Public Domain Day: Another reason to celebrate the New Year

For many individuals, a new year represents a fresh start. January 1st also signifies a new beginning for numerous creative and scholarly works around the world. Public Domain Day commemorates the occasion as copyright expires for a new batch of works and ushers them into the public domain. The Tale of Little Pig Robinson by beloved children’s author Beatrix Potter is just one of the items entering the public domain in 2014 for many countries.

Release some of your own works from copyright in honor of Public Domain Day

If you have ever taken a photo, written a story, or recorded a video you hold the copyright to that work.

To dedicate a work to the public domain, you may apply the Creative Commons CC0 license to waive all copyrights.

Images may also be uploaded to Wikimedia Commons under a public domain license.

If you hold the copyright to a work archived by HathiTrust, you may grant permission to make the full text publicly available and/or dedicate the work to the public domain.

This is indeed cause for celebration. Once a work enters the public domain, anyone may freely copy, distribute, adapt, remix, translate or otherwise use the material without permission or other limitations. The annual influx of public domain material results in a trove of restriction-free source material for artists, writers, musicians, and other creators. Jane Austen’s novels, for example, are all in the public domain and have been adapted numerous times for film and television.

‘Public domain’ may be a familiar term, but misconceptions abound regarding its true meaning. For instance, works that are widely available to the public, such as images, videos, and text on the Web, are not necessarily also in the public domain.

In the United States, copyright protection extends instantly and automatically to new works created since March 1, 1989. In order to qualify for copyright, a work must require at least a minimum amount of creativity to produce and it needs to exist in some tangible format (for example: written down, coded into HTML, saved to a hard drive, or sculpted in clay). Therefore, most material on the Web is actually protected by copyright whether or not a copyright notice is present.

The public domain actually consists of items that either were never covered by copyright law or their copyright protection has expired. For example, most works created by employees of the U.S. federal government in the scope of their employment enter the public domain immediately. Those items initially protected by copyright enter the public domain once the copyright term expires.

Copyright duration varies from country to country, so works will not enter the public domain at the same time for everyone. For example, Canada has a copyright term of the author’s lifetime plus 50 years, while many European countries have a copyright term of the author’s lifetime plus 70 years.

In the United States, the Copyright Term Extension Act of 1988 increased copyright duration to the author’s lifetime plus 70 years, after which the work enters the public domain. This legislation also extended copyright terms for many earlier works, with the result that no published works will enter the public domain in the United States until 2019.

Creators may also voluntarily remove copyright at any time by dedicating a work to the public domain. Determining the copyright term for works published under earlier versions of U.S. law can be complicated, but Peter Hirtle’s chart “Copyright Term and the Public Domain in the United States” can help resolve many questions.

Find works in the public domain

Many sites collect public domain material. Here are a few places you can find items in the public domain (note: some also contain copyrighted materials).

HathiTrust

Internet Archive

Project Gutenberg

Wikimedia Commons

Public Domain Music

For a more comprehensive list, please see Columbia University’s list of public domain resources.

Although copyright law in the United States has changed over time, the public domain remains indispensable to accomplishing the stated purpose of copyright: to promote the progress of science and the arts. Copyright law grants creators exclusive rights for a limited time to control how their work is used and distributed. While this protection encourages creativity and innovation by providing an opportunity for authors to profit from their work, the fact that copyright eventually expires is equally important to creative culture.

Creators from all disciplines take inspiration from existing works and a continuously replenished public domain provides a rich, unfettered source of materials to draw upon. Residents of the United States can look forward to 2019 when the annual cycle of works entering the public domain will resume. Until then, we may only celebrate vicariously the many treasures joining the public domain on January 1st for the rest of the world.

Along with the Beatrix Potter story mentioned earlier, the public domain in various countries welcomes creations from other authors, artists, musicians, and notable figures such as George Washington Carver, Sophie Taeuber-Arp, Fats Waller, and Nikola Tesla in 2014.

Visit these sites around the Web for more coverage of Public Domain Day 2014 and works entering the public domain:

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Posted in public domain |

TPP Update: Private negotiations favor corporate interests and restrict public rights

We previously voiced concerns that the secretive negotiations surrounding the Trans-Pacific Partnership (TPP) could negatively impact copyright, privacy, free speech and the application of fair use online. Unfortunately, WikiLeaks’ release of the TPP Intellectual Property Rights Chapter earlier this month confirmed suspicions that a treaty negotiated in secret under the supervision of corporate advisors would favor corporate interests and neglect or infringe on public rights.

What is TPP?

TPP is a broad multinational trade agreement with significant implications for intellectual property rights. A series of leaked documents (Feb. 2011, Aug. 2012, Nov. 2013) provide the only information to date regarding the specific contents of the agreement. Negotiations are conducted behind closed doors and access to the treaty proposal is restricted to select representatives from the participating countries and several hundred corporate advisors. The list of participating countries presently includes the United States, Canada, Mexico, Chile, Peru, Malaysia, Singapore, Japan, Vietnam, Brunei and Australia.

How would TPP affect copyright?

U.S. negotiators claim that TPP would merely export existing U.S. copyright policies. However, the recent leak of the IP chapter exposes this statement as a misrepresentation of the actual agreement. Though TPP draws heavily on U.S. policies, it tends to codify the most restrictive aspects while forgoing many of the existing exceptions that permit some flexibility in the use of intellectual property.

The Electronic Frontier Foundation (EFF) and Knowledge Ecology International (KEI) have both provided thoughtful analyses of the latest leaked IP chapter that delve into the copyright ramifications of TPP. Although many elements apparently remain under discussion, the leaked document provides some insights regarding what may be in store. For instance, TPP as written would:

  • Extend the international baseline for copyright terms from life plus 50 years for individuals and 50 years for corporate authorship to emulate the U.S. terms of life plus 70 years and 95 years for corporate authorship
  • Limit governments’ abilities to legislate exceptions to copyright law
  • Restrict fair use through a three step test that places an upper limit on rights
  • Implement further prohibitions on breaking technical protection measures or DRM even in cases where the material is not protected by copyright
  • Expand the potential damages that rights holders could claim in copyright disputes
  • Shift liability for infringing websites to ISPs, prompting ISP filtering and blocking of websites alleged to infringe or facilitate infringement (n.b. this is a very serious risk to intellectual freedom; for instance, a critic could be silenced via filtering/blocking after three complaints of alleged infringements)

KEI summarizes the situation thus: “Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement. The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.”

This push to export American copyright policies is also problematic because it assumes that our current laws are desirable and effective. On the contrary, there is growing sentiment that existing U.S. copyright terms are already too restrictive, and that policies such as the DMCA are in need of reform or repeal. Earlier this year, the head of the U.S. Copyright Office testified before Congress and proposed a long list of issues in need of attention and possible reform, such as copyright term length, DMCA efficacy, statutory damages, licensing, and digital transmission of copyrighted materials. However, current domestic policies would become intractable if codified in an international treaty such as TPP; Congress would be unable to amend U.S. legislation without running afoul of international obligations and would face extreme pressure to conform to the treaty requirements. Techdirt’s critical commentary examines many of these issues in greater detail.

How did this happen?

Concerns rightly persist over the process and presumptively biased outcome of these surreptitious negotiations. Policymakers have favored powerful corporate interests by actively soliciting their guidance while simultaneously obstructing public participation. It is no surprise, then, that the leaked IP chapter caters extensively to Big Content and does little to protect public interests. By excluding the public from negotiations, policymakers forgo the opportunity to reach a balanced arrangement and invite significant damage to public rights that will be very difficult to repair in the future.

Further efforts to insulate TPP from public debate are underway. Almost all requests from members of Congress to review the proposal have been denied despite congressional jurisdiction over international trade agreements.  The Obama administration’s request for “trade promotion authority” or “fast track authority” seeks to further erode congressional oversight by requiring Congress to vote on trade agreements within 90 days without the opportunity to request amendments.

It is extremely implausible that TPP would emerge intact from Congress under normal circumstances, but with fast track authority in effect Congress could be enticed to swallow the many unsavory aspects of TPP in order to obtain the more desirable components.  EFF argues that “this is a classic example of policy laundering, whereby corporate interests use secretive international forums to trump the democratic process at the national level.” It remains to be seen whether Congress will approve the request for trade promotion authority and essentially forfeit their constitutional checks and balances over the Executive Branch.

What can you do to help fix TPP?

Public attention and involvement is critical at this time to dispute the furtive deal making and restrictive IP terms of TPP as President Obama and U.S. negotiators have expressed a desire to sign the trade agreement by the end of the year.

  1. Visit EFF’s action page for TPP where you can contact your representatives and ask them to oppose trade promotion authority and the secret negotiations surrounding TPP.
  2. Sign the petition at Stop the Trap opposing TPP secrecy, restrictions on Internet use, copyright, and privacy.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Posted in copyright terms, EFF, intellectual property, news, secrecy, TPP, trade agreement |

Judge Chin grants summary judgment in Authors Guild v Google case.

Summary judgment was granted in favor of Google in the Authors Guild v. Google case. This case has been in litigation since 2005. There have been several attempts at settlement to no avail. Judge Denny Chin outlines his thoughts on Google’s reliance on Fair Use and granted a motion for summary judgment (which means the case has been dismissed) in Google’s favor!  The Authors Guild may still appeal the decision, but for now let’s enjoy this victory! Please read the attached decision. Look for more posts soon.

Many Thanks to Peter Hirtle for sending out the decision!

Authors Guild v Google – Summary Judgment Decision

Posted in Uncategorized | Tagged , , , , |

Public Access Policies (Part 3): Proposed strategies for implementation

Welcome back to our three part series on the public access initiatives of 2013: FASTR, PAPS, and the OSTP directive. Part 1 provides an introduction to the three initiatives, and Part 2 explores their copyright implications and potential effects on researchers and libraries. Overall, these initiatives appear quite attractive for proponents of public access, but how might they work in practice? This final segment will evaluate the two most prominent proposals from the publishing and library communities on how federal policies might be applied.

Proposed Strategies for Implementation

Keep the following points in mind while we consider how the OSTP directive (and FASTR and PAPS, if passed) might be applied in the field:

  • FASTR, PAPS, and the OSTP directive all lean towards green open access by requesting deposit of the accepted, peer-reviewed version of an article
  • Researchers would likely be the ones actually depositing papers in the system, unless publishers entered into an agreement with authors and funding agencies to deposit on their behalf
  • Individual funding agencies are ultimately responsible to develop and/or designate a suitable repository for funded articles which satisfies the mandated criteria for accessibility, preservation, and interoperability with computational analysis

The NIH model with PubMed Central is frequently mentioned in discussions regarding next steps and agency compliance. PubMed Central is a good example of a successful public access repository due to its proven track record for success, but this strategy is just one of several options. Federal agencies are not required to develop their own repositories in response to FASTR, PAPS, or the OSTP directive. Agencies could designate existing institutional systems or another third party system as suitable repositories in lieu of building something in house. Thus far, two such models have garnered significant attention: CHORUS and SHARE.

Clearinghouse for the Open Research of the United States (CHORUS)

See the June 5, 2013 proposal here and the August 30, 2013 proof of concept here.

  • Developed by the Association of American Publishers
  • Funded research articles would remain on publishers’ existing platforms with CrossRef used to link between publishing platforms
  • Articles would be available for public access following an embargo period determined by funding agency and/or subject discipline
  • Publishers favor CHORUS as it allows them to retain and monitor site traffic

Proponents contend that CHORUS would fulfill public access requirements with the fewest changes or expenditures on the part of research institutions or the federal government because it makes use of existing, privately funded systems. Secondly, CHORUS streamlines article handling; CrossRef would link back to original items on the publishers’ websites rather than requiring deposit in an outside repository. This would allow publishers to fulfill many of the researchers’ compliance requirements on their behalf. The plan also incorporates FundRef: an identification service that tracks article funding. Early critics noted that CHORUS did not mention text or data mining, however the proof of concept released August 30, 2013 now proposes text and data mining through CrossRef’s Prospect service, which could also include a license registry and click-through license agreements as needed.

Skeptics, however, perceive a conflict of interest in this arrangement and suggest that publishers have little incentive to develop a robust, user-friendly system; for instance, the system would not generate revenue for publishers and could detract from pay-per-view revenue streams. Secondly, funding agencies and researchers are the ones bound to comply with federal public access policies—not publishers—and CHROUS takes the means to comply out of their hands. Limited scope is another issue: CHORUS would only support public access for articles under the umbrella of participating publishers with alternate solutions required for other publishers. Lastly, detractors believe the cost-savings presented by CHORUS as one of its greatest advantages may not be so significant; they argue that alternatives, such as the NIH model, don’t actually cost that much to implement and suggest that publishers could pass on the costs of CHORUS by raising subscription and pay-per-view prices.

Find more information on CHORUS here:

Shared Access Research Ecosystem (SHARE)              

See the proposal here.

  • Developed by library associations: Association of American Universities (AAU), Association of Public and Land-grant Universities (APLU), and Association of Research Libraries (ARL)
  • Recommends that research universities participate in a cross-institutional repository
  • Universities’ existing repositories could be integrated or linked into the system assuming that participating institutions adopt a common metadata scheme

SHARE supporters favor the use of existing institutional repositories to fulfill public access policies. Such institutions possess a strong interest in facilitating discovery and would therefore be motivated to develop a flexible, user-friendly system. Placing development and oversight in the hands of those closest to the end users provides greater opportunities and incentives to build in desired functionality. Secondly, a cross-institutional repository would be able to accommodate all federally funded research as organizations without their own repository would be able to designate a participating repository to hold their funded research. SHARE proposes roll-out in four phases with the system operational for article deposit and access following Phase I. The plan also contains provisions for preservation, text mining, data sharing, semantic data, and APIs. Proponents note that many suitable institutional repositories and relevant infrastructure (e.g. Digital Preservation Network) already exist.

Critics of SHARE note that the system would require significant investment from research institutions to develop and maintain. Limited resources in terms of staffing, funding, and software currently in use could severely undermine libraries’ ability to get SHARE up and running in the proposed time frame of 12-18 months for Phase I.

Find more information on SHARE here:

While the fates of PAPS and FASTR are yet to be determined, the OSTP directive has been in effect since February. If funding agencies adhered to the directive’s timeline, they should already have submitted drafts of their policies to the OSTP. In the future, we can expect to see negotiations with stakeholders (especially publishers and libraries) regarding the terms of the final policies and the selection of suitable repositories.

This concludes our series on pending public access policies. Still have questions? Visit the Copyright Resources Center or email us at libcopyright@osu.edu for more information.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Posted in access to knowledge, open access, publishing |

Public Access Policies (Part 2): Copyright implications and impact on researchers and libraries

Welcome back to our series on current public access initiatives. If you’re just joining us, consider clicking over to Part 1 for an introduction to the three initiatives under discussion:

  • Fair Access to Science and Technology Research Act (FASTR)
  • Public Access to Public Science Act (PAPS)
  • Office of Science and Technology Policy (OSTP) Directive

In this installment, we will take a look at what these initiatives have to say about copyright, and we will also consider how the proposed policies could affect researchers and libraries.

Copyright Implications

As written, the OSTP directive, FASTR, and PAPS would have little impact on copyright issues. None of the proposals amend existing copyright or patent law, and all require federal agencies to develop their public access policies in accordance with existing copyright law. However, only FASTR actually advises agencies on how to avoid copyright infringement while the OSTP and PAPS are silent on the matter. FASTR instructs that agencies “shall…make effective use of any law or guidance relating to the creation and reservation of a Government license that provides for the reproduction, publication, release, or other uses of a final manuscript for Federal purposes” (section 4.c.3). This essentially suggests a model like the one in place for NIH and PubMed Central. Funding agencies would possess a non-exclusive license to store and distribute funded manuscripts through designated repositories. The Scholarly Publishing and Academic Resources Coalition (SPARC) suggests in its FAQ for FASTR that this could ultimately prompt adjustments in the publishing agreements between researchers and publishers so that exclusive rights are not transferred to the publisher, but notes that “the government’s license precedes any such copyright transfer and so would override it.”

Impact on Researchers and Libraries

This collection of public access proposals is good news for the research community. Public access policies will facilitate knowledge sharing, new research, and preservation of federally funded research. The proposals are also forward thinking, with provisions for system functionality including text or data mining and other computational analysis. Outside of generating opportunities for conducting new research, the effect on researchers is likely to be fairly minimal: researchers would need to deposit the accepted version of their article in a designated repository, but the time investment is expected to be very minor. Each proposal requests that federal agencies coordinate their policies, making it easier for researchers who receive funding from multiple sources to comply.  As mentioned previously, the OSTP directive is the only initiative to suggest public access to data. This could precipitate a philosophical shift for disciplines that are unaccustomed to sharing data if federal agencies developed policies which required public access to data from funded studies.

So where do the libraries come in? Librarians are well-positioned to liaise with researchers, administrators, and IT departments within their institution regarding public access and data-sharing requirements of new legislation. Secondly, federal agencies could identify institutional repositories as the destination for federally funded research. Libraries would feel the greatest impact should the agencies go this route.  This strategy would require additional investment in library staff and infrastructure to support increased demands on staff time and to develop system capabilities that comply with the federal policies. A coalition of library associations has already proposed one such model; their system, called SHARE, will be discussed in our next post.

To be Continued… The final chapter (Part 3) of our series on pending public access policies will introduce the two most prominent models that have been proposed to fulfill federal requirements for a suitable repository.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Posted in access to knowledge, open access, publishing |

Public Access Policies (Part 1): FASTR, PAPS, and the OSTP Directive

Two new public access bills and a directive from the White House have rekindled public access discussions in 2013, with some immediate implications for federally funded research and many details yet to be determined. This is the first in a three part series exploring (1) what these initiatives entail, (2) what they could mean for copyright, libraries, and researchers, and (3) the proposed next steps for implementation. Without further ado, Part 1 will provide a brief introduction to the three public access initiatives.

Fair Access to Science and Technology Research Act (FASTR)

See the full text of the bill here.

  • Introduced in both the House and the Senate on February 14, 2013
  • Requires public access for research funded in part or in whole by federal agencies with extramural research budgets in excess of $100 million per year (~11 agencies at current count)
  • Six month embargo for most articles; no embargo for works by government employees

FASTR is considered to be a new, improved version of the Federal Research Public Access Act (FRPAA), which was last seen in Congress in 2012 but never voted upon.  If you are familiar with FRPAA, then much of FASTR will sound the same; however, FASTR improves on its predecessor by requiring federal agencies to coordinate their policies and introducing open licensing as a desired outcome. Specifically, open licensing is requested to further support text mining, data mining, and other computational analysis of materials in the repository.

Public access would be provided through one or more designated digital repositories. One option could resemble the NIH Public Access Policy and PubMed Central, however FASTR allows agencies to identify a suitable repository whether that results in the development of a new central system or the use of existing institutional repositories. Funding agreements would require researchers to deposit the accepted version of a peer reviewed paper in the designated repository, but this legislation would not require publishers to deposit the final published version.

Find more information on FASTR here:

Office of Science and Technology Policy (OSTP) Directive

See the full text of the directive here.

  • Issued on February 22, 2013
  • Known as the OSTP directive, the White House directive, or the Obama directive
  • Instructs federal agencies that spend more than $100 million per year on research and development to develop public access policies for funded research
  • Twelve month embargo for all funded articles

The OSTP directive on “increasing access to the results of federally funded scientific research” requires federal agencies with annual research and development expenditures exceeding $100 million per year to draft public access policies for funded research within six months. If this sounds familiar, that’s because the OSTP directive is very similar to FASTR in scope and objectives. Peter Suber’s excellent article provides a detailed discussion of the ways in which FASTR and the OSTP directive overlap and complement one another; two of the most salient points are:

(1)    The OSTP directive has already gone into effect, whereas FASTR would not come into play for another year if and when it passed. Federal agencies affected by the OSTP directive (a larger group than FASTR) had six months from the publication of the directive to submit drafts of their public access policies to OSTP; drafts were due in August 2013 and interested parties are calling for OSTP to make them publically available for comment by the open access community and other stakeholders.

(2)    Enacting one does not devalue or unnecessarily duplicate the work of other. FASTR and the OSTP directive together would result in a stronger, more comprehensive package in favor of public access and greater system functionality, especially where the finer details related to metadata, data, and embargo periods are concerned. For instance, the OSTP directive is the only proposal to include public access to data (FASTR and PAPS do not mention it). Secondly, while the OSTP directive could be revoked by the next President, FASTR would codify these public access policies and enjoy more longevity.

Find more information on the OSTP Public Access Directive here:

Public Access to Public Science Act (PAPS)

See the full text of the bill here.

  • Introduced in the House on September 20, 2013
  • Requires public access for research funded by federal agencies under the jurisdiction of the House Science Committee
  • Twelve month minimum embargo for all articles, with possible extensions in six month increments

PAPS pertains to four agencies under the jurisdiction of the House Science Committee. Like FASTR and the OSTP directive, PAPS requires public access for federally funded research and emphasizes accessibility, preservation, and functionality to support data and text mining of the funded articles. Funded research articles would be deposited in a public access repository with immediate publication of article metadata and subsequent full-text open access. PAPS differentiates itself with a request for retroactive inclusion of covered works in designated public access repositories where practicable, and a requirement that federal agencies negotiate policies with stakeholders.

Find more information on PAPS here:

Stay tuned for the next installment of our series on public access initiatives; Part 2 will discuss the potential effects of the pending policies on researchers and libraries, and explore the copyright implications of each initiative, while Part 3 will examine two proposed strategies for implementing these policies.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Posted in access to knowledge, open access, publishing |

Copyright duration for musical compositions and sound recordings

This is the second of a 4-part series on issues in music copyright. Part 2 will provide an overview of the duration for musical composition and sound recording copyrights.

As we discussed in part 1 of our series, music copyright is broken down between musical compositions and sound recordings. It is important to keep this distinction in mind when considering the duration of either of these copyright terms, because different sets of laws will govern the duration of the copyright depending on the type of work being considered (sound recording or musical composition) and when that work was created.

Musical Compositions: Copyright duration for fixed musical works, including original compositions and original arrangements or versions of earlier works, follows the same termination timeline as other literary works. Duration for the musical composition copyright will depend on a number of factors including the time in which the work was created (the time in which the work was fixed), the time in which it was published, who created the work, and whether proper renewal and registration was filed. The following tables explain how copyright duration varies:

Created on or after 1/1/1978

Duration

One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter. If an anonymous author is later revealed, life of the author + 70 years.

 

Published before 1/1/1978

Duration

Works published before 1/1/1923 In the public domain
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) filed 95 years from publication
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) NOT filed In the public domain
Works published on or after 1/1/1964 and before 1/1/1978 95 years from publication

 

Created but not published before 1/1/1978

Duration

All works In no case does copyright expire before 12/31/2002.
Not published on or before 1/1/1978 and on or after 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2002.
Meanwhile published on or after 1/1/1978 and on or before 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2047.

Prior iterations of U.S. copyright law required published works to contain a notice including either © or ℗ (for sound recordings), the year of first publication, and the name of the copyright owner.  Works created on or after 3/1/1989 no longer need to contain a notice, but earlier works are still bound by the requirement. To see how compliance and noncompliance with notice requirement affect copyright duration, see Peter B. Hirtle’s Public Domain chart.

Sound Recordings: Sound recordings were not granted federal copyright protection until the passage of the Sound Recording Act of 1971. As a result, the law governing the duration of a sound recording copyright will vary depending on the time in which the work was created.

For works created on or after 2/15/1972, copyright duration mirrors the general rules that we see above for musical compositions created on of after 1/1/1978.

Created on or after 2/15/1972

Duration

One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter.If an anonymous author is later revealed, life of the author + 70 years.

Like musical compositions, sound recordings made on or after 2/15/1972 must also comply with proper renewal, registration, and notice requirements.

Works published on or after 2/15/1972

Duration

Works published on or after 2/15/1972 and before 1/1/1978 + proper notice filed 95 years from publication
Works published on or after 2/15/1972 and before 1/1/1978 + proper notice NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice NOT filed + subsequent registration NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice filed Use same rules for works created on or after 1/1/1978 (from chart 1 above).
Works published on or after 3/1/1989 Use same rules for works created on or after 1/1/1978 (from chart 1 above).

Works created prior to 2/15/1972, will be governed by state law. Protection typically comes from state statutes, state copyright common law, misappropriation, or unfair competition.

Traditionally, common law protection ceases at the time of the publication of the work, though state law protection may still exist under a separate property right or theory of unfair competition. Following the 1976 Copyright Act, “publication” of sound recordings under federal law included the public distribution or sale of those phonorecords, but not the public performance or display of the work. The Act, however, only applies to those sound recordings made on or after 2/15/1972.  As to sound recordings made prior to 2/15/1972, states may define what is required for publication under their own law, and may specify whether publication of pre-1972 sound recordings is required to cease state law protection.

Because copyright duration for sound recordings could be potentially indefinite under state law, Congress set the latest date for protection as 2/15/2067. After that point all sound recording created before 2/15/1972, if they have not done so already (California, for example, provides for exclusive ownership in a sound recording until 2/15/2047) will enter into the public domain.

*Termination of Transfer: It is also important to keep in mind that the duration of the grant of a copyright may be affected by the termination of transfer right provided in the Copyright Act. For more information on this right see part 3 of our series on music copyright in which we discuss how the termination of transfer right works.

This blog has provided an overview of the duration or music copyrights. In the next part of our series we will look closer at the termination of transfer right and how it may be used.

 

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Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.

Posted in music copyright | Tagged |

The First Sale Doctrine and the Sale of Digital Goods in Light of Kirtsaeng and ReDigi, Inc.

Under the first sale doctrine (17 U.S.C. § 109) an owner of a particular lawfully made physical copy or phonorecord of a copyrighted work can generally lend, resell, or dispose of the item without permission from the copyright holder.* The first sale doctrine doesn’t mean that you can reproduce the work, create derivative works, or publicly perform the work, but it does mean that you can resell that textbook you bought on  Amazon or sell your old DVDs or CDs to a used bookstore or through eBay. Two recent decisions have attempted to clarify the scope of the first sale doctrine: Kirtsaeng v. John Wiley & Sons, Inc. and Capitol Records, LLC v. ReDigi, Inc.

In the Kirtsaeng case, Supap Kirtsaeng purchased foreign editions of textbooks in Thailand, shipped them to the United States, and then resold the books for profit.  The Supreme Court held that the first sale doctrine would apply in this case, as the doctrine extends to copies of a copyrighted work lawfully made abroad.

Previously, we discussed the importance of this ruling for libraries. It is important to note, the Court’s decision in Kirtsaeng is limited to the sale of tangible or physical items. In our advancing technological world, questions remain in how far the first sale doctrine extends to the sale of digital goods. In other words, can a consumer resell songs purchased on iTunes or eBooks they have downloaded to their Kindle?

Traditionally the purchase of digital goods has operated under a license agreement, meaning that consumers do not own the works they purchase. Without lawful ownership of the goods, a consumer does not have the right to resell that good. But recently, some companies have devised a way to resell digital goods. In these instances, the seller of the digital good loses their access to the content once another individual has bought the good. A recent case, Capitol Records, LLC v. ReDigi, Inc., has given us a preliminary look into how courts may handle this digital goods question.

ReDigi is a cloud service that allows users to resell pre-owned digital music files, in the same way a person may sell an old textbook through Amazon’s Marketplace or an old CD through a used record store. Once ReDigi has verified that the digital file is legally eligible for resale (meaning that the user purchased the song legitimately from iTunes), the digital file is pulled from the user’s computer onto ReDigi’s cloud server. From there other users may purchase and download the “used” music file.

Capitol Records brought suit against ReDigi on the grounds of copyright infringement. The United States District Court for the Southern District of New York held that ReDigi’s website infringed Capitol Record’s rights of reproduction and distribution, and that the distribution of the digital music files was not covered by the first sale doctrine. The court reasoned that the process of creating a copy of the work on ReDigi’s cloud server was an unauthorized reproduction (the first sale doctrine applies only to lawfully made copies that are distributed, not reproduced) and that because an additional copy was made for the server, users did not distribute or sell the particular copy that they had originally purchased.

Lawyers for ReDigi have indicated that they plan to appeal, and it is unclear how many other courts will adopt the reasoning of the United States District Court for the Southern District of New York.

For future cases involving digital goods, it is possible that a court may draw a distinction between digital goods and physical goods for purposes of the first sale doctrine, given the differences between the two. Digital copies can be copied and resold an infinite amount of times, and they can be resold in the exact same condition as an original purchase. In other words, it is not the same situation of buying a used (and worn) copy of a work; it is as if you are buying the work brand new. And because the copy is essentially the same, the market for the original good may suffer due to consumers wishing to purchase cheaper “used” goods instead of identical “new” goods.

A court may also distinguish between digital and physical goods based on how the sale occurs, as the district court did in ReDigi. With physical goods you have a physical transfer or distribution. With digital goods, an exact digital copy is made of the work, which can be considered an unlawful reproduction of the work rather than a sale. Any subsequent distribution would be of the (unlawfully reproduced) copy of the particular copy the user was looking to sell. As mentioned above, an individual cannot use the first sale doctrine as a shield to reproduce a copyrighted work without the copyright owner’s permission or to sell any other copy besides the particular lawfully made copy. So, for example, an individual could sell their digital music files by selling the iPod or hard drive on which those files were stored, but could not make copies of those songs and then sell those copies (which is how the court determined the technology worked in the ReDigi case).

On the other hand, the Supreme Court’s decision in Kirtsaeng is particularly important because it reaffirms the basic notion that one has physical ownership of the things that you buy. A court may hold this broad rationale to be equally applicable to digital goods, meaning consumers should be able to resell their digital goods under the protection of the first sale doctrine. In this sense we are simply talking about the digital equivalent of selling an old book or CD, as the original owner of the digital file no longer retains access to the work after selling it, and any incidental copies made in the process may be covered under a fair use defense.

As consumption of digital goods increases and companies pursue secondary market opportunities for digital goods (Amazon has secured a patent for a digital resale marketplace for objects such as ebooks and apps), the scope of the first sale doctrine must become better defined. Whether this will be done through the courts, or Congress, is yet to be determined.

* There is a special exception for sound recordings of musical works and computer programs. Under § 109, owners of these copies of works cannot rent, lease, or lend the work, unless it is being done by a nonprofit library or nonprofit educational institution. There are also exceptions to this exception, which can be found in § 109(b).

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Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.

Posted in contracts, copyright infringement, copyright litigation, Copyright Resources Center, copyright terms, digital resale, e-books, first sale, law and libraries, Uncategorized |

Recent Supreme Court decision has impact on America’s libraries.

On March 19, 2013, the U.S. Supreme Court handed down a decision that could have had a number of disastrous outcomes for libraries.

Kirtsaeng v. Wiley involved a graduate student from Thailand named Supap Kirtsaeng who bought cheap textbooks abroad and resold them in the U.S. John Wiley and Sons sued Kirtsaeng for copyright infringement, claiming that he did not have the right to import and then resell these cheaper copies that they created specifically for sale in markets that cannot afford the higher prices of the American market. Kirtsaeng argued that he was protected under Section 109 of the Copyright Act, known as the First Sale Doctrine.

The principle of first sale states that if you have acquired a lawfully made copy of a copyrighted work then you can dispose of that copy however you want. You can lend it to a friend, resell it, donate it to the library, or even throw it in the trash. It is first sale that allows libraries to lend the materials in their collections without having to ask for or pay rights holders for permission.

In the Kirtsaeng case, the question came down to whether or not first sale applies to copies of works that are made by the rights owner but are produced outside of the U.S. Wiley and two lower courts claimed that it does not. Fortunately for libraries, the Supreme Court reversed the lower courts’ decisions in a 6-3 ruling that states that first sale does apply to any legally made copy of a work, regardless of where it was made.

How does the decision affect libraries? Let’s consider a number of ways this decision could have hurt OSU Libraries, and other academic and research libraries, if the Supreme Court had upheld the lower court decisions. First, OSU Libraries has a number of foreign language collections, including Chinese, East European and Slavic Studies, and Japanese. Many of the works in these collections were originally published in foreign countries. If first sale does not apply to these works, OSU Libraries would have to make a tough decision. Do we try to get permission from all of the rights holders or do we stop allowing access to the collections? Trying to track down all rights owners could be impossible and impractical, especially for older works whose creators may be deceased and whose heirs may be unknown. Additionally, the potential cost of licensing permission from hundreds, or maybe thousands, of rights owners would be cost prohibitive. Ultimately OSU Libraries would have to deny access to a large number of works in order to avoid copyright infringement.

While foreign language collections are the most obvious group of foreign made works in the library, OSUL and other libraries also collect a large number of English language materials that are actually made abroad. Jonathan Band and Jonathan Gerafi recently reported that a majority of general publishers, academic publishers and record labels are owned by foreign companies. Many of their works are made in Europe. If the Supreme Court ruled that the first sale doctrine did not apply to works made abroad, this would mean that even many of the English language works in the OSU Libraries’ collections could not be legally shared without permission from the copyright owners. Compounding this problem is the fact that most American companies now outsource the actual printing of books or making of CDs and DVDs to countries where labor costs are much cheaper. It would be almost impossible for a library to know where a work was actually created. All of this would have been highly detrimental to libraries.

The Supreme Court was aware of the potential impact to libraries when making its ruling. The Library Copyright Alliance (LCA) submitted an amicus brief to the Supreme Court that spelled out all of these potential problems if first sale doesn’t apply to foreign made copies. Justice Breyer, who wrote the Court’s majority opinion in this case, specifically referenced the LCA’s brief as a factor in the decision.

The decision in this case is great for libraries. It means that we can continue to pursue our primary function of providing access to the information that we hold in our collections. Libraries have worked under the belief that all works that we collect, whether made in the U.S. or abroad, can be legally shared with our patrons. This decision reinforces that interpretation of the law.

For more analysis of the case, please read Kenneth Crews’ blog. For a more in depth look at how the case affects libraries, and the future possible reactions from publishers and Congress, read the issue brief released by the Library Copyright Alliance.

Posted in copyright infringement, first sale, law and libraries, litigation |

What is music copyright?

What is Music Copyright?

This is the first of a four-part series on issues in music copyright. Part one will provide a basic introduction to music copyright.

Musical Composition v. Sound Recording:

When you hear a song on the radio you are hearing two separate copyrights: one for the underlying musical composition and one for the sound recording. The distinction between these two is important, because even though they are both attached to one song, they are two separate works for copyright purposes and may be independently licensed or enforced. It is easier to understand this distinction if we look a little closer at what each copyright consists of:

  • A musical composition consists of music, including any accompanying words. The author of a musical composition is normally the composer of the work along with the lyricist (if the lyricist and composer are separate). A musical composition can be in the form of a notepad copy (such as sheet music) or in the form of a phonorecord (tape, CD, LP, etc.)
  • A sound recording (or master recording) results from the fixation of a series of musical, spoken, or other sounds. The author of the sound recording is typically the performer(s), the record producer, or both.

In many cases an artist will enter into a publishing agreement in which they will sign over all or part of their copyright in their compositions to a publisher in return for the administration of those compositions. As part of this administration, a publisher will seek out people who want to use the artist’s composition in their own works or performances, issue the necessary licenses, collect the money, and give the artist their agreed upon percentage. It is also common to see performers grant their copyright in their sound recordings to the record label they are recording under.

When an artist wants to release a cover song, they must get permission from the copyright holder of the musical composition. If, however, a recorded song is being used, the person using the song would potentially have to seek permission from two people: the person that has the copyright in the musical composition (usually the composer or publisher) and the person who holds the copyright in the sound recording (typically the performer, record label, or producer).

As an example, consider the popular song “Respect” made famous by Aretha Franklin. The song “Respect” was originally composed by Otis Redding and released in 1965. Two years later Aretha Franklin released her version of the song. Because Ms. Franklin was not composing a new song, but rather using Otis Redding’s composition, she needed to secure a license to use the underlying musical composition. Ms. Franklin, however, went into the studio and recorded her own version, so it was not necessary to secure a license for Mr. Redding’s sound recording.

Now consider a different situation: a film producer wants to use Ms. Franklin’s cover of “Respect” for his upcoming film. In this situation the producer would need to secure two licenses: one to use Ms. Franklin’s sound recording and another to use Mr. Redding’s musical composition. If the producer wanted to instead use Mr. Redding’s version in his film he would still need to secure two compositions: one for the musical composition and one for Mr. Redding’s sound recording.

Exclusive Rights:

Holding a copyright in a work means that you have exclusive rights to the use of that work. These exclusive rights include the rights of:

  1. Reproduction. The right of reproduction allows you to decide who may make a copy of your work, such as using it in a movie, using a sample, or publishing it as sheet music.
  2. Distribution. This right allows you to decide who may sell copies of your work.
  3. Derivative Works. This right allows you to decide who may make a new work based on your original work, such as the creation of a parody song.
  4. Public Display. This right is commonly seen in other copyrighted works such as art, but is not particularly applicable to music.
  5. Public Performance. This right controls the performance of your song on the radio, in clubs or restaurants, on television, or anywhere else where the performance would be deemed “public”.

While copyright holders for musical compositions and sound recordings enjoy the same exclusive rights in many respects, Congress imposed a limitation on the public performance rights of sound recordings through the Digital Performance Right and Sound Recording Act. Under this Act, the exclusive right of public performance exists for both the musical composition and the sound recording, but you only need to secure permission to use a sound recording if the recoding is being transmitted to the public through digital means. Depending on the nature of the digital audio transmission, that is whether it is interactive/non-interactive or subscription based, will determine the license that must be paid.

For public performance of musical compositions, licensing for public performance is usually handled through 3 main performance rights organizations (PRO): ASCAP, BMI, and SESAC. For sound recordings that are digitally transmitted, licensing may be handled by SoundExchange or with the sound recording copyright holder depending on the nature of the license needed.

This blog has provided a brief introduction to the different copyrights involved when we speak of music copyright. In the next part of our series we will discuss the duration of copyrights for both musical compositions and sound recordings.

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Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.

Posted in contracts, copyright formalities, copyright infringement, copyright litigation, intellectual property, music copyright, sampling, Uncategorized |