AAUP 2009: Legal Issues (A. Adler)


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AAUP 2009: Legal Issues (A. Adler)

  1. 1. Update on Legal Issues : Electronic Reserves and GSU Litigation Fair Copyright in Research Works Act and Copyright Limitations and Exceptions for Print Disabilities and Beyond Allan Adler VP for Legal & Government Affairs Association of American Publishers AAUP Annual Meeting Philadelphia – June 19, 2009
  2. 2. Electronic Reserves: Key Issues <ul><li>Digital successor to print “course packs” under 1990s Kinkos and MDS court decisions. </li></ul><ul><li>Evidence shows widespread campus use directly substitutes for print course packs , w/o permission or fees, and often serves as exclusive curriculum reading materials for many courses. </li></ul><ul><li>Problem exacerbated by Nov. 2003 statement of ARL: “Applying Fair Use in the Development of Electronic Reserve Systems.” </li></ul><ul><li>Basic concept: Any use of copyrighted course content that requires permission as part of a print course pack likewise requires permission when made available for such use in a digital format. </li></ul>
  3. 3. Basic Elements of Copyright Guidelines on Electronic Course Content <ul><li>To the extent permission is needed to include a copyrighted work (or portion thereof) in a print course pack, it also would be needed for course use of such material as electronic course content. </li></ul><ul><li>Fair use applies to electronic course content in the same way it applies to printed course packs. There are no bright-line rules; in each case, whether fair use applies depends on circumstances involved. </li></ul><ul><li>First-time use, Internet availability, etc. are not dispositive factors for “fair use” determinations. </li></ul>
  4. 4. Electronic Reserves: GSU Lawsuit <ul><li>Georgia State University suit filed in April 2008 by Cambridge Univ. Press, Oxford Univ. Press & Sage Publications w/AAP support. </li></ul><ul><li>Early settlement process discussions with State Attorney General’s Office fizzled out; GSU hired private counsel; parties proceeding with discovery </li></ul><ul><li>Complaint amended to include individual Georgia Board of Regents members as named defendants – “sovereign immunity” issues </li></ul><ul><li>Discovery extended into June; depositions </li></ul><ul><li>New policies issued; GSU effort to limit discovery </li></ul><ul><li>Expert witness - Trial? Summary judgment? </li></ul>
  5. 5. NIH Public Access Policy <ul><li>May 2005: NIH-funded researchers requested to electronically submit to PMC their final, peer-reviewed manuscripts accepted for journal publication, and specify posting for public access within 12 months of official date of publication . </li></ul><ul><li>December 2007: Congress mandates that NIH “shall require” such submission, but with proviso that “the NIH shall implement the public access policy in a manner consistent with copyright law.” </li></ul><ul><li>Jan. – Sept. 2008: AAP petition for implementation through formal APA rulemaking languishes, while, in March, NIH meets publishers, holds public meeting & announces 2-month RFI. Petition rejected by NIH. </li></ul><ul><li>Fair Copyright in Research Works Act : Introduced (H.R.6845) with hearing in Sept. 2008; reintroduced as H.R.801 in March 2009. </li></ul>
  6. 6. Fair Copyright in Research Works Act (H.R.801) <ul><li>Would bar Federal agencies from diminishing copyright protections for “extrinsic works” based on research they fund, where a non-governmental entity that is not a party to the funding agreement has either provided substantial funding or contributed a “meaningful added value.” </li></ul><ul><li>The only copyrighted work affected would be one that is: (1) produced by a non-government person who has created it in connection with the receipt of financial assistance for conducting research under a funding agreement with a Federal agency; and (2) either supported in substantial part by funding from, or represents, reflects or results from a “meaningful added value or process” contributed by, an entity that is not a Federal agency and is not a party to the funding agreement or acting on behalf of such a party. </li></ul>
  7. 7. Accessibility: Print Materials, Print Disabilities and Copyright <ul><li>Fourth DMCA 1201 Triennial Rulemaking : Literary works distributed in ebook formats </li></ul><ul><li>Kindle 2 controversy : “audio rights” and “read aloud” functionality </li></ul><ul><li>WIPO SCCR and proposed WBU Treaty : “harmonizing” copyright limitations and exceptions for VIPS… and beyond? http://www.wipo.int/meetings/en/details.jsp?meeting_id=17458 </li></ul>
  8. 8. What’s the Link Between Accessibility and Copyright? <ul><li>Disabilities can prevent some individuals from “accessing” or using copyrighted works in normal intended ways (i.e., consider blindness or deafness in connection with audio-visual works) </li></ul><ul><li>Literary works in hard copy print formats – use problems for persons who are blind or otherwise visually impaired, or who have other physical or organic dysfunctions, or who have dyslexia. </li></ul>
  9. 9. Obligations to Facilitate Accessibility <ul><li>Federal statutes – the ADA, IDEA, and the Rehabilitation Act – generally bar discrimination against individuals based on their disabilities. </li></ul><ul><li>Persons with disabilities need access to copyrighted works in specialized formats that accommodate their particular disability to facilitate use of such works. </li></ul><ul><li>Availability in specialized formats requires reproducing and distributing copies of the work, implicating key rights of the copyright owner. </li></ul><ul><li>Federal disabilities laws do not impose obligations directly on publishers, but do so indirectly through State or local programs or other activities based on federal funding. </li></ul><ul><li>None of these laws specifically address copyright issues. </li></ul>
  10. 10. Copyright Law & Disabilities: 1976 Amendments - Exemptions <ul><li>Section 110(8) & (9) exemptions – </li></ul><ul><li>for performance of certain literary works… </li></ul><ul><li>via analog TV/radio transmission “specifically designed for/primarily directed to…” </li></ul><ul><li>“ blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, or </li></ul><ul><li>deaf or other handicapped persons who are unable to hear the aural signals accompanying a transmission of visual signals…” </li></ul>
  11. 11. Copyright Law & Disabilities: 1976 Amendments – Fair Use <ul><li>Section 107 – codification of judicially-created equitable defense against claim of infringement </li></ul><ul><li>Nothing is fair use per se ; depends on situational and circumstantial application of four criteria: </li></ul><ul><li>(1) purpose and character of use; </li></ul><ul><li>(2) nature of copyrighted work; </li></ul><ul><li>(3) amount and substantiality of portion used in relation to whole work; and </li></ul><ul><li>(4) effect of use on potential market for or value of the work </li></ul>
  12. 12. Fair Use: Section 107 Legislative History <ul><li>Identical explanation in House and Senate reports </li></ul><ul><li>Refers to “the making of copies… of works in the special forms needed for the use of blind persons.” </li></ul><ul><li>“ For the most part,” such copies (e.g., in braille or “phonorecords of oral readings” – “talking books”) are made by Library of Congress, with permission , for circulation through regional libraries, but also made “locally by individual volunteers” for use by blind persons in their communities. </li></ul><ul><li>Distinguishes “making single copy by an individual as a free service for a blind person” from “making multiple copies for general circulation” (“requires permission”). </li></ul>
  13. 13. What is the Chafee Amendment? <ul><li>1996 amendment to the Copyright Act for disabilities affecting use of printed works. </li></ul><ul><li>Exempts certain “authorized entities” from the rights of copyright owners with respect to reproducing and distributing copies of “previously-published non-dramatic works” in “specialized formats exclusively for use by blind or other persons with disabilities.” </li></ul>
  14. 14. Purpose of the Chafee Amendment <ul><li>Eliminate the need to compensate or obtain permission from any copyright owners for the reproduction & distribution of copyrighted works in specialized formats. </li></ul><ul><li>Save money and improve efficiency in the process of making copies of works available to individuals who need them in specialized formats. </li></ul>
  15. 15. Limitations of the Chafee Amendment <ul><li>While generally intended to expand capabilities of programs like the National Library Service for the Blind and Physically Handicapped; the American Printing House for the Blind; and Recording for the Blind and Dyslexic, the exemption is quite limited. </li></ul><ul><li>Although publishers often focus on its application to the curriculum material needs of students with disabilities, Chafee Amendment does not place any specific emphasis on students or education . </li></ul><ul><li>Limitations include types of works , rights , copies and eligible beneficiaries covered. </li></ul>
  16. 16. Types of Copyrighted Works Covered <ul><li>Limited to “ previously-published non-dramatic literary works ” (e.g., no “unpublished” works). </li></ul><ul><li>Does not cover audio-visual, musical, or dramatic works (e.g., published scripts of plays). </li></ul><ul><li>Does not cover pictorial or graphic works, or sound recordings. </li></ul><ul><li>Excludes “standardized, secure or norm-referenced tests and related testing material” and “computer programs” (except portions in conventional human language displayed to users in the ordinary course of use). </li></ul>
  17. 17. Types of Copyright Rights Covered <ul><li>Limited to “reproduction” and “distribution” rights. </li></ul><ul><li>Does not cover “public performance,” “public display,” or “preparation of derivative works” rights. </li></ul>
  18. 18. Who Qualifies as an “Authorized Entity”? <ul><li>Must be “nonprofit organization or governmental agency…” </li></ul><ul><li>With “ a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” </li></ul><ul><li>Thus, despite obligations under federal disabilities laws, most educational institutions do not qualify as “authorized entities.” </li></ul>
  19. 19. Why Educational Institutions Generally Are Not “Authorized Entities” <ul><li>Treatment of “nonprofit educational institutions” and “nonprofit organizations” elsewhere in the statutory provisions of the copyright law. </li></ul><ul><li>Focus on entities having a “ primary mission ” to provide specialized services relating to needs of “blind or other persons with disabilities” – not a “ legal obligation ” or words of similar meaning. </li></ul><ul><li>If simply having a “need” or “desire” to serve the needs of blind persons would qualify a “nonprofit organization” as an “authorized entity,” would any “nonprofit organization” fail to qualify? </li></ul>
  20. 20. Covered “Specialized Formats” <ul><li>Generally limited to those “ exclusively for use by blind or other persons with disabilities ” (defined by reference to NLS eligibility for persons who are unable to read normal printed materials due to blindness , visual disability or physical limitation ). </li></ul><ul><li>Explicitly limited to braille , audio or digital text “ exclusively for use by blind or other persons with disabilities ” (i.e., not “audio” playable on ordinary consumer devices or “digital text” that is ordinarily transmitted over online networks). </li></ul><ul><li>Does not include “ large print ” format (competitive market exists, fueled by needs of senior citizens). </li></ul>
  21. 21. Applications of the Chafee Amendment <ul><li>Facilitating work of NLS, APHB and RFB&D </li></ul><ul><li>Meeting needs of students with print disabilities on both K-12 and higher education levels. </li></ul><ul><li>Innovative Internet-based subscription services like Bookshare.org (makes copies of scanned popular works available to eligible individuals) </li></ul>
  22. 22. The Future of the Chafee Amendment <ul><li>Continuing relevance for some print disabilities needs, probably for economically-disadvantaged. </li></ul><ul><li>For students , inadequate foundation to serve shift from defined “print disabilities” population to a much larger population with “ learning disabilities ” as well as consequent demand for meeting needed accommodations through “ universal design ” of all instructional materials, rather than through current “retrofitting” strategies. </li></ul><ul><li>Increased reliance on digital media capabilities will also mean moving beyond “ accessibility ” issues to “ pedagogy ” issues for which Chafee Amendment is unsuited (e.g., derivative works issues). </li></ul>
  23. 23. Thanks for your kind attention. Allan Adler [email_address] 202/220-4544