Tag: treaties

Back to the Basics with Copyright Law

Today is the 9th anniversary of the Copyright Corner blog, with the first post (Why Copyright Education?) published back in August of 2009. Since then, we’ve had posts covering a wide-range of issues; from copyright protection for patterns and DMCA exemptions to copyright issues faced by units across OSU Libraries and tips on finding a copyright owner. For this post, we are going back to the basics and looking at some of the fundamentals of copyright law in the United States.

Why do we have copyright?

There are a number of theories on the purpose of copyright. Countries may have laws that encompass one or more of these theories.

One common theory for the purpose of copyright is utilitarian. Under this theory, we provide authors a copyright in the works they create as an incentive to create and disseminate new works. The law is organized to promote the collective welfare of society, but recognizes that unless creators can recoup the costs involved in the creation and dissemination of their works, they won’t produce the works. Copyright gives to authors and creators exclusive rights in the works they create, which in turn allows them to suppress competition for a limited time.

Much of U.S. copyright law seems to align with this theory, with Article I, Section 8, Clause 8 of the U.S. Constitution granting Congress the power “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”

Another theory for the purpose of copyright is the author’s rights theory. Under this theory, the primary purpose of copyright is to recognize and protect the emotional bond between artists and their creations, acknowledging creative works as manifestations and extensions of their author’s personality. Countries whose laws are influenced by this theory may provide moral rights for authors and creators that exist separately from economic rights.

What exactly is copyright and how do you get it?

Copyright is a legal right that allows creators and authors the ability to control certain uses of their works. The owner of a copyright has a number of exclusive rights that are provided under the law (these rights are discussed below).

In the U.S., copyright protects original works of authorship that are fixed in a tangible medium of expression and copyright exists at the moment of fixation. In other words, copyright protection is automatic.

Including a copyright notice (e.g., © 2018 The Ohio State University) is optional for works created today but there can be some advantages to including a notice on your copyrighted work. And registration with the U.S. Copyright Office? That’s also an optional step that provides some important benefits to copyright holders.

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Articles of Interest: January-June 2018

This post highlights articles published in the first half of 2018 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!


Benson, S. R.  (2018).  Sports  uniforms  and  copyright:  Implication for applied  art  educators  from  the  Star  Athletica  decision. Journal of Copyright in Education and Librarianship, 2(1), 1–7. doi:10.17161/jcel.v2i1.6575 [OA full text]

Carlstone, J., Stein, A., Norman, M., & Wilkin, J. (2018) Copyright renewal of U.S. books published in 1932: Re-analyzing Ringer’s study to determine a more accurate renewal rate for books. College & Research Libraries, [S.l.], v. 79, n. 5, p. 697. doi:10.5860/crl.79.5.697. [OA full text]

Harbeson, E. J. (2018). Bridge over Bridgeport: An incremental change in case law of sampling. ARSC Journal 49(1), 41–46. [OA full text]

Pike, G. H. (2018). Legal limits to linking challenge social media. Online Searcher42(3), 36-38. [OSU full text] / [OA full text]

Willi Hooper, M. (2018). Copyright for movie night: Film screenings on campus. Journal of Copyright in Education and Librarianship, 2(1), 1–17. doi:10.17161/jcel.v2i1.6576 [OA full text]

Legislation & Policy Developments

Hines, S., & Russell, C. (2018). Washington Hotline: Music copyright legislation proceeding. College & Research Libraries News79(4), 205. [OSU full text] / [OA full text]

Peet, L. (2018). Marrakesh Treaty Act introduced. Library Journal143(7), 10-11. [OSU full text] / [OA full text]


Algenio, E. (2018). Making the transition as the new copyright librarian. Journal of Copyright in Education and Librarianship, 2(1), 1–24. doi:10.17161/jcel.v2i1.6579 [OA full text]

Ensign, D. (2018). Copyright Corner: Library reproduction and distribution of older copyrighted materials. Kentucky Libraries82(1), 2-3. [OSU full text]

Goben, A., & Doubleday, A.F. (2018).  Copyright in the health sciences literature: A narrative review. Journal of Copyright in Education and Librarianship, 2(2), 1-26 . doi:10.17161/jcel.v2i2.6654 [OA full text]

Lewin-Lane, S., Dethloff, N., Grob, J, Townes, A., & Lierman, A. (2018). The search for a service model of copyright best practices in academic libraries. Journal of Copyright in Education and Librarianship, 2(2), 1-25. doi:10.17161/jcel.v2i2.6713 [OA full text]

Thomas, C. (2018). In depth: Interactive copyright education for 3D objects. Journal of Copyright in Education and Librarianship, 2(1), 1–17. doi:10.17161/jcel.v2i1.6577 [OA full text]

Publishing & Scholarly Communication

Charlton, J. (2018). Elsevier negotiations still in limbo. Information Today35(2), 8. [OSU full text] / [OA full text]

Greco, A. N. (2018). The scholarly publishing community should support changes to US copyright law. Journal of Scholarly Publishing49(2), 248-259. doi:10.3138/jsp.49.2.248 [OSU full text]

Lipinski, T. A., & Kritikos, K. C. (2018). How open access policies affect access to grey literature in university digital repositories: A case study of iSchools. Grey Journal (TGJ)14(1), 6-20. [OSU full text]


By Maria Scheid, Copyright Services Coordinator at Copyright Services, The Ohio State University Libraries.

Copyright and Accessibility

Many educational institutions, including Ohio State, share the mission of advancing and encouraging the spread of knowledge. At times, however, the exclusive rights of copyright owners can impede this mission by conflicting with the important objective of making works accessible to all, particularly to individuals with disabilities. Even with the emergence of new technologies that facilitate instantaneous copying and dissemination of materials, owner control over reproduction and distribution of works has continued to create an obstacle to the growth of works in formats accessible to individuals with print, hearing, or other disabilities. Statistics from the World Blind Union reveal, for example, that of the approximately 1 million books published per year, less than 5% are made in formats accessible to the print-disabled.[1] Given the significant societal benefit that is achieved by promoting equal access, it is important to understand the provisions of copyright law that currently support the growth of works in accessible formats and identify opportunities for further change.

Current U.S. copyright law lacks a blanket exception for accessibility, relying instead on a patchwork of statutory exceptions and the doctrine of fair use. This blog will cover some of these current key exceptions, as well as potential developments under national and international law.

The Chafee Amendment and Performance of Literary Works under §110

One important provision in copyright law that promotes accessibility to copyrighted works is the Chafee Amendment. The Chafee Amendment (17 U.S.C. § 121) permits an authorized entity to reproduce or distribute copies of previously published nondramatic literary works if the copies are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

Authorized entities include nonprofit organizations or governmental agencies “whose primary mission is to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” The vagueness surrounding the definition of “authorized entity” has contributed to confusion and reluctance to rely on the protections set forth in the Chafee Amendment. Do educational institutions like The Ohio State University, who are bound to comply with the provisions of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA),[2] qualify as authorized entities? Publishers assert that only institutions who specialize in promoting accessibility (e.g., the National Library Service for the Blind), not educational institutions in general, qualify as authorized entities. Educational institutions, on the other hand, argue that their work and legal obligations under federal law establish them as authorized entities under the Chafee Amendment.

The Copyright Act also provides narrow exceptions for the performance of literary works. Section 110(8) permits certain eligible entities to perform nondramatic literary works by or in the course of a transmission specifically for the print or hearing disabled when the transmission is noncommercial. Section 110(9) permits an authorized radio subcarrier to make a single transmission of a dramatic literary work for the print disabled if the performance is noncommercial and the work was published at least 10 years before the performance.

Current & Proposed Exemptions under the Digital Millennium Copyright Act (DMCA)

Section 1201 of the Digital Millennium Copyright Act (DMCA) prohibits any individual from circumventing technological protections measures placed on a work. For example, you cannot decrypt DVDs protected by Content Scrambling System (CSS). The law, however, provides exemptions to this anti-circumvention rule. One current exemption, in effect from 2012-2015, allows for the circumvention of electronically distributed literary works that are protected by technological measures when those technological protection measures prevent the enabling of read aloud functionality or interfere with screen readers or other assistive technologies. Literary works must be lawfully obtained by a blind or other person with a disability (for nondramatic literary works the work must be lawfully obtained and used by an authorized entity under the Chafee Amendment) and the rights owner must be appropriately remunerated for the price of the mainstream copy of the work. A renewal of this exemption has been requested in the 2015 triennial review.[3]

Another current exemption permits the circumvention of motion pictures and other audiovisual works that are on DVDs protected by the Content Scrambling System (CSS) or distributed by an online service that is protected by technological measures, in order to facilitate research and development of players that are capable of providing captioning or descriptive audio.

The Important Role of Fair Use

The statutory exceptions listed above are relatively narrow in their applications, including limitations on who may reproduce or transmit a work, the type of work that may be reproduced or transmitted, and who may benefit from such activities. One exception in copyright law that has been instrumental in filling in the gaps left by these narrow exceptions and promoting accessibility for copyrighted works has been fair use.[4] A recent decision by the Court of Appeals for the Second Circuit has reinforced the significant role of fair use in increasing the accessibility of copyrighted works.

In Authors Guild, Inc. v. HathiTrust,[5] HathiTrust created a shared digital repository of collection materials from academic and research member institutions, allowing full access to patrons with qualifying disabilities. The district court held this activity was permissible under the Chafee Amendment, stating that educational institutions “have a primary mission to reproduce and distribute their collections to print‐disabled individuals…[making] each library a potential ‘authorized entity’ under the Chafee Amendment.” The court held, however, that HathiTrust was not precluded from relying on the defense of fair use in the event that they were not authorized entities or did not otherwise fall within the permissible categories of the Chafee Amendment. On appeal, the Second Circuit held that providing full digital access to print-disabled patrons was protected under fair use. [6]

International Considerations: Adoption of the Marrakesh VIP Treaty

U.S. copyright law may also be influenced by international agreements. One international treaty directed to making works more accessible is the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities (“Marrakesh VIP Treaty”). The Marrakesh VIP is an international treaty administered by the World Intellectual Property Organization (WIPO) which would obligate signatory countries to create mandatory limitations and exception to their copyright laws pertaining to “the right of reproduction, the right of distribution, and the right of making available to the public…to facilitate the availability of works in accessible format copies” for the benefit of people with print disabilities.[7] The treaty would also permit exchange of accessible works across borders by authorized entities serving the blind, visually impaired and otherwise print disabled. Finally, the Treaty provides that contracting parties take appropriate measures to ensure that any anti-circumvention restrictions do not prevent the blind, visually impaired, or print disabled from enjoying any of the exceptions provided for in the Treaty.

The Treaty, adopted on June 27, 2013, will go into force three months after 20 eligible entities have acceded to or ratified the Treaty. There is currently accession or ratification from ten nations. The United States signed the Treaty on October 2, 2013 but has not yet ratified the Treaty.

In Conclusion

Making copyrighted works available in accessible formats can present a challenge to the exclusive rights of copyright owners. Absent a blanket exception that would allow for the creation of accessible formats for all persons with disabilities, individuals and educational institutions must navigate the existing narrow statutory exceptions or rely on a fair use defense in order to make works accessible. While society recognizes the importance of incentivizing creators to create new works, we must also recognize the importance of establishing equal access to those works in order to advance public knowledge and encourage further creation of works.

Accessibility Resources


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

[1] Limitations and Exceptions: Access to Books for the Visually Impaired – Background Brief, World Intellectual Property Organization, http://www.wipo.int/pressroom/en/briefs/limitations.html (last updated January 2014).

[2] Section 504 of the Rehabilitation Act of 1973 provides that no qualified individual with a disability, solely by reason of his or her disability, be excluded from participating in, or be subjected to discrimination under any program or activity receiving federal funding. 29 U.S.C. § 794(a). The Americans with Disabilities Act of 1990 requires public entities to make reasonable modifications when necessary to avoid discrimination on the basis of disability. 28 C.F.R. Sec. 35.130(b)(7).

[3] 79 FR 73863 (December 12, 2014).

[4] The House Report on the Copyright Act of 1976 also identifies making accessible copies of works for the blind as an illustrative application of the fair use doctrine (“…the making of a single copy or phonorecord by an individual as a free service for a blind persons would properly be considered a fair use under section 107.” H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976).

[5] 902 F. 22 Supp. 2d 445, 460‐64 (S.D.N.Y. 2012).

[6] 755 F.3d 87 (2d Cir. 2014).

[7] Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled art. 4, June 27, 2013, TRT/MARRAKESH/001.

Point of View: Medicines, Treaties and Intellectual Property

As usual, this week brought a variety of points of view and types of news in the world of intellectual property. Two publications show this contrast vividly.

One was the 2010 U.S. Intellectual Property Enforcement Coordinator (IPEC) Annual Report on Intellectual Property Enforcement (a bit of a redundant name).   This Report chronicles the Department’s efforts in the past year to strengthen intellectual property enforcement in order to create jobs, protect American business domestically and internationally, and protect consumers.  One of the ways IPEC is doing this is through various actions to combat the sale of counterfeit drugs, including drugs that either are ineffective or are actually harmful to patients.

The other was a new book from MIT Press, Access to Knowledge in the Age of Intellectual Property, edited by Gaëlle Krikorian and Amy Kapczynski.  Krikorian and Kapczynski provide a collection of essays that chronicles the history of thinking of the Access to Knowledge social movement, which includes activists working to open up intellectual property with regard to drug patents in the developing world, indigenous farmers anxious to preserve access to traditional seeds and plants, students involved with the free culture and open access movements, and many others .

Two essays on drug patents and the developing world caught my attention.  The first, “The Revised Drug Strategy: Access to Essential Medicines, Intellectual Property, and the World Health Organization,” chronicles the process and struggle of developing the Model Lists of Essential Medicines through the World Health Organization.  A place on the list allows a developing country to issue a compulsory license for that drug.    The second, Sangeeta Shashikant’s essay on “The Doha Declaration on TRIPS and Public Health,” points out the problems of “evergreening” to extend the life of patents and concerns about supplies of generic medicine in developing countries since treaty obligations required India to start issuing pharmaceutical patents in 2005.

Although no one wants the sale of medicines that are ineffective and harmful—the IPEC report mentions the sale of a counterfeit medicine that contained an ingredient used to make sheetrock—here are two very different ways of describing the problem and its solution.