d.1 what’s new in copyright deep dive part ii
TRANSCRIPT
WHAT’S NEW
IN COPYRIGHT?
PART I
I
J OI N
T SE A A L L / S
WA L L M
E E T I NG ,
2 0 1 6
WHO WE ARE
2
Laura McKinnon, MLIS, JD
Director of the Copyright Advisory Office
University of North Texas
Brett D. Currier, MSLS, JD
Director of Scholarly Communications
University of Texas at Arlington
3
INTRODUCTIONS
COPYRIGHT
WHAT CAN BE COPYRIGHTED?Literary works;Musical works, including any accompanying words;Dramatic works, including any accompanying music;Pantomimes and choreographic works;Pictorial, graphic, and sculptural works;Motion pictures and other audiovisual works;Sound recordings; andArchitectural works.
17 U.S.C. § 102
© OWNERS’ EXCLUSIVE RIGHTS1. Reproduction;
Copies
2. Derivatives; New works based on the original copyrighted work
3. Distribution; To the public by sale, rental, lease, or lending
4. Public performance; Literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audio visual works
5. Public display; Literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works
6. Public performance of work via digital audio transmission This is a very limited right that applies only to sound recordings © owners of sound recordings only have the exclusive rights to #1, #2, #3, and #6 on
this list!
17 U.S.C. § 106
EXCEPTIONS TO EXCLUSIVE RIGHTS
§107 Fair Use
§108 Reproduction by Libraries and Archives
§110(1) Face-to-Face Teaching
§110(2) TEACH Act
*this list is not exhaustive
FAIR USEFair use is detailed in §107 of the Copyright Act and allows
things like: “criticism, comment, news reporting, teaching, scholarship, research”
17 U.S.C. §107
Exception to exclusive rights
It only applies to works that have © protection if the work is in the public domain, you do not need to rely on fair use
Fair use is a balancing test and courts look at four factors when determining whether a use is fair
FAIR USE BALANCING TESTFour factors:1. Purpose of use
Nonprofit? Educational? Commercial?2. Nature of work used
Published? Unpublished? Nonfiction? Creative?3. Amount and substantiality of work used
Just a small amount? Is it the heart of the work?4. Effect on market of work
Will it compete with sales of the original?
Strong emphasis on whether use is transformative5. Is the purpose of your use different than the original purpose of the work?6. If yes, is the amount used appropriate to your transformative use? (too much,
not enough?)
FAIR USE BALANCING TESTOnly a court can definitively determine whether a use is fair – it is a balancing
test, so you cannot just check off each factor, you must weigh them all and determine whether your use overall leans in favor or against fair use There are several checklists that can help you make a determination
Case by case analysis – you must look at each use individually to determine whether it is fair
Fair use is flexible and vague -- continually evolves as the 4 factors are applied to new cases
If fair use applies you do NOT need permission
If fair use does not apply, you can always seek permission
CAMBRIDGE UNIVERSITY
PRESS V
. PATTO
N (2016)
( C A M B R I DG E )
11
CAMBRIDGEDate Occurrence July 15, 2008 Lawsuit commences
February 17, 2009 Georgia State University Copyright updated and implemented
August 12, 2010 Book publishers: Injunctive relief Only claims of infringement that occur on or after the 2009 policy
June 1, 2011 Updated list: 74 claims of infringement
12
FAIR USE FACTORS
13
Factor RulingFactor 1: Always favored GSU
Factor 2: Always favored GSU
Factor 3: 10% rule
Factor 4: Market Harm
CAMBRIDGE: DISTRICT COURTOf the 74 claims of infringement:• 24 cases of de minimis copyright
• Copy made but never accessed • Most other cases: Fair use or lack of ownership• 5 cases of copyright infringement• Awarding of attorney’s fees to Georgia State
14
CAMBRIDGE: CIRCUIT COURT• Reversed Factor 2: Did not always favor• Reversed 10% rule• Reversed Attorney Fee Ruling• Remanded
15
CAMBRIDGE: DISTRICT COURT (2): 3/31/16
Factor RulingFactor 1: Always favors universities
Factor 2: Always neutral or weighs against a finding of fair use
Factor 3: Integrated with market harm
Factor 4: Compared licensing fees from the book against the total book purchases
If no electronic copy available, presumption Factor 4 favors the university
16
CAMBRIDGE: DISTRICT COURT (2)• Previously had found 5 instances of
infringement • Now 4 instances of infringement• Georgia State still awarded attorney’s fees
17
IMPLICATIONS FOR PRACTICECambridge (2) Well written opinion for Fair Use
18
FAIR USE & COURSE RESERVES
19
Factor RulingFactor 1: Always favors universities
Factor 2: Neutral or weighs against a finding of fair use
Factor 3: Integrated with market harm
Factor 4: If available through an e-resourceIf a book If no permissions are available
AUTHOR’S GUILD
V.
HATHITR
UST (2N
D )
( H A T H I TR U S T )
20
HATHITRUST• Full text searchable books
• Transformative use• Access to the print disabled
• Important to note language of “print disabled” vs. “blind”
• Preservation• Remanded on issue of standing• Settled in January 2015• Libraries claimed 108(c) protection
21
AUTHOR’S GUILD
V.
GOOGLE (2ND )
( G O O G L E BO O K S )
22
GOOGLE BOOKS• Full text searchable• Snippet view• Supreme Court Cert?
23
GARCIA V. GOOGLE
( G A R C I A)
24
GARCIA• Injunctive relief • Desert Warrior v. Innocence of Muslims• Appears that there is not a copyright interest in
an individual performance
25
QUESTIONS?
26