LibraryLaw Blog

Will ACTA end the purchase of foreign titles by libraries?

[See the UPDATE at the end of this message]

With the release of leaked versions of the proposed Anti-Counterfeiting Trade Agreement (ACTA),  opposition to the drafting process continues to grow.  Recently IFLA issued a statement arguing that while it is appropriate for governments to act to stop commercial counterfeiting, the copyright and patent issues at stake in ACTA would be better addressed through the World International Property Organization (WIPO).  They also object to the secrecy of the negotiations.  The Library Copyright Alliance (LCA) has also been active in its opposition to ACTA, most recently joining in a letter complaining about provisions in the leaked text and issuing a statement of LCA concerns.  Earlier, Janice Pilch had prepared an issue brief on ACTA for the LCA.

One thing that I have not seen in the library association statements is any mention of the border control measures found in Article 2 of the draft text.  In spite of the assurance of the U.S. Trade Representative that ACTA would not require alterations to U.S. law, the draft border measure provisions seem in conflict with Section 602 of the Copyright Act.  For example, the draft Article opens with the assurance that travelers may import copyrighted material when it is for non-commercial purposes and included in their personal baggage.  This mirrors part of the exception found in 602(a)(3)(B) of the Copyright Act, which allows people to import or export personal copies in their baggage.  Some of the proposed language in ACTA, however, would limit such importation to the duty-free allowance, a limitation not found in U.S. law.  More importantly, there appears to be no provision that would allow individuals to import books and movies directly from abroad, as the current law does; there would be no more ordering books from Amazon.de or Amazon.fr for your personal use. 

In addition, the leaked text contains no exception for libraries.  Under 602(a)(3)(C), non-profit libraries may import up to 5 copies of a foreign book or record for lending and archival purposes, and 1 copy of a foreign movie for archival purposes.  As it stands, ACTA would eliminate the ability of libraries to purchase foreign material directly from foreign distributors unless those distributors had been expressly authorized by the copyright owner to distribute the work in the U.S.

In the leaked text, the sections jump from Article 2.x to Article 2.6.  We can hope that library exceptions are included in the missing articles.  But the border measures section are just one more example why the secret ACTA negotiations are a bad idea.

UPDATE: Jonathan Band was kind enough to explain to me that "border measures" are different than "copyright exemptions."  If I understand the distinction properly in theory even under the current law, the Customs Bureau could seize a shipment of books or movies to a library as being an importation violation.  The library could then petition for the release of the material, using its exemption in 602.  Jonathan argues, probably correctly, that nothing in ACTA would change this.  The 602 exemptions will still exist.

I won't argue with him as a matter of law.  I am more worried about whether ACTA may lead to a change in practice.  For example, the current "border measures" found in 19 CFR 133 authorizes the Customs Bureau to seize "infringing copies.”  These are narrowly defined: pirated copies that “are unlawfully made (without the authorization of the copyright owner).” Could ACTA encourage a broader definition, one that might encompass the marketing behaviors of publishers, and hence encourage more seizures at the border (even if eventually the law would allow that content to enter)?  If there is no need to specify the library exemptions in ACTA, why are the drafters including the personal exemptions found in 602?

Jonathan is probably right that my worries are unfounded - but I am going to read closely the promised full draft treaty when it is released on 21 April.

The search for the oldest copyrighted work in the U.S. goes on…

I knew when I wrote my post speculating as to what is the oldest work still protected by copyright in the U.S. that I was likely to get it wrong.  Copyright is just too complicated for anyone to get right the first time around…

In the original post, I noted that the oldest work “would … have to have been published under the authority of the copyright owner (most likely, the estate of the author).”  One correspondent noted that this could be a foreign estate, which is true.  The earliest example of a foreign estate still exerting copyright of which I am aware is the contested ownership of the copyright in the works of John Clare (1793-1864).  The Adams works are still earlier, however, so unless someone can identify another estate, we need to look at John Adams for the earliest copyrighted work.

Another correspondent asked the very reasonable question: “Does the Massachusetts Historical Society (MHS) hold the copyright for ALL Adams letters, or just the ones in their possession? Was it a case of the surviving heirs bequeathing them the rights to all unpublished material?”  The dedication page for the diary notes that the deed of gift of 4 April 1956 gave custody of the papers “written, accumulated, and preserved over a span of three centuries by the Adams family of Massachusetts” to the MHS.  I assumed that the MHS had acquired the literary rights to the diary since it had been “written” by a member of the Adams family, though not “accumulated” or “preserved” by them.  The question from my correspondent, however, made me realize that the gift could have been more constrained.  I needed to dig deeper.

Fortunately, the deed of gift transferring the papers and their copyright to the MHS was printed in Life Magazine in 1956, and Google has digitized all of Life.  You can see the document here.  The brief document states that the Trust transferred to the MHS literary rights and copyrights in “all manuscripts letters, letter-books, documents, public and private, diaries and other material belonging to the said Trust and now located on the premises of the said Society…” (emphasis mine).  My correspondent was correct: only copyright in material in the possession of the MHS was transferred to them; copyright in diaries and letters found in other repositories would have remained with the Adams family. 

What does this mean for the copyright status of the 1753 diary published in 1966?  There are two options:

1.  It was published without the formal authorization of the Adams Family.  I can’t find any acknowledgement in the volume that the Adams family authorized its publication.  Publication for copyright purposes had to occur under the authority of the copyright owner.  If it was lacking, the work remained unpublished (for copyright purposes) and would have entered the public domain on 1 January 2003.

2.  Alternatively, we could assume that it was published with the authority of the copyright owner – but ask if the copyright notice was adequate.  A technical reading of the 1909 Copyright Act would suggest that a preexisting work (in this case, the 1753 diary) would enter the public domain unless there were separate notices for both the preexisting work and the derivative work (the edited version produced by MHS) when the copyright in the two works was owned by different rightsholders.  Failure to abide by copyright notice requirements would have forfeited the Adams family’s copyright in the diary.

My best guess now is that the 1753 diary is in the public domain.  The search for the oldest copyrighted works goes on, but must await another posting.