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A Dozen and One Things to Know About Copyright

A Dozen and One Things to Know About Copyright



This is the original version of the presentation I did at SCLA in 2012. I still need to add citations and I'm already updating it for my next scheduled presentation of it since there were changes in ...

This is the original version of the presentation I did at SCLA in 2012. I still need to add citations and I'm already updating it for my next scheduled presentation of it since there were changes in the DMCA just last week!



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    A Dozen and One Things to Know About Copyright A Dozen and One Things to Know About Copyright Presentation Transcript

    •  
    •  Manager York County Headquarters Library Reference / Outreach / Circulation / Collection Development Still a Systems Librarian rogan.hamby@yclibrary.net
    •  www.copyright.gov/title17/ Relies heavily on judicial interpretation Extremely busy field This is only thirteen arbitrary elements of current events with a bias towards libraries Depends heavily on legislative intent
    •  I’m going to skim a lot. There is easily content I am going to skip over that could make another twenty hours of presentations so I apologize in advance. IANAL should be IANACL or I Am Not A Copyright Lawyer. Most Lawyers are not Copyright Lawyers. Put five copyright lawyers in a room and you’ll get at least seven different opinions. This is why the courts are so busy. If I sound like a nut case alarmist it’s only because I care.
    •  Section 107, Title 17 Limitations on exclusive rights: Fair use Broad and highly open to interpretation The principles derive from the opinions of Joseph Story, Folsom v. Marsh (1841) Was only common law until Copyright Act of 1976 (Statute of Anne, 1709)
    • “for purposes such as criticism, comment, news reporting,teaching (including multiple copies for classroom use),scholarship, or research, is not an infringement ofcopyright”To be considered:(1) The purpose and character of use, commercial or for non-profit education(2) The nature of the copyrighted work(3) The portion used in relation to the copyrighted work as a whole(4) The effect of the use upon the potential market or value of the copyrighted work
    •  Judges must consider the elements of fair use but will decide case by case what applies and doesn’t This is being contested constantly right now from ring tones to scholarly papers May 2012, Cambridge University Press, Oxford University Press and SAGE Publications vs. Georgia State University – 99 counts of infringement, found only 5 in favor of the publishers Took four years and ruling was granular analysis in 350 pages
    •  Section 108 of Title 17 provides limitations on exclusive rights of reproductions to protect libraries and archives 8,440 characters long The legend that you can make one copy rule has caveats o Items must be open to public or specialized researchers o Must provide copyright notices if not already present You can make three copies under very broad criteria! o You can do this for lost, stolen, or format is obsolete
    • Exemptions to copyright would a presentation in it’s be own right!
    •  A number of library specific exemptions but most are pretty useless The temporary copy exemption only applies to circumventing protection mechanisms not to copying the work, i.e. DMCA not Title 17 The infamous “photocopier” rule and knowledge of willful infringement
    •  Laws still vary widely nation to nation as to scope covered and penalties Enforcement varies widely nation to nation as well As a result things like Project Gutenburg have national chapters because a book perfectly legal in Australia may still be covered by copyright here in the United States The U.S. is a member of the Buenos Aires & Berne Conventions
    •  Instituted by Victor Hugo, heavily influenced by French “right of the author” which isn’t the same as copyright The U.S. joined in 1988 after they allowed it to make statutory damages and attorney’s fees only available for registered works Provides a series of baselines for what is covered Requires that nations recognize copyright as France did Coverage is automatic and does not require registration
    •  165 countries have signed including most of the developed world
    •  Every year the Office of the United States Trade Representative (USTR) does a Special 301 report Every year the IIPA representing the BSA, MPAA, RIAA and others submit recommendations to the USTR This year they recommended most countries for hosting cyberlockers This year they recommended thirteen including …
    • “One copyright trade agreement to bring them all together, One copyright trade agreement to in the darkness bind them”
    •  Remember me saying that one thing that varied a lot was enforcement? The answer is ACTA, the Anti-Counterfeiting Trade Agreement Opponents argue that it goes far beyond enforcement to rewriting copyright laws under the guise of a trade agreement which doesn’t have the same congressional scrutiny And can be kept private from the public
    •  Copyright Act of 1790 - 14 years with 14-year renewal Copyright Act of 1831 – 28 years with 14-year renewal Copyright Act of 1909 – 28 years with 28-year renewal Universal Copyright Convention Copyright Act of 1976 – 75 years of life of authors plus 50 years Berne Convention Implementation Act of 1988 Copyright Renewal Act of 1992 Uruguay Round Agreements Act of 1994 Copyright Term Extension Act of 1988 – 95/120 years or life plus 70 Digital Millennium Copyright Act of 1998
    •  PIPA is the Protect IP Act Broadly expands the power of copyright holders to act against potentially or allegedly infringing material Largely seen as a US version of ACTA Already DMCA tools are dangerous – President Obama’s speech, birds apparently sound a lot like heavy metal What do you think it will do to research?
    •  ICE – Immigrations and Customs Enforcement They used to seize cargo containers of pirated books from China. Now they seize domain names 84,000 domains at mooo.com were accused wrongly of having child pornography Has seized domains with legitimate content
    •  Founded in 1870 when Congress removed it from the court system and placed it with the Library of Congress 450 employees In 2011 they processed more than 700,000 claims
    •  Title 17 section 701 gives critical power to Register of Copyrights including involvements in all levels of discussions Often given other arbitrary powers Maria A. Pallante www.copyright.gov/docs/priorties.pdf
    • “Orphan works are works whose copyright holders cannotbe identified or found – and are not made publicly available by libraries for fear that rights holders will come forward,initiate legal action, and demand statutory damages of up to $150,000 a work.” - ALA
    • Although everyone agrees that orphaned works are a problem (EFF, ALA, researchers, publishers, readers,congress) little is done. No legislative effort has happened in the 111th or 112th Congress so far. When legislative change happens to protect currentcommercial works it tends to make orphaned works even less accessible.
    • Libraries have been sued for libel when digitizing andrepublishing content and that’s even where copyright is clear!
    •  Copyright has expanded. In 1856 Congress expanded copyright to include public performances for playwrights. Over time that has expanded to include other kinds of performance. Those same laws are applied to re-transmissions now and affecting cloud based businesses. Cable telecommunications and copyright have become a black hole of esoteric regulation that logic can’t escape from.
    •  While Netflix and Hulu are fighting over what is a cable company and what side of the fickle FCC sword they want to grab … Judge Posner in MPAA vs. Flava Works ruled that embedding video is not copying and viewing is not copying This means that there is a type of public performance that is not covered by copyright law
    • Copyright cases have beenfiled over Rolling Stonessongs and advance copiesof Harry Potter booksBut it has been the adultindustry suits that havefilled up the industry in thelast ten years
    •  A multitude of lawsuits against John and Jane Does users have caused conspiracy laws to be reviewed and the limits of blanket lawsuits and judicial limits (geographically) Wifi has been reviewed as a public property with responsible access laws applying Statutory damages are in constant flux Common carrier and provider protections are being tested against publishers like Tumblr
    • Some suit happy parties are finding that their methods areearning the ire of the courts, and they are being chargedwith racketeering and being disbarredJudges are increasingly wise about these issues and thetechnical issues are being broken into legal translationsLiuxia Wong vs. Hard Drive Productions is challenging ifcertain works can be copyrighted
    •  When you buy an electronics device you aren’t just buying hardware – you’re buying software that can’t be functionally separated. If you want to modify your device you have to be able to change the code – these modifications are often called rooting or jailbreaking. While copyright of digital files are challenged under the doctrine of first ownership this is a whole other problem.
    •  Since copyright also includes the right to create derivatives you can’t modify a modern device (say your smart phone) without violating copyright Right now we can do that because the U.S. Congress opened up that privilege and it can go away Who is in charge of making the recommendation to extend it? The Register of Copyrights at the Library of Congress
    •  … we are talking about code Did you know that while an algorithm can’t be copyrighted a search result can be? In fact any evaluation or ranking can by copyrighted Ironically, the less useful a result is the more you can protect your copyright on it!
    •  Maria Pallante: “Without enforcement like SOPA … the US copyright system will ultimately fail.” She has said that copyright policy has to start with enforcement, not with insuring the rights of researchers and the public.
    •  From Napster to Megaupload the major copyright policy advocates, those paying the biggest lobbyist, have said that the Internet would destroy their income In fact their past estimates have become so unreliable that their language has changed to “inhibit growth” from “piracy will destroy us”
    •  Pays better than most American jobs Has outperformed the US economy through the recession Sells record-setting amounts of product overseas, earning more foreign revenue than the entire US food sector or US pharmaceutical industry
    •  In fact the copyright industries are adapting to new markets Just as they’ve done before when new licensing needs were created to respond to new technologies Once both Juke Boxes and Radio were considered to be the death of copyright – now the very things being defended