The Catholic University of America

Welcome to the Copyright section of our webpage.

This front page will reflect our most current information on copyright law and related intellectual property law issues affecting educational institutions.

 

 

ACE and other higher education associations statement on fair use to House Committee on  Judiciary, January 2014, in favor of keeping current flexible fair use doctrine contained in Section 107 of the law.

Copyright and Your Dissertation or Thesis: Ownership, Fair Use, and Your Rights and Responsibilities
By Kenneth D. Crews, J.D., Ph.D., Director, Copyright Advisory Office, Columbia University Updated Fall 2013.

Authors Guild Inc. v. Google, 05 Div. 8136 USDC SDNY (Nov. 14, 2103)

In this ongoing litigation, Judge Chin was directed on July 1, 2013 by the Second Circuit to determine the issue of fair use prior to proceeding to class certification issues. In this decision, Judge Chin sets forth his reasons for finding the Google Library Project is a fair use under Section 107 of the Copyright Law. Among his reasons for reaching this decision, and his weighing of the four factors, are the following: 93% of the books in the Library Project are non-fiction, the great majority of scanned books are out of print, the participating libraries are only entitled to a digital copy of the books they already own, no advertisements exist on the pages of the Library Project, and links to bookselllers do appear. In addition, only snippets of the in copyright books may be viewed. In addition, in listing the benefits the court noted at pages 9-10:

The benefits of the Library Project are many. First, Google Books provides a new and efficient way for readers and researchers to find books. It makes tens of millions of books searchable by words and phrases. It provides a searchable index linking each word in any book to all books in which that word appears. Google Books has become an essential research tool, as it helps librarians identify and find research sources, it makes the process of interlibrary lending more efficient, and it facilitates finding and checking citations.  Indeed, Google Books has become such an important tool for researchers
and librarians that it has been integrated into the educational system -- it is taught as part of the information literacy curriculum to students at all levels.

 

The court also noted the project promotes data mining, and expands access to books, including to those with print disabilities. The court found the use to be transformative (first factor in fair use test), mostly non-fiction and already published (favoring second factor in test), full text scanned (slightly against fair use in third factor) and that the scanned items do not replace the market for books (weighing strongly in favor of finding fair use on the fourth factor). In addition, the court summed up the benefits provided by the Google Library project as follows:

 

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Google's motion for summary judgment was granted.

 

NACUBO web page on use of music copyrights. Also links to a joint report by ACE and NACUBO on Use of Copyrighted Music on Campus.(September 2013)

WIPO Treaty to Facilitiate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, June 2013. See the Department of State statement on same.

 

Article 4
National Law Limitations and Exceptions Regarding Accessible Format Copies
1. (a) Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT), to facilitate the availability of works in accessible format copies for beneficiary persons. The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative
format.
(b) Contracting Parties may also provide a limitation or exception to the right of public performance to facilitate access to works for beneficiary persons.
2. A Contracting Party may fulfill Article 4(1) for all rights identified therein by providing a limitation or exception in its national copyright law such that:
(a) Authorized entities shall be permitted, without the authorization of the copyright rightholder, to make an accessible format copy of a work, obtain from another authorized entity an accessible format copy, and supply those copies to beneficiary persons by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve those objectives, when all of the following conditions are met:
(i) the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work;
(ii) the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;
(iii) such accessible format copies are supplied exclusively to be used by beneficiary persons; and
(iv) the activity is undertaken on a non-profit basis;
and
(b) A beneficiary person, or someone acting on his or her behalf including a primary caretaker or caregiver, may make an accessible format copy of a work for the personal use of the beneficiary person or otherwise may assist the beneficiary person to make and use accessible format copies where the beneficiary person has lawful access to that work or a copy of that work.

The Authors Guild,Inc. v. Google Inc., Docket No. 12-3200-cv July 1, 2013 (C.A. 2nd Cir.)
A panel of 2nd Circuit Judges that included Leval, Cabranes, and Parker ruled that Judge Denny Chin erred in certifying the plaintiff class in the absence of a determination of Google's claim of fair use defense to the copying and displaying snippets of millions of books in the Library Project. Google had argued the fair use defense might moot the certification and the court agreed. Google further argued that the plaintiffs could not adequately and fairly protect the interests of the class, because many members of the class benefit from the LIbrary Project and oppose the efforts of Plaintiffs. Judge Leval is well known as the person who has written the definitive law review article on fair use, Toward a Fair Use Standard, 103 Harv. Law Review 1105 (1990).

March 20, 2013 Testimony (To U.S. House of Representatives) of Register of Copyrights for Update to U.S. Copyright Law

Kirtsaeng v. John Wiley and Sons, U.S. Supreme Court, March 19, 2013.

In this case interpreting the first sale doctrine under Section 109 of the Copyright Act, the Supreme Court, in an opinion authored by Justice Breyer and joined by Roberts, Thomas, Sotomayor, Kagan and Alito, the Court held resale of academic textbooks purchased (and manufactured) in another country  did not violate Copyright Law. The petitioner was a citizen of Thailand studying math at Cornell University and USC in the U.S. The entrepreneurial student had his family buy textbooks in Thailand (at significantly reduced cost) which he resold to other students in the U.S. for a good profit, enough to finance his education. 

Wiley and Sons had argued that the first sale doctrine was limited to copies made within the U.S. The Court rejected this geographical limitation argument.  The books were in fact made with permission of the copyright owner, though manufactured abroad.  The Court stated " We also doubt that Congress would have intended to create the practical copyright related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities." See the Chronicle article titled In Win for Libraries Over Publishers, Supreme Court Upholds Reselling of Foreign Books by Jennifer Howard and also the NYTimes article titled Justices Permit Resale of Copyrighted Imports.

Brief of Appellants Cambridge University Press, Oxford University Press, and Sage Publications v. Georgia State University, Filed 1/28/13 U.S. Court of Appeals for the 11th Circuit.

Moving Image Archiving: Video at Risk: Strategies for Preserving Commercial Video Collections in Research Libraries

This Mellon Foundation–funded collaborative study brings together New York University's Division of Libraries with the Moving Image Archiving & Preservation program at NYU's Tisch School of the Arts, and the circulating media collections of the University of California Berkeley and Loyola University (New Orleans) to collaboratively address these challenges.

AIME and Ambrose Video Publishing v. UCLA, (Central District of California, Case No. 2:10-cv-09378, 11/20/12)

Decision by court to dismiss case against UCLA which involved University’s streaming of copyrighted DVD content to classrooms and other locations over the institution’s closed and password protected intranet. Court held terms of contract ambigous, and fair use a gray area, so law not cleary violated. Court also distingushed streaming from distributing a copy under the Copyright Act, in dicta.

Fair Use Chart (revised  2012 post Georgia State case)

CUA Fall Faculty Newsletter 2012 (new with section on copyright cases from 2012)

Notice of Inquiry, Orphan Works and Mass Digitization, 77 Fed. Reg. 64555,Oct. 22, 2012.
he Copyright office seeks comment on two questions: 1) changes in the legal landscape and or legal thinking regarding use of orphan works on an occasional or case-by-case basis; and 2) potential orphan works solutions in the context of mass digitization. Comments are due by January 4, 2013.

Final Rule, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 77 Fed. Reg. 65260, Oct. 26, 2012. Effective Oct. 28, 2012.See history of rulemaking on the Copyright Office page and a summary lists the new rules.See also Amy Cavendar Chronicle article Nov. 6, 2012 titled Comment on the New DMCA Exemptions. Also see the ArsTechica Summary on same. In terms of disability access, it is important to note improved access to DRM works for those with visual impairments. This was best summed up by Mark Richert, Esq., Director of Public Policy, AFB.

The Librarian of Congress recently announced a decision of significant import for the future of information access rights. Endorsing a favorable recommendation by the Registrar of Copyrights concerning a petition filed jointly by the American Foundation for the Blind and the American Council of the Blind, the Librarian of Congress has determined that copyright protection measures built into ebooks and other electronic materials will no longer pose needless barriers to the materials' use by people who are blind or who otherwise have print disabilities.

 Under the Digital Millennium Copyright Act (DMCA), it is unlawful to circumvent digital rights management or related technological protections built into a work, such as an ebook, unless the Librarian of Congress has established an exemption allowing circumvention in certain contexts. The exemption that the Librarian of Congress has established now allows individuals with print disabilities, as well as public and nonprofit organizations with a primary mission to meet their information access needs, to avoid the  subst penalties that would otherwise be imposed. The recently-adopted exemption ensures access to all:

 "Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, (i) when a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or (ii) when such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121."

 This sweeping exemption represents a marked improvement over the original exemption first granted in 2003 but which the Copyright Office had abandoned altogether in recent years. By reinstating and expanding this exemption, it is now clear that both individuals and organizations may freely bypass copyright protection measures that get in the way of accessibility. By explicitly granting authorized entities (as defined by the so-called Chafee Amendment) to circumvent protection measures, and thereafter to widely distribute the content in specialized formats including electronic format, this exemption should prove very useful in the ongoing effort to achieve equality in information access.

 The Librarian of Congress also granted a narrow exemption concerning audio visual works for the purpose of research and development in the fields of captioning and description. This limited exemption, while falling well short of the exemption proposed by the deafness and vision loss communities which would have broadened dissemination of third-party-produced captioned and described video content when rights owners fail to caption or describe their productions, will nevertheless help to facilitate the proliferation of new and creative means for the delivery of both captioning and description in the DVD and online video spaces. The full notice about the DMCA exemptions and all supporting materials can be found at: http://www.copyright.gov/1201

 

The Authors Guild Inc., et al. v. HathiTrust, et al., U.S. District Court for S.D. N.Y. Case #11 CV 6351 (October 10, 2012)

In a knock it out of the park hit for the HathiTrust and partner universities, the U.S. District Court for the S.D.N.Y. squarely held against the Plaintiffs (Authors Guild and individual authors) and for the defendants, including the universities of Wisconsin, Michigan, Indiana, California and Cornell University along with HathiTrust in a motion for summary judgment. The court upheld application of the fair use doctrine to allow the copying involved in the Mass Digitization Project.  The defendant universities joined with HathiTrust to share copies of university library books digitized by Google to create a shared digital repository that now contains almost 10 million digital volumes, many of which are currently protected by copyright law. 

A key reason for Judge Harold Baer's decision was the transformative nature of the uses in digitizing the books in the five university libraries. In looking at factor one of the fair use test (purpose and character of the use), the court noted the Mass Digitization Project allows scholars to identify relevant works more efficiently, preserves fragile collections, and provides print-disabled individuals with an acess to the wealth of information in the library collections. Many of the works have tables of contents that let print-disabled individuals navigate to relevant sections with a screen reader just as a sighted person would use a table of contents. As the court noted "Academic participation by print- disabled students has been revolutionized by the HDL." (Hathi Digital Library)

The court, in analyzing factor two of the fair use test, nature of the copyrighted works, acknowledged that many of the works were fiction, but because the use is transformative, the second factor is not dispositive. The third factor, amount copied, here the whole work, did not go against a fair use finding as the entire copies were necessary to fulfill the transformative purpose.  On the fourth factor, impact on market, the plantiffs failed to show any quantifiable harm. The Judge's summation of the fair use finding is as follows:

The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it.” Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement.31 In addition to the briefs submitted by the parties, the two memoranda filed by amici further confirm that the underlying rationale of copyright law is enhanced by the HDL. See Library Amici Br. (“The public derives tremendous benefit from HDL, and authors stand to gain very little if the public is deprivedof this resource.”); Digital Humanities Amicus Br. (describing the use of metadata and text mining, which “could actually enhance the market for the underlying work, by causing researchers to revisit the original work and reexamine it in more detail”). Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

 

The orphan use issue was deemed not ripe for adjudication as the project is temporarilty on hold.For more on the case see the Kenneth Crews post on Oct. 11 2012 titled Court Rules on HathiTrust and Fair Use.

 

Catholic University Copyright Guidelines (udpated Summer 2012)

Cambridge University Press et al v. Georgia State University, August 10, 2012 Order of District Court.
This order rejects proposed injunction by the Press et al. and determines that defendants are the prevailing party in the litigation and grants defendants motion for an award of costs and attorney fees. The court gclarifies certain aspects of its rulings concerning fair use contained in its earlier opinion.

Intercollegiate Broadcasting System Inc. v. Copyright Royalty Board and LOC, (U.S. C.A. DC Cir.) Decided July 6, 2012

Court holds the position of the Copyright Royalty Judges [composing the Copyright Royalty Board] is in violation of the Appointments Clause of the U.S. Constitution because the Judges’ significant ratemaking authority without any effective means of control by a superior, such as unrestricted removability, renders them principal officers who must be appointed by the President with Senate confirmation.  To remedy the violation of the Appointments Clause, the court invalidates and severs the portion of the statute establishing the Copyright Royalty Board that restricts the authority of the Librarian of Congress to sanction or remove Copyright Royalty Judges.  However, because at the time it was issued the Board’s structure was unconstitutional, the court vacates and remands the final rule issued by the Copyright Royalty Board on March 9, 2011 establishing rates and terms, including requirements for royalty payments, recordkeeping and reports of use for the public performance of sound recordings in certain digital transmissions made by Noncommercial Educational Webcasters (as defined in §380.21) and the making of Ephemeral Recordings during the period January 1, 2011 – December 31, 2015. (The final rule adopted the agreement between SoundExchange and College Broadcasters, Inc. as the basis for rates and terms for non-commercial educational webcasters for the period 2011 – 2015.)

Cambridge University Press et al v. Georgia State University et al, CV-01425 (U.S. Dis.Ct. Northern Dist. Georgia) May 11, 2012

In this 350 page decision, the court confirmed fair use for electronic reserves. GSU was sued by Cambridge University Press, Oxford University Press, and Sage Publications, with assistance by the Copyright Clearance Center and the Association of American Publishers, While the original electronic reserve policy at GSU was considered to be "fairly liberal" with respect to fair use, the University updated its policy in 2009 and the case was heard on the basis of the new policy. The court examined 75 individual GSU uses of copyrighted material, and only five uses were found to be infringing. The four factor fair use analysis was such that factors one and two will generally favor libraries and universities with regard to electronic reserves. On substantiality and portion of use, the court set forth a guideline of 10% of total page count for works of nine or fewer chapters, or a single complete chapter for works of ten or more chapters, but the guideline was not set forth as absolute. Also, the court stated repeated use across semesters does not count against fair use. On the fourth factor, the court stated if there is a readily available license for digital excerpts, factor four will favor publishers. For a nuanced reading of the case, see the ARL write up by Brandon Butler, which is 8 pages rather than 350. See also the Chronicle of Higher Education article by Jennifer Howard dated May 13, 2012 titled Long Awaited Ruling in Copyright Case Mostly Favors Georgia State U. See also Georgia Harper's write up titled Georgia State Electronic Materials Case Executive Summary.