LibraryLaw Blog

Common law copyrights and sound recordings

There is an interesting case, Capitol v. Naxos, wending its way through the courts in New York that may have repercussions for anyone interested in the preservation of sound recordings and/or the use of unpublished material. As a certification issued this month notes, "The advent of modern technology to produce digitally enhanced reproductions of historic sound recordings makes it likely that a decision by the Court of Appeals will be important for this emerging field."

In the case, Capitol Records is arguing that Naxos Records violated Capitol's copyright by reissuing in the US sound recordings that had entered the public domain in England. Sound recordings in the UK were protected by a 50 year copyright term, whereas in the US sound recordings produced before 1972 are protected by common law copyright until 2067.

In the latest ruling, the Federal Court of Appeals has asked the New York state court to rule on a number of issues. Most importantly, the state court is supposed to rule whether under New York law, a foreign work that enters the public domain in its home country also enters the public domain in the U.S.

An affirmative decision in this case could have broad implications for libraries and archives. In addition to the fifty year term for sound recordings found in the UK, there are other unpublished materials that have a shorter copyright duration than is found in the US. Photographs in Canada, for example, have been protected for fifty years; a favorable ruling in this case would suggest that any Canadian photograph taken before 1928 would now be in the public domain in the US.

This is a case to watch.

Kahle update: DOJ files motion to dismiss

From Chris Sprigman's blog:

Entry Archive: Kahle v. Ashcroft: Government files motion to dismiss
As expected. Read it here.

We will be working with the DOJ to set a mutually acceptable briefing schedule. The battle has begun. Stay tuned.

Kahle copyright lawsuit story submission site is now up -- please add your story

Lawrence Lessig and his legal team are asking for your help. Kahle v. Ashcroft is a lawsuit that challenges changes to U.S. copyright law that have created a large class of "orphan works" -- creative works which are out of print and no longer commercially available, but which are still regulated by copyright. To help win the lawsuit, we are looking for more examples of people being burdened by these copyright-related barriers to the use of orphan works. Visit the Kahle Submission Site and tell us your story.
 
Thanks very much.
 
Joe Gratz
Stanford CIS

Additional note from Mary Minow: Librarians and archivists generally define "orphan works" more narrowly - to refer to works that have no copyright owners that can be found through "reasonable efforts." That is, a university press that is still in business may have o.p. material, but is easy to find to request permissions. This is not the case for many of library/archive/museum collections that have old works with very limited publication (say a church newsletter) by dead authors. Finding heirs who have since had their own descendants and have no idea that they are the owners of these works is challenging to put it mildly. These are the best examples, in my opinion. Please contribute your sad stories of works that are not commercially viable that would add to our collective knowledge ... but that YOU WON'T DIGITIZE because the works are still in copyright. Works published from 1963-1977 are especially useful examples, since those are the years that had automatic copyright renewals.

New blog on academic copyright - Elizabeth Townsend

New blog: Academic Copyright by Elizabeth Townsend. Townsend is the author of "Legal and Policy Responses to the Disappearing 'Teacher Exception,' Or Copyright Ownership in the 21st Century University."

She writes: "This blog is dedicated to issues surrounding the work of the scholar in a legal context -- copyright, fair use, the public domain, privacy, etc"

I met Elizabeth a couple of weeks ago and I'm looking forward to reading this one.

The End of the VCR?: Congress and the World Intellectual Property Foundation

While these two legal “solutions” proposed below do not directly relate to libraries – they may indeed have a significant impact on libraries, especially as compilers and collectors of materials.

Under the WIPO draft treaty, libraries would not be able to record news programs for study and under the INDUCE Act libraries might be liable for the copyright infringement of their users if a technology at the library allows for copyright infringement (copy machine without copyright signs, perhaps?)

INDUCE Act

What do Chitty Chitty Bang Bang, child pornography, your VCR, your iPod, and copyright law have to do with each other? Orrin Hatch thinks that they are related – and therefore has introduced the Inducing Infringement of Copyrights Act, S. 2560 (an earlier draft was called the Inducement Devolves into Unlawful Child Exploitation Act) to stop peer-to-peer services and related consumer goods.

Presently, VCRs (analog video recorders), TiVos (digital video recorders) and iPods (digital music players) are all legal, though some people do use them in violation of copyright. Under this bill, these technologies and products would likely fall under “inducing copyright violation” and thereby could be illegal.

The legislation seems to be intended to overturn two rulings: a April 2003 ruling by U.S. District Judge Stephen Wilson (since appealed to the Ninth Circuit Court of Appeals) that Grokster and Morpheus, file-swapping services were legal because they "are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights" MGM v Grokster and the Supreme Court’s 1984 Sony v. Universal (Betamax) decision which held that VCRs are legal because they are "capable of substantial noninfringing uses."

A detailed analysis of Orrin Hatch's Statement supporting this legislation can be found here.

WIPO Draft Treaty: No Fair Use Allowed

The World Intellectual Property Organization is considering a new treaty to protect “the rights of broadcasting organizations.” The treaty text attacks the ability of the public to legally make home broadcast recordings -- and will lock in these rights for fifty years per broadcast.

This treaty would severely limit the ability of the public to “fair use,” educational use, and similar rights under the copyright laws of many countries. If the United States became a signatory, it would eliminate the public's ability, since 1984’s Betamax decision, to record broadcasts without the permission of a broadcaster.

This treaty would require signatories to assign to broadcasters:

Library computer authentication

There is an interesting article (subscription required) in the 25 June issue of the Chronicle of Higher Education. Entitled, "To use that library computer, please identify yourself," the article addresses the tension in college libraries between unfettered access to the Internet and the need to protect against criminal use of networks. The problem is that if you can track who spread a virus or hacked into a payroll system from a public access computer in a college library, you are also likely to be able to track what that person was reading.

One librarian quoted in the article noted that a local sandwich shop had open computers and asked, "If you can get it [anonymous and open web surfing] at Schlotzsky's, shouldn't you be able to get it at the library?"

ARL also published a SPEC Kit on "Library Public Access Workstation Authentication" last October. The executive summary is available here.

As the Chronicle article notes, librarians have traditionally been strong advocates of information freedom and the right to read anonymously. It is unclear if the growing use of authentication is a step away from that traditional position. I would hope that any library that institutes authentication has also made sure that its patron confidentiality policies are current and enforced.

Strickland, Minow and Lipinski on USA PATRIOT Act

Mary is too modest to note the following blurb from The Chronicle of Higher Education on the current issue of The Journal of College and University Law, but I am not. The Chronicle quotes Michael A. Olivas's introduction to the special issue:

People can't avoid "cringing," he says, when they read a report on how the USA Patriot Act affects college libraries. That article -- by Lee S. Strickland, a visiting professor of information policy at the University of Maryland at College Park; Mary Minow, a lawyer and former librarian; and Tomas Lipinski, an assistant professor of information studies at the University of Wisconsin at Milwaukee -- will "shock even those readers who suspected that the world had changed."

The issue is not online. Information about the journal is available at http://www.nd.edu/~jcul/patriot_act.html
.

UPDATE: A copy of the article is now available at http://www.cip.umd.edu/publications/patriot_in_the_library.pdf

Our Neighbors to the North: Canadian copyright law

Quite a great deal around copyright issues has been going on in Canada recently.


First, on January 1, 2004, every unpublished document whose author had died on or before December 31, 1948, passed from copyright into the public domain in Canada.

Second, the Supreme Court of Canada made an important ruling on copyright unanimously stating that the Law Society of Upper Canada (the Ontario Bar Association) is not breaking copyright law by photocopying legal decisions for lawyers and researchers. The ruling in Law Society of Upper Canada v. CCH Canadian Ltd states that "fair dealing" (the Canadian equavalent to "fair use") allows some institutions, like libraries and museums, to copy copyrighted material because it is being used for research and study even though copyright law applies to those materials. A detailed history of the case is found here.

This latest ruling builds on the earlier balancing of intellectual property rights by the Canadian Supreme Court, recognizing the rights of creators -- but also their limited status. In 2002, in Théberge v. Galerie d'Art du Petit Champlain, the Court stated that "excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization."

Third, the House of Commons Standing Committee on Canadian Heritage after hearings suggested a report calling for online uses of copyright protected works be made available through collective licensing. This action has been supported by some, such as Access Copyright, but criticized by others.

Michael Geist, a law professor at the University of Ottawa, in this column from the Toronto Star suggests a balanced guide to appropriate copyright reform:


1. Have all stakeholders (copyright owners, users, public interest groups) present during negotiations. Also,
the reform procedures should be balanced -- without the influence of outside funds.

2. Find a middle ground between proposals instead of seeking to please stakeholders by choosing one proposal as a whole.

3. Empirical evidence and the economic impact of all options should be discussed.

4. Accept the possiblility of a uniquely Canadian option. He suggests based on Canada's Supreme Court
decision "protection of user rights such as copying for research, private study, criticism and news reporting" should especially be protected.

5. Take the time for a good solution.



The Canadian Copyright Law can be found here.


Canadians should be commended for discussing these issues so widely. I am impressed that there is a legislative committee on heritage -- perhaps that is what the United States needs to help determine the boundaries to copyright. I think that part of the reason the fight about intellectual property is so divisive in the U.S. is our lack of general acceptance of the idea of "commons" -- including even occasionally traditional "commons" such as public libraries.

How soon is now?: Bloomsbury at 100

James Joyce's monumental work, Ulysses, reaches its 100th anniversary of the fictional walk described through Bloomsbury on June 16, 2004.

However, there has been controversy surrounding the celebration, with the grandson of the author threatening to sue the government and the National Library for the display of Joyce manuscripts.

The Oireachtas (the Irish Legislature) passed emergency legislation, The Copyright and Related Rights (Amendment) Bill 2004, to protect the National Library's display of 500 pages of Joyce manuscripts.

According to out-law.com:

The difficulty relates to an EU Directive of 1993, which extended the length of copyright protection for most works to 70 years from the date of death of the author and, for corporations, to 70 years from the start of the year in which the work was created.

Prior to the Directive, copyright protection lasted for only 50 years. For the Joyce estate, it expired in 1991.

Compounding the problems, the Irish law implementing the Directive is unclear as to whether the mere exhibition of copyrighted material in a public place infringes copyright. In order to allow the exhibition to go ahead, the Irish Parliament ... therefore rush[ed] through a draft bill that states:

“For the avoidance of doubt, no infringement of any right created by this Part in relation to an artistic or literary work occurs by reason of the placing on display the work, or a copy thereof, in a place or premises to which members of the public have access."

The controversy has prevented public readings of Ulysses.

As one of the most important modern works of literature, if anything should be in the intellectual "commons" after almost one hundred years, it should be this work.

This case also demonstrates the difficulty for the public when works are "copyright ghosts" -- works that have entered the public domain and then have their copyright restored. Ulysses (until this latest Act), like Peter Pan in the UK had entered the public domain and then was yanked back. By "ghosting" copyright, in essence it leads to perpetual copyright -- there is a lack of incentive to take the time and energy to create new editions and transformative works such as plays -- if through a legislative act copyright can be restored at any time.

Peters on 108(h)

Elizabeth Rader recently noted some interesting testimony by Mary Beth Peters, the Register of Copyright.

There is much of interest in the testimony, including Peters's response to the critics of the DMCA rulemaking (of which I have been one), but her comments on Section 108(h) were of special interest:

A key component of the Sonny Bono Copyright Term Extension Act, which extended copyright terms by twenty years, was an exception to help ensure public access to works in the last twenty years of their copyright term. During consideration of the issue, the Chairman of this Subcommittee asked the Office to facilitate negotiations between libraries, educational institutions and copyright owners with a goal of reaching agreement on the scope of a possible exemption. There were numerous meetings over a span of many months. Although there was some disagreement on the language of the exemption, there was no disagreement that the exemption would apply to all types of works.

The exemption, which became 17 U.S.C. 108(h), essentially permits a nonprofit library, educational institution or archive to reproduce or distribute copies of a work, including in digital format, and to display or perform a work during the last twenty years of the copyright term as long as that work is not commercially available. Unfortunately, the terms of section 108(i) make this exception inapplicable to motion pictures, musical works and pictorial, graphic and sculptural works. I am hopeful that this error will be remedied and would be pleased to work with the Subcommittee to correct it.

There are some of us who believe 108(h) was a sorry bone tossed to the library community in a sorry attempt to buy their support of the ill-conceived extension of copyright. Nevertheless, extending the provisions to formats other than text - and I would hope unpublished works as well - might make it slightly more usable.

Does anyone know of a library that has used 108(h) to digitize works?