Write and Cite “Chicago Style”: Helping Students and Patrons Understand The C...
Ala webinar feb6-9am
1. Presented by
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
A 90-minute
workshop, Wednesday, February
6, 2013, 2:30pm Eastern/1:30pm
Central/12:30pm Mountain/11:30am Pacific
2. Poll
Have you signed or read your library’s
e-content licenses?
YES
NO
3. Copyright, Licensing
and the Law of Ebooks
Own or License?
Layers of Control
Library Copyright Primer including First Sale
Ownership examples
Library Ebook Law
Disability access
Privacy and Free Speech
Private enterprise: Conn. bill, Profit sharing
Models and Licensing Terms
ALA, IFLA, Readers First, LibLicense
termination, archiving, fair use, nondisclosure, privacy
Update: Mass digitized book collections
Digital Public Library of America, Internet Archive
Hathi Trust, Google Books
7. License Layer
P hysical
C opyright
L icense
E PRIVATE CONTRACTS
VENDORS NEED LAYER OF CONTROL
Apply onlyto signers …
D
Copyright only protects authors/publishers
includes click-wrap
13. Library Copyright Primer
including First Sale
Sect. 108
Libraries
open to public
or specialized
nonaffiliated
researchers
http://www.copyright.gov/
14. Sect. 108
Library Digital Preservation
Libraries
and Replacements
may make 3 digital copies
Published works:
Replace
damaged, deteriorating, lost, obs
olete format
and unavailable at fair price
17 U.S.C. Sect. 108(c)
15. Sect. 108
Libraries Interlibrary Loan:
Copy Entire Works(except most musical, pictorial, audiovisual works)
May copy if reasonable
investigation shows library
cannot buy copy at fair price
e.g. out of print
no “systematic reproduction or distribution”
but may participate in interlibrary arrangements
that do not substitute for purchase of a work
17 U.S.C. Sect. 108(e), (g) and (i)
16. Section 108 Update
Study Group Report 2008
Recommendations at www.section108.gov
No agreement on digital interlibrary loan
http://tinyurl.com/Sec108
Sect. 108 is a priority for U.S. Copyright Office
http://www.copyright.gov/docs/priorities.pdf
17. Section 109: FIRST SALE
Doesn’t allow copying
but allows distribution
of lawfully made copies
… allows loans and
used book sales
17 U.S.C. Sect. 109
18. Little known FIRST SALE Library Fact
FIRST SALE … unless you are a
does not allow nonprofit library or
loaning of educational
institution
computer
programs that affix copyright
warning to packaging
17 U.S.C. Sect. 109; 37 CFR 201.24
19. Digital First Sale?
Outdated law.
Are rights triggered
when copy is
made, even if
original is deleted?
*Incidental copy? Right of First Download?
20. Digital First Sale?
Outdated law.
Are rights triggered
when copy is
made, even if
original is deleted?
*Incidental copy? Right of First Download?
21. Digital First Sale?
Outdated law.
Are rights triggered
when copy is
made, even if
original is deleted?
*Incidental copy? Right of First Download?
22. Case to Watch:
Capitol Records v Redigi
A right to sell
used digital
music?
MP3 reseller
Deletes MP3 from user’s computer
http://dockets.justia.com/docket/new-york/nysdce/1:2012cv00095/390216/
24. Layers of Control:
License likely to trump First Sale
Man bought used software at
garage sale. Put it on eBay.
Court: First Sale did not apply
Still under license to original owner
License if:
– Labeled a license
– Significant transfer restrictions
– Notable use restrictions
Vernor v. Autodesk, 621 F.3d 1102 (9th Cir. 2010), cert. denied, 132 S. Ct. 105 (2011); see also
Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), aff’d, 131 S. Ct. 565 (2010)
25. First Sale: Under Review
Case to watch
Kirtsaeng v. Wiley (U.S. Supreme Court)
Are copies printed
abroad subject to
First Sale?
If no, possible erosion
of print loans, library
booksales
works made overseas
http://www.web2carz.com/trends/offline/1545/the-supreme-court-may-make-resale-illegal
See also First Sale Fast Facts for Libraries / Library Copyright Alliance Jan. 18, 2013
http://www.librarycopyrightalliance.org/bm~doc/lca-tp-firstsale18jan13.pdf
26. Fair Use
Note: If library has
reasonable grounds for
believing its use is
FAIR USE
$0 damages
17 U.S.C. Sect. 504(c)(2)
See also How I learned to love fair use / Stanford Copyright & Fair Use
http://fairuse.stanford.edu/commentary_and_analysis/2003_07_minow.html
27. Ownership examples:
Douglas County Libraries and Califa
Statement of Common Understanding
Uses copyright
law, not license
Describes how
copyright law
applies
One user-
One loan
http://jaslarue.blogspot.com/2012/01/statement-of-common-understanding-for.html
28.
29. Library Ebook Law
Disability, Privacy, First Amendment, Profit
Sharing
DISABILITY ACCESS
"Fully accessible”
Brown v. Free Library of ebook devices means
Philadelphia a blind individual may access
or acquire same information,
Nook Lending Program
Federal funds engage in same
transactions, and enjoy same
Claim: ADA Title II benefits and services of the
Sect. 504 of Rehabilitation Act book reading device
Settlement: purchase only fully as a non-disabled individual
accessible mainstream devices with substantially equivalent
ease of use
SETTLEMENT Oct 23, 2012
http://docs.justia.com/cases/federal/district-courts/pennsylvania/paedce/2:2012cv02373/461996/14/
See also Dear Colleague Letter http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html
31. Similar Settlement: Sacramento Public Library
• May not add additional inaccessible content
• Must provide device with text-to-speech and access
to menus and controls (other than touch screens without
audio and tactile feedback)
• May require users to attest eligibility in writing
… but may not require doctor’s note
[See also 28 C.F.R. Sect. 35.138(h)(2)]
http://www.ada.gov/sacramento_ca_settle.htm August 28, 2012
32. Copyright
rights
Disability
rights
HathiTrust
case
https://nfb.org/national-federation-blind-applauds-landmark-court-ruling 32
33. Coalition of 30
organizations
focused on
ebook
accessibility
http://readingrights.org/tracker; see also https://nfb.org/kindle-books
35. Library and reader
privacy laws
Check with local
counsel
CONSENT?
CHOICE?
TRANSPARENCY?
Legal
blog.librarylaw.com/ Professional ethics
36. Free Speech and
Withdrawing Books
Removing books based on viewpoint can
trigger First Amendment lawsuit
Use same criteria for weeding as print
Ebook trends: self published, very small
presses, community “maker” movement
In development: Califa collection development
principles for self-published works
37. Private Enterprise:
Connecticut ebook bill
Connecticut
bill to require
publishers
“sell” ebooks
to libraries
at consumer
prices
http://www.cga.ct.gov/2013/TOB/H/2013HB-05614-R00-HB.htm
38. Private Enterprise: “Buy now”
CHECK WITH LOCAL COUNSEL
*may we endorse a vendor?
*may we get income?
(cost recovery v. profit)
https://bilbary.com/
39. Models and Licensing Terms
1. Replicating print model 9. Variable pricing
2. Inclusion of all titles 10. Delayed sales with discounts
3. Right to transfer content 11. Premium for immediate
4. Right to lend indefinitely access to delayed titles
5. Accessibility 12. In library checkout
6. Integration with catalog 13. Restrictions on consortia/ILL
7. Single user 14. Enhanced discovery
8. Limited number of loans 15. Sales channel (buy link)
http://www.districtdispatch.org/wp-content/uploads/2013/01/Ebook_Scorecard.pdf
43. Licenses
understand
default copyright
rights before
signing
44. Termination Clause
Kansas State Library – old Overdrive contract
Newer version does not allow content transfer
http://www.scribd.com/LibraryJournal/d/52439233-OverDrive-s-current-contract-with-Kansas-State-Library
45. Archiving
Archival/Backup Copy. Upon request of
Licensee, Licensee may receive from Licensor
and/or create one (1) copy of the entire set of
Licensed Materials to be maintained as a
backup or archival copy during the term of this
Agreement or as required to exercise
Licensee’s rights "Perpetual License” of this
Agreement.
http://liblicense.crl.edu/wp-
content/uploads/2011/09/licenseagreements/standlicagree2001.pdf
46. Nondisclosure Clause
Preferred Practices
7.1 The terms of this
Agreement are confidential;
A. Non-disclosure language
however xxx reserves the right
should not be required for to use the name of Library for
any licensing agreement, publicity purposes.
particularly language that
May conflict would preclude library
with sunshine consortia from sharing
ordinances
pricing and other significant
terms and conditions with
other consortia.
International Coalition of Library Consortia 2004 Statement on preferred practices for selection and
purchase of electronic information
http://icolc.net/statement/statement-current-perspective-and-preferred-practices-selection-and-purchase-electronic
See also Association of Research Libraries 2009 – ARL Encourages members to refrain from signing
nondisclosure or confidentiality clauses http://www.arl.org/news/pr/nondisclosure-5june09.shtml
47. Fair Use
Nothing in this Agreement is intended to
limit in any way whatsoever Licensee's or
any Authorized User's rights under the Fair
Use provisions of United States or
international law to use the Licensed
Materials.
http://liblicense.crl.edu/wp-
content/uploads/2011/09/licenseagreements/standlicagree2001.pdf
48. Privacy Clause
Any such patron information shall be protected
to an extent equal to or greater than that
imposed on the library by a state privacy statute,
other laws, or library policy under which the
licensee-library operates.
See other samples in Tomas Lipinski, The Librarian’s Legal Companion
for Licensing Information Resources and Services (ALA: 2012) p.659
50. Basic contract law
Licensing glossary
Four common library licenses
deconstructed
Twenty sample key clauses
126 Q & A for evaluating
licenses
http://www.alastore.ala.org/
52. Update: Mass digitized book collections
Digital Public Library of America, Internet Archive, Hathi Trust, Google Books
http://dp.la/
http://www.copyright.gov/docs/massdigitization/
54. 200,000+ books
1000 circulations per day
in its third year http://openlibrary.org/libraries
endorsed by COSLA
55. DAISY format
National Library
Service for the Blind
and Physically
Handicapped (NLS)
users qualify.
3 million DAISY
200,000+
modern
ebooks
http://openlibrary.org/subjects/accessible_book 55
56. LITIGATION: Hathi Trust
Book Scans as FAIR USE
OK for
preservation
searching
text mining
print disabled users
Now on appeal.
Orphan works program suspended,
not currently at issue
Authors Guild v. HathiTrust
57. LITIGATION: Google Books
Scanned over 20 million books
with library partners
Search “snippets”
2005 Authors and publishers sued Google
Proposed settlement:
BOOKS RIGHTS REGISTRY
Court REJECTED
Current status:
Publishers settled
Authors still suing
Not at issue:
2 million public domain books
2 million previews with publisher agreements Authors Guild v. Google
58. Google Books
Authors Guild v. Google
Institute for Information Law and Policy at New York Law School.
60. Copyright, Licensing
and the Law of Ebooks
Own or License?
Layers of Control
Library Copyright Primer including First Sale
Ownership examples
Library Ebook Law
Disability access
Privacy and Free Speech
Private enterprise: Conn. bill, Profit sharing
Models and Licensing Terms
ALA, IFLA, Readers First, LibLicense
termination, archiving, fair use, nondisclosure, privacy
Update: Mass digitized book collections
Digital Public Library of America, Internet Archive
Hathi Trust, Google Books
The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
not new, persistent copies, but incidental copying to a lawful use.
WITHIN 60 DAYS OF AGREEMENT Library agrees to acquire ten fully accessible e-readers. Initial reservations for patrons with print disabilities, no proof required but may require borrowers to attest in writing To promote program and Train staff on accessibility features Widely publicizeWITHIN FOUR YEARS Library agrees to stop lending inaccessible e-readersAlso will use BEST EFFORTS that all new contracts have accessibility clause for information technology products so as not to violate ADA or Rehabilitation Act
http://www.edwards.af.mil/shared/media/photodb/thumbnails160/070221-F-3571D-008.jpgPeronica Hunt, Edwards Library technician, organizes books on a shelf. The Edwards Main Library achieved a five-star rating from the Air Force recently for the third consecutive time. The library was also the best in Air Force Materiel Command for fourth year in a row. (Photo by Airman 1st Class Julius Delos Reyes)
