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
Electronic Reserves: Key Issues
Digital successor to print “course packs” under 1990s Kinkos and MDS court decisions.
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.
Problem exacerbated by Nov. 2003 statement of ARL: “Applying Fair Use in the Development of Electronic Reserve Systems.”
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.
Basic Elements of Copyright Guidelines on Electronic Course Content
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.
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.
First-time use, Internet availability, etc. are not dispositive factors for “fair use” determinations.
Electronic Reserves: GSU Lawsuit
Georgia State University suit filed in April 2008 by Cambridge Univ. Press, Oxford Univ. Press & Sage Publications w/AAP support.
Early settlement process discussions with State Attorney General’s Office fizzled out; GSU hired private counsel; parties proceeding with discovery
Complaint amended to include individual Georgia Board of Regents members as named defendants – “sovereign immunity” issues
Discovery extended into June; depositions
New policies issued; GSU effort to limit discovery
Expert witness - Trial? Summary judgment?
NIH Public Access Policy
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 .
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.”
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.
Fair Copyright in Research Works Act : Introduced (H.R.6845) with hearing in Sept. 2008; reintroduced as H.R.801 in March 2009.
Fair Copyright in Research Works Act (H.R.801)
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.”
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.
Accessibility: Print Materials, Print Disabilities and Copyright
Fourth DMCA 1201 Triennial Rulemaking : Literary works distributed in ebook formats
Kindle 2 controversy : “audio rights” and “read aloud” functionality
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
What’s the Link Between Accessibility and Copyright?
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)
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.
Obligations to Facilitate Accessibility
Federal statutes – the ADA, IDEA, and the Rehabilitation Act – generally bar discrimination against individuals based on their disabilities.
Persons with disabilities need access to copyrighted works in specialized formats that accommodate their particular disability to facilitate use of such works.
Availability in specialized formats requires reproducing and distributing copies of the work, implicating key rights of the copyright owner.
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.
None of these laws specifically address copyright issues.
Copyright Law & Disabilities: 1976 Amendments - Exemptions
Section 110(8) & (9) exemptions –
for performance of certain literary works…
via analog TV/radio transmission “specifically designed for/primarily directed to…”
“ blind or other handicapped persons who are unable to read normal printed material as a result of their handicap, or
deaf or other handicapped persons who are unable to hear the aural signals accompanying a transmission of visual signals…”
Copyright Law & Disabilities: 1976 Amendments – Fair Use
Section 107 – codification of judicially-created equitable defense against claim of infringement
Nothing is fair use per se ; depends on situational and circumstantial application of four criteria:
(1) purpose and character of use;
(2) nature of copyrighted work;
(3) amount and substantiality of portion used in relation to whole work; and
(4) effect of use on potential market for or value of the work
Fair Use: Section 107 Legislative History
Identical explanation in House and Senate reports
Refers to “the making of copies… of works in the special forms needed for the use of blind persons.”
“ 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.
Distinguishes “making single copy by an individual as a free service for a blind person” from “making multiple copies for general circulation” (“requires permission”).
What is the Chafee Amendment?
1996 amendment to the Copyright Act for disabilities affecting use of printed works.
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.”
Purpose of the Chafee Amendment
Eliminate the need to compensate or obtain permission from any copyright owners for the reproduction & distribution of copyrighted works in specialized formats.
Save money and improve efficiency in the process of making copies of works available to individuals who need them in specialized formats.
Limitations of the Chafee Amendment
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.
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 .
Limitations include types of works , rights , copies and eligible beneficiaries covered.
Types of Copyrighted Works Covered
Limited to “ previously-published non-dramatic literary works ” (e.g., no “unpublished” works).
Does not cover audio-visual, musical, or dramatic works (e.g., published scripts of plays).
Does not cover pictorial or graphic works, or sound recordings.
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).
Types of Copyright Rights Covered
Limited to “reproduction” and “distribution” rights.
Does not cover “public performance,” “public display,” or “preparation of derivative works” rights.
Who Qualifies as an “Authorized Entity”?
Must be “nonprofit organization or governmental agency…”
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.”
Thus, despite obligations under federal disabilities laws, most educational institutions do not qualify as “authorized entities.”
Why Educational Institutions Generally Are Not “Authorized Entities”
Treatment of “nonprofit educational institutions” and “nonprofit organizations” elsewhere in the statutory provisions of the copyright law.
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.
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?
Covered “Specialized Formats”
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 ).
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).
Does not include “ large print ” format (competitive market exists, fueled by needs of senior citizens).
Applications of the Chafee Amendment
Facilitating work of NLS, APHB and RFB&D
Meeting needs of students with print disabilities on both K-12 and higher education levels.
Innovative Internet-based subscription services like Bookshare.org (makes copies of scanned popular works available to eligible individuals)
The Future of the Chafee Amendment
Continuing relevance for some print disabilities needs, probably for economically-disadvantaged.
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.
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).
Thanks for your kind attention. Allan Adler [email_address] 202/220-4544