WHAT’S NEW

IN COPYRIGHT?

PART I

I

J OI N

T SE A A L L / S

WA L L M

E E T I NG ,

2 0 1 6

WHO WE ARE

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Laura McKinnon, MLIS, JD

Laura.Mckinnon@unt.edu

Director of the Copyright Advisory Office

University of North Texas

Brett D. Currier, MSLS, JD

brett.currier@uta.edu

Director of Scholarly Communications

University of Texas at Arlington

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INTRODUCTIONS

COPYRIGHT

WHAT CAN BE COPYRIGHTED?Literary works;Musical works, including any accompanying words;Dramatic works, including any accompanying music;Pantomimes and choreographic works;Pictorial, graphic, and sculptural works;Motion pictures and other audiovisual works;Sound recordings; andArchitectural works.

17 U.S.C. § 102

© OWNERS’ EXCLUSIVE RIGHTS1. Reproduction;

Copies

2. Derivatives; New works based on the original copyrighted work

3. Distribution; To the public by sale, rental, lease, or lending

4. Public performance; Literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audio visual works

5. Public display; Literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works

6. Public performance of work via digital audio transmission This is a very limited right that applies only to sound recordings © owners of sound recordings only have the exclusive rights to #1, #2, #3, and #6 on

this list!

17 U.S.C. § 106

EXCEPTIONS TO EXCLUSIVE RIGHTS

§107 Fair Use

§108 Reproduction by Libraries and Archives

§110(1) Face-to-Face Teaching

§110(2) TEACH Act

*this list is not exhaustive

FAIR USEFair use is detailed in §107 of the Copyright Act and allows

things like: “criticism, comment, news reporting, teaching, scholarship, research”

17 U.S.C. §107

Exception to exclusive rights

It only applies to works that have © protection if the work is in the public domain, you do not need to rely on fair use

Fair use is a balancing test and courts look at four factors when determining whether a use is fair

FAIR USE BALANCING TESTFour factors:1. Purpose of use

Nonprofit? Educational? Commercial?2. Nature of work used

Published? Unpublished? Nonfiction? Creative?3. Amount and substantiality of work used

Just a small amount? Is it the heart of the work?4. Effect on market of work

Will it compete with sales of the original?

Strong emphasis on whether use is transformative5. Is the purpose of your use different than the original purpose of the work?6. If yes, is the amount used appropriate to your transformative use? (too much,

not enough?)

FAIR USE BALANCING TESTOnly a court can definitively determine whether a use is fair – it is a balancing

test, so you cannot just check off each factor, you must weigh them all and determine whether your use overall leans in favor or against fair use There are several checklists that can help you make a determination

Case by case analysis – you must look at each use individually to determine whether it is fair

Fair use is flexible and vague -- continually evolves as the 4 factors are applied to new cases

If fair use applies you do NOT need permission

If fair use does not apply, you can always seek permission

CAMBRIDGE UNIVERSITY

PRESS V

. PATTO

N (2016)

( C A M B R I DG E )

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CAMBRIDGEDate Occurrence July 15, 2008 Lawsuit commences

February 17, 2009 Georgia State University Copyright updated and implemented

August 12, 2010 Book publishers: Injunctive relief Only claims of infringement that occur on or after the 2009 policy

June 1, 2011 Updated list: 74 claims of infringement

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FAIR USE FACTORS

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Factor RulingFactor 1: Always favored GSU

Factor 2: Always favored GSU

Factor 3: 10% rule

Factor 4: Market Harm

CAMBRIDGE: DISTRICT COURTOf the 74 claims of infringement:• 24 cases of de minimis copyright

• Copy made but never accessed • Most other cases: Fair use or lack of ownership• 5 cases of copyright infringement• Awarding of attorney’s fees to Georgia State

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CAMBRIDGE: CIRCUIT COURT• Reversed Factor 2: Did not always favor• Reversed 10% rule• Reversed Attorney Fee Ruling• Remanded

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CAMBRIDGE: DISTRICT COURT (2): 3/31/16

Factor RulingFactor 1: Always favors universities

Factor 2: Always neutral or weighs against a finding of fair use

Factor 3: Integrated with market harm

Factor 4: Compared licensing fees from the book against the total book purchases

If no electronic copy available, presumption Factor 4 favors the university

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CAMBRIDGE: DISTRICT COURT (2)• Previously had found 5 instances of

infringement • Now 4 instances of infringement• Georgia State still awarded attorney’s fees

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IMPLICATIONS FOR PRACTICECambridge (2) Well written opinion for Fair Use

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FAIR USE & COURSE RESERVES

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Factor RulingFactor 1: Always favors universities

Factor 2: Neutral or weighs against a finding of fair use

Factor 3: Integrated with market harm

Factor 4: If available through an e-resourceIf a book If no permissions are available

AUTHOR’S GUILD

V.

HATHITR

UST (2N

D )

( H A T H I TR U S T )

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HATHITRUST• Full text searchable books

• Transformative use• Access to the print disabled

• Important to note language of “print disabled” vs. “blind”

• Preservation• Remanded on issue of standing• Settled in January 2015• Libraries claimed 108(c) protection

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AUTHOR’S GUILD

V.

GOOGLE (2ND )

( G O O G L E BO O K S )

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GOOGLE BOOKS• Full text searchable• Snippet view• Supreme Court Cert?

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GARCIA V. GOOGLE

( G A R C I A)

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GARCIA• Injunctive relief • Desert Warrior v. Innocence of Muslims• Appears that there is not a copyright interest in

an individual performance

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QUESTIONS?

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