS

Purpose and character of the use

Nature of the copyrighted work

Amount & substantiality used Market effect

SECTION 108(b)

The rights of reproduction and distribution under this section apply to three copies or phonorecords duplicated if:

The purpose of such duplication of an UNPUBLISHED work is for preservation, security or fordeposit for research in another library and if.....

1. The copy or phonorecord reproduced is currently in the collection, and

2. Any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format & is not made available to the public in that format outside the premises of the library or archives.

SECTION 108(c)

The rights of reproduction and distribution under this section apply to three copies or phonorecords of a work duplicated if:

The purpose of such duplication is to replace a PUBLISHED damaged,deteriorating, lost, stolen or obsolete copy and if....

1. After the library makes a reasonable effort to determine that an unused replacement cannot be obtained at a fair price and

2. Any copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of that library or archives in lawful possession of such copy.

Further, for purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

SECTION 108 STUDY GROUP REPORT

Recommendations on preservation Revising (b) and (c) re three copies Preservation-only exception for

publicly distributed digital works Website preservation

www.section108.gov

ORPHAN WORKS Google tried fix

Hathi Trust tried fix for its contents

Must be a statutory change Will ease many

problems dealing with locating missing owners for permissions Will not eliminate

need to seek permission

After good faith search for owner

No liability for damages if owner later shows up

Now a Register’s priority

WHAT WILL IT TAKE TO FIX THIS?

Working with copyright holders Not ignoring

their property rights

Willingness to compromise (glass ½ full)

Amend § 108 as recommended or suggest other changes

Move forward on a governmental orphan works solution

Best practices on seeking permission for digital projects

Group licensing Work with copyright

lawyers who do not take such extreme positions