FROM TEXACO TO TASINI & BEYOND……

Lolly GasawayJune 2006

www.unc.edu/~unclng/gasaway.htmLaura_gasawty@unc.edu

OVERVIEW

Has the world changed in the for-profit world since Texaco? Yes How?

How are businesses coping with copyright while still meeting the needs of their customers and employees?

What is on the copyright horizon?

THE TEXACO DECISION

The decision Facts Fair use analysis

12 years post-Texaco Impact Unanswered questions

AMERICAN GEOPHYSICAL UNION

v. TEXACO

60 F.3d 913 (2d Cir. 1994)

Began in 1984 – 6 publishers originally More than 80 by time of suit

Issues narrowed until all that remained was whether research scientists who made photocopies for their work infringed Texaco claimed fair use

TEXACO DECISION

Cannot ignore fact Texaco = for profit company

Archiving

Not all copying would be problematic

Copies to take to lab

1. Purpose & character of use:

2. Nature of copyrighted work:

Favors Texaco

3. Amount and substantiality used:

The article is the work = 100% is copied

4. Market effect:

Limited effect on subscription sales

Loss = right to license to copy CCC mechanism not unimportant

UNANSWERED QUESTIONS

1. Limitation to specific facts: did Texaco have any impact on others in the for-profit sector?

2. Copying outside of archiving?

3. If publisher not registered with CCC did it lost the right to claim market effect?

4. Impact on others for profit?

5. Impact on nonprofit libraries?

NEW YORK TIMES v. TASINI

533 U.S. 483 (2001)

Dispute between free-lance writers & publishers Inclusion of their pre-1995 articles in

databases without permission or compensation (post-1994 transfers) Permissible revision? § 201(c) Difference between databases & microfilm

editions Later National Geographic on CD-Rom

cases

THE CASE THAT WOULD NOT DIE!

Later disputes

Incomplete databases

Final settlement

2005 - $10 -18 million minus $3.5 for attorneys’ fees and administrative costs.

Range = $1500 per article for 15 articles published with the same publisher to as little as $150 per article.

LOWRY’S REPORTSv. LEGG-MASON

271 F. Supp. 2d 737 (D.Md. 2003)

Companies beware! Facts $20 million damages award

Upheld in 2004 U.S. Dist. LEXIS 1908 (D. Md., 2004)

WHAT ALL THIS MEANS FOR CORPORATE LIBRARIES?

In the digital environment how to serve users & take advantage of technology?

Desire may conflict with rights of copyright owners

Sometimes owners not responsive to library requests to post material on intranets

Important to recognize legitimate concerns of owners

Should be able to find compromise

…..It will not be free

WHAT IS DIFFERENT ABOUT DIGITAL ENVIRONMENT?

Copyright developed around idea of copying

Owner has a bundle of rights Includes rights of reproduction,

distribution & public display Rights not absolute Many limitations on these rights – some

of them specifically for libraries

Reproduction = one of owner’s exclusive rights Nature of

computers = they make copies

Scholarly discussions about changing nature of what constitutes infringement for digital works No real change yet

Copies in RAM are copies that count WIPO Now U.S. case

law

LIBRARY EXCEPTIONS -- § 108

Subsection (a) No direct or

indirect commercial advantage

Open to the public or to nonaffiliated researchers

Reproductions contain notice of copyright

(b) preservation of unpublished works

(c) replacement copies (d) copies for users –

one article from an issue

(e) copies for users – entire works or substantial parts

(h) preservation, research, scholarship last 20 years of term Sections (b), (c) & (h)

include digital copying as well = DMCA

MODERN EQUIVALENTS TO § 108 (d)-(e) ACTIVITIES

Analog: making one copy & routing it: Posting digital copy of intranet

Is this the same? Library made single copy But every person who even reads it on the screen

also makes a copy (copies in RAM count) Result = mass reproduction

Further, work can be downloaded & uploaded to others for more reproduction & distribution

WHAT IS DIFFERENT ABOUT THE CORPORATE ENVIRONMENT?

Copies in for-profit world less likely fair use (§ 107)

Application of § 108 Section 108 written so that neither

permission nor royalties required Most corporations have agreed with the

need to pay royalties

COPYRIGHT CLEARANCE CENTER

Nonprofit corporation created in 1978 www.copyright.com Internal

photocopying Blanket licensing

Redrafting of licenses beginning November 2004

Covers digital copying & redistribution

Now called ANNUAL COPYRIGHT LICENSE

Formerly Annual Authorization License or, for smaller organizations, the Annual Photocopy License

Annual Copyright License much more comprehensive Permits scanning of analog materials for

redistribution Includes posting on intranet (redistribution) Copies for required government filings (print

or digital)

WORKS ACQUIRED IN DIGITAL FORMAT

Almost always covered by license agreement Difference in copyright & licenses License will specify redistribution

rights Posting on intranet

Licenses trump § 108 Section 108(f)(4) “Nothing affects….any

contractual obligations assumed by the library or archives when it obtained a copy … of a work in its collection.”

PROTECTING YOUR ORGANIZATION

Understand the library exceptions (section 108)

Understand fair use 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.” To what extent is it available in the for-profit

world?

FAIR USE

List is illustrative Commercial uses can still be fair use -

Campbell v. Acuff-Rose, 510 U.S. 569 (1994

Research in for-profit environment = not same as nonprofit educational research

Fair use exists in corporate world, but much harder to prove

Management committee or administrator determines whether extent to which company will rely on fair use applies

EXPLAIN COPYRIGHT TO USERS

Develop short statement to appear on intranet (work with management team & legal department)

Mention CCC & other major licenses & what they permit

Redistribution? Copies for clients? Copies for other outsiders?

Sample costs for posting articles not covered in licenses

Maintain faq on copyright & licensing

Explain that what is technologically possible may not be legal

Discuss whether & to what extent organization has determined that fair use applies Not at all Limited (if so, how?) Copying entire works

Mention Lowry’s Reports v. Legg Mason

NEGOTIATIONS WITH RIGHTSHOLDERS

CCC Annual Copyright License

Has basic coverage May be able to negotiate for more

Affects annual royalties E.g., copies to outside clients (may

pay more in royalties) Does not cover interlibrary loan

copying

NEGOTIATIONS WITH VENDORS OF DIGITAL WORK

Be clear about what you want re redistribution via firm intranet Occasional articles or pretty frequently

Entire articles or portions only Abstracts ?

Who will have access? Only professional employees? Only attorneys?

Will users be able to download and/or upload posted material

How long will material be available?

OTHER INFORMATION TO PROVIDE

Whether company has CCC license

Plans to track usage to reevaluate whether to continue license in future

Note: Vendor will seek increased royalties

unless redistribution already included in license

FALACY OF RELIANCE ON PDF

Many librarians assumed Pdf format was the solution

It is only a format in which it is very difficult to change content

Still can be uploaded & downloaded Reproduction & distribution This is copyright owners’ concern

From copyright holders’ viewpoint: protects integrity of contents (not insignificant)

DIGITAL CONCERNS

Librarians want to take advantage of this new world in order to serve users better

Being asked to convert analog material to digital Much as some replaced print with

microfilm

But there is a difference Instantaneous reproduction &

distribution around the world Perfect copies

LIABILITY ISSUES

Make sure it is not the library that is infringing! Librarians as the organization’s copyright

police Make sure management knows license terms for

CCC as well as those for other digital products

Perhaps create a database of licenses Terms vary considerably

Product to products Organization to organization

CCC RightSphere being introduced at SLA Helps end user determine what may be done with

particular content

Work with management & legal department to develop an organizational policy on copyright compliance

Who will deal with repeat violators? Does the firm want to take action or

accept the consequences?

Educate professional employees about copyright & the company policy

Offer repeated reminders Short news bulletins Email reminders Statements on the intranet

Escaping liability

CCC license Policy Take action against violators

FUTURE DEVELOPMENTS

Orphan works bill Federal Research Public Access Act

S. 2695 Federally funded research peer

reviewed articles available within 6 months

Google Library Section 108 Study Group

SECTION 108 STUDY GROUP

Working under Copyright Office & Office of Strategic Initiatives at Library of Congress Advise Register on how Copyright

Act should be amended to account for the digital environment

Confidentiality of workhttp://www.loc.gov/section108/