Libraries, Copyright, and theWorld:The Internationalization of Collections andServices Presented by: ALA Editions Workshop December 4, 2012 Kenneth D. Crews Director, Copyright Advisory Office Columbia University Libraries www.copyright.columbia.edu
Main Objectives of thisWebcast Answer practical and important questions. Survey the operation of U.S. and international law for libraries. Introduce major developments on the horizon in the U.S. Supreme Court, in Geneva, Switzerland, and more.
Why International Copyright? First: International Treaties and Legal Developments are shaping Domestic U.S. Law. Second: Many of our collections are international. Third: Many of our service transactions are international.
Familiar Questions Are books, movies, and other works from other countries protected under U.S. copyright law? Are the rules the same about ownership and copyright duration? Does fair use apply to copyrighted works from other countries?
Familiar Questions The copyright on a work has expired under U.S. law. Can I put it on the web and share it with the world? My library is in the U.S., but we have branches in research centers and other locations overseas. What rules do I apply in my branch libraries in other
Familiar Questions We get requests for copies from researchers and libraries outside the U.S. Are we OK sending copies across borders? Are the rules for mailing copies the same rules for email attachments?
Start with Fundamentals Rule One: ◦ When in the U.S. apply U.S. law. ◦ Call it a “90% Rule.” Recall this question: ◦ “Does fair use apply to copyrighted works from other countries?” ◦ Basic Answer: Yes ◦ But: We will see some Key Differences
Start with Fundamentals Rule Two: ◦ When in another country, apply that country’s law. What about that branch library in Beijing? ◦ Your library staff in China may have to learn a bit of Chinese copyright law. ◦ The copy you make in the U.S. is under U.S. law, but the copy made in China….
Outline of Copyright Law Broad Scope of Protectible Works Automatic Copyright Protection Creator of Work as Initial Owner Rights of Copyright Owners Duration of Copyright Protection Exceptions to Rights of Owners Technological Protection Measures Infringement and Remedies
Sources:International Copyright Law Berne Convention ◦ Originated in 1886 ◦ Today has 166 Member Countries Trade Related Aspects of Intellectual Property (TRIPs) ◦ World Trade Organization ◦ Established in 1994 ◦ Today has 157 Member Countries ◦ Incorporates key provisions of the Berne Convention
Sources: International Copyright Law WIPO Copyright Treaty ◦ Adopted in 1996 ◦ Today has 90 Member Countries WIPO Phonograms and Performances Treaty ◦ Adopted in 1996 ◦ Today has 91 Member Countries Beijing Treaty on AV Performances
Sources:International Copyright Law European Union Directives ◦ Information Society Directive (2001) ◦ Copyright Term Directive (1993) Free Trade Agreements ◦ ACTA, Anticounterfeiting Trade Agreement ◦ NAFTA ◦ Australia, Colombia, South Korea, and More Future WIPO Treaties ◦ Limitations and Exceptions for Visually Impaired Persons ◦ For Libraries? For Education?
What Do Treaties Do? “Harmonize” Copyright Law ◦ Quest for predictability and assurance of protection Require countries to change their laws ◦ Set minimum standards Require Protection for Foreign Works ◦ Concept of “National Treatment” Mechanisms for review and enforcement
Example:Scope of Protectible Works Berne Convention ◦ Protection for “literary and scientific” works ◦ No defined standard of “originality” ◦ No requirement of “fixed” ◦ Prohibition against “formalities” U.S. joined Berne in 1989 ◦ Previously changed rule to “original works” that are “fixed in any tangible medium of expression” ◦ Dropped the notice formality ◦ Later dropped the renewal formality
Excerpt from Dead Sea Scrolls. Source: commons.wikimedia.oExample:Duration ofCopyright Protection Berne Convention ◦ General Rule: Life of the Author plus 50 Years ◦ Cinematographic Works: 50 years ◦ Photographs ◦ Anonymous and Pseudonymous Works ◦ Sound Recordings However: Countries may provide longer terms of protection. Result: Duration for Life plus 70 Years!
Practical Meaning forLibraries Recall this question about public domain: “Can I put it on the web and share it with the world?” Some Possible Answers: ◦ Yes: Old enough to be public domain everywhere. ◦ Maybe: Public domain in the U.S., but not everywhere. ◦ No: Public domain in the U.S., but clearly protected where needed. Let’s get Practical: ◦ What do libraries actually do?
Example:Duration & Formalities Together Consider these Basics of U.S. Law: Works created in and after 1978: ◦ Duration is Life + 70 Years Works created before 1978: ◦ Duration is Maximum of 95 Years ◦ But Shorter if no Copyright Notice or Renewal Why the Change of Rules? ◦ The Berne Convention!
Mind Games:Copyright Restoration Recall this Question: “Are the rules for foreign works the same as for U.S. works?” Answer: Usually, but not always. Works Published before 1978 ◦ May be public domain due to lack of formalities Requirement of TRIPs: ◦ Restoration of Foreign Copyrights ◦ Restoration upheld in Golan v. Holder (2012)
Questions?So Far…. Rules about Protection & DurationComing up Next… Fair Use & Other Exceptions
Copyright Exceptions &Limitations Most Countries have Multiple Exceptions Library Research & Preservation Copies for Education Needs of the Visually Impaired Private or Personal Copies Architecture or “Panorama” Right Industry Exceptions
Fair Use Balancing of Four Factors ◦ Purpose, Nature, Amount, Effect Distinctive American Doctrine ◦ Few other countries have adopted it Many countries have sought flexibility ◦ But Exceptions are Local Law
Marcel Duchamp, L.H.O.O.Q. Source: wikipedia.orgExceptions asLocal LawQuestion: “Does fair use apply to a work from France?” Answer: Yes.Question: “Does fair use apply to the U.S. work when it is used in India?” Answer: Check the law of India.
More Mind Games:Exceptions about the Exceptions Basic Premise: When in U.S. apply U.S. law. ◦ 90% Principle: Apply U.S. law equally to foreign works. ◦ Therefore: The law is 10% unequal. Case Study: ◦ Kirtsaeng v. John Wiley & Sons The Exception at Issue: ◦ The First Sale Doctrine
What is “First Sale”? Concept: Once a copyrighted work has been sold (the “first sale”), that copy may be further sold, given away, loaned, etc. The Language of Section 109(a): The concept applies to works “lawfully made under this title.” “This Title”: Title 17 of the United States Code; i.e., the U.S. Copyright Act
Kirtsaeng v. John Wiley &Sons Kirtsaeng purchased and imported from Thailand low-priced editions of major textbooks. Question: Because the books were made outside the U.S., were they made “under this title”? If Yes: Kirtsaeng and others may sell the books.
Kirtsaeng v. John Wiley &Sons If no….. ◦ No sales of foreign-made books and more. ◦ No lending ◦ No renting ◦ No public display of works What should libraries do?
Mind Games, continued:More Exceptions aboutExceptions Case Study: Section 108, Copies for Researchers and ILL Section 108 Allows: Libraries may make copies of selected works, generally for research and study, and to send copies through ILL arrangements that do not have as their “purpose or effect” to substitute for a “subscription to or purchase of” the work.
Section 108 and The World When in the U.S. apply U.S. law. Library in the U.S. may apply Section 108. Nothing in Section 108 bars Internat’l ILL. Receiving library is subject to conditions: ◦ Subscription and Purchase Clause ◦ Local Domestic Copyright Law
Confused? Perplexed?? Remember the 90% Rule: ◦ When in the U.S. apply U.S. law. Remember the 90% Principle: ◦ Copyright applies to foreign works in the same way that it applies to domestic works.
Taking Action Public Domain ◦ Copyright law varies around the world ◦ Learn and apply fundamentals ◦ Most expectations can be met locally Fair Use ◦ Apply fair use responsibly and vigorously ◦ Apply it to foreign works
Taking Action Library Lending ◦ Kirtsaeng case is a problem ◦ Could raise serious legal & ethical concerns ◦ Could libraries even comply? Copies for ILL ◦ Watch for legal developments ◦ Adhere to standards of Section 108 ◦ Does requestor comply with Local Law?
Taking Action Don’t Panic! Don’t trash your foreign materials Get Involved: ◦ Section 108 upcoming review in Washington ◦ NOI regarding Orphan Works ◦ WIPO meetings on Copyright Treaties Develop Policy for Your Library Consult with Legal Advisors
Thank You!Kenneth D. CrewsCopyright Advisory OfficeColumbia University Librarieswww.copyright.columbia.eduwww.twitter.com/kcrewsNext Workshop?Let Me Know YourSuggestions!