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The Ohio State University Libraries and the Health Sciences Library Announce a Pilot Program to Combine Copyright Services

The one-year pilot program, beginning September 1, 2016, will consolidate services across the two offices, making the University Libraries’ Copyright Resources Center the single access point for copyright questions and copyright consultation requests from faculty, staff, and students of the university. The Health Sciences Library will provide financial support to the Copyright Resources Center to offset the costs of adding services for Health Sciences Library patrons. The pilot program will be evaluated at the six and twelve month mark.

The partnership is an extension of the existing collaborations between the Health Sciences Library and University Libraries’ copyright units. The pilot program aims to minimize patron confusion on where to go with copyright questions, supporting the university’s value of collaborating as “One university.”

For further information about the pilot program, please contact libcopyright@osu.edu.

Articles of Interest: January-June 2016

This post highlights articles published in the first half of 2016 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!

Copyright

Albanese, A. (2016). Google case ends, but copyright fight goes on. Publishers Weekly263(17), 4-6. [OSU full text] / [OA full text]

Aufderheide, P., & Sinnreich, A. (2016). Documentarians, fair use, and free expression: Changes in copyright attitudes and actions with access to best practices. Information, Communication & Society19(2), 178-187. doi:10.1080/1369118X.2015.1050050 [OSU full text]

Hellyer, P. (2016). Who owns this article? Applying copyright’s work-made-for-hire doctrine to librarians’ scholarship. Law Library Journal, 108(1), 33-54. [OSU full text] / [OA full text]

Hess, J., Nann, A., & Riddle, K. (2016) Navigating OER: The library’s role in bringing OER to campus. The Serials Librarian, 70:1-4, 128-134. doi:10.1080/0361526X.2016.1153326 [OSU full text]

Pike, G. H. (2016). Trans-Pacific Partnership: The devil in the details. Information Today33(1), 1-25. [OSU full text]

Libraries

Banks, M. (2016). What Sci-Hub is and why it matters. American Libraries47(6), 46-48. [OSU full text]

Dygert, C., & Barrett, H. (2016) Building your licensing and negotiation skills toolkit. The Serials Librarian, 70:1-4, 333-342. doi: 10.1080/0361526X.2016.1157008 [OSU full text]

Enis, M. (2016). Please rewind. Library Journal141(10), 45-47. [OSU full text]

Finley, T. K. (2016). The impact of 3D printing services on library stakeholders: A case study. Public Services Quarterly, 12(2), 152-163. doi:10.1080/15228959.2016.1160808 [OSU full text]

Graham, R. G. (2016). An Evidence-Informed Picture of Course-Related Copying. College & Research Libraries77(3), 335-358. [OSU full text] / [OA full text]

Lipinski, T. A., & Chamberlain Kritikos, K. (2016). Copyright reform and the library and patron use of non-text or mixed-text grey literature: A comparative analysis of approaches and opportunities for change. Grey Journal (TGJ), 12(2), 67-81. [OSU full text]

Luo, L., & Trott, B. (2016). Ethical issues in reference: An in-depth view from the librarians’ perspective. Reference & User Services Quarterly55(3), 189-198. [OSU full text] / [OA full text]

Nilsson, I. (2016). Developing new copyright services in academic libraries. Insights: The UKSG Journal29(1), 78-83. doi:10.1629/uksg.276 [OSU full text] / [OA full text]

Publishing & Scholarly Communication

Beard, R. M. (2016). An investigation of graduate student knowledge and usage of open-access journals. Journal of Electronic Resources Librarianship28(1), 25-32. doi:10.1080/1941126X.2016.1130453 [OSU full text]

Bennett, L., & Flanagan, D. (2016). Measuring the impact of digitized theses: A case study from the London School of Economics. Insights: The UKSG Journal29(2), 111-119. doi:10.1629/uksg.300 [OSU full text] / [OA full text]

Schlosser, M., (2016). Write up! A study of copyright information on library-published journals. Journal of Librarianship and Scholarly Communication. 4, p.eP2110. doi:10.7710/2162-3309.2110 [OA full text]

Sims, N. N. (2016). My unpublished research was scooped? College & Research Libraries News77(6), 296-301. [OSU full text] / [OA full text]

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

Copyright Roundup, Part III

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis.  The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library.  In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development.  In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work.  Take for example, the simple task of printing this blog post.  Think about what’s really happening.  The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer.  Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies.  However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development.  Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration.  This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

Continue reading

Copyright in Comedy

Comedian Conan O’Brien made news last summer when he found himself the subject of a lawsuit alleging copyright infringement for the use of four jokes in his opening monologues.[1] The jokes were previously published on the personal blog and Twitter account of comedic writer Robert Kasberg. While most accusations of joke theft do not result in the legal action faced by Conan O’Brien, accusations themselves are not atypical in the world of comedy. D.L. Hughley, George Lopez, Robin Williams, Carlos Mencia, Milton Berle, Chris Rock, Dane Cook, Denis Leary, and Amy Schumer are just a handful of comedians who have been the subject of such accusations.

If these accusations are founded in instances of actual unauthorized reuse of material, what legal protections or avenues for recourse do comedians have to protect their comedic works? In this blog post we will look at what rights and challenges comedians face in protecting their works under U.S. copyright law.

 

Copyright Protection for Jokes

Can you copyright a joke? Like many questions in copyright law, the answer is “it depends.” Under U.S. Copyright Law, original works of authorship that are fixed in a tangible medium of expression are eligible for copyright protection. While many jokes and comedic routines may meet these requirements, there are a number of initial barriers to protection that authors may face.

Originality: Originality requires that a work be independently created and have a minimal degree of creativity.[2] Comedic works do not need to be novel to receive copyright protection, but the author must create the work without copying the original expression of another. When similar jokes are both based on a current event, for example, is it more likely that both comedians based their comedic material on a common news source, rather than the other’s original material. Works must also possess at least a spark of creativity. While the requisite level of creativity is low, copyright will not protect ideas (including narrative structure or general plotlines), concepts, or common themes.

In addition, there may be situations in which there are only a limited number of ways to express an idea. If this situation exists, the idea merges with the expression, and the expression becomes uncopyrightable (this is referred to as the merger doctrine in copyright law). Similarly, copyright will not protect standard expressions or stock characters or events that are ordinary to a particular subject matter (this is referred to as the scènes à faire doctrine in copyright law). The structure of a knock-knock joke, for example, cannot be copyrighted.

Fixation: Fixation requires a work to be permanent enough to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. The work must be embodied in a material object by or under the authority of the author. This may include written text (e.g., a book, script, or Tweet), a recorded podcast, DVD, or even a live broadcast.[3] Despite the many ways in which a work may be fixed, comedians may not satisfy the fixation requirement in cases of unrecorded improvisation or live routines. Comedians may also face issues as they adapt and modify their routines over time or if their routine changes based on an unpredictable element, such as audience interaction.

 

Increasing Reliance on Social Norms

Given these initial barriers, some jokes may not qualify for copyright protection or the copyright protection received may be fairly thin. This reality aligns with the findings of a major study conducted by Dotan Oliar and Christopher Jon Sprigman that analyzed how stand-up comedians protect their jokes.[4] Following a series of interviews with comedians, Oliar & Sprigman found that most comedians are not relying on the formal legal protections of copyright law to protect their works, and instead rely on a system of somewhat recently developed social norms. These social norms developed contemporaneously with a change in the nature of stand-up comedy—comedians are now investing more effort in the development of original textual material and investing less effort to the performance element of their routines.

Of the norms identified, the most prominent norm governing the behavior of stand-up comedians is the norm against appropriation, the violation of which is often detected by fellow comedians viewing peer performances.[5] While the initial step to enforcing this norm is negotiation (the author of the work will request for the appropriator to cease using the material), the norm may also be enforced through informal sanctions, including attacks on reputation and refusals to deal, both of which may result in limited work opportunities for the appropriator.[6]

A reputation as a joke thief can have a disastrous impact on a comedian’s career. Because the comedic community is relatively small, reputation and respect among peers is of great importance. Comedians retaliating against alleged joke theft may refuse to share the same bill as the accused and booking agents and club owners may refuse to engage with the alleged thief.  These refusals to deal directly hamper an individual’s ability to find work and build a fan base.

Additional findings from the study reveal private enforcement to be a more legitimate response to the violation of the norm than public enforcement, with comedians revealing themselves to be unreceptive to the appropriation of comedic ideas, even when such ideas would fall outside the scope of copyright protection.[7] Unlike copyright, the norm against appropriation has no term limit (at no point do jokes become free to use as works in the public domain may be freely used) and the norm is less likely to be successfully enforced when the alleged joke thief has a reputation as a more popular comedian that the accuser.[8]

Additional norms include a norm against joint authorship (the comedian who comes up with the premise of the joke is the owner of the joke), a norm regarding priority (the comedian who can present evidence of first performance is given priority), a norm regarding works made for hire (parties who pay for a joke own it, even if conditions for a work made for hire are not met), and a norm regarding transfers (oral agreements are enough to divest copyright ownership).[9] For comedians, these social norms function to fill the gaps left by a cost-prohibitive legal system, while arguably providing more incentive to generate new comedic material.

 

Shifting Norms & the Future Role of Legal Enforcement

New technologies may allow comedians to more clearly establish public timelines, evidence of independent creation of jokes, and fixation of comedic material. These new technologies and services may also provide easier avenues for copyright enforcement through automated or streamlined takedown processes designed to protect the interests of copyright owners.  Freelance writer Olga Lexell, for example, was able to rely on such a process last July when she found her jokes reposted across Twitter. After a simple takedown request, Twitter removed the allegedly infringing content.[10]

The social norms detailed in Oliar & Sprigman’s study were published in December 2008; four years after the launch of Facebook, three years after the launch of YouTube, two years after the launch of Twitter, and two years prior to the launch of Instagram. As public recordation and enforcement becomes easier through the adoption of these social media platforms, it remains to be seen how, if it all, the cultural norms already relied on within the industry will shift.

It is possible that these new technologies and services will make formal legal enforcement more attractive to comedians. Or perhaps the same or new social norms, or the adoption and enforcement of these norms by a comedian’s social media followers or the general public, will continue to provide an effective alternative or supplementary form of enforcement for both allegations of copyright infringement and broader claims of plagiarism.

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

 

[1] Kaseberg v. Conaco, LLC et al., Case No. 15-CV-01637-JLS-DHB, U.S. District Court for the Southern District of California (2015).

[2] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991).

[3] The term fixed is defined to include “[a] work consisting of sounds, images, or both, that are being transmitted…simultaneously with its transmission.” 17 U.S.C. § 101.

[4] Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008).

[5] Id. at 1812.

[6] Id. at 1815.

[7] Id. at 1821–22.

[8] Id. at 1824.

[9] Id. at 1825–31.

[10] Laura Sydell, Twitter Takes Down Unoriginal Jokes, But All of Yours Are Probably Safe, NPR (July 28, 2015), http://www.npr.org/sections/alltechconsidered/2015/07/28/426900829/twitter-takes-down-unoriginal-jokes-but-all-of-yours-are-probably-safe.

Google Launches YouTube Fair Use Protection Program

On November 19, 2015, Google announced  the launch of a new Fair Use Protection Program, promising to provide legal support for a select group of videos determined by Google to represent “some of the best examples of fair use.”[1] Videos selected for inclusion in the program will be kept live on YouTube in the U.S. and will be featured as strong examples of fair use in YouTube’s Copyright Center. In addition, should the selected videos be subject to a lawsuit for copyright infringement, Google will provide up to $1 million to cover legal fees.[2] In celebration of Fair Use Week 2016, we are looking more closely at the videos Google has selected for inclusion in its Fair Use Protection Program and discussing what impact the program may have for content creators on YouTube.

The Four Factors of Fair Use

Fair use is found in Section 107 of the U.S. Copyright Act and functions to limit the exclusive rights of a copyright owner. If the use of a work is a fair use, no permission is required from the copyright owner to use the work—the law states that a fair use of a copyrighted work is not an infringement of copyright. The law provides a number of different illustrative examples of potential fair uses, including use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Ultimately, however, it is up to a court to decide if a use is a fair use. Courts consider and weigh four factors in light of copyright’s purpose of promoting science and the arts, in order to make a fair use determination. These four factors include:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

You can learn more about these four factors by visiting go.osu.edu/fairuse.

Looking at the Selected Videos

Google selected an initial four videos for inclusion in the Fair Use Protection Program. In viewing the videos, what are some of the factors that may make these four videos stand out to Google as strong examples of fair use?

 

1. “Raging Citizens/The Simplest Game- Everything is Not Perfect,” a 5 minute video uploaded by Jim Sterling, includes complete trailers from two video games released by MOO Tech: Raging Citizens and The Simplest Game. Included with the two trailers is audio commentary, provided by Mr. Sterling, and a screen shot of negative comments made against MOO Tech on a user forum.

Factors favoring fair use:  Mr. Sterling’s own video served as a criticism of both MOO Tech video games, making his use of the works transformative. The previously published trailers were shown in their entirety in order to comment on the inappropriate inclusion of content, the ambiguous directions provided, and the overall ineffectiveness of the trailers to garner interest in the video games or support the asserted simplicity of the product. While this criticism may cause harm to the market for the video games, this is not the type of harm courts are concerned with under the fourth factor—courts focus on the harm caused by usurping demand rather than the harm caused by suppressing demand.

2. “Speedebunking: Mister UFO,” uploaded by UFOTheater, is a video that features a video clip originally uploaded to YouTube by Mister UFO. The clip in question is alleged live footage of UFO activity. The original clip from Mister UFO, approximately 18 seconds long, is shown multiple times and is accompanied by audio commentary from UFOTheater.

Factors favoring fair use: Like other videos posted on its YouTube channel, UFOTheater used the previously published Mister UFO clip in order to provide criticism of a work they identified as a UFO hoax. While a large majority of the original work was used, such an amount was necessary to support the criticism that the original video was a 100% computer generated shot and not actual live footage. In the new video, clips from the original video were paused and enlarged as UFOTheater directed the viewer’s attention to elements of the recording requiring further analysis. In addition, the name of the original video was provided in the original box, making it easier for others to locate the work.

3. “Questionable questions,” uploaded by NARAL Pro-Choice Ohio, features short clips of Ohio Channel’s footage of an Ohio House Finance Committee hearing. The clips include testimony from two sixth-grade girls speaking on the issue of funding for arts programs in their school district, as well as responses from select representatives. Clips from two representatives include comments and questions related to the “recruiting” of the girls for potential dating relationships with representatives’ grandsons.

Factors favoring fair use: The clips are used to comment on the appropriateness (or lack thereof) of questions posed by representatives to the girls testifying before the Committee. The clips were punctuated with still frames of text explaining what is happening in the hearing in order to direct the viewers’ attention to the content of the questions being asked. The video ends with a final question; “Can’t girls come before the Ohio General Assembly without facing questions on their marriage prospects?” The hearing video was previously published on the Ohio Channel website and is likely to be considered a more factual-based work. In addition, Ohio Channel’s entire hearing video totaled over five hours, approximately three minutes of which was included in the video uploaded to YouTube by NARAL Pro-Choice Ohio. A link to the original video was also provided.

4. “Rachel Dolezal White NAACP President Passing As Black,” uploaded by KevOnStage, features a number of pieces of media, including interview footage, copies of photographs, and screenshots of Instragram and Facebook posts. These works are featured alongside video and audio commentary from KevOnStage explaining recent allegations that Rachel Dolezal, a local NAACP chapter president, had lied about her race.

Factors favoring fair use: KevOnStage’s use of previously published copyrighted content was done for the purpose of news reporting, education, and commentary. The inclusion of all of the media was used to establish a pattern of false representation from Ms. Dolezal—she had continuously presented herself as black though it had been revealed by her own parents that she was born white. Use of entire photographs or written posts was needed in some instances to show the full context of the image or message. In other instances, only clips or cropped versions of works were presented, including 30 seconds of a 9 minute interview. KevOnStage also used the content as a basis for future discussion, prompting viewers to provide their own thoughts on the issue.

How Are Content Creators on YouTube Impacted?

YouTube is a platform that provides a way for content creators and users to share creative works that include music, images and videos. The Fair Use Protection Program serves as a useful educational tool for copyright owners whose content has been used by others. As Google acknowledges in their Copyright Center, sometimes takedown requests target videos that are more obvious examples of fair use. While copyright owners have a number of exclusive rights in their copyrighted works, the law carves out many authorized uses that do not require permission from the copyright owners. A fair use of a work is a use that is authorized under the law. And as held recently by the Ninth Circuit, copyright owners must consider fair use before sending a DMCA takedown notice.

Google’s actions are an acknowledgement and affirmation of the importance of fair use in U.S. copyright law and are motivated by the recognition that potential litigation and takedown processes can be confusing and consequently frightening experiences for creators faced with accusations of infringement.

With the large amount of videos uploaded to YouTube every day, Google cannot provide legal protection to all videos that are likely to qualify as a fair use. Google’s selection of a handful of videos, however, provides content users and creators more information and direction on their rights under U.S. law and the important role fair use plays in promoting the purpose of copyright. While fair use is ultimately decided by the court, users may refer to the videos as visual examples of works that encapsulate factors courts have regularly held to favor fair use.

Check out the many Fair Use Week 2016 events by visiting fairuseweek.org and join us on Twitter (@OSUCopyright) for a celebration of fair use throughout the week!

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

[1] Fred von Lohmann (2015, Nov. 19). A Step Toward Protecting Fair Use on YouTube. Retrieved from http://googlepublicpolicy.blogspot.com/2015/11/a-step-toward-protecting-fair-use-on.html.

[2] YouTube’s Fair Use Protection. Retrieved from https://youtube.com/yt/copyright/fair-use.html#yt-copyright-protection.

Articles of Interest: July-December 2015

This post highlights articles published in the second 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!

Copyright

Datig, I., & Russell, B. (2015). “The fruits of intellectual labor”: International student views of intellectual property. College & Research Libraries76(6), 811-830 [OA full text] [OSU full text]

Franklin, T. (2015). Copyright and fair use in the digital age. EContent38(7), 8-10. [OSU full-text]

Gordon-Murnane, L. (2015). Copyright tools for a digitized, collaborative culture. Online Searcher39(6), 28-52. [OSU full-text]

Muriel-Torrado, E., & Fernández-Molina, J. (2015). Creation and use of intellectual works in the academic environment: Students’ knowledge about copyright and copyleft. Journal of Academic Librarianship41(4), 441-448. [OSU full-text] ­­­­

Owen, L. (2015). Fair dealing: A concept in UK copyright law. Learned Publishing28(3), 229-231. doi:10.1087/20150309 [OSU full-text]

Shan, L. (2015). Conditional access to music: Reducing copyright infringement without restricting cloud sharing. International Journal of Law & Information Technology23(3), 235-260. doi:10.1093/ijlit/eav008 [OA 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]

Libraries

Christou, C. (2015). Mass digitization and copyright. Information Today32(10), Cover-29. (Periodical) [OSU full-text]

Kawooya, D. k., Veverka, A. a., & Lipinski, T. 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]

Riley-Reid, T. D. (2015). The hidden cost of digitization – things to consider. Collection Building, 34(3), 89-93. doi:10.1108/CB-01-2015-0001 [OSU full-text]

Schmidt, L., & English, M. (2015). Copyright instruction in LIS programs: Report of a survey of standards in the U.S.A. Journal of Academic Librarianship41(6), 736-743. doi:10.1016/j.acalib.2015.08.004 [OSU full-text]

Wang, Y., & Yang, X. (2015). Libraries’ positions on copyright: A comparative analysis between Japan and China. Journal of Librarianship & Information Science47(3), 216-225. [OSU full-text]/[OA full-text]

Publishing & Scholarly Communication

Quinn, M. M. (2015). Open access in scholarly publishing: Embracing principles and avoiding pitfalls. Serials Librarian69(1), 58-69. [OSU full-text]

Sims, N. (2015). It’s all the same to me! Copyright, contracts, and publisher self-archiving policies. College & Research Libraries News76(11), 578-581. [OA full-text] / [OSU full-text]

Wassom, B. (2015). Navigating the rights and risks in social reading. Publishing Research Quarterly31(3), 215-219. doi:10.1007/s12109-015-9415-6 [OSU full-text]

Wilson, V. v. (2015). The open access conundrum. Evidence Based Library & Information Practice10(3), 116-118. [OSU full text] (From recurring Research in Practice column)

Legislation & Policy Developments

Christou, C. (2015). Copyright independence. Information Today32(7), 1-25. [OSU full-text]

Epperson, B. (2015). Copyright & fair use. ARSC Journal46(2), 293-300. [OSU full-text] (Recurring column in non-traditional academic journal)

Stannard, E. (2015). A copyright snapshot: The impact of new copyright legislation on information professionals. Legal Information Management15(4), 233-239. [OSU full text]

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

New iTunes U Course on Copyright

Copyright can be a difficult area of the law to navigate for instructors and can at times serve as a barrier for instructors who are reluctant to include content in their courses or teaching materials for fear of infringement.  To help provide guidance in this area, we have created Copyright in the Classroom, a self-paced iTunes U course that introduces basic copyright concepts all instructors should know. Topics include fundamental principles of U.S. copyright law, rights reserved for instructors as content creators, and permissible use of copyrighted content in different teaching contexts.

At the completion of the course, participants should be able to utilize the resources and information provided to:

  • Recall the requirements for copyright protection;
  • Recognize the exclusive rights provided to a copyright owner;
  • Identify the copyright owner of a work;
  • Assess which statutory exceptions may permit an intended use of a copyrighted work;
  • Locate public domain and openly licensed works and summarize the conditions for the use of such works;
  • Evaluate whether an intended use may constitute fair use and explain the ways in which a fair use argument could be strengthened; and
  • Outline the process for seeking permission to use a copyrighted work.

To view a course description and subscribe (you’ll need to download iTunes), visit https://itunes.apple.com/us/course/copyright-in-the-classroom/id1071533208.

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

New DMCA Exemptions

In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) to implement the terms of two international treaties: the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. Included in the DMCA is a provision that prohibits individuals from circumventing access controls that have been placed on copyrighted works. Every three years the Librarian of Congress engages in a rulemaking process to carve out exemptions to this general prohibition. This blog will look at the most recent exemptions, with particular focus on the exemptions most likely to impact teaching and learning activities of faculty, staff, and students.

Section 1201: Prohibition Against Circumvention

Section 1201(a) of the U.S. Copyright Law prohibits individuals from circumventing technological protection measures (TPMs) that are in place to effectively control access to a copyrighted work. Under this anti-circumvention rule, a person could face civil and in some cases criminal penalties for bypassing, decrypting, descrambling, removing, deactivating, impairing, or otherwise avoiding protection measures that are commonly placed on all types of media, if the circumvention is done without the authority of the copyright owner. These penalties may exist even if the circumvention is done to access and use a work in a non-infringing manner (e.g., making a fair use of the work).

Every three years, however, the Librarian of Congress identifies classes of copyrighted works that may be exempt from this anti-circumvention rule. Exemptions are based on recommendations from the Register of Copyrights and are valid only for a three-year period. At the end of the three year period, the exemption expires, unless successfully renewed in the next rulemaking cycle. Exemptions cover classes of works for which the Librarian of Congress has determined non-infringing uses of the work would be adversely affected by the circumvention prohibition.

2015 DMCA Exemptions

On October 28, 2015, the final rules from the most recent triennial proceeding were announced.[1] The final rules included a total of ten exemptions (a summary of all of the exemptions may be found here):

  1. Motion pictures (including television shows and videos)
  2. Literary works, distributed electronically, protected by TPM interfering with assistive technologies
  3. Computer programs that enable devices to connect to a wireless network (“unlocking”)
  4. Computer programs on smartphones and all-purpose mobile computing devices (“jailbreaking”)
  5. Computer programs on smart TVs (“jailbreaking”)
  6. Vehicle software to enable diagnosis, repair, or modification
  7. Computer programs to enable good faith research of security flaws
  8. Video games requiring server communication
  9. Software to limit feedstock of 3D printers
  10. Patient data from implanted networked medical devices

As seen in previous rulemaking proceedings, the final exemptions are narrowly crafted, coming with restrictive details on their appropriate application.  A few of the exemptions, however, may provide useful for the educational activities undertaken by faculty, staff, and students of the University.

Motion pictures (including television shows and videos): This exemption is similar to the exemption granted in the previous rulemaking process. Under this exemption, non-circumventing screen capture software may be used to copy short portions of lawfully acquired motion pictures. These short portions must be used for the purposes of criticism or comment and may only be used in a limited number of specific settings, including use by college and university faculty and students for educational purposes. Short portions may also be used by faculty of MOOCs (provided other restrictions are met) and educators and participants in face-to-face nonprofit digital and media literacy programs offered by libraries and museums.

In some situations, screen capture technology may not be capable of capturing the level of high-quality detail needed for commentary or criticism. For these situations, circumvention may be permitted by college and university faculty and students, but only for film studies or other courses requiring close analysis of film and media excerpts. Circumvention in these situations is also limited to circumvention of TPMs on DVDs protected by Content Scrambling System, Blu-ray videos protected by Advanced Access Control System, or digital transmissions. As with screen capturing, mentioned above, only short portions of the motion picture can be used and only for the purpose of criticism or comment.

Literary works, distributed electronically, protected by TPM interfering with assistive technologies: This exemption permits a blind or other person with disability to circumvent TPMs on e-books when those TPMs interfere with read-aloud functionality or other assistive technologies. Copyright owners must be appropriately remunerated for the price of the mainstream copy of the work. This exemption was a renewal of a 2012 exemption and received no opposition.

Video games requiring server communication: This exemption permits circumvention of lawfully acquired video games when access to an external server that is needed for local gameplay is no longer provided. Circumvention must be made solely for the purpose of restoring access for personal gameplay or to allow preservation of the game by eligible libraries, archives, or museums.[2]

Software to limit feedstock of 3D printers: This exemption permits the circumvention of computer programs in 3D printers in order to use alternative feedstock. The exemption does not extend to 3D printers capable of producing goods or materials for use in commerce or goods and materials whose production is subject to legal or regulatory oversight, making the exemption extremely limited in scope.

What does it all mean?

For the next three years, you may rely on the exemptions listed above to circumvent TPM on various forms of copyrighted works. If you would like to descramble, decrypt, remove, or deactivate an access control on a copyrighted work and you cannot rely on one of the exemptions to do so, you must seek permission from the copyright owner of the work.

These exemptions have the effect of promoting access to works, helping to facilitate the non-infringing use of these works in everyday teaching and learning activities. In three years, however, all exemptions will expire and proponents will have to petition to receive new exemptions as part of a new rulemaking process.

It is also important to remember that these exemptions only cover the circumvention of TPMs that are placed on a work to control access. Once TPMs have been circumvented, you must still ensure that your intended use of the copyrighted work is permissible under the law (e.g., meets all requirements of the TEACH Act or qualifies as a fair use).

Conclusion

Many have voiced the opinion that the DMCA exemption process, as designed, is in need of reform.[3] The process is time-consuming, involving multiple rounds of public comments, hearings, and opportunities for response. The result is a handful of exemptions that only remain valid for a relatively short amount of time. In this rulemaking round, for example, multiple exemptions were sought to simply renew already existing exemptions. To address this issue and streamline the rulemaking process, the Register of Copyright has suggested that a presumption be made in favor of the renewal of exemptions when no meaningful opposition to the renewal has been raised. Further public input on the DMCA rulemaking process is currently being sought by the U.S. Copyright Office.[4]

DMCA’s anti-circumvention rule continues to impact many different types of works and is increasingly impacting activities that don’t fall neatly into the realm of the U.S. Copyright Office’s area of expertise (e.g., the modification of software in motor vehicles or software within patient medical devices). As noted by the Copyright Office, these activities may be more properly handled by Congress or relevant regulatory agencies.

___________________________________________________________________

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

[1] Full text of the final rules, public comments, hearing transcripts and exhibits, and the Register’s recommendations may be found at http://www.copyright.gov/1201/.

[2] While this exemption is applicable to museums, it is worth noting that museums must have permission or rely on fair use to make copies of games for purposes of preservation. Unlike libraries and archives, museums do not enjoy special protection for reproductions under Section 108.

[3] See, e.g., “Re:Create Coalition Reacts to Copyright Exemptions Released By The Library of Congress,” Press Release (October 28, 2015).

[4] Section 1201 Study: Notice and Request for Public Comment, 80 FR 81369 (Dec. 29, 2015), available at https://federalregister.gov/a/2015-32678.

Exploring Challenges and Opportunities Surrounding Our Collections of Recorded Student Musical Performances

The OSU Music and Dance Library has a sizable collection of recorded student musical performances encompassing individual students’ recitals and ensemble performances. The collection exists on a variety of media, some of which is deteriorating, is anticipated to deteriorate within the foreseeable future or is in an obsolete format . The Music and Dance Library is working with the Copyright Resources Center to explore options for preserving these artifacts of scholarly and creative activities at The Ohio State University and making them available for research and education.

As part of our initial information gathering, we collaborated with Alan Green and Sean Ferguson at the Music and Dance Library to craft an informal survey that would be sent their colleagues at other institutions on managing rights issues for similar collections. Based on the results of this survey, we found that other institutions are facing the same questions and conundrums and many survey participants indicated that they are also in the early or exploratory stages of developing or implementing plans for managing their collections of recorded student musical performances. While this appears to be an area of interest for many libraries, it will require further development and study within the profession before significant trends and community practices begin to emerge.  Though we are still gathering information, we have a few initial thoughts to share.

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Copyright Roundup, Part II

In Copyright Roundup Part I we discussed the fair use of an “aesthetically displeasing” photograph, copyright protection for cheerleading uniforms, and copyright ownership for non-human authors. In this post we will discuss the latest development in the Google Books litigation, fair use considerations in issuing DMCA takedown notices, and the public domain status of Happy Birthday to You.

Another fair use win for Google in most recent Google Books lawsuit.

Many of our readers are familiar with the Google Books litigation which began in 2005 when a number of publishers and the Authors Guild brought separate lawsuits against Google for Google’s Library Project.[1]  As part of the project, Google partners with research libraries to digitize works in the participating libraries’ collections. Digital scans of books are indexed and added to Google Books, providing the public with the ability to do full-text searches of terms within the books. Users can use the full-text search function in Google Books to determine how many times a particular term appears in any book within the Google Book collection. Absent an agreement with the copyright owner, Google does not provide the full scans to the public. Users can, however, see snippets of text containing the searched-for terms. Additionally, Google provides a digital copy of the scanned book back to the submitting library.

On October 16, 2015, the Second Circuit affirmed the lower court’s decision, holding Google’s digitization activities to be a transformative fair use. In analyzing the fair use factors, the court identified Google’s new purpose in providing otherwise unavailable information about the books, allowing users to identify works that include (and do not include) terms of interest. The court also found the snippet view to add important value to the search function, providing users with the context necessary to determine if the book fell within their scope of interest. While Google is a for-profit company, the Google Books project is provided as a free service without advertising. The court found Google’s ultimate profit motivation was not enough to deny a fair use finding in light of other factors, including its transformative purpose in using the works.

The court held that use of the entire work was reasonably appropriate to achieve the transformative purpose of enabling a full-text search function. For the snippet view feature, Google had a blacklisting process in place to permanently block about 22% of a book’s text from snippet view. In addition, researchers for Authors Guild were only able to access an aggregate of 16% of a text. The fragmented and scattered nature of the snippets results in an insubstantial amount of the work being displayed.

The court held the search and snippet view functions did not serve as a competing substitute for the original works. While snippet view may cause some loss of sales it did not rise to the level of meaningful or significant effect upon the potential market or value of the copyrighted work required to tilt the fourth factor in favor of the Authors Guild.

Finally, the court held that providing library partners with the digital copies of the works in their own collections was not infringing. Whether the libraries would then use the copies for infringing purposes was mere speculation and insufficient to place Google as a contributory infringer.

Why does it matter?

Despite ongoing litigation, Google continued their partnerships with libraries to digitize works in library collections, meaning they faced huge potential costs in damages. Consequently, this decision was a big fair use for Google, partnering libraries, and the public who use Google Books.

In his opinion, Judge Leval emphasized the goal of copyright to expand public knowledge and understanding, making the public, rather than the individual author or creator of a work, the primary beneficiary of copyright. Google’s activities served this goal. Public knowledge was augmented by making available information about the scanned books without serving as a substantial substitute for the copyrighted works.

The Authors Guild has indicated their intention to appeal the ruling but it will be up to the U.S. Supreme Court to decide whether they will hear the case.

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