LibraryLaw Blog

Can Darnton live the Enlightenment dream?

Robert Darnton's long, reflective piece on "Google & the Future of Books" in the New York Review of Books is justifiably generating a lot of buzz.  There is much I can admire in the piece.  For example, Darnton stresses the importance of having an open cultural heritage:

Yes, we must digitize. But more important, we must democratize. We must open access to our cultural heritage. How? By rewriting the rules of the game, by subordinating private interests to the public good, and by taking inspiration from the early republic in order to create a Digital Republic of Learning.

In a passing comment, he suggests that he thinks the original 28 year maximum term for copyright may be better than our current term of life + 70:

I acknowledge the importance of copyright, although I think that Congress got it better in 1790 than in 1998.

These are inspiring sentiments with which I generally agree.  But while they are easy to espouse, they are much harder to implement.  To illustrate this, we need only look at Robert Darnton's own works.

If we assume a 28 year copyright term, all books published by Darnton prior to 1981 should be in the public domain (or at a minimum freely available).  Yet according to the records in WorldCat, of the books that Darnton authored before 1981, only one (The Business of the Enlightenment) is available in electronic form, and that is only available through the subscription product ACLS Humanities E-Books.  Other important works, such as Mesmerism and the End of the Enlightenment in France, are totally inaccessible electronically.

Let's hope that as a first step in "subordinating private interests to the public good," Professor Darnton liberates his own works. 

Copyright: Is it Safe to Use This Content on My Site? - Online seminar has a few spots still available

Sign up right away if you still want a spot in the Simmons online seminar that I'm teaching in February. It is open to anyone.

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Online -- February 1 - 28, 2009

$250 (Simmons GSLIS Alums -- $200)

This four week course gives students a hands-on view of copyright.

Who owns the works I create? When can I use text, images and songs created by others? Learn how to determine if an item is in the public domain. If it is not, learn how to determine if there is the library/archive exception in copyright law allows your use. If the library/archive exception doesn't fit your need, learn how to make a good faith Fair Use evaluation. Finally, learn some tips about getting permission to use others' works.

Assignments include: Registering for a copyright, creating a creative commons license for a work you've created, searching the Copyright Clearance Center (copyright.com) for permissions and/or creating a permissions letter and designating a copyright agent with the Copyright Office. You will also learn an approach that will help you evaluate the copyright status of a work.

Threaded discussions with classmates and the instructor will be the primary means of feedback.

Faculty: Mary Minow, J.D., A.M.L.S., Library Law consultant at LibraryLaw.com

For additional information see

http://www.simmons.edu/gslis/continuinged/workshops/

or contact gslisce@simmons.edu

When is a published work not a publication?

It is easy for court decisions that are issued in December to get overlooked in the holiday crush.  Some Appeals Court rulings in the important case of Societe Civile Succession Richard Guino v Renoir are good examples.  Rebecca Tushnet has written on the trademark aspects of the decisions, but I haven't seen a discussion of the copyright decision.  This is an important ruling that has implications for many mass digitization projects.

The case concerns sculptures created in France by Pierre-Auguste Renoir and published in France no later than 1917.  Most commentators (including the Copyright Office) argue that because publication occurred before 1923, the works are now in the public domain in the U.S.  As I discuss in footnote 12 of the copyright duration chart, however, a ruling in the Twin Books v Walt Disney case in the 9th Circuit (covering the western states) contradicts what everyone else assumes.  In Twin Books, the court concluded that if a foreign work did not follow the requirements to secure copyright protection in the US, the work did not therefore enter the public domain in the US, but instead remained in effect unpublished for the purposes of US copyright law. 

The District Court opinion in the Societe Richard Guino case harshly criticized Twin Books, but then found copyright infringement because it was forced to follow the opinion of its Appeals Court.  Many of us hoped that an appeal would lead to a reversal of the Twin Books decision.  Unfortunately, in the latest decision, the Appeals Court upheld the lower court's finding of infringement.

The good news, if there is any, is that in part the decision is based on the fact that a 3 judge panel can't overturn Twin Books by itself - it requires a decision by the full court.  What is disturbing, however, is that unlike the District Court, there is no criticism of Twin Books in this decision.  Instead the Court sings the praises of Twin Book's reasoning that a book that has only been published abroad isn't really published for the purpose of US copyright law. 

What are the implications of this for digitization projects, especially those based in California (such as Google Books or the Internet Archive)?  The decision makes it much, much harder to determine whether a book published abroad is in the public domain.  I have written about how difficult it is to determine whether any individual post-1923 title had its copyright restored, but I assumed that pre-1923 works were public domain and that Twin Books would eventually be reversed.  The newest ruling makes me less certain this will happen.

So what do Google, the Internet Archive, and other western digitization projects need to do if they do not wish to risk copyright infringement?  First, the projects would need to determine if the works were ever published with a copyright notice.  For the 9th Circuit, publication occurs (and the copyright clock starts ticking) when there is publication with notice.  In the Societe Richard Guino case, copyright in the images found in the 1917 book was secured in 1984.  Copyright in those images will endure until 70 years after Guino's death in 1973, or through 2043.  Reproducing and distributing the 1917 book before 2044 would be a violation of the Societe's copyrights. 

Second, the projects would need to see if the work was published in a Berne Treaty nation after 1 March 1989, when notice requirements were abolished.

Third, for those pre-1923 works that were never republished with a copyright notice or after 1 March 1989, the projects could determine the death date(s) of the author(s).  If the authors all died before 1939, the works would be in the public domain in the 9th Circuit since, as "unpublished" works, the life+70 term would have expired.  (Actually, any foreign work that was never republished and whose author died before 1939 would be in the public domain in the 9th Circuit, regardless of death date.)

Obviously, no project will be able to conduct this sort of copyright investigation.  The safest course, therefore would be to select a date before which there is almost no chance that an author is still alive.  Some UK projects (which have a blanket life+70 term) use 1868 to 1888 as the cut-off publication date, on the assumption that authors are probably at least 20 when their books appear, and then one estimates a subsequent life span to determine when the author is sure to be dead.  (If you assume someone lives to 70, you can use the 1888 date.  If you think the author will live to 90, then the 1868 cutoff must be used.)  The problem, of course, is that this excludes much more material than the 1923 publication cut-off date that many of us use.

Bottom line: let's hope that this decision is appealed to the full Appeals Court, and that court finally replaces it's twisted logic in Twin Books with the clear certainty of copyrights restored under 104(a).

For California Library Folks - Infopeople Webinar on Finding Legally Safe Graphics for Presentations and Websites Dec 10 - noon

Finding (Legally Safe) Graphics in Presentations and Websites

http://infopeople.org/training/webcasts/webcast_data/303/index.html

It's 9 a.m. and your deadline is today to put together your presentation or post your content to the library's blog or website. A picture of kids making paper boats would add just the right visual to your text. As an excellent online searcher, you can easily find what you need. But do you have the right to use it? Are you exposing your library to copyright liability?

This webinar will help you analyze the legal rights attached to images you find online and offline. It will walk you through safer approaches to using the pictures you need to make your content sparkle!

At the end of this presentation, participants will know how to:

• locate public domain images that are free to use
• locate creative commons licensed images and understand the conditions attached to using them
• ask for permission to use other images

Webinar: December 10, 2008
Time: 12pm-1pm
Speaker: Mary Minow

Goodbye, Sivacracy

The discouraging run of copyfighting bloggers leaving the field of battle continues.  First Larry Lessig stepped back from the copyright wars.  Then William Patry - no copyfighter himself, but rather the singularly most thoughtful blogger on copyright matters - stepped away from his blog.  The original Copyfight blog is a pale shadow of what it once was. 

Now Siva Vaidhyanathan has announced that he is shutting down sivacracy.net in order to focus on his blog associated with his new book, The Googlization of Everything. 

You could tell that things have been troubled at sivacracy.net.  The last post I can see on the home page is from 11 August, though his co-authors apparently were posting as late as 18 August.  And Sivacracy's early heavy emphasis on copyright issues has somewhat waned over the years as Siva's interests shifted more into contemporary cultural criticism and he added more co-authors generally interested in the interplay of politics and culture. 

Nevertheless, ever since its start in February, 2003, Sivacracy has been required blog reading for thousands of people.  It is going to be sorely missed. Thanks, Siva (and Ann) for a wonderful run.

The bigger question is whether the departure of so many leading figures from the copyright blogosphere is part of the natural evolution of blog spaces or a sign that the efforts to remake copyright laws for a digital age are over. 

Grateful Dead lyrics and copyright - a librarian/annotator's experience

LibraryLaw's resident Grateful Dead copyright envoy, David Dodd, reports that the author of a young adult book has been stopped from quoting lyrics in the manner intended. Dodd has his own experiences navigating Grateful Dead copyright waters.

Minow: David, first, tell us about your experiences on your annotations website using Grateful Dead lyrics WITHOUT asking permission?

Dodd: Well, I have no such experience, since I've always sought  permission prior to using any lyrics, whether in a book or on the web.  It was a philosophical (and legal) decision I made early on when beginning the Annotated Grateful Dead Lyrics website, that I would ask for permission to quote the lyrics. At first, my annotations were just lists of words, out of context of the lyrics themselves. Then, I asked for permission, from Ice Nine, the Grateful Dead's publishing company, to use the lyrics to one or two songs. They granted the permission, and gave me the language to use to acknowledge said permission. Gradually, I asked for more and more permissions, and they granted them each time, finally giving me a blanket permission to use all of the lyrics. And never was there any mention of remuneration. Altogether a pleasant
experience.

Minow: When you decided to publish your book, The Complete Annotated Grateful Dead Lyrics, how did you get the permissions you needed?

Dodd: The book was an interesting, and very different experience from my web permissions experience. Ice Nine, which is primarily Robert Hunter, the group's primary lyricist, and administrator Alan Trist, have a very old-school consciousness of what it means to put something into print. They never, in the majority of cases, published lyrics with their studio albums (Blues for Allah and Live Dead are the exceptions). So when I first requested permission to print the annotated lyrics web material as a book, my request was denied. And it was denied for quite a number of years--about ten years, actually. I just made a point of asking them occasionally if it might be time to consider the book, and eventually, to my surprise and delight, they said yes. In this case, there was a monetary factor, and rightly so, since they are the creators of the work I was annotating, and they were entitled to a majority share. I must say, though, that they were very generous in their proposed split of any proceeds.

Minow: What do you think about the Boing Boing post?

Dodd: I think it's very easy to jump to conclusions about the perceived "wealthy" Grateful Dead seemingly coming down on an innocent author, and I wish the post had been more measured in its reporting. It makes me more cautious about how I read posts on other topics when I read posts and commentary like this one. In particular, I thought many of the negative comments were ill-informed and mean-spirited, which is a lethal combination, and which, unfortunately, characterizes a great deal of our public discourse today. I love it that the author of the book in question finally spoke up and clarified things, explaining that it was not a question of being stomped on by a huge corporation, and that it was all handled well from the Ice Nine end of things.

Book jackets - can libraries put pictures of book covers on the websites?

Peter Hirtle and I have tried to analyze this over a couple of years and may write an article some day - so readers, feel free to weigh in. Meanwhile, Peter tells me that LJ announced that a million book covers are now available for download and display in library OPACs via LibraryThing.  I expect libraries will be delighted to try this service.

But who actually owns the copyright to the book covers? Likely the book publisher, though it could be an artist who designed the cover.  The question then is whether or not there is an exception in copyright law that allows libraries and others to scan and post images of the covers.

LibraryThing states: "Publishers and authors want libraries and bookstores to show their covers. Under U.S. law showing covers to show off books for sale, rental or commentary falls under Fair Use in most circumstances. (We are not lawyers and make no warrant that your use will be legal.)"

Minow take: I'm not aware of a court case that supports this statement, but readers please add comments if you are.  It seems that Fair Use would need to be evaluated on a case by case basis. Questions should be asked such as: what is the library's purpose in posting the scan? OPAC? Reading program? Posters? How creative is the cover? Did the cover have its own copyright or is it a small part of a much larger copyrighted work (i.e. the book)?

However, there's another copyright exception that could be useful here -- the "useful article" provision at 17 USC 113(c) which states:

In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

and 17 USC 101 defines "useful article" as:

A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”

Assuming the books are "useful articles" it seems that Sect. 113 is more helpful than Fair Use. It seems that a strong argument can be made that with today's enhanced online catalogs that include book reviews, the commentary criteria is met. For items that do not have reviews attached, there is still a possible argument that the pictures are used to help advertise the book. 

This assumes that "advertise" can be used in a broad, nonprofit sense - to promote checkouts of the book, rather than sales.

Readers' thoughts?

Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status

So a new article I have written was published today.  It is entitled "Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status."  Here is the abstract:

It has long been assumed that most of the works published from 1923 to 1964 in the US are currently in the public domain. Both non-profit and commercial digital libraries have dreamed of making this material available. Most programs have recognized as well that the restoration of US copyright in foreign works in 1996 has made it impossible for them to offer to the public the full text of most foreign works. What has been overlooked up to now is the difficulty that copyright restoration has created for anyone trying to determine if a work published in the United States is still protected by copyright. This paper discusses the impact that copyright restoration of foreign works has had on US copyright status investigations, and offers some new steps that users must follow in order to investigate the copyright status in the US of any work. It argues that copyright restoration has made it almost impossible to determine with certainty whether a book published in the United States after 1922 and before 1964 is in the public domain. Digital libraries that wish to offer books from this period do so at some risk.

The article appears (in slightly abridged form) in D-Lib Magazine at http://www.dlib.org/dlib/july08/hirtle/07hirtle.html.  It is available in its full form at http://ecommons.library.cornell.edu/handle/1813/10884.  It has also been submitted to SSRN, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1160006, but I do not believe it is available through them yet.

The messy, messy copyright status of Edison phonograph recordings

In Tim Brook's excellent CLIR report Survey of Reissues of U.S. Sound Recordings, one finds the following statement:

One notable component of the public domain for recordings is the body of recordings made by the companies of Thomas A. Edison between 1890 and 1929. Legal title to those recordings did pass to a successor company; however, in the 1950s that company conveyed title to the U.S. government as part of an agreement with the U.S. Parks Department. Thus, Edison recordings can today be used without restriction.

The wonderful UC Santa Barbara (UCSB) cylinder preservation project web site repeats this assertion in its statement on copyright:

All Edison cylinders are presumed to be in the public domain as the assets of Edison Records were transferred to the National Park Service, a federal agency.

The National Park Service (NPS) itself doesn't go quite so far.  It notes instead that it "does not presume that all Edison recordings are in the public domain," but nevertheless will make copies of the recordings for users according to the exceptions in Federal copyright law (even though these recordings are not protected by Federal law, but rather by state common law copyright).

So which is right?  Are Edison recordings public domain, or are they still protected by state common law copyright?  A little while ago I decided to investigate.  Through the courtesy of the Edison National Historic Site, I was able to get a copy of the 1957 donation contract (actually of Bill of Sale) from McGraw-Edison Company (the successor to Edison's company) to the Park Service.  The Bill of Sale states clearly that McGraw-Edison was transferring "property, goods and chattels," along with "all privileges and appurtenances thereunto belonging."  Now deeds are far from being my area of expertise, but my understanding is that "privileges and appurtenances" is language that is used to accompany the transfer of physical property.  Courts have ruled that a written transfer of copyright does not need to use the word copyright if the intention of the parties is clear, but it does not seem to me to be at all clear that copyright transfer was intended.

Copyright could also have been transferred in accordance with the "Pushman Perogative."  The Pushman decision suggested that the physical transfer of the only copy of an unpublished work of art (and some would say manuscripts as well) also transferred copyright.  In theory, it could apply to music (and I believe I remember reading that normal industry practice assumed that when master recordings were physically transferred, copyright accompanied the recordings).

So the key question here is whether in transferring physical property, did McGraw-Edison also transfer the copyright?  Again, I don't see how one can conclude this.  One of the key components of the Pushman decision was that the work of art (or the manuscript) was unique.  The description on the Edison web site indicates that McGraw-Edison transferred published copies of the recordings.  Later the NPS did get 9,700 disc master molds from the Henry Ford Museum.  It might be possible to argue that McGraw-Edison transferred copyright in those masters to the Henry Ford Museum when it transferred title, and copyright was subsequently transferred to NPS with the discs.  But unless the 10,000 cylinders that the NPS got from McGraw-Edison were master recordings, it would be hard to argue that their physical transfer to NPS also transferred copyright.  And even if copyright was transferred with the physical recordings, it would not place the items in the public domain.  Rather the government would now own the copyright in the recordings (since the government is allowed to own copyright created by non-government employees).

Of course, this whole issue is likely to be moot.  McGraw-Edison never appears to have argued that it had a common-law copyright in the recordings.  The company has since been bought by Cooper Industries, and I bet that Cooper has no idea that it may own the copyright in the recordings.  The chance that Cooper would sue for common-law copyright infringement seems remote.  And as June Besek has found out in her study for CLIR, the exact parameters of common-law copyright are also hard to fathom, so Cooper may not have a case for infringement.

So the assertion that the Edison recordings are in the public domain would appear to mistaken. The recordings are likely still protected by copyright - and the copyright status of the recordings doesn't seem to matter.

The lesson in all this is that we should not limit ourselves to digitizing only when things are clearly in the public domain.  When UCSB, the Edison Site, the Library of Congress, and even commercial companies like Archeophone Records (which recently released a CD of indecent cylinder recordings from the 1890s)  make old cylinder recordings available for listening or purchase, they may be in technical violation of copyright law.  But they have not been sued, and the risk that they will be sued seem to be extremely low.  All digitization involves a risk assessment - and in making this culturally important material widely available, these institutions have made the right choice.

[Corrections: on 2 July 2008, I changed the title of this blog entry from "wax cylinder recordings" to "Edison phonograph recordings."  A commentator correctly noted that many different companies made wax cylinder recordings.  This post is only about Edison recordings.  And Edison made more than just wax cylinders, but also made cylinders of celluoid ("Blue Amberol cylinders") and disc records made of condensite ("Diamond Discs").  I have been told that given the fragility of wax cylinders and the durability of Blue Amberols and Diamond Discs, most Edison records that survive today are not wax cylinders.]

Copyright Renewal Dataset Available

From the Stanford Copyright & Fair Use site:

The Stanford University Libraries are pleased to announce that the full dataset for its Copyright Renewal Database is now available for download. A link to the file is found on the CRD database website, or you can download the dataset directly here: http://collections.stanford.edu/copyrightrenewals/files/CopyrightRenewalRecords20080426.zip

Provision of the dataset is an additional service that we hope will be useful to those of you who are interested in setting up internal copyright search systems of your own. The web interface will remain the same for those of you who want to use it for occasional research.

The libraries continue to be asked about plans to expand our data set to include other classes of works. While we have not ruled it out, we do not have plans for such an effort at the moment. This is primarily a funding issue, but it is important to remember that for the book database we were able to leverage the extraordinary work of Project Gutenberg in transcribing the Catalog of Copyright Entry text. Since those transcriptions don't exist for classes other than books, there is an additional layer of effort required to add additional data classes.

Mimi Calter
Special Projects Librarian and Intellectual Property Manager Stanford University Libraries
101 Green Library
Stanford, CA 94305-6004