Copyright Law &

Fair Use Rights

Sponsored by the

Intellectual Freedom Committee

VLA Annual Conference

Friday, October 26, 2012; 3:15–4:00 p.m.

The VLA Radio Network Presents

Copyright for Librarians: Old Rules and New Technologies

Your Host –Timothy Coggins University of Richmond School of Law Library

Special Guests – Professor James (Jim) Heller College of William and Mary, Wolf Law Library

Professor Sarah (Sally) Wiant Washington & Lee University School of Law

Program Today

• Outline briefly basic issues about copyright law

• Discuss recent developments, including the Georgia State University case, the Google book settlement, licensing settlement, and more

What rights does a copyright owner

have?

5

UNITED STATES CONSTITUTION

ARTICLE I, SECTION 8

Congress may "promote the progress of science and the useful arts by securing for a limited time to authors and inventors the exclusive right to their writings."

Copyrightable Works Literary works; musical works; dramatic works;

pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other A/V works; sound recordings; architectural works

Only works that are original and fixed in a tangible medium of expression

But not ideas, procedures, processes, systems, concepts...

SECTION 102

Other Issues• Works in the Public Domain

– Never copyrighted; copyright expired

– Works of the U.S. government

– Facts

• Foreign Authors/Works

– Author from or work first published in a UCC or Berne country

– Country where published protects U.S. authors

– Work published by U.N. or O.A.S.

The Copyright Owner's Rights

Reproduction; derivative works; public distribution; public performance; public display; digital audio transmission of sound recordings

Works of visual art – 106 (a) Attribution Integrity

Term of copyright Works created in 1978 or later: life of the author + 70 years Anonymous or corporate authors or works made for

hire: 95 years after publication or 120 years after creation – whichever expires first

SECTION 106

What remedies does a copyright owner have

against an infringer, and who is liable – the staff member of the library?

Damages

Actual damages and profits, or statutory damages ($750 to $30,000 per infringement; $150,000 for willful infringement; $200 for innocent infringer

Remission of damages Employee or agent of nonprofit educational institution,

library, or archives Acting with scope of employment, and Reasonable belief the use was fair

SECTION 504

Institutional Liability

Vicarious Liability: right to supervise financial benefit

Contributory Infringement: knowledge induce, cause, or materially

contribute

Equipment

WARNING: THE MAKING OF A COPY MAY BE SUBJECT TO THE UNITED STATES COPYRIGHT LAW (TITLE 17 UNITED STATES CODE)

SECTION 108(f)(i)

We’ve all heard about the Georgia

State case. Tell me about it, including

the fair use analysis in the case?

Georgia State University• Facts

• Judge’s Ruling

– Fair use analysis

– 10% rule

– What does the ruling mean to you?

– Appeal

Fair Use Purposes Purposes:

Criticism; comment; news reporting; teaching (including multiple classroom copies); scholarship; research

Factors: Purpose and character of the use

Nature of the copyrighted work

Amount and substantiality used

Effect on potential market or value (non-publication doesn’t bar fair use)

GO

SECTION 107

17

We have a question now about recent developments involving Google Books and the HathiTrust Digital Library.

HathiTrust Litigation

• Copyright infringement suit

• 10M digital volumes; 5M titles; 3/4th – still protected by copyright

• Universities’ arrangement with Google– Works in the public domain

– Works still protected by copyright

• Case dismissed

Google Book Settlement

• Background

• Why is the settlement itself confidential, and why did the parties agree to settle now?

• What do libraries get out of this?

• How does it resolve the question of orphan works?

What is the relationship

between copyright law and

licensing?

First Sale Doctrine

Owner may sell or otherwise dispose of lawful copy, but

sound recordings or computer programs:

not lease or lend for direct or indirect commercial advantage, but

library/education exemption

SECTION 109

Licensing Agreement

Read the contract

Permanent or temporary access

No barriers to authorized users

Preserve Copyright Act rights

Respect user’s privacy and confidentiality

Hold-harmless clause

Read the contract again

How does the special exemption for libraries differ from fair use, and may a library claim both?

The Library Exemption

A library or employee acting within the scope of employment:one copyno direct or indirect commercial advantageopen collection

interlibrary loancopyright notice

from the copy reproduced, or legend

GO

SECTION 108(a)

Can I assume that a document on the web is fair game?

Can a library take photos of the artwork in its displays and

post them on the library webpage to promote an

exhibit?

Can a corporate library make random, unsystematic copies of single articles or chapters

without paying royalties when the requestors use the

information for work-related purposes?

Articles And Excerpts Single copy

Becomes user’s property

No notice of impermissible purpose

Warning of copyright

Where orders are accepted

On order form

GO

SECTION 108(d)

Library Exemption

Section 108 rights do not apply to --

1. related or concerted reproduction

multiple copies same material

2. systematic reproduction single or multiple copies same or different material

SECTION 108(g)

Can a library create a custom database of

specific articles and other items from our licensed

databases for use on our Intranet?

Other Questions

• Thanks

– To our guests – Professors Jim Heller and Sally Wiant

– To all of you for joining us this afternoon

• Have a great week-end