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Related Policy

Copyright Ownership
Copyright Policy

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 The law protects unpublished as well as published material.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.

Proposed Rule, 80 Fed. Reg. 67672, Nov. 3, 2015, Open Licensing Requirement for Direct Grant Programs, Dept. of Education.

Proposal to amend the regulations regarding the Uniform Administrative Requirements,Cost Principles, and Audit Requirements for Federal Awards in order to require that all Department grantees awarded direct competitive grant funds openly license to the public all copyrightable intellectual property created with Department grant funds.

The proposed regulations "would allow the public to access and use copyrightable intellectual property created with direct competitive grant funds for any purpose, provided that the user gives attribution to the designated authors or copyright holders of the intellectual property."

Registration of Claims to Copyright-Renewals, Final Rule, 72 Fed. Reg. 61801, Nov. 1, 2007

The Copyright Office is publishing a final rule amending its rules governing applications for registration of claims for renewal term of copyright. The regulations take into account the fact that, since January 1, 2006, all applications for renewal have necessarily related to works which are subject to automatic renewal and, thus, are already in their renewal terms, making impossible any 28th-year registration of claims to the renewal term. The new rule also clarifies certain renewal requirements. Any applications for registration of claims to the renewal term must be filed using the newly revised forms. The previously used forms are obsolete, and the new forms must be used to file renewal claims. The new forms are Form RE for renewal, Form RE/CON for additional information, and Form RE/Addendum for works not registered during the original term.

 

Cases

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 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 adjudication. For a full summary of the case, see the article in the Chronicle of Higher Education titled Hathi Trust Digital Library Wins Latest Round in Battle with Authors.
 


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 book sin 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.

 

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).

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.
 

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.

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. See also Hathi Trust Wins, posted by James Grimmelmann, a NYU Law School Professor on his blog the Laboratorium. He lists the many big wins for fair use under copyright law. The Chronicle of Higher Education on Oct. 11, 2012 also posted this coverage: Digital Library's Win in Court Continues Run of Rulings for Academic Fair Use. In the article by Jennifer Howard:

 The suit named HathiTrust and five university-system partners—the University of Michigan, the University of California, Indiana University, Cornell University, and the University of Wisconsin. The defendants argued that educational fair use allowed them to scan the material and make it available. Several other groups, including the Library Copyright Alliance, the National Federation of the Blind, and some legal and digital-humanities scholars, weighed in on the defendants' side, arguing that HathiTrust's activities counted as fair use and contributed to the greater good.

The judge agreed, describing the defendants' mass-digitization work as an "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 Americans With Disabilities Act.

 

 See also ARL page on this case. 

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.

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. (A total of 99 instances were submitted.)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 Some Leeway, Some Limits, by Scott Jaschik, Inside Higher Ed. See also Georgia Harper's write up titled Georgia State Electronic Materials Case Executive Summary.

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."


The Authors Guild et al. v. Google Inc., Case No. 05-8136 (SDNY), March 22, 2011

This is Judge Chin's 48 page decision rejecting the Amended Settlement Agreement (ASA) in case above. He concluded the ASA went too far by implementing a "forward looking business arrangement that would grant Google significant rights to exploit entire books without the permission of copyright owners." He further concluded that the establishment of a mechanism for exploiting unclaimed books (orphan works) is a matter more suited for Congress. He also noted the settlement encompassed much more than was addressed in the original complaint. For more on this topic, see the Inside Higher Education 3/23/11/ article on same. and the 3/22/11 Chroncle of Higher Education article and related commentary, See Georgia Harper's short write up on the decision.

Feb. 4, 2010 Dept. of Justice Statement of Interest in The Authors Guild, Inc. et al. v. Google Inc.This statement was filed by Justice in response to the amended settlement agreement. Antitrust concerns are still present, as are questions as to use of the class action settlement.

Google Book Search Settlement Agreement
This is Google's web site with many of the documents relating to the proposed settlement agreement between Google and the Authors Guild and publishers regarding the Google Book Search program. The settlement agreement is 141 pages.

Update: November 19, 2009 preliminary approval of Amended Settlement Agreement in Google Books case. A supplemental notice will be distributed mid December 2009. This agreement attempts to deal with antitrust issues raised by the US Department of Justice with respect to the initial settlement agreement. See the Q and A on the revised settlement agreement. See also the Court Order on the Supplement Notice. A final decision will be made after a fairness hearing scheduled for Feb. 18, 2010. New terms roll the claiming deadline back to March 31, 2011.

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 archives. The web page includes a paper written by Chris Weston and Mary Rasenberger on the history of the library exception, titled Overview of the Libraries and Archive Exception in the Copyright Act: Background History and Meaning.

Noncommercial Educational Broadcasting Statutory License, Final Rule

72 Fed. Reg. 67646 (Nov. 30, 2007)

The Copyright Royalty and Distribution Reform Act of 2004 transferred jurisdiction over rates for the use of certain copyrighted works in connection with non-commercial TV and Radio Broadcasting to the Copyright Royalty Judges. 17 U.S.C. 801(b)(1). This is a window year for the establishment of new rates and terms for the 2008-2012 license period. These royalty rates include performance of musical compositions by public broadcasting entities licensed to colleges and universities.

The TEACH Act Passes Congress

On Nov. 2, 2002 the Technolgy, Education, and Copyright Harmonization Act (TEACH ACT) was signed by the President. The bill was incoporated into HR 2215, the 21st Century Department of Justice Appropriations Authorization Act, (see section 13301) and became Public Law 107-273.

This new law amends sections 110(2) and 112 of the Copyright Code and gives accredited non-profit educational institutions the right to use portions of copyrighted works for online instruction without permission from the copyright owner as long as a number of preconditions are met, which include technical protection of the copyighted material. For a full summary of the duties imposed on institutions and faculty that wish to make use of this new law see The Meaning and Importance of the Teach Act: by Kenneth Crews. This summary groups the requirements of the TEACH Act by the unit within the institution that will be responsible for compliance.

"Work Made for Hire" and Copyright Corrections Act of 2000 (H.R. 5107)

On October 12, 2000, the Senate passed H.R. 5107, legislation to amend the statutory definition of a "work made for hire" by repealing the insertion of the words "as a sound recording" into the second paragraph. See Section 101 of the Copyright Act. This insertion occurred with the passage of the Intellectual Property and Communications Omnibus Reform Act of 1999. The insertion was made at the request of the record companies, who wanted to make it clear that sound recordings could qualify as a work made for hire. The 1999 amendment was a last-minute amendment, which occurred without a public hearing. In response, the recording artists sought repeal of the 1999 amendment, as it is their position that sound recordings are not works for hire.

Title 17 U.S.C. § 203(a)(1)-(3) provides that, for a grant of copyright made on or after January 1, 1978, the author may, within a five-year window that opens 35 years after the date of the execution of the grant, terminate the grant of a transfer or license of the copyright. This window of opportunity does not apply to works made for hire, and if a sound recording is a work made for hire, the artist would not be able to get the copyright back from the record company.

 

 

Visual Images and Copyright

Important Resource: 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." Check with your librarians to see if they can locate this special issue. If not, it can be ordered in book form from 1-800-326-8917. 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.

Important Case: 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.

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).

     



Resources

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. See Brandon Butler's blog post on the Code. Another resource related to Fair Use is the Center for Social Media web page on Fair use and Libraries.

 

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.

 

 

5/27/15 CCR updated CFR links

 

updated 11-6-15 to add Authors Guild v. Google

updated 11-10-15 to add open licensing proposed rule