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Copyright in the Libraries: Government Publications

Copyright touches many library services because we collect, share and loan original works fixed in a wide variety of tangible media. The Copyright Resources Center conducted a series of informational interviews with faculty and staff from various areas of The Ohio State University Libraries to discuss the ways in which they engage with copyright issues. This blog series documents those conversations, and highlights how copyright law helps to shape services provided by the Libraries. See all available posts in the series here.

Photo of Mary Ann Ries

Mary Ann Ries, Library Associate

The OSU Libraries have been collecting government publications for over a century: since it became a Federal Depository Library in 1902. Government publications may be generally defined as any material (print or digital) published by any government agency, including federal, state, county, and city. The collection at OSUL includes U.S. government materials from all of the above categories, and also includes international materials. I met with Mary Ann Ries, Library Associate for Research and Education, to discuss our government publications collection and how copyright affects this particular collection.

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Copyright in the Libraries: Preservation and Reformatting

Copyright touches many library services because we collect, share and loan original works fixed in a wide variety of tangible media. The Copyright Resources Center conducted a series of informational interviews with faculty and staff from various areas of The Ohio State University Libraries to discuss the ways in which they engage with copyright issues. This blog series documents those conversations, and highlights how copyright law helps to shape services provided by the Libraries. See all available posts in the series here.

Photo of Emily Shaw

Emily Shaw,
Head of Preservation & Reformatting

Preservation and reformatting at The OSU Libraries encompass a wide variety of activities, some of which are not as affected by copyright while others engage with copyright issues on a regular basis. Reformatting primarily means digitization, and preservation efforts include systematically preserving print collections by repairing damaged collections, binding journals and paperbacks, monitoring collection environments, and more. Emily Shaw is Head of the Preservation and Reformatting Department at The OSU Libraries, and she met with me to discuss the ways in which copyright affects her department.

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The Research Commons Needs Your Stories!

Predatory publishers, solicitation scams, and unethical publishing practices — the Research Commons needs your stories!

This year during International Open Access Week (October 19-25), the Research Commons, in partnership with the Libraries’ Publishing Program and the Copyright Resources Center, will host a panel discussion about the potentials and pitfalls of Open Access publishing.

As we prepare, we invite OSU faculty, postdocs, and graduate students to share your experiences with unscrupulous publishers and questionable publishing practices. We will use your experiences to inform our program, and may ask your permission to share especially relevant stories more widely.

Please email your story to Melanie Schlosser ( by September 1st.

Program organizers: Josh Sadvari (Research Commons Program Manager), Sandra Enimil (Head, Copyright Resources Center), and Melanie Schlosser (Digital Publishing Librarian).


This announcement first appeared on the Research Commons blog.

Articles of Interest: January-June 2015

This post highlights articles published in the first half of 2015 with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Links to the full-text articles are provided when available; [OSU full-text] links will connect authenticated users through The Ohio State University Libraries, while [OA full-text] links point to an open access version of the article that should be available to all users.

Did we miss an interesting article? Please share the citation in the comments!



Gordon-Murnane, L. l. (2015). The digital public domain. Online Searcher39(2), 10-15. [OSU full-text]

Saw, C. L., & Chik, W. B. (2015). Whither the future of internet streaming and time-shifting? Revisiting the rights of reproduction and communication to the public in copyright law after Aereo. International Journal of Law & Information Technology23(1), 53-88. [OA full-text]


Copyright Education

Dow, M. J., Boettcher, C. A., Diego, J. F., Karch, M. E., Todd-Diaz, A., & Woods, K. M. (2015). Case-based learning as pedagogy for teaching information ethics based on the Dervin sense-making methodology. Journal of Education for Library & Information Science56(2), 141-157. [OSU full-text]

Keener, M. (2015). Contextualizing copyright: Fostering students’ understanding of their rights and responsibilities as content creators. Virginia Libraries61(1), 37-42. [OSU full-text] / [OA full-text]

Lofton, J. (2015). Blogging with students: A vehicle for writing, digital citizenship, and more. School Librarian’s Workshop35(5), 13-15. [OSU full-text]

Schoen, M. J. (2015). Teaching visual literacy skills in a one-shot session. Visual Resources Association Bulletin41(1), 1-12. [OSU full-text] / [OA full-text]



Arendt, A., & Fife, D. (2015). Impact of public domain resources on public libraries in the United States. Journal of Librarianship & Information Science47(2), 91-103. [OSU full-text] / [OA full-text]

Band, J. (2015). What does the HathiTrust decision mean for libraries?. Research Library Issues, (285), 7-13. [OSU full-text] / [OA full-text]

Butler, B. (2015). Fair use rising: Full-text access and repurposing in recent case law. Research Library Issues, (285), 3-6.  [OSU full-text] / [OA full-text]

Cox, K. (2015). International copyright developments: From the Marrakesh treaty to trade agreements. Research Library Issues, (285), 14-22. [OSU full-text] / [OA full-text]

Dygert, C., & Van Rennes, R. (2015). Building your licensing and negotiation skills toolkit. Serials Librarian68(1-4), 17-25. [OSU full-text]

Kawooya, D., Veverka, A., & Lipinski, T. (2015). The copyright librarian: A study of advertising trends for the period 2006–2013. Journal of Academic Librarianship41(3), 341-349. [OSU full-text]

Light, M. (2015). Controlling goods or promoting the public good: Choices for special collections in the marketplace. RBM: A Journal of Rare Books, Manuscripts, & Cultural Heritage16(1), 48-63. [OSU full-text]

Smith, D. (2015). Finding parents for orphan works: Using genealogical methods to locate heirs for obtaining copyright permissions. Journal of Academic Librarianship41(3), 280-284. [OSU full-text]

Walz, A. R. (2015). Open and editable: Exploring library engagement in open educational resource adoption, adaptation and authoring. Virginia Libraries61(1), 23-31. [OSU full text] / [OA full-text]




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

Copyright in the Libraries: Interlibrary Services

Copyright touches many library services because we collect, share and loan original works fixed in a wide variety of tangible media. The Copyright Resources Center conducted a series of informational interviews with faculty and staff from various areas of The Ohio State University Libraries to discuss the ways in which they engage with copyright issues. This blog series documents those conversations, and highlights how copyright law helps to shape services provided by the Libraries. See all available posts in the series here.

Photo of Brian Miller

Brian Miller, Head of Interlibrary Services

Interlibrary services at The OSU Libraries comprise three categories: lending, borrowing, and document delivery. Lending services consist of loaning physical copies and scans of shorter materials to other institutions, while borrowing activities involve obtaining copies from other institutions to fulfill requests from OSU-affiliated patrons.  Document delivery is a service where we provide scans from our own locally held print collections to members of the OSU community. Brian Miller, Head of Interlibrary Services, met with me to discuss how copyright weaves through all three services. Interlibrary services are influenced by community practices established in the National Commission on New Technological Uses of Copyright Works (CONTU) final report from 1978, known as the CONTU guidelines, and the statutory provisions of U.S. Copyright Law.

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Copyright as an Instrument for Censorship?

Copyright protects the intellectual property of creators—more specifically it protects original works of authorship that are fixed in a tangible medium of expression. Copyright owners have a bundle of exclusive rights in their protected works and they may exercise these rights to control who and under what conditions their work may be used or reused. In copyright law, the rights of copyright owners have often intersected with the rights of others regarding copyright as well as other legally protected rights, including trademark, right of publicity, and right of privacy. Recently, some issues have arisen over the intersection of copyright enforcement and censorship, in which subjects and/or rights holders of publicly available copyrighted works have sought to remove access to the works.

These issues have become seemingly more common with the emergence of the takedown procedure set forth in the Digital Millennium Copyright Act (DMCA). The DMCA provides a takedown process that allows rights holders to request the removal of their copyrighted materials that have been uploaded by users and hosted by online service providers such as YouTube, WordPress, or Tumblr. In the past month alone, Google has received DMCA takedown notices from 5,596 copyright owners requesting the removal of 39,829,891 URLS.[1]

The DMCA takedown process makes removal of copyrighted material expeditious, and in many cases automatic (e.g., YouTube’s Content ID system), but when does the removal of infringing content align with the purpose of copyright law to “promote the Progress of Science and useful Arts,”[2] and when does it cross the line into the realm of censorship?[3] Here are some recent examples to consider:

  1. “Ugly” photograph. In Katz v. Chevaldina,[4] a photograph was taken of businessman Raanan Katz, in which Mr. Katz can be seen with his tongue sticking out of his mouth. The photograph was described as “ugly” and “candid and embarrassing” by Mr. Katz. The photo was first published in an Israeli newspaper accompanying a favorable article discussing Mr. Katz’s potential ownership interest in an Israeli basketball team, before being republished several times by Irina Chevaldina on her blogs. The republished photos were sometimes accompanied by critical remarks or included in mocking cartoons. Following a request from Mr. Katz, the Israeli photographer who took the photo assigned his copyright to Mr. Katz free of any charge (Mr. Katz testified he had obtained the assignment “[b]ecause I wanted to stop this atrocity”). Following the assignment, Mr. Katz asked Ms. Chevaldina to remove the photos from her blogs. When Ms. Chevaldina refused, Mr. Katz filed a suit for copyright infringement. On balance, the district court found Ms. Chevaldina’s use of the photo to constitute a fair use, protecting her from liability. An appeal has been made to the Eleventh Circuit.
  1. Propaganda film. In 2011, Cindy Lee Garcia agreed to perform a minor role for Desert Warrior, an action thriller set in Arabia. Without her knowledge or consent, Ms. Garcia’s performance was then used in the creation of Innocence of Muslims, an anti-Islam propaganda video. Following the upload of the video to YouTube, Ms. Garcia received death threats for her involvement in the film. Ms. Garcia filed numerous DMCA takedown notices with Google, all of which were resisted, before seeking legal action to remove the video based on the claim that the posting of the video infringed her copyright in her individual performance. In May 2015, the Ninth Circuit affirmed an earlier decision by the district court and held that Ms. Garcia lacked a copyright interest in her 5-second performance, stating that “a weak copyright claim cannot justify censorship in the guise of authorship.”[5]
  1. “Unauthorized” blog post. In 2013, student journalist Oliver Hotham reached out to Straight Pride UK, asking if he could send some questions for more information on the organization. The questions and corresponding answers were posted to Mr. Hotham’s WordPress blog and included comments from Nick Steiner, Straight Pride UK’s press officer, urging individuals to come out as straight and speaking of the need to raise awareness of heterosexuality and traditional lifestyles and relationships. On the same day the post was made, Mr. Hotham received a DMCA takedown notice. Mr. Hotham refused to remove the material from his blog and filed a counter-claim. Following legal action, Automattic, the company responsible for operating, was granted a motion for default judgement on their claim against Mr. Steiner for misrepresentation in filing a DMCA notice (17 USC 512(f)). [6] Automattic was awarded $25,084 in damages.
  1. Revenge porn. The emergence of revenge porn has also raised some questions around the role of copyright in removing online content. Typical revenge porn cases involve the nonconsensual public distribution of sexually explicit photos or videos, often released by a victim’s ex-partner. A majority of these videos and images are taken by the victims themselves.[7] While some states have passed revenge law legislation or currently have laws in place broad enough to encompass revenge porn, many states leave victims with fewer legal options. Victims of revenge porn have pursued tort claims, including harassment, stalking, and invasion of privacy, but because most uploaded photos are taken by the victim themselves, a claim of copyright infringement has been suggested as an attractive option to facilitate the takedown of the material.

In situations where copyright is asserted to censor in order to achieve a positive societal result, is it enough that the ends justify the means? Or should these issues be viewed solely through the lens of the purpose of copyright law; to promote the progress of science and the useful arts? These types of issues will continue to arise as courts are asked to define the line between allowing copyright owners to exercise their legal rights and allowing copyright owners to use their legal interests to censor otherwise lawful conduct.


By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Google Transparency Report. Requests to remove content: Due to copyright. Available at: (last updated July 8, 2015).

[2] U.S. Constitution, Art. 1, Sec. 8, cl. 8.

[3] Compare the emphasis the European Union places on privacy versus the United States’ emphasis on the public’s right to know. In 2014, the Court of Justice for the European Union ruled that under the 1995 Data Protection Directive, individuals have a right to be forgotten under certain circumstances. Individuals may exercise this right by asking search engines (including U.S. search engines with a branch or subsidiary in an EU Member State) to remove inaccurate, inadequate, irrelevant, or excessive personal information. The court ruled, however, that the right to be forgotten would be balanced against the freedom of the media and the freedom of expression. Individuals have since exercised this right to be forgotten, requesting Google to remove links to revenge porn. See The Economist (Oct. 4, 2014). The right to be forgotten: Drawing the line. Retrieved from

[4] Katz v. Chevaldina, 12-22211-CIV-KING/MCALILEY, 2014 U.S. Dist. LEXIS 88085 (S.D. Fla. 2014).

[5] Cindy Lee Garcia v. Google, Inc., D.C. No. 2:12-cv-08315-MWF-VBK (9th Cir. 2015) (en banc).

[6] Automattic, Inc., et. Al., v. Nick Steiner, 2014 U.S. Dist. LEXIS 182295 (N.D. Cal., Oct. 6, 2014).

[7] Cyber Civil Rights Initiative (Sept. 10, 2013). Proposed CA Bill Would Fail to Protect up to 80% of Revenge Porn Victims [Press release]. Retrieved from


Creative Commons Licenses: What You Need to Know as a Creator and User

As one of the major open licensing options for copyright owners, Creative Commons (CC) is likely a familiar name to many of our readers. For those that are unfamiliar, CC is a nonprofit organization that offers a number of different copyright license options to copyright owners. A CC license allows a copyright owner to choose how they would like others to be able to use their work, and anybody may use the work for free, so long as they follow the terms of the license. Before using a CC licensed work or deciding to apply a CC license to your own work, you should have an understanding of the scope of the license you are working with. This blog will provide more information on some important points to keep in mind about CC licenses and provide an overview of the license options.

What Do You Need to Know About Creative Commons Licenses?

Whether you are applying a CC license to your own work or using a work covered by a CC license, here are some important things to keep in mind:

9 million websites use Creative Commons licenses

  1. Creative Commons licenses are not an alternative to copyright—a work must be copyrighted in order to be licensed under a CC license. Copyright owners have a bundle of rights that allow them exclusive control over how their work may be reproduced, adapted, distributed and publicly performed or displayed. A copyright owner may decide to transfer some or all of these rights to another or permit others to use the work through a licensing agreement. If a copyright owner chooses to license their work under a CC license, they are not giving up ownership of their work—they are permitting others to exercise one of the copyright owner’s exclusive rights under the terms and conditions listed in the language of the license.
  1. Creative Commons licenses do not limit or restrict any rights granted through statutory exceptions, including fair use. If your use of a copyright protected work would otherwise be allowed through a statutory exception (such as the face-to-face teaching exception, the TEACH Act, or fair use), you may still rely on those statutory exceptions.
  1. Only the copyright owner can place a CC license on the work or authorize another to do so. If third party material  is being used in a new work under a statutory exception or limitation or through permission of the copyright owner, the author of the new work can only license the part of the work to which they claim ownership. In this type of situation, it is important for the author to mark third party content to let others know that the entire new work may not be available under the selected CC license. An author of a new work may avoid this situation by seeking permission from the copyright owner to make the third party material available under a CC license, allowing others to then use the entire work according to the license terms.
  1. Creative Commons licenses are non-exclusive and non-revocable. Anyone is free to use a CC licensed work so long as they abide by the terms of the license. A copyright owner is also free to continue to exercise their exclusive rights, meaning they may simultaneously enter into separate agreements for the use of their works. A copyright owner may decide to no longer distribute their work under a CC license, but because CC licenses are non-revocable, anybody who already has access to the work may continue to use the work under the original license terms.

What Are the License Options?

Icon badges for all six Creative Commons license options and the Public Domain tool.

Creative Commons licenses provide copyright owners with a great degree of flexibility in how open they would like to make their work. The various license terms define the ways in which users may freely and legally share, modify, or build upon a copyrighted work.

All CC licenses require attribution. Beyond attribution, copyright owners may choose among a combination of licensing terms. Copyright owners may specify that their work not be used for the primary purpose of monetary compensation (NonCommercial) or that their work not be modified or adapted in any way (NoDerivs). Alternatively, a copyright owner may permit a user to modify, adapt, or build upon their work but specify that any new work created be made available under similar open licensing terms (ShareAlike). Creative Commons also provides a Public Domain Dedication (CC0) tool. This tool allows a copyright owner to dedicate their work to the public domain by waiving all of their copyright and related rights in a work, to the extent allowed under the law. While attribution is not required for CC0 works, it is recommended as a best practice in order to acknowledge the intellectual work of others and to avoid accusations of plagiarism.

Spectrum of openness for Creative Commons licensesFinally, if you are looking for CC works to use, a good place to start your search is with the search function on the Creative Commons website. You may also look through the Creative Commons content directories to view organizations and projects using CC licenses. Many services, including Flickr, SoundCloud, Google, Bing, and Vimeo, provide their own advanced search feature, making the search for CC licensed works quick and easy.

In conclusion, CC licenses are a great resource for copyright owners and users of copyrighted content. As with any license agreement, however, be sure you are clear about the scope and limitations of the license before using a protected work or making your own works available for use by others.

Interested in learning more about Creative Commons? Contact the Copyright Resources Center for answers to your questions or to schedule a Creative Commons workshop.


By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Navigating the TEACH Act in Distance Education

Distance education is a thriving field, supported by the swift evolution and progress of technologies that promote access to and interaction with educational materials. The Technology, Education, and Copyright Harmonization Act of 2002 (“TEACH Act”), an amendment to Section 110 of U.S. Copyright Act, seeks to encourage these educational experiences by providing a specific carve out for distance education. The TEACH Act, codified in § 110(2), was signed into law and became effective on November 2, 2002 and amended existing copyright law to permit certain performances and displays of copyrighted materials in distance education settings.

A Brief History

In 1976, the time that the original language was enacted, § 110(2) provided an exemption for certain performances or displays of copyrighted works in the course of a transmission. At the time, a transmission referred to an instructional television or radio broadcast. With the expansion of digital technologies and development of distance learning, however, concerns arose over the adequacy of the existing copyright law in promoting digital distance education and protecting the rights of copyright owners. To address this concern, Section 403 of the Digital Millennium Copyright Act of 1998 (DMCA) required the Register of Copyrights to submit recommendations to Congress on “how to promote distance education through digital technologies, while maintaining an appropriate balance between the rights of copyright owners and the needs of users.”[1] In their 1999 report “Report on Copyright and Digital Distance Education” the U.S. Copyright Office provided a number of recommendations after consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives. The original TEACH Act bill implemented a number of the recommendations set forth in the Copyright Office’s report.[2]

Requirements of the TEACH Act

You must comply with a rather lengthy list of requirements in order to receive the protection the TEACH Act provides. To guide you through these various requirements, we have created a new handout: Using Materials in Distance Learning: A Guide to § 110(2) (TEACH Act).

In many ways the TEACH Act broadened the scope of § 110(2). Transmissions of works were no longer confined to physical classrooms, all type of works could now be performed or displayed (subject to certain limitations), and transmitting organizations were now permitted to reproduce copies of the works in order to perform or display them (again, subject to certain limitations). At the same time, the TEACH Act introduced additional institutional, teaching, and technology requirements to address concerns over how a work may be accessed and shared in a digital environment. All of the following requirements must be met:

□ General Scope: 

The TEACH Act only applies to the performance and display of copyrighted works. It does not cover the remaining exclusive rights held by a copyright owner, including the rights of distribution or creation of a derivative work. Under § 112(f)(1), however, a work may be reproduced in order to be performed or displayed within the requirements of the TEACH Act. See our handout, Using Materials in Distance Learning: A Guide to § 110(2) (TEACH Act), to see under which conditions reproduction would be permissible.

The TEACH Act amended § 110(2) to expand the scope of works that may be performed or displayed. You are permitted to perform a full nondramatic literary or musical work or reasonable and limited portions of all other types of works. You are permitted to display any type of work so long as you do so in an amount comparable to what would be displayed in a traditional classroom setting.

Finally, all copies of works that are being performed or displayed must be lawfully made and acquired—illegally obtained copies are not permitted—and the copy performed or displayed cannot be a work that is produced or marketed primarily as eLearning or distance learning materials.

□ Institutional Requirements: 

Eligible transmitting entities include government bodies and nonprofit educational institutions. Nonprofit educational institutions must be accredited. The institution must also provide a number of safeguards to counteract the risk of widespread dissemination of works. These safeguards include instituting policies regarding copyright, providing notice to students or recipients of the materials that the works may be subject to copyright protection, and providing copyright information to faculty, staff, and students to promote compliance with copyright law.

□ Teaching Requirements:

Performance or display of a work must be made by, at the direction of, or under the actual supervision of an instructor. The performance or display of the work must be made as an integral part of a classroom session offered as a regular part of systematic mediated instructional activity. In other words, an instructor must either initiate or actually supervise the performance or display, though real-time supervision is not required. Additionally, the performance or display must be an actual part of the class itself, not ancillary to the class, and it must be analogous to the type of performance or display that would take place in a live classroom setting. The performance must also be directly related and of material assistance to the teaching content. Works cannot be performed or displayed as unrelated background materials or simply for entertainment—they must be tied to the curriculum.

□ Technology Requirements:

At the time the law was being amended and distance education was gaining popularity, copyright owners were expressing their concerns over the ease of reproduction and dissemination of the works in a digital environment. Such activities, they argued, would have a large impact on their ability to license or otherwise exploit their rights as copyright owners. To address this concern, the TEACH Act imposes a number of technology requirements and limits the receipt of transmissions, to the extent technologically feasible, to students officially enrolled in the course or governmental employees as part of their official duties or employment.

In the case of digital transmissions, the transmitting body must apply technological measures to reasonably prevent retention of the copyrighted work beyond the duration of a particular class session and to reasonably prevent unauthorized further dissemination of the work. This may include performance or display via streaming services or limiting access though adoption of a closed content management system.

Finally, the TEACH Act supports the anti-circumvention language of the Digital Millennium Copyright Act and prevents a transmitting body from engaging in conduct that could reasonably be expected to interfere with technological protection measures that are already in place for copyrighted works.

What to Do if You Don’t Satisfy All Requirements

It may be the case that your intended use doesn’t satisfy all requirements of the TEACH Act. Maybe you would like to share materials to students beyond those officially enrolled in your class, or maybe you are performing or displaying materials through a service that does not allow for any sort of downstream control. In such situations, you may consider whether your intended use is likely to be considered a fair use. Fair use is a defense against a claim of copyright infringement and would allow you to perform or display the work without permission from the copyright owner. A fair use analysis is fact specific and should be considered for each individual piece of work you intend to perform or display.

You may also explore options for using alternative works that are in the public domain or available through more flexible open license terms. Works that are in the public domain are free to use without restriction. To use works available under an open license, you must comply with the license terms.

Finally, if you would like to use a particular work and you cannot rely on fair use, you may seek the permission from the copyright owner to use the work.


In summary, the TEACH Act was a result of years of discussion and debate between copyright owners and individual and institutional users of copyrighted content. The final product was a compromise designed to promote distance education through digital technologies, addressing the holes created through rapid growth of technology and proliferation of distance learning. Because of its many limitations and restrictions, the TEACH Act has been accused of being too narrow in applicability, prompting many instructors to rely instead on fair use or pursue licensing options. But for those transmitting bodies that meet all of its requirements, the TEACH Act serves as an important statutory exemption.

[1] Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860 (1998).

[2] Technology, Education and Copyright Harmonization Act of 2001, S. 487, 107th Cong. (2001).


By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

World IP Day 2015 Celebrates Music

On April 26, 1970, the Convention Establishing World Intellectual Property Organization (WIPO Convention) entered into force. The event is celebrated annually through the World Intellectual Property Day. The theme for this year’s World IP Day is “Get up, stand up. For music.”

Music plays a critical role in our lives—it is an essential defining element of our culture and society.  And through the changing of technology, consumer preferences, and industry standards, the demand for music has remained.  This past year has seen a lot of activity surrounding music creators and their rights under copyright law. Parties on all sides have questioned our current systems and laws, seeking changes designed to fairly support the value that musicians contribute to our lives and adequately encourage society’s access to and use of music.

Keeping with the theme of this year’s World IP Day 2015, we are highlighting a few out of many interesting and important recent developments and the resulting impact on copyright owners of musical compositions and sound recordings.


The Fair Play, Fair Pay Act of 2015

While musical compositions have long been protected under federal copyright, the inclusion of sound recordings under federal copyright law has been a relatively recent development (sound recordings fixed before February 15, 1972 are still governed by state law). In 1995, through the Digital Performance Right in Sound Recordings Act (DPRSRA), Congress provided copyright owners an exclusive public performance right in their sound recordings, but limited the exclusive right to public performances of sound recordings via digital audio transmission. This limitation means satellite and music subscription services need to pay a licensing fee to perform a sound recording, but terrestrial (AM/FM) radio stations do not. Why the exception for traditional over-the-air broadcasts? In short, Congress didn’t believe radio and television broadcasters posed a threat to copyright owners. Terrestrial radio stations, it has been argued, enjoy a symbiotic relationship with copyright owners. Terrestrial stations play music to increase their listenership and increase advertising revenue and in return create exposure for artists, promoting record and other sales for the sound recording owner.

Introduced in Congress earlier this month, the Fair Play, Fair Pay Act of 2015, H.R. 1733, 114th Cong. (2015) would require terrestrial broadcasters to pay royalties for the public performance of sound recordings, a requirement that is currently only applicable to services that perform a song via digital audio transmission. This public performance right would also extend to sound recordings fixed before February 15, 1972.  Special protections exist for small broadcasters, public broadcasters, college radio, noncommercial radio, and religious services. The bill also includes pieces from the Allocation for Music Producers (AMP) Act, discussed below.

Why it matters: Under the current law, owners of a musical composition (songwriters or music publishers) are compensated if their song is played on terrestrial radio but owners of the sound recording (performing artist or record label) are not. If that same song is transmitted through a service like Pandora, both copyright owners will be compensated. If enacted, the Fair Play, Fair Pay Act of 2015 would result in terrestrial broadcasters operating under the same system that newer digital broadcasters are required to operate under. Overall, this would create more harmonization in copyright law by bringing platform parity to radio and would establish an additional revenue stream for both current artists and older artists.


Local Radio Freedom Act

The Local Radio Freedom Act, a resolution reintroduced into the House and Senate earlier this year, declares that “Congress should not impose any new performance fee, tax, royalty, or other charge” to terrestrial broadcasters for the public performance of sound recordings. The National Association of Broadcasters has backed the resolution, which does not carry the force of law. The resolution highlights the “mutually beneficial relationship between local radio and the recording industry,” in which radio stations have provided publicity and promotion to artists, which has benefitted the careers of many performers. The resolution also cautions the economic hardship local radio stations and small businesses will face at the imposition of any new performance fee.

Why it matters: While artists have thrown a lot of support behind the Fair Play, Fair Pay Act (discussed above), broadcasters believe the Local Radio Freedom Act provides a better solution. The Local Radio Freedom Act, is non-binding, but functions to express the sentiment of Congress. This resolution would preserve the status quo for public performance of sound recordings. There are currently 165 co-sponsors in the House and 12 co-sponsors in the Senate.


Allocation for Music Producers (AMP) Act

Traditionally, record producers have received compensation for their work through the negotiation of a flat fee for their services and/or points (typically 3-4% of the wholesale price of an album). The Allocation for Music Producers (AMP) Act, H.R. 1457, 114th Cong. (2015), introduced in March of this year, would amend copyright law to provide a statutory right for producers, sound engineers, or mixers involved in the creative process of creating the sound recording to receive royalties for the digital transmission of the work.

Current law requires that royalties paid for the public performance of a sound recording by digital audio transmission be split between featured artists (45%), non-featured artists (5%), and sound recording copyright owners (50%). A featured artist may provide a Letter of Direction to SoundExchange, the entity responsible for collecting and distributing such royalties, requesting that a portion of their royalties be paid to the producer. Under the AMP Act, this informal process would be recognized through a statutory amendment.

In addition, the bill creates a new process for setting aside royalties for sound recordings fixed before November 1, 1995. In the absence of a Letter of Direction, SoundExchange may set aside 2% of featured artist royalties to be paid to the producer, mixer, or sound engineer of the relevant sound recording, so long as the artist does not object within a given period of time.

Why it matters: Producers, sound engineers, and mixers play an important role in the creative development of sound recordings. The AMP Acts acknowledges the importance of these individuals in the overall creative process and seeks to establish a permanent procedure by which these professionals can fairly be compensated for their contributions.


Songwriter Equity Act

Re-introduced into both houses on March 4, 2015, the Songwriter Equity Act of 2015 (SEA) would amend Sections 114 and 115 of the Copyright Act to allow the calculation of statutory royalty rates for musical compositions based on fair market value.

The SEA would change the way royalties are calculated for the reproduction of musical compositions. There is currently a compulsory mechanical license for the reproduction of musical compositions. The initial rate set by Congress in 1909 was 2¢ per song. In 2015, it is 9.1¢ per song. The SEA would now allow Copyright Royalty Judges to establish rates that “most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.” In addition, Judges may now consider the royalty rates set for the public performance of sound recordings in their determination of rates for the public performance of musical compositions.

Why it matters: The intent of this bill, as with the other bills we have discussed, is to even the playing field. By adopting rates that reflect free market conditions, songwriters may receive fair compensation for their works.


Calculation of digital royalties for pre-digital artists

It is difficult to predict how technology will change in the future, as a result, older recording agreements are silent on how to handle payments for digital downloads. The major record labels have historically treated downloads as equivalent to physical sales (meaning artists get 12-20% of net receipt of sales) but artists have argued that digital downloads are more appropriately treated as licenses (meaning the artist would receive 50% of net receipts).

The approach taken by major labels has resulted in major class action lawsuits against Sony, Warner, and Universal. On April 14, 2015, Universal submitted a preliminary settlement of $11.5 million, to be paid to artists signed with UMG or Capitol Records between 1965 and 2004. Universal does not, however, admit wrongdoing in the payment of royalties. Going forward, an increase of 10% has been applied to the royalty rate for digital downloads. Settlements have already been reached in the Sony and Warner Music Group lawsuits.

Why it matters: Compensation. There is a substantial difference in royalty rates between traditional physical sales and licenses. In cases where digital downloads have not been anticipated, it has been up to the court to determine what is just based on the technology of today.

As you can see from just these examples, this past year has been full of activity surrounding music and copyright issues. Following calls for comprehensive copyright reform and talks of a “music omnibus bill” to overhaul the music licensing system, we can expect this important dialogue to continue. Only time will tell how some of these issues will ultimately be resolved and the impact any changes will have on artists, consumers, and facilitators of music.

Interested in learning more about music copyright? Be sure to check out our 4-part series on music copyright: What is music copyright?, Copyright duration for musical compositions and sound recordings, Termination of transfer for music copyright, and Licensing opportunities for music copyright.


By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

How the public domain promotes scholarship: Engaging Columbus uses 1922 OSU thesis to map Columbus neighborhoods

Engaging Columbus, a collaboration between Ohio Wesleyan University, the Ohio Five Libraries, the City of Columbus Department of Technology / Geographic Information Systems, and other partners in central Ohio, has generated an interactive map of historic panoramic images from the City of Columbus using digitized photographs from a 1922 Ohio State University master’s thesis. The thesis, “An introduction to the economic and social geography of Columbus, Ohio” was written by Forest Ira Blanchard, OSU Department of Geography’s first graduate-level alumnus. The use of Mr. Blanchard’s photographs is a great example of the way digitization of works can spur new scholarship. Mr. Blanchard’s thesis photographs, published ninety-three years ago, provide important historical information on urban neighborhoods and development in Columbus, Ohio. As Engaging Columbus notes, “Blanchard’s photographs are remarkable for their depiction of typical streets, railroad corridors, and neighborhoods (rather than the more typical images of important buildings or events).” Engaging Columbus was able to freely use the valuable resource contributed by Mr. Blanchard to inform and shape its own work in geocoding historical photographs. The information they have generated is fully available for the benefit of the public and will in turn be used in a variety of ways.

Engaging Columbus was able to use Mr. Blanchard’s photographs without having to ask permission or pay fees to Mr. Blanchard’s estate. Original photographs such as the ones taken by Mr. Blanchard are subject to copyright protection, so how did Engaging Columbus use the photographs without permission? The answer comes from the law surrounding copyright duration and expiration. Mr. Blanchard’s photos were published prior to 1923; the photographs are in the public domain and therefore no longer protected by copyright.

What is the public domain?

In the United States, copyright law seeks “to promote the Progress of Science and useful Arts” by providing copyright owners with a number of exclusive rights over their works, for a limited time. By limiting the time in which a work may fall under copyright protection, the law seeks to find the right balance between incentivizing creators to create works and opening works up for the use and benefit of the public. In addition to establishing duration for copyright protection, the law also provides that certain works never receive copyright protection to begin with. The public domain includes works that fall into both of these categories: those in which the copyright has expired and those which never had copyright protection. Works in the public domain can be used by anyone in any way, without any permission required.

Copyright duration has been extended a number of times over the years, and calculating when exactly a work falls into the public domain due to expiration of its copyright can be tricky. The graphic can provide some general guidance. For more information on the public domain, visit our resources page.

When does a work fall within the public domain?

Four trapeziods, positioned sideways and all of a different color, depicting general guidelines for determining when a work falls into the public domain.Trapeziod 1 reads: Prior to 1923, most things published. Trapezoid 2 reads: 1923 to 1978, anything published without a copyright notice. Trapezoid 3 reads: 1978 to 1 March 1989, various conditions apply. Trapezoid 4 reads: On or after 1 March 1989, 70 yrs. after death of author, corporate or anonymous authorship: 95 yrs. from first publication or 120 yrs. from creation date, whichever first.


Digitization as a tool for new scholarship

Scholars around the world are creating tools, digital platforms, websites and documents to help society learn about ourselves. Many like Engaging Columbus are linking the arts, geography, history and sociology, among others, in new and innovative ways. By digitizing works in the public domain, we can provide access to previously unavailable historical, cultural and educational resources, which can have a positive impact on academia. Works such as Mr. Blanchard’s photographs may now reach new audiences and serve as the catalyst for creation and dissemination of new information and perspectives. Building upon and promoting of scholarship is at the heart of the mission of universities and libraries across the country, including The Ohio State University, to advance discovery and learning.

An introduction to the economic and social geography of Columbus, Ohio” is available for viewing in the Architecture Library at the Austin E. Knowlton School of Architecture and will soon be available online through the OhioLINK ETD Center.


By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

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