LibraryLaw Blog

Investigating the copyright status of a serial

A colleague recently wrote to me to ask advice on how to investigate the copyright status of an article in a journal published in the 1930s.  Unfortunately the Copyright Office's Circular 22, "How to investigate the copyright status of a work" (available in multiple formats from <http://www.copyright.gov/circs/>) only provides an overview of the process, but does not have specific recommendations.  The terrific article by Samuel Demas and Jennie L. Brogdon entitled "Determining Copyright Status for Preservation and Access: Defining Reasonable Effort," Library Resources and Technical Services 41:4 (October, 1997): 323-334, only covers monographs, not serials.

What I told him I would do follows, but I would be interested to learn how others would approach the task.

Library copyright exception - what is "normal commercial exploitation" ?

Not a trick question ... just one in need of an answer.  This week I was teaching librarians who are embarking on digitization projects Wednesday about the little-known Sonny Bono exception for libraries.  Section 108 allows libraries, archives and nonprofit educational institutions to make copies of work in their last 20 years, so long as the works are not subject to "normal commercial exploitation" (17 USC 108h) (nor obtainable at a reasonable price, nor on an owner-filed notice per 108h).  What does that mean?

The good news is that a library copyright study group has been convened by the Library of Congress ... with none other than our own Peter Hirtle as a member.  If you have suggestions on how to define "normal commercial exploitation" (or other library copyright suggestions), add them here or send them directly to the group.

California Local History Digital Resources Project workshops

California Local History Digital Resources Project workshops this week (Northern California Aug 1 -3) and next week (Southern California Aug 8-11) :

In cooperation with The California Digital Library (CDL) and the California State Library LSTA Grants Program (CSL), Infopeople presents a three course, full-day digitization workshop series for representatives from libraries that received a FY2005/2006 LSTA 6-LHDRP grant. (A fourth course in the series is to be offered in 2006).

http://infopeople.org/WS/workshop/Workshop/222

I'm presenting the copyright portion of these workshops - Aug 3d and Aug 8th. 

(On a personal note, if you've recently sent me an email or voicemail, I probably won't be able to get back to you until after these are over...in fact I'm still recovering from jet lag.)

Next U.S. Copyright Office orphan works roundtable at Berkeley, Tuesday Aug 2

The next Copyright Office orphan works session is this Tuesday at UC Berkeley. I'm planning on attending - introduce yourself to me if you're a blogger (or bloggee).

http://www.copyright.gov/orphan/

Berkeley, California
Tuesday, August 2, 2005
Boalt Hall School of Law, University of California - Berkeley, Goldberg Room
9:00 AM - 5:00 PM P.D.T

When can you digitize old newspapers?

I got this question at the very end of the Digital Reference Legal Issues webcast, and we'd already cut off the connection.  It's actually a very complicated answer, and I hereby refer to this reply.

Breaking News: Google / Univ of Michigan Digization contract available now

Dear Mary Minow:

The U of Michigan has posted their confidential agreement with Google in response to my freedom of information request. See the link at the top of www.google-watch.org/appeal.html

I have some observations after reading this thing. Either the U of M decided that Google deserved a big fat Christmas present last December, or U of M's lawyers all had hangovers from a Christmas party.

Google gets to do anything it wants with the public domain material it digitizes, and U of M cannot do anything with this material other than use it on their own website, assuming that measures are taken to prevent crawling, scraping, or other types of automatic retrieval. As for copyrighted material, Google decides what is "fair use" and what isn't, and U of M is out of the picture.

The only place where I saw the word "privacy" in the agreement is here:

"4.5.2  Google shall maintain on its website a privacy policy that governs collection and use of information that Google obtains from a user of the Google Search Services."

That is absolutely worthless. We know this because every privacy policy Google has published on their website is absolutely worthless. Every single one is full of loopholes, assuming you can find anything concrete in them to begin with.

This was interesting:

"6.3  Confidentiality  (Exceptions)  Google understands that U of M, as a public institution, is subject to the Michigan Freedom of Information Act, and any disclosure of Confidential Information required by that statute will not constitute a breach of this agreement."

The whole agreement was confidential. The U of M is the only one of the five libraries that is not private, and subject to government regulation. Clearly, Google was hoping that no one would notice. They were almost right -- it was nearly five months before I decided to search for "freedom of information" and "university of michigan." Shame on me, and even more shame on everyone else. But the most shame on Google and the U of M, who should have taken one look at the situation and decided to skip all the confidentiality language from the start.

This is, after all, clearly a public policy issue. Remember, Google is on a mission from God to organize all the world's information. That's just about as public as you can get.

-- Daniel Brandt

The time is NOW to fax your Senators and Congresspersons to support digitization projects

If you care about getting money to digitize library materials, send a fax or email to your Senators and Congresspersons right now, supporting DO-IT legislation, just introduced in the House and the Senate. DO-IT says that Congressional leaders will be reaching out to their Senate and House colleagues next week to get co-sponsors to House (HR-2512) and Senate  (S. 1023) bills.  Here are sample letters to House Representatives and to Senators.  Actual examples are here 1, 2, 3. 

If your reps are on the House Commerce Committee or the House Education and Workforce Committee, the Senate Commerce Committee or the Senate HELP Committee, they are especially important... click on the committee, and then your member to get contact info.  Then do it - send your support for this legislation that will help fund library and education digital projects.

Congressman Ralph Regula of Ohio, a senior Republican appropriator and longtime DO IT champion, joined Ed Markey (D-MA) and Paul Gillmor (R-OH) to introduce HR-2512 on May 19th. Senator Conrad Burns (R-MT) joined Senators Dodd (D-CT), Snowe (R-ME) and Durbin (D-IL) in introducing S. 1023 on May 12th. These are folks to THANK!

Here's quick background. More at Digitalpromise.org 

Summary of Orphan Works submissions to Copyright Office by Peter Hirtle

I don't know if you've waded through the hundreds of submissions to the Copyright Office inquiry on orphan works, but I have not. Thus, I am grateful to Peter Hirtle who summarizes the submissions in an FAQ for RLG DigiNews April 15, 2005,

He writes that many of them document unsuccessful efforts by individuals to locate copyright owners.  There are also submissions from copyright owner representatives concerned about potential new regulations if they could increase infringements.

Peter says he has yet to find a submission that endorses the Canadian approach which requires users to submit extensive research on an orphan's copyright status to a government board.

Instead, he writes, many submissions endorse an approach that would require users to conduct a "reasonable" investigation into copyright status, and then enjoy immunity from statutory damages, attorney's fees and injunctive relief.  Other proposals suggest that users publicize their intent to use a presumably orphan work via a website maintained by the Copyright Office.

Peter reminds us that the open period for replies lasts until May 9th. He suggests we focus reply comments on the proposed solutions. Notably, can we set forth a bright line determination of "reasonable effort?" (Minow: I'm over-paraphrasing Peter here, so look at his original.  I feel strongly about this too. If we don't have some concrete measure of "reasonable effort," have we really set forth a safe harbor for risk averse folks?)

Tip of the hat to Peter Suber, Open Access News, for pointing to Peter's helpful article.  In fact, that's how I found out about it!

My orphan comments

Here they are:

Reminder: Orphan Works comments to Copyright Office due March 25th

This is a reminder to myself - but maybe to you too.  The deadline to send in comments to help libraries and others digitize old stuff is fast approaching - on Friday.  Either send in your own comments or quickly send your comments to the American Library Association.  The ALA just posted an outline of its draft proposal.

ALA outline:

The definition of an orphan work is a work for which the copyright owner cannot be reasonably located.

The types of works to which the draft solution applies is wide in scope - published and unpublished works and older as well as recent works. It may be just as difficult to identify the copyright owner of a recent photograph as an older work.

The use of orphan works should apply to all types of uses, not-for-profit and for profit.

The legislative solution is not limited to specific constituencies, e.g. libraries or educational institutions. The interest in using orphan works is far too broad for such a limitation.

The proposal calls for a " reasonable efforts search" by "qualified users." A reasonable effort would be an effort to identify and locate copyright owners in good faith, using location tools and other resources, and that is considered reasonable under the totality of the circumstances. Such a user is an institution or individual who uses an orphan work after conducting a reasonable search.

The proposal will provide general guidance to the user as to what constitutes a reasonable effort, e.g. use of "best practices" developed by relevant professional organizations (e.g. from CAA, the library community, etc.) and information from the Copyright Office.

Once a reasonable effort has been conducted, a user may use an orphan work without limitation unless or until an owner comes forward. If an owner does come forward, new use of that work would require permission. Previous use could continue.

Provisions relating to pursuing legal action are included as are limitations on remedies and liability