The Catholic University of America

Summary of Federal Laws
Miscellaneous Laws Affecting Universities

 

General Revision of the Copyright Law (1976) and Judicial Improvement Act of 1990

17 U.S.C. § 101 et seq.; 37 C.F.R. § 201.1 et seq., 48 C.F.R. § 52.227-2

The copyright law gives copyright owners the sole right to reproduce all or part of the work, distribute copies, prepare new (derivative) versions of the work, and perform and display the work publicly. Copyright protection governs "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a). The law protects unpublished as well as published material.

Fair Use: The fair use doctrine (17 U.S.C. § 107) allows for the use of copyrighted work, including some reproduction of the work, without obtaining the copyright owner's permission, if certain conditions are met. The factors to be considered are:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  • the nature of the copyrighted work;

  • the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and

  • the effect of the use in question upon the potential market for or value of the copyrighted work.

Final Rule, 87 Fed. Reg. 7376, Jan. 19, 2017, Open Licensing Requirement for Competitive Grant Programs, Dept. of Education, 

Through an open license, grantees under the Department's competitive grant programs will explicitly give permission to the public to access, reproduce, publicly perform, publicly display, and distribute the copyrightable work; prepare derivative works, as defined in the Copyright Act, 17 U.S.C. 101, and reproduce, publicly perform, publicly display and distribute those derivative works; and otherwise use the copyrightable work, created in whole or in part with competitive grant funds provided by the Department, provided that in all such instances attribution is given to the copyright holder.

 Institutional Action that Will Help Prevent Copyright Violations:

Adopt a policy on the use of copyrighted material for coursework, including online courses and electronic reserve materials.

  • The institution as on Online Service Provider should designate an agent to receive notification of claimed infringement of copyright, in order to obtain the protections offered by the Digital Millennium Copyright Act of 1998 (DMCA). See 63 Fed. Reg. 59,233 (Nov. 3, 1998) and the U.S. Copyright Office page on the subject.
  • The institution should have a copying policy, as well offer training on copyright compliance.

  • The institution should provide to all users of its system or network informational materials that accurately describe and promote compliance with U.S. copyright law. Linking to the U.S. Copyright Office Web page will be considered compliance with this prerequisite to obtaining certain protections under the DMCA.

  • Establish computer use copyright policies. The circulation of copyrighted material on networked computers and the sharing of information gained from computerized databases through interlibrary loan may be subject to criminal penalties for copyright infringement.See 18 U.S.C. § 2319(b).

The Music Modernization Act, signed into law October 11, 2018, is directed toward helping songwriters and publishers seek fair market royalty rates and simplify digital licensing for streaming companies. See The National Law Review article A Tune of Modernity, published 10-17-18 for a full description of the changes. The law (in Title II) extends remedies for copyright infringement of pre-1972 sound recordings for 95 years after first publication of the recording, ending on Dec. 31st of that year. Title II of the Act allows noncommercial use of pre-72 sound recordings that are not in the public domain and that are not being commercially exploited.  See HR 1551 for a full history of the law. 

See The Music Modernization Act: The Future of Digital Publishing by Jamie McCrary and the Copyright Alliance Summary of the Music Modernization Act.

Caselaw

Authors Guild v. Google, Inc. Case No. 13- 4829-cv, (C.A. 2nd) October 16, 2015, and cert. denied, by Guild v. Google, Inc., 2016 U.S. LEXIS 2545 (U.S., April 18, 2016)  

Decision written by Judge Pierre Leval, author of the key law review article on Fair Use, titled Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). This law review article is probably the best read to date for anyone seeking to understand how Section 107 of the Copyright Law should be applied. Thus the decision is one to be considered as somewhat authoritative. Also to be granted great weight since it is out of the 2nd Circuit, where most of the publishers are domiciled.

The case was brought by publishers who claimed the Google Library Project and Google Books infringe Google's copyright. Google makes and retains digital copies of books submitted to it by major libraries, allows the libraries that submitted the book to download and retain a digital copy, and allows the public to search the texts and see snippets of the texts.

Note-If you search books.google.com you may  find more than a snippet. This could be because the book is in the public domain (see Le Grand Meaulnes, by Alain Fournier, published 1920 in French so entire French original text can be read online) or because portions of the book have been made available for display by the Publisher. See for example, Brother of the More Famous Jack, by Barbara Trapido-87 pages can be viewed, through an agreement with publisher.

The publishers appealed from the district court ruling finding the use transformative and thus allowed under fair use, and argue the main motive is not educational but commercial, and also that the display infringes publishers' derivative rights in the books. The publishers also argue that storage of digital copies will enable hackers, and that use by libraries of the digital copies is not transformative. The Second Circuit rejected all of these arguments.

The Court of Appeals addressed the four fair use factors as it related to each issue in dispute. On the Factor Three, amount of the work used, in noting the Google Books project made a digital copy of the entire book, the court noted  "courts have rejected any categorical rule that a copying of the entirety cannot be a fair use".  Due to security measures put in place by Google, the court did not find hacking was a distinct risk, and the publishers had not identified any thefts to date.

The court closed the decision as follows: 

In sum, we conclude that: (1) Google's unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google's commercial nature and profit motivation do not justify denial of fair use. (2) Google's provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.

 Cambridge University Press et al. v. J.L.Albert (Georgia State), (No. 16-15726) (C.A.11) October 19, 2018. 

Ongoing litigation over Georgia State's use of e-reserves and what does and does not constitute fair use. The trial judge had assigned numerical percentages that could be used to determine fair use of non-fiction works. The Court of Appeals sent the case back to the District Court to correct specific errors in its application of fair use. So this is the second trip back to the Court of Appeals, made the following findings: "One such error was the use of a mathematical formula to balance the four statutory fair use factors. Another was the insufficient weigh the district court gave to the severe threat of market substitution." The Court of Appeals affirmed in part, vacated in part, and remanded with instructions. If there is a takeaway from this decision it is that no matter how seductive mathematical formulas are (e.g. no more than 10% of the work) they are not a substitute for a holistic review. So it is back to Pierre Leval and Toward a Fair use Standard if one wants to understand how to apply the law. A full history of the case and commentary can be found here

Atlantic Article (April 2018) A Landsl

Cambridge University Press v. Becker et al,  (U.S. Dis. Ct. Northern Dist. Georgia) (March 31, 2016)

The district court (Judge Evans) found the large majority of the uses to be fair uses based on the analysis the Eleventh Circuit proscribed. For full history see ARL on this case and the U.S. Copyright Office summary.

Cambridge University Press v. Patton, (C.A. 11th Cir.) October 17, 2014

Finding the District Court's fair use analysis to be in part erroneous, the Court of Appeals reversed the District Court judgment, vacated the injunction and declatory relief and award of costs and fees, and remanded for further proceedings consistent with the opinion. In this case, Georgia State was sued by Publishers Cambridge University Press, Oxford University Press and Sage Publications for its permissive use of e-reserves without payment of copyright fees. The District Court had found largely for Georgia State in a 350 page opinion after the University revised its copyright policy. See Cambridge University Press et al v. Georgia State University et al, CV-01425 (U.S. Dis. Ct. Northern Dist. Georgia) May 11, 2012.

On appeal, the 11th Circuit reconsidered the fair use analysis performed by the District Court. The central issue in the case was under what circumstances Georgia State must pay permission fees to post digital copies of excerpts of Plantiffs' works on the e-reserve system. The first 44 pages of the decision are just a recap of the facts of the case and what occurred at the District Court level. The Court of Appeals rejected the 11th Amendment immunity argument as it was not raised by Defendants on cross appeal. The C.A. agreed with Plaintiffs  the arithmetic approach used by the District Court was wrong, but found the District Court was right in looking at each use on a case by case basis. However, the Appellate Court did not agree with how the District Court applied the four factors in all instances.

On the first factor, the purpose and character of the use, the A.C. found the use was not transformative, but that the non-profit educational nature of the use favored a finding of fair use. Significantly, the majority held that evaluating any indirect profit to GSU by the failure to pay license fees was not-persuasive under the first factor of the fair use analysis, and could end up being circular. If the copyright owner is " not entitled to charge for the use, there is no customary price to be paid in the first place." (at p. 70)

Potential profit, the Court of Appeals stated, is better addressed in considering the third factor. in analyzing the first factor, the Court of Appeals did not find the use by GSU to be "commercial exploitation". At page 74 the Appellate Court stated its finding that the District Court did not err on analyzing the first factor.

 

In sum, Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it. Furthermore, as described above, allowing latitude for educational fair use promotes the goals of copyright. Thus, we are persuaded that, despite the recent focus on transformativeness under the first factor, use for teaching purposes by a nonprofit, educational institution such as Defendants’ favors a finding of fair use under the first factor, despite the nontransformative nature of the use.

 

On the second factor, the nature of the copyrighted work, the Appellate Court found some error by the District Court. The finding is found at page 81:

Accordingly, we find that the District Court erred in holding that the second factor favored fair use in every instance. Where the excerpts of Plaintiffs’ works contained evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information, or derives from the author’s experiences or opinions, the District Court should have held that the second factor was neutral, or even weighed against fair use in cases of excerpts that were dominated by such material. That being said, the second fair use factor is of relatively little importance in this case.

On the third factor, the amount and substantiality of the work used in relation to the whole, the Court of Appeals rejected the 10% approach used by the District Court.

Here, the District Court found that the third factor favored fair use in instances where Defendants copied no more than 10 percent of a work, or one chapter in case of a book with ten or more chapters. Cambridge Univ. Press, 863 F. Supp. 2d at 1243. The District Court’s blanket 10 percent-or-one-chapter benchmark was improper. The fair use analysis must be performed on a case-by-case/work-by-work basis. ***By holding that the third factor favored fair use whenever the amount of copying fell within a 10 percent-or-one-chapter baseline, the District Court abdicated its duty to analyze the third factor for each instance of alleged infringement individually. (pp 83-84)

In looking at arguments made in the case, the Appellate Court, along with the District Court, clearly rejected the Classroom Guidelines. Only the concurring opinion suggested giving these Guidelines any weight. At page 91 the Court of Appeals summarized what the lower court did wrong and what it did right:

Accordingly, we find that the District Court properly considered whether the individual instances of alleged infringement were excessive in relation to Defendants’ pedagogical purpose, properly measured the amounts taken in all cases based on the length of the entire book, and properly declined to tie its analysis under the third factor to the Classroom Guidelines or to the coursepack cases. However, we find that the District Court erred in applying a 10 percent-or-one-chapter safe harbor in it analysis of the individual instances of alleged infringement. The District Court should have analyzed each instance of alleged copying individually, considering the quantity and the quality of the material taken—including whether the material taken constituted the heart of the work—and whether that taking was excessive in light of the educational purpose of the use and the threat of market substitution.
 

On the fourth factor, the effect of the use upon the potential market,  the Court of Appeals looked at two factors, the extent of market harm caused by the alleged infringer, and whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse effect upon the market.

The central question under the fourth factor is not whether Defendants’ use of Plaintiffs’ works caused Plaintiffs to lose some potential revenue. Rather, it is whether Defendants’ use—taking into account the damage that might occur if “everybody did it”—would cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing Defendants’ incentive to publish the work.** We agree with the District Court that the small excerpts Defendants used do not substitute for the full books from which they were drawn. “Plaintiffs offered no trial testimony or evidence showing that they lost any book sales in or after 2009 on account of any actions by anyone at Georgia State.” Cambridge Univ. Press, 863 F. Supp. 2d at 1217. Thus, the District Court did not err in finding that “Defendants’ use of small excerpts did not affect Plaintiffs’ actual or potential sales of books.” Id. at 1236. (pp 93-94)***We note that it is not determinative that programs exist through which universities may license excerpts of Plaintiffs’ works. In other words, the fact that Plaintiffs have made paying easier does not automatically dictate a right to payment. “[A] copyright holder can always assert some degree of adverse [effect] on its potential licensing revenues as a consequence of the secondary use at issue simply because the copyright holder has not been paid a fee to permit that particular use.” Texaco, 60 F.3d at 929 n.17 (citations omitted). The goal of copyright is to stimulate the creation of new works, not to furnish copyright holders with control over all markets. Accordingly, the ability to license does not demand a finding against fair use.(page 95)

The Appeals Court went on to note that absent evidence to the contrary, if a copyright holder has not made a license available to use a particular work in a particular manner, the inference is that the author or publisher did not think that there would be enough such use to bother making a license available. At page 98, in refuting plaintiffs argument the Court noted " Plaintiffs may not had off a defense of fair use by complaining that every potential licensing opportunity represents a potential market for purposes of the fourth fair use factor. " The AC found the District Court applied the fourth factor correctly as it took licensing availability into account. A final sum up of the what the District Court did right and wrong, in the opinion of the Court of Appeals can be found at pages 110-111.

 

In sum, we hold that the District Court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief. However, the District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically. The District Court should have undertaken a holistic analysis which carefully balanced the four factors in the manner we have explained.

The District Court did not err in holding that the first factor—the purpose and character of the use—favors fair use. Although Defendants’ use was nontransformative, it was also for nonprofit educational purposes, which are favored under the fair use statute. However, the District Court did err in holding that the second fair use factor—the nature of the copyrighted work—favors fair use in every case. Though this factor is of comparatively little weight in this case particularly because the works at issue are neither fictional nor unpublished, where the excerpts in question contained evaluative, analytical, or subjectively descriptive material that surpasses the bare facts, or derives from the author’s own experiences or opinions, the District Court should have held that the second factor was neutral or even weighed against fair use where such material dominated.
With regard to the third factor—the amount used in relation to the copyrighted work as a whole—the District Court erred in setting a 10 percent-or-one-chapter benchmark. The District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken—qualitatively and quantitatively—was reasonable in light of the pedagogical purpose of the use and the threat of market substitution. However, the District Court appropriately measured the amount copied based on the length of the entire book in all cases, declined to give much weight to the Classroom Guidelines, and found that the Defendants’ educational purpose may increase the amount of permissible copying.
With regard to the fourth factor—the effect of Defendants’ use on the market for the original—the District Court did not err. However, because Defendants’ unpaid copying was nontransformative and they used Plaintiffs’ works for one of the purposes for which they are marketed, the threat of market substitution is severe. Therefore, the District Court should have afforded the fourth fair use factor more significant weight in its overall fair use analysis.

 

 Authors Guild v. Hathi Trust, (C.A. 2nd Cir.)  June 10, 2014

The Hathi Trust digital library partnership involved 13 libraries creating a repository of fully scanned books (scanned by Google) that could be used for three purposes: 

  • Topical Searching. The general public can search for particular terms across all digital copies in the repository. Unless the copyright holder authorizes broader use, the search results show only the page numbers on which the search term is found within the work and the number of times the term appears on each page.
  • · Access for individuals with Print Disabilities. Member libraries can provide patrons with print disabilities access to the full text of all scanned works. A “print disability” is any disability that prevents a person from effectively reading printed material. Blindness is one example, but print disabilities also include those that prevent a person from physically holding a book or turning pages.
  • · The HDL permits members to create a replacement copy of the work, if the member already owned an original copy, the member’s original copy is lost, destroyed, or stolen, and a replacement copy is unobtainable at a “fair” price elsewhere.

The 2nd Circut Court of Appeals upheld the opinion of the SDNY, finding that the doctrine of fair use permitted full text searchs, security was such that a risk of hacking was minimal, access to patrons with print disabilities and replacement copies was also fair use, although the 2nd Circuit did not find access for those with disablities transformative, it was still a fair use. US author groups were generally found to not have standing to sue, but foreign authors' group did have standing. The case was sent back to the lower court to decide standing on the long term preservation argument.The orphan works part of the project, currently on hold, was not ripe for 

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.

Golan v. Holder, No. 10-545, U.S. Supreme Court, Jan. 18, 2012

In a 6-2 decision, the Supreme Court held that Congress’ ability to pass a law that removed thousands of foreign works from the public domain is not inhibited by the Copyright Clause or the First Amendment. The statute in question, Section 514 of the Uruguay Round Agreements, states that the United States must protect the copyrighted works of authors in signatory countries in the same way that those works are protected in their home countries. Through this authority, Congress removed works previously in the public domain and  restored their opyright status. Justice Ruth Bader Ginsburg, for the majority, stated that “[n]either the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit." Because of this decision, thousands of foreign books, musical compositions, and other works have been removed from the public domain and are under a copyright shield.See the Chronicle of Higher Education January 18th article titled "Supreme Court Upholds Law that Pulled Foreign Works back Under Copyright."

 

Bridgeman Art Library v. Corel, 36 F. Supp. 2d 191 (S.D.N.Y. 1999). In the Bridgeman case, the court held that color transparencies of paintings which themselves are in the public domain, were not original and therefore not permissible subjects of valid copyright.

  
Resources


 Stanford Link to Copyright and Fair Use Cases (extensive and current)

 Copyright and Fair Use: The Great Image Debate, edited by Robert Baron. Originally published in 1997 as Volume XII, numbers 3 and 4, of the journal "Visual Resources." The book has a number of different articles on copyright and visual images, including digital images, and the articles are written with the interests of both museums and educators in mind.

Section 108 Study Group (Library of Congress)

 The Section 108 Study Group is a select committee of copyright experts, convened by the Library of Congress, and charged with updating for the digital world the Copyright Act balance between the rights of creators and copyright owners and the needs of libraries and archive

Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries, January 2012. This document is a clear articulation of what librarians believe to be best practices with respect to the uses by the library community of copyrighted materials. Eight situations are indentified that librarians believe are fair use. An example is transferring to new formats for preservation materials that are likely to deteriorate, such as movies on video cassette tapes. (See the 1-25-12 Chronicle Article titled "Fair Use Guide Seeks to Solve Librarians' VHS Cassette Problem".) The Code also takes the position that is it reasonable for works to be posted from semester to semester to the extent they are the most appropriate, relevant, and still timely material for the course. The Code is based upon focus group deliberation with a wise group of academic and research librarians, as well as a legal advisory board that includes Steve McDonald. 

Legal Issues in Mass Digitization: Copyright Office 97 page preliminary report, October 2011.

 Georgia Harper and University of Texas Copyright Crash Course

U.S. Copyright Office

Stanford fair use site

U.S. Department of Justice: Computer Crime and Intellectual Property Section

1998 Changes to the Copyright Law:

See the Sonny Bono Copyright Term Extension Act of 1998 and the Digital Millennium Copyright Act of 1998.

 

 

 

 

 

updated 11-1-18