Author: baird.144@osu.edu

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

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

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

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

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

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

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

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

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

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

A New Tool To Help Figure Out Fair Use

The Copyright Management Office at OSU Health Sciences Library has developed a new, interactive, online version of the Fair Use Checklist. It is available for anyone to use.

The Fair Use Checklist  is designed to help you work through the four fair use factors in order to make a proper assessment.  This version of the checklist is interactive, allowing you to check the options that pertain to your desired use of a copyrighted work. Once you have completed the four sections of the checklist, you get a summary that shows you the overall picture of your analysis. This is a good way to consider the factors as a whole to see if your use may fall under fair use or not. It also gives you a record of your analysis which you could use to possibly defend against a future claim of infringement.  A copy of your checklist can be sent to you by email.

One great feature of this version of the fair use checklist is that it was designed specifically to work with mobile devices. You can access fair use help wherever and whenever you need to on a smart phone or tablet. It can be a useful educational tool to teach students how fair use works. It can be used in meetings when discussing possible projects in your department. You can also access the checklist when traveling to or attending conferences. Or you can get help making fair use decisions for your own scholarly or research projects in the comfort of your office or lab.

Using the checklist does not give you a definitive yes or no answer as to whether or not your intended use of a copyrighted work is fair use. What it does is help you to think through the four factors of fair use and make an educated assessment. It also gives you the opportunity to rethink your use if it appears that what you originally intended to do may not be fair use. You also have evidence that you considered the fair use factors before you used the material.

For information on fair use and other copyright related issues, take a look at the OSU Libraries’ Copyright Resources Center website.  For help with using the checklist or for any other copyright questions you may have, you can call us at 688-5849, email us at libcopyright@osu.edu or email the Copyright Management Office at OSU Health Sciences Library at copyright@osumc.edu.

Copyright Education at OSU Libraries

The Ohio State University Libraries has made significant changes in its copyright educational program in the past several months. The changes began in April when Sandra Enimil started as the Head of the Copyright Resources Center, a new department designed with the purpose of bringing greater outreach to the OSU community on the subjects of copyright and rights management. Along with Sandra, the new Copyright Resources Center includes Shannon Baird, Rights Management Specialist.

Since Sandra’s arrival the Copyright Resources Center has worked to develop a number of improved services to help educate faculty, staff and students about the legal uses of copyrighted materials in their teaching and research. One of the biggest projects so far has been to redesign the Copyright Resources Center website. The goal of this redesign is to improve the quality of information available and make it easier to access.

There are a number of changes in the new version of the website. The pages have been reorganized to deal with specific copyright related topics, such as Fair Use and Author’s Rights. The Fair Use page includes a video that was created in conjunction with the Digital Union as an introduction to the concept of fair use. It is a great resource to use in class as a quick introduction to fair use for students.

There are some additional topics, such as information for Libraries use of copyrighted materials and OSU policies on ownership and using copyrighted works. The new site also includes many more links to online resources for further study.  One can also keep up to date with new developments in copyright by following links to the Copyright Corner blog and Twitter feed, @OSUCopyright.

Please take a look at the new page and let us know what you think. Feedback is welcome on both the information included and the design. Is there a topic that you would like to see covered? Let us know by emailing us at libcopyright@osu.edu.

The Copyright Resources Center is always available to answer questions, provide consultations or present workshops. Send us an email or give us a call at 614-688-5849. You can also stop in and visit our new office located in Suite 221 of Thompson Library.

The Copyright Resources Center is here to help the OSU community!

Private Negotiations Could Affect Public Internet Use

The Trans-Pacific Partnership (TPP) is a free trade agreement that is currently being negotiated on behalf of United States citizens by Assistant U.S. Trade Representative Barbara Weisel. There are currently nine countries involved in the negotiations; an invitation was extended to Mexico and Canada in summer 2012. The TPP includes a section on intellectual property (IP) law and enforcement that could affect privacy, free speech and even the application of fair use online. It is being negotiated entirely in secret and could affect copyright law in all eleven participating countries should they ratify this agreement.

Concerns over the process, as well as the potential outcome, of this trade agreement have been expressed at Electronic Frontier Foundation (EFF), Ars Technica, and Techdirt.  Many concerns about the TPP have to do with the perception that this is yet another attempt to create wide-reaching policies in order to protect the intellectual property of private companies (one of the major issues with the failed SOPA and PIPA proposed bills in Congress).

Another common complaint is about the high level of secrecy under which the negotiations are being held. So far there has been no official release of any text of the TPP draft agreement, although a copy of the U.S. proposed IP chapter was leaked in February 2011. On August 3, 2012, the proposed text of the Exceptions and Limitations section of the IP chapter of TPP was leaked, as well.

Members of Congress, who have jurisdiction over all international trade agreements, have repeatedly requested access to the text of the TPP . So far they have been continuously denied. U.S. House Representative Darrell Issa (R-CA), whose constituency includes San Diego, requested permission to sit in on the round of negotiations that was held there in July 2012, but he was also denied.

Although Mexico and Canada were both invited to join the TPP agreement, they were required to sign on without seeing the agreement first and without having the option to negotiate any already agreed upon portions. Additionally, a 90 day probationary period kept both countries from participating in the last two rounds of negotiations which were held in June and September 2012. Michael Geist, a law professor at the University of Ottawa and expert on Canadian copyright law, has expressed concern that if Canada signs on to the TPP, the newly updated Canadian copyright law would have to be drastically rewritten.

The public is also being locked out of the TPP negotiation process. On September 9, 2012, at the most recent round of negotiations held in Leesburg, Virginia, the public was invited to speak with negotiators and ask questions. Unfortunately, the public groups were not given access to the text on which they were supposed to provide feedback. According to EFF and Techdirt, the negotiators also refused to respond to questions based upon the leaked texts, which are the only versions available to the public.

If ratified, the terms of the TPP could require Congress to change U.S. law, including copyright law. The American public should have the opportunity to give input on any changes to U.S. law. These secret negotiations continue to block public discourse and may cause irreparable harm to the individual use of the Internet.

For a more complete look at the TPP itself, take a look at Public Knowledge’s TPP Info page and EFF’s TPP page. If you would like to express concern about the lack of transparency involved in the TPP negotiations, you can go to the EFF’s Take Action page, or you can sign the petition at Stop the Trap.