Fair Use Week 2021: Day Five With Guest Experts Meredith Jacob and Will Cross

For our final post of the 8th Annual Fair Use Week, we are very excited to have two of the authors of the recently launched Code of Best Practices in Fair Use for Open Educational Resources, share their insights on the process and development of this incredible publication. Enjoy! – Kyle K. Courtney 

Creation is Not a Closed Book Exam: Developing the Best Practices in Fair Use for Open Educational Resources 

by Will Cross and Meredith Jacob

You can learn a lot from which questions people ask you, and which they don’t. As educators and advocates for building openly-licensed textbooks and other open educational resources (OER), we spend a lot of our time at conferences and workshops talking about how to understand and use Creative Commons licenses. As we’ve done presentations over the past few years, however, we noticed that attendees generally listened politely to our presentation and then spent the entire question and discussion period asking pointed questions about how fair use fits in.

As fair use advocates, we love these questions – what’s more fun than digging into a juicy fair use discussion! But bringing discussions about fair use into the open education community raised a second set of questions from creators and especially gatekeepers, and we needed to give people a way forward that went beyond a quick conference Q&A but still didn’t promise individualized legal advice. Some open educators felt unprepared to analyze fair use in particular contexts. Many felt apprehensive about fair use as a whole, often based on anxieties grounded in copyright folklore left over from the era of Napster and LimeWire. Strikingly, many institutional gatekeepers felt unable to make broad, uniform decisions about whether and how to acknowledge fair use at all. While they recognized that some authors were in fact relying on fair use sub rosa, without any tool for systematically understanding and applying fair use they felt that their options were either “allow anything” or “(pretend to) allow nothing.”

Of course, the reality is that every textbook relies to some extent on fair use. It would be practically impossible to build a textbook – certainly a good textbook – without quoting anyone, critiquing anything, or illustrating ideas with text, images, music, or other materials from the real world. Creating anything, including OER, is not a closed book exam. Good pedagogy explicitly builds on the work that has come before and great pedagogy connects to the real world and the lived experiences of the learners it is meant to engage.

Our job, then, was to understand what type of guidance the community needed in order to find a happy medium between “no fair use allowed” and “anything goes.” Fortunately, we had a great tool for exactly this type of work: the Codes of Best Practice in Fair Use. For two decades, the Codes of Best Practice have proved to be an effective tool for many communities to document the repeated professional situations in which they can and must rely on fair use. The Codes are built on a framework that aligns fair use decision making with both the professional mission of the creators and the predictable legal principles of fair use law. These Codes have worked for such disparate communities as documentary filmmakers, librarians, poets, and dance archivists, just to name a few.  

As when creating past Codes, we began with a series of interviews with stakeholders across the community. These interviews helped us understand where questions about fair use were creating friction for OER creators, where authors were regularly relying on fair use, what parallel concerns such as accessibility and equity demanded attention, and finally where OER creators were getting information, advice, or even hard rules about the copyright decisions they were making. By early 2020 we felt ready to begin the focus groups that are the signature work of creating Best Practice documents. We felt inspired, connected, and ready to go. Nothing could stop us now . . .

Obviously 2020 didn’t go the way anyone expected, and we paused the process to support educators making the rapid move to fully online instruction with a series of webinars on building resilient materials for teaching and learning. This series also began with a question: “can I read aloud to my students in an online classroom?” The answer, of course, is “reading is most definitely allowed!”

Significantly, what we thought would be a brief detour turned out to be a critical reminder for all of our work, especially the Best Practices: “it’s always an emergency for someone.” While the pandemic brought into focus acute questions about rapid shifts in pedagogy and making do with substandard wifi, for many learners those challenges are chronic and exist beside and in the context of systematic injustice, inaccessible design, and deep digital divides. Relying on fair use as a tool to enable access seemed urgently necessary in that moment of crisis. But those needs are no less urgent and fair use is no less essential for students who face perennial challenges based on inequity and inaccessibility. 

As we returned to developing the Code, this core principle continued to animate our work and to resonate deeply in focus group discussions, particularly when we discussed the inadequacy of linking out rather than relying on fair use to reliably incorporate materials. By the late fall we had completed eighteen focus groups and were pleased that our outstanding team of legal reviewers enthusiastically supported the document we facilitated in partnership with the open education community. 

As we celebrate Fair Use Week 2021 we’re excited to share the Code of Best Practices in Fair Use for Open Educational Resources. As with all of the Codes, this resource describes an approach to reasoning about the application of fair use to issues both familiar and emergent but does not provide rules of thumb, bright-line rules, or other decision-making shortcuts. Using the Code to develop OER is also not a closed book exam. Instead, it is designed to empower you to bring together a team of educators, librarians, publishing experts, and others to develop resilient, inclusive OER that engages with and reflects the work that has come before and the world that learners are preparing to enter.

You can learn more about what the Code says, how it works, and how it fits into a global body of educational exceptions in this recorded webinar. We’re also developing a series of community-specific events for open educators, librarians, and legal gatekeepers such as offices of general counsel over the coming weeks. We invite you to work with us to develop guidance and models for applying the Code in specific disciplines and communities through workshops and project development. We’re just getting started with the really fun stuff and we know your questions and real world examples will help make this resource even more meaningful and exciting.

 

Meredith Jacob serves as the Assistant Director for Academic Programs at the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law. Her work includes student outreach and advising, curriculum coordination, and academic research and advocacy. Currently her work also includes research and advocacy focused on open access to federally funded research, flexible limitations and exceptions to copyright, and public interest in international intellectual property. Previously, Meredith worked with state legislators on a variety of intellectual property and regulatory issues affecting pharmaceuticals and the privacy of prescription records.

Will Cross is the Director of the Copyright & Digital Scholarship Center in the NC State University Libraries, an instructor in the UNC SILS, and an OER Research Fellow. Trained as a lawyer and librarian, he guides policy, speaks, and writes on open culture and navigating legal uncertainty. As a course designer and presenter for ACRL, SPARC, and the Open Textbook Network, Will has developed training materials and run workshops across the US and for international audiences from Ontario to Abu Dhabi. Will’s current research focuses on the relationship between copyright and open education. In addition to this project he serves as co-PI and co-developer of the IMLS-funded Library Copyright Institute

Fair Use Week 2021: Day One With Guest Expert Kenneth D. Crews

We are delighted to kick off the 8th Annual Fair Use Week with a guest post by the worldwide copyright expert, Kenneth D. Crews, as he contemplates an important question on the most recent U.S. copyright legislation. -Kyle K. Courtney

Can Fair Use Survive the CASE Act?

by Kenneth D. Crews

When Congress thinks of COVID, it seems to also think about copyright.  Congress made that connection at a critical moment this last December.  Embedded in the appropriations bill that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright “small-claims court,” where many future infringements may face their decider.  The defense of fair use will also be on the docket.

The new law, known as the CASE Act, establishes the Copyright Claims Board within the U.S. Copyright Office, where parties may voluntarily allow their infringement cases to be heard.  A copyright owner, as “claimant,” may choose to commence legal action in the new agency.  The user of the work, or the “respondent,” may allow the matter to proceed or may choose to opt-out, effectively sending the case back to the copyright owner to decide whether to drop the matter or file a full-fledged lawsuit in federal court.

 

 

Realistically, this new court-like Board may be a dark hole where cases mysteriously disappear.  Some claims will be filed and then bounced as the respondents opt-out.  Other claims will be launched, and respondents will simply vanish or fail to understand or react at all, sending the matter into default.  When a proceeding finally comes to fruition, the parties will investigate and present evidence, and the three appointed Copyright Claims Officers will determine the outcome of each case.  Any claim of infringement will be subject to relevant defenses, such as expiration of the copyright, as well as fair use and other copyright exceptions.

The Copyright Claims Board will not open for business until late in 2021 at the soonest, but this is a good time to contemplate how fair use might play out.  Think of these stages and possibilities:

 

Raising the Defense. A proceeding begins with the filing of a claim and the formal delivery of notice on the respondent.  The first mention of fair use (or any other copyright exception) will typically appear in the respondent’s reply.  But surely the claimant will foresee fair use asserted in many of these small-claims proceedings.

Gathering the Evidence. Courts and commentaries regularly remind us that fair use is a fact-specific matter, and the details of each case can determine the outcome.  Staff attorneys working for the Board have the authority to investigate a matter, and the Officers have the authority to allow the introduction of evidence.  Think of that fourth factor of fair use: the effect of the use on the market for or value of the work.  A court will often need confidential economic data about the sales of the work in question and the revenue earned.  The Copyright Claims Officers, parties, and staff attorneys do not have clear authority to compel disclosures and discovery.  They can “request” documents and information.  As a result, the Board could frequently be called upon to decide questions of fair use, but without the needed evidence.  The choices at that point will be far from satisfactory.

Reporting the Decision. The Board is required to make a public disclosure of its decisions and the legal basis for rulings, but the statute includes few other details.  The public announcement of a ruling might be little more than a conclusion, leaving only by implication the resolution of the fair use argument and the reasoning.  On the other hand, the ruling on fair use could be an elaborate legal analysis.  Because the parties have limited ability to appeal a ruling, the Officers might not feel the need to hand down complex opinions.

Depth of the AnalysisOn the other hand, all judges know that their rulings on fair use are convincing to parties and lawyers only if their analyses are solidly persuasive.  The same will be expected of the new Copyright Claims Officers, and for that reason they might want to pursue trenchant examinations of fair use.  The Officers will also be looking to the parties for their arguments, and the parties are permitted to be represented by attorneys (or even by law students).  Keep in mind that the typical proceeding will involve a modest use of a single work, and such users will also typically not be in position to retain specialized and expensive legal counsel.  Consequently, the legal analyses presented to the Officers will often be far from equitable as between the parties.

Creation of Precedent. Decisions from the Copyright Claims Board will not be binding on anyone other than the immediate parties, and they officially will have no precedential value in later actions in a court or before the Board.  Yet conventions of lawyering and the inevitability of human reasoning will surely press to the contrary.  As the Board builds a record of rulings, the outcomes and the reasoning will undoubtedly be fodder for scrutiny and statistical tabulation.  Individual rulings will in some manner be referenced in later proceedings.  Analyses of trends and patterns will be pursued for their scholarly value and as insights for parties and attorneys thinking about the next case to come before the new Board.

Can fair use survive in this small-claims Board? Technically, the answer is definitely yes. However, fair use may also be vulnerable to distorted determinations, resulting from the lack of critical evidence, the pressure to manage a growing roster of legal proceedings, and the inequities of legal representation. Until the court can demonstrate a record of wise and effective rulings on fair use, any party to a claim that is likely to hinge on an innovative or nuanced question of fair use would probably we wise to opt-out of small claims and send the case to settlement or federal court.

Kenneth D. Crews is an attorney and copyright consultant in Los Angeles, and he was previously a faculty member and copyright policy officer at Indiana and Columbia Universities.  He is the author numerous publications on fair use, including Copyright Law for Librarians and Educators, published by ALA Editions. The publisher has kindly made the new fourth edition of the book available at half price during Fair Use Week.

Fair Use Week 2020: Day Four With Guest Expert David Hansen

Fair Use: Copyright’s Deus Ex Machina?

by David Hansen

On the surface it sometimes feels like copyright law is incoherent. On the one hand, we read about how the character of copyright is aimed at benefiting society; enriching public discourse; and promoting the progress of science and the useful arts. But then, we read elsewhere about copyright as a primarily economic tool, calculated to achieve maximum incentives for economic return to owners.

Athena Pallas (Minerva) and the Centaur, by Sandro Botticelli c.1482. (No need to use fair use for this image since it is in the public domain!)

When we have what seems like an irresolvable conflict between these two characters, fair use somehow always seems to make an appearance. Like the story of those Greek dramas in which gods descend onto the stage via machine (deus ex machina) to resolve seeming plot holes, fair use can sometimes seem to swoop in and handily resolve all issues.

Except it doesn’t, or at least it shouldn’t. Fair use is not some external entity acting on the copyright system at whim, like Zeus interfering in mortal disputes. But in day to day use, I experience the allure to treat fair use this way when working with people new to copyright who are seeking answers to basic questions such as “Can I reuse this figure in my article?” or “How much of this book can I scan for my students to read online?” After some preliminary introduction to what fair use does, I find those users have the strong tendency to fall in love with the power of doctrine. Why address other complex questions (“Is the work copyrightable to begin with?” “Is what you want to do even implicating any of the owner’s exclusive rights?”), when, like a magical incantation, it seems you can just say words like “transformative” and “educational” and, presto chango, everything is OK!

While fair use is powerful, it isn’t magic. What it is, is an integral part of the Copyright Act. As the statute states, fair use is a “right” too, and exercising it is “not an infringement of copyright.” It also requires rigorous analysis. Mindlessly incanting words such as “transformative” won’t do. There is now helpful empirical evidence that fair use applied by the courts is not arbitrary, but has a robust and coherent framework of analysis for ensuring that copyright doesn’t “stifle the very creativity which the law is designed to foster.” Whole codes of best practices from a variety of communities of practice—documentary filmmakers, librarians, and many others—have been developed to put into practice lessons from those cases, providing yet more certainty and coherence to the doctrine for users in day-to-day application.

Beyond misapplication, I think a much more serious concern is in the pressure to look to fair use as a way to avoid other hard questions about other areas of copyright law. If we look to fair use to solve all our copyright questions, that pressure could start to water down and ultimately threaten the coherence of the doctrine. Two recent cases in particular raise some concerns about whether core questions about the scope of copyright protection are being punted into an unnecessary fair use analysis.

ASTM v. Public.Resource.org is one such case, at its core about whether standards (e.g., material safety standards) incorporated by reference into federal law are protected by copyright or are unprotectable as “edicts of government.” The district court in that case concluded that such standards as incorporated into the law are protectable (a decision I think was wrong).On appeal, the D.C. Circuit Court of Appeals reversed but instructed that the best way forward would be to avoid the subject matter question and instead analyze first the use primarily through the lens of fair use.

Oracle v. Google raises some similar issues. This is a case currently before the U.S. Supreme Court, primarily to answer the question of whether application program interfaces (APIs) are copyrightable. Google’s position is that they are not protectable and there is no infringement, at least in how Google has used them on the facts in that case, while Oracle says that they are. As a backup argument, Google argues that even if protectable, its use is fair use.  Google has a good, though a bit awkward fair use argument, explained well both in its brief and in supporting briefs from amici . Like the ASTM case, this case raises much more important questions about the scope of protection. Currently before the Supreme Court, my hope is that the Court does not dodge those important questions even if fair use gives them the option.

So is fair use copyright’s a deus ex machina? No, I think not, but we are sometimes tempted to ask it to be. We have a lot to lose if we do that. In any individual case, it probably doesn’t matter much, but over time and across many situations, we risk watering down the currently robust, predictable doctrine. I’m not saying that we should avoid fair use at all costs, but it’s important to remember that fair use is just one part (an important part) of the copyright system, and we shouldn’t lean on it to resolve all of our issues.

Notes and resources you may want to check out:

Some of my thinking on this subject is influenced by a fantastic article, now 15 years old, written by Matthew Sag titled “God in the Machine: A New Structural Analysis of Copyright’s Fair Use Doctrine.”

The research I mentioned above on the stability and coherence of fair use is rich. Some articles worth checking out are:

Finally, the fair use best practices are available at https://cmsimpact.org/codes-of-best-practices/.

David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Fair Use Week 2020: Day Two With Guest Expert Brandon Butler

The Feist-y Reason That Text and Data Mining is Fair Use

by Brandon Butler

Happy Fair Use Week! This is a happy week, indeed, for me, because fair use is my favorite copyright doctrine. But my favorite copyright decision just may be Feist v. Rural Telephone Co., a case about…telephone books!

Among the many wonderful qualities of the Feist opinion is the bright neon line that it draws between the purpose of copyright (to give incentives for the creation and distribution of creative, expressive works) and what way, way, WAY too many people think is copyright’s purpose: to ensure that someone who works hard to make something gets paid every time someone else uses it. If you understand why Feist draws that line, you’ll understand why text and data mining is clearly a fair use. (See, I got there! Now hang in a little longer and I’ll get back to fair use in a minute…)

The idea that whoever makes something should control it, or get paid whenever it gets used, is sometimes called “labor-desert theory,” and it sounds pretty tempting. There’s even an Enlightenment philosopher that people invoke to support it: John Locke, who is said to have argued that when someone takes something from “the commons” and mixes it with their labor, the result is a delicious property gumbo, and it is theirs.

It’s been a minute since I last read Locke, so I can’t promise that’s the most faithful representation of his thinking. But I can tell you it is a pretty faithful representation of the arguments that some copyright holders and property rights enthusiasts make in favor of long, strong copyright. They talk about how hard it is to make a movie, how much time and energy must be devoted to various forms of creative work, how many jobs are required to make the creative economy hum, and so on.

That may all be true, but the fact (ha!) is that how hard you work to make something is irrelevant to the question of whether copyright protects it. Why? Well, it is an axiom of US copyright law that the author’s monopoly protects her expressive contributions to a work, but does not protect any facts (or ideas) that might be embedded in the work.

For example, where two authors write about the same underlying historical event, the first author may prevent the second author from copying too much of her expressive prose (these were the facts of the pioneering fair use decision Folsom v. Marsh, in which verbatim copying from an exhaustive biography of George Washington to create a second, shorter biography was found to be infringing), but she certainly can’t prevent the second author from relying on facts uncovered in her research (as, for example, in Miller v. Universal, where an author’s “research” on a famous kidnapping case was held not to be the proper subject of copyright protection as against a second author). Facts are not created by anyone (pace post-modernism etc.), and are no one’s property, according to copyright law. And, crucially, wrapping facts in a crunchy, flaky layer of your copyrighted expression is not enough to give you rights in the underlying facts.

Despite the bedrock status of this proposition, and its seemingly clear embodiment in the statute at § 102(b) of the Copyright Act, courts had trouble resisting the impulse to reward “sweat of the brow” or “industrious collection” by granting copyright protection to facts first revealed in a work of authorship. It wasn’t until the 1991 resolution of a dispute over the wholesale copying of names and numbers in telephone directories in Feist that the Supreme Court gave us a strong, clear articulation of both the principle and its deep Constitutional foundations:

The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. [citations omitted] Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them.

[snip]

It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not “some unforeseen byproduct of a statutory scheme.” Harper & Row, 471 U. S., at 589 (dissenting opinion). It is, rather, “the essence of copyright,” ibid., and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” Art. I, § 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975)To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, at 556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. …This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. (Emphases added.)

The Supreme Court subsequently called this distinction (also known as the “idea/expression dichotomy”) part of the “traditional contours of copyright” and a “built-in First Amendment safety valve.” This is, in other words, about as fundamental a proposition as there can be in copyright law, grounded in both the Copyright Clause and the First Amendment of the Constitution. To the extent that fact and expression in a protected work can be separated, the facts are free for the taking. Whether it’s a phonebook or a newspaper article, expression is protected, but facts are free.

But, it turns out that one of the most powerful ways to extract and use all the facts embedded in a wide variety of creative works, to separate them from the expression in which they subsist, is to use text and data mining. But in order to perform text and data mining, a computer has to do things that ordinarily require the permission of the copyright holder, namely, copying the full text of the works into a computer, and in many cases displaying to the public contextual snippets that substantiate your claims. All this takes place thanks to technology that the Founders certainly couldn’t have foreseen, and that even the drafters of the 1976 Copyright Act might not have anticipated. Enter fair use, with the flexibility required to adapt to a changing world.

While there was already plenty of smart writing on the issue, and a long line of cases pointing in the right direction, the question of whether using computers to read in-copyright texts and extract facts from them got its fullest, and perhaps final, answer when Judge Pierre Leval decided the Google Books case. Google Books was the result of a massive digitization effort in which university libraries (including ours) provided millions of books to Google to digitize and crawl, just like they crawl websites, to help people find books. (Libraries got to keep the digital copies, which we deposited with the HathiTrust Digital Library.) Leval more or less created the modern fair use doctrine in a law review article first published 30 years ago, so it was fitting that he was the judge to finally give a broad blessing to text and data mining. In his opinion, Judge Leval answers two fundamental questions:

  1. Is Google’s purpose transformative, i.e., is it different from the author’s original expressive purpose and does it “serve[] copyright’s goal of enriching public knowledge” by using the protected material to “communicate[] something new and different from the original or expand[] its utility.” And,
  2. Does Google’s use provide the public with a “substitute” in the market for the original works in a way that does “meaningful” “significant” harm to the market for the work?

The ethos of Feist informs these two questions in a fundamental way. First, Judge Leval finds Google’s purpose to be transformative because of its fundamentally factual, informative character. The core purposes of Google Book Search—to locate relevant books by providing facts about the occurrence of search terms inside of books, and to reveal facts about the occurrence of words and phrases throughout the entire corpus of books—are of course radically different from the expressive purpose(s) of any particular book. And, not only is that purpose different, but it is consonant with the design of copyright itself, which is tailored to facilitate the free circulation of facts. It also serves the ultimate purpose of copyright, which is to “promote the Progress of Science” (where “Science” means all manner of learning and culture). Google Books is transformative because it is Feist-y – it liberates facts from expression in a way that adds to the world’s knowledge and doesn’t implicate the expressive monopoly of authors.

Which brings us to the question of market harm and substitution, which is also filtered through a Feist-ian lens. In addition to the obvious point that Google Book Search results are not a substitute for access to the underlying books (snippets are too small, and they are impossible to reassemble into the original work), which is certainly of fundamental importance, the court must contend with two other market-based challenges.

First, the Authors Guild argued that some users will find the information they need in snippets, which will forestall sales of the relevant works (either directly to researchers, or to libraries that serve them). The court’s response here is fundamentally Feist-ian: so what? That is, to the extent that the snippet reveals a fact that obviates a researcher’s need to buy a copy of the book containing that fact, that is all to the good.

Leval observes, by way of example, that a student looking for the year Franklin D. Roosevelt was first stricken by polio can find it in a snippet from Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981) that is returned from a Google Book Search query. The student will not have to buy Goldberg’s book, or even check it out from a library, to find this fact. And that’s fine; this is not a “harm” that copyright cares about. Judge Leval writes:

[The author’s] copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression.… Google would be entitled, without infringement of [the author’s] copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book.The fact that, in the case of the student’s snippet search, the information came embedded in three lines of Goldberg’s writing, which were superfluous to the searcher’s needs, would not change the taking of an unprotected fact into a copyright infringement.

Or, as Justice O’Connor says in Feist, “This result is neither unfair nor unfortunate.”

The Authors Guild also argued that Google’s scanning harms a “derivative” market, namely the market for creating search databases and displaying snippets. At first glance, this may be the Guild’s most compelling argument. Maybe Google Book Search users never see the entire work, but of course Google itself necessarily does copy the full text, so the status of Google’s use behind the curtain could be less clear.

Judge Leval doesn’t think so. To the contrary, he says “There is no merit to this argument.” Why? Because

“The copyright resulting from the Plaintiffs’ authorship of their works does not include an exclusive right to furnish the kind of information about the works that Google’s programs provide to the public. For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.”

Judge Leval goes on to argue that the right to create derivative works is limited to works that “re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.” As has already been established, the Google Book Search project does no such thing. Indeed, Judge Leval distinguishes Google Book Search from other projects that have sought permission to display shorter portions of books or songs (as in ringtones) by observing that,

Unlike the reading experience that the Google Partners program or the Amazon Search Inside the Book program provides [or the listening experience that Ringtones provide], the snippet function does not provide searchers with any meaningful experience of the expressive content of the book. (emphasis added)

So, the fact/expression dichotomy, defended most memorably in Feist, does a lot of work in the Google Books opinion. And that is a good thing, because it grounds the right to text and data mine in fundamental copyright and Constitutional principles with roots as deep and broad as the fair use doctrine itself.

Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He was a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law from 2013 to 2016. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2020: Day One With Guest Expert Kenneth D. Crews

Presidents, Politics, and Fair Use

by Kenneth D. Crews

It’s February in an election year, and that can only mean that fair use is everywhere.  It is on the television, in the political rallies, and in the leaks and machinations of governmental grinding.  We might often think of fair use as the basis for quotations in books, classroom materials for students, and innovative art and music built on generations of creativity that came before.  But fair use is an inherently political creature.

Fair use originated in United States court cases from nineteenth century, and it was enacted by Congress as Section 107 of the Copyright Act of 1976.  Getting anything through Congress is of course a political challenge, and every bit of the 1976 law was a belabored exercise that required almost two decades of hearing and compromises before Congress was ready to make the political decision affirming fair use into American copyright law.

Fair use is also political because it represents a policy choice by lawmakers in courts and Congress to allow limited uses of other people’s copyrighted works, taking into consideration variables of fairness, now known as the four factors of fair use.  Congress at the same time made the political decision to empower individuals to engage in fair use – to determine what is good and proper as the law directly affects the copyright owners and users – and to evaluate how uses might affect broader public interests and promote the mission of copyright to encourage creativity.

The politics of fair use also has a much more earthy manifestation.  As the campaign season becomes more heated, fair use becomes more prevalent.  Some uses are surely accomplished by license while other works may not be protectable under copyright at all.

Consider the campaign ad that includes a clip of a presidential candidate speaking pointedly on a CNN program.  Depending on the candidate’s exact statements and your point of view, you might want to use that clip in a short TV spot to support or attack this candidate. It matters not whether the speaker is Biden, Buttigieg, Bloomberg, Klobuchar, Sanders, Trump, Warren, or any other election prospect.

Imagine you are the campaign manager for a candidate trying to launch your latest ads, and those several seconds from CNN are perfect.  You could get permission, but unless you have a prior arrangement to expedite the process, permission can be fatal.  It might never come; it might be burdened with conditions; it might have a hefty fee.  Permission can stall the moment, and you are going to miss your constant rolling deadline.

Further, suppose you still want permission; you have to wonder, “Who can grant this permission?” The candidate is speaking her own words; the candidate likely owns the copyright in those words.  The CNN crew members are choosing camera angles and developing the layout and imagery on the screen; CNN surely holds those copyrights.  Other copyrights might creep into the clip, including quotations, signs, and background music.  Theoretically, multiple permissions might be needed for just the momentary passage.

Fair use fills the voids and paves over the uncertainties.  Based on the four factors, this campaign use of the clip is highly likely to be within fair use.  The election purpose advances the social policy of copyright; the work is fact-based news of great public interest; the amount is minuscule; and the use may well promote CNN and not harm it.

Realistically, this kind of use is also a classic calculated risk.  The campaign is in full tilt.  The election is on Tuesday.  The polling is grim.  You’re are holding a prime-time ad slot on the networks tonight.  You have to get this great commercial shot, cut, and launched.  The risk calculation is more than just wishing for the best or hoping no one notices.  The risk is in large part your own determination that a judge will agree that you are within fair use.

Realistically, these things rarely if ever go to court.  In Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), the court ruled that the makers of t-shirts criticizing the mayor of Madison, Wisconsin acted within fair use when they made transformative use of a photograph of the mayor.  Perhaps most important, the use encompassed only a portion of the photograph for a transformative purpose, and the use did not substitute for objectives of the original work.  Add the pressured production deadline for a campaign ad and that the candidate’s statements are customary political fodder, and the likely result is a stronger case for the copyright exception.

Instead of going to court, political fair use is usually fought in the trenches among well-meaning and stressed professionals.  At the least, they (i.e., their lawyers) should know the fundamentals of copyright and fair use and be ready to assert or respond to an infringement claim.  They should also know that sometimes presidential politics is breeding ground of fair use.  When Justice Joseph Story developed the concept in an 1841 court ruling, he was deciding a case that involved the published papers of George Washington.

Which takes us to Trump and Watergate.  In the thick of the latest impeachment proceedings, John Dean of Watergate fame, was a guest on CNN when the topic turned to leaked excerpts from the forthcoming book by former National Security Advisor, John Bolton.  While other guests that day honed in on the formidable political threat, John Dean chimed, “You also have copyright issues here.  Start releasing books that are not published.”  The rest of the panel hit the boring button and moved on.  But Dean was onto something – a fair use lesson from his past life in Watergate.

Dean went to jail in the 1970s.  President Nixon resigned.  Gerald Ford gave a pardon, and he wrote a memoir.  The Nation magazine quoted about 300 words from the then-unpublished Ford manuscript.  The U.S. Supreme Court ruled in 1985 that The Nation magazine was not within fair use in reprinting those selected words, from a vastly longer book manuscript, into a critical news report (Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)).  Because the work was yet unpublished, the Supreme Court found that the amount was excessive and interfered with potential sales of the book.

Yes, John Dean, there are “copyright issues” surrounding the Bolton book and the Trump impeachment, especially while the book remains unpublished.  However, copyright also offers some solutions.  The press can write about the book, without necessarily using Bolton’s expression.  Moreover, if publication is stalled or if the public interest escalates, the opportunities for fair use may well expand.

Welcome to the season of fair use.  This is the time when fair use fuels elections and news reporting.  This is the season which begins to define the perimeter between the public interest and the economic marketplace.  This is the quadrennial interlude when fair use blossoms in full and is plainly visible for all to see on the daily news and the pressured campaigns.

Kenneth D. Crews is an attorney in Los Angeles and was formerly a professor of law at Columbia University and Indiana University.  He is the author of the book Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, available in a new fourth edition launched at the end of February 2020.  Download a sample of the new edition and order online

Fair Use Week 2019: Day Five With Guest Expert David R. Hansen and Kyle K. Courtney

Fair Use, Innovation, and Controlled Digital Lending

by Kyle K. Courtney and David R. Hansen

One of the beautiful things about fair use is how it can soften the copyright act, which is in many ways highly structured and rigid, to provide flexibility for new, innovative technology.

To understand how, it’s worth appreciating the structure of the Copyright Act. If you look at the table of contents of Chapter 1 of the Act (“Subject Matter and Scope of Copyright”), you see the first several sections define basic terms such as copyrightable subject matter. Included in that first half of the chapter is Section 106, which defines the exclusive rights held by rights holders: the right to control copying, the creation of derivative works, public distribution, public performance, and display.  In the bottom half of the Act, Sections 108 to 122 provide for a wide variety of limitations and exceptions to those owners’ exclusive rights. These exceptions are largely for the benefit of users and the public, including specific exceptions to help libraries, teachers, blind and print-disabled users, non-commercial broadcast TV stations, and so on.

Then, there’s fair use. As if perfectly positioned to balance between the broad set of rights granted to owners and the specific limitations for the benefit of users and the public, “fair use” is codified in Section 107, though it really isn’t a creature of statute. Fair use is a doctrine, developed by courts as an  “equitable rule of reason” that requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has facilitated all sorts of technological innovations that Congress never could have anticipated, allowing copyrighted works and new technology to work together in harmony.

One particularly innovative system developed to enhance access to works is “controlled digital lending” (“CDL”):

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation….[I]t could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

While the courts have yet to weigh in directly on the CDL concept, we now have some guidance from a case in the Second Circuit Court of Appeals, Capitol Records, LLC v. ReDigi Inc. This case is about the development of an online marketplace created by ReDigi, which facilitated the sale of “used” mp3 music files. Capitol Records sued ReDigi, alleging that ReDigi infringed its exclusive rights to reproduction and distribution when it attempted to use a particular transfer method to sell the used mp3s.

The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the public distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made.

The court also rejected ReDigi’s fair use assertion. It found that the use was commercial in nature, was considered non-transformative, and replicated works exactly and precisely; simply put, they created mirror image copies of existing digital files.  Further, though the libraries associations in their briefs had raised the issue of a nexus of connection between fair use and specific copyright exceptions, such as Section 109 and 108, as an extension of Congressional policy that should influence the fair use analysis, the court did not discuss that argument.

That the court ruled ReDigi, a commercial enterprise, had interfered with the market for iTunes-licensed mp3s and their effort was not a transformative fair use, comes as no surprise to most lawyers and copyright scholars.

However, the decision, written by the creator of the modern transformative fair use doctrine, Judge Pierre Laval, contains several important lessons for CDL.

Transformative Use

First, the case raises a significant question as to whether CDL of digitized books may be “transformative” in nature. In the decision, examining the first factor, Judge Leval explains that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” For physical books, especially those that are difficult to obtain, this application of “transformative use” has a direct correlation to the core application of CDL.

Further, this quote interprets another critical technology and fair use case from the U.S. Supreme Court, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), famously called the “Betamax case.” Since its decision in 1984, the Sony ruling helped establish and foster the creation of new and vital technology, from personal computers and iPods to sampling machines and TiVo. This Sony quote was most recently used in another Second Circuit case, Fox News Network, LLC v. TVEyes, , where the same court laid out this particular reading of Sony. So, ReDigi here is drawing upon the precedent of two important transformative fair use cases to make its point. Under this transformative use definition, CDL should be determined to be transformative by the courts, especially if the commercial rights of the rights holder are not unreasonably encroached.

Therefore, while the court found ReDigi’s use to not be transformative, the Second Circuit opened the door for continued technological development, especially for non-commercial transformative uses under the first factor, like CDL. In fact, according to several scholars (Michelle Wu, Kevin Smith, Aaron Perzanowski), this creates a much stronger argument that CDL would be ruled a transformative fair use by a court.

Market Harm

The Second Circuit held that the ReDigi system caused market harm under the fourth factor of the fair use statute. Again, this is not a surprise to the copyright world. The court found that the service provider had no actual control of the objects being sold and that it “made reproductions of Plaintiffs’ works for the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.”

What does this mean for CDL’s analysis under the fourth factor? Here, again, based on the language of the ReDigi decision, CDL looks pretty different. The ReDigi resales were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the operative market experiencing harm. For digitized copies of print books used for CDL, the substitutionary effect is far less clear. With most 20th-century books—the books that we feel are the best candidates for CDL—the market to date has been exclusively print. For those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

CDL doesn’t compete with a recognized market. When a library legally acquires an item, it has the right, under the first sale doctrine, to continue to use that work unimpeded by any further permission or fees of the copyright holder. CDL’s digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it’s one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The CDL “own-to-loan ratio” ensures that the market harm for the digital is the exact same as circulating the original item.

Again, the language of the ReDigi court should be examined closely. The court distinguishes substitutionary markets from those that are complementary and natural extensions of the use inherent with purchasing the original: “to the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use just as the copying at issue in Sony was fair use.” Reading this language through the lens of CDL, a modern reproduction service, such as CDL, that further enhances the owner’s use of materials that were purchased under first sale or owned under other authorized means would also qualify as a fair use.

All in all, the ReDigi case most certainly does not settle the CDL issue; if anything, the specific language of the court emphasizes the potential for more non-commercial transformative uses like CDL.

David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Kyle K. Courtney is Copyright Advisor and Program Manager at Harvard Library’s Office for Scholarly Communication (OSC). Before joining the OSC, Kyle managed the Faculty Research And Scholarly Support Services department at Harvard Law School Library.

Fair Use Week 2019: Day Three With Guest Expert Dr. Nora Slonimsky

The Public Figure Exception(s): Finding Fair Use in the Vastness of Early American IP

Originally published on Uncommon Sense, a publication of the Omohundro Institute. This post accompanies “Copyright and Fair Use in Early America,” episode 227 of Ben Franklin’s World. You can find supplementary materials for the episode on the OI Reader app, available through iTunes or Google Play.

by Nora Slonimsky

Whether you are Gigi Hadid or Jedidiah Morse, your copyright is often more than just a proprietary claim. Public figures have long been bound together in the public eye with perception and re-use of their works, whether people share photographs of you walking down the street or a map produced more than two hundred years before GPS. In an era of Twitter, paparazzi, and a rapidly turning over news cycle, deciding what information the public needs to make informed decisions is an increasingly fraught challenge—but not a new one. As early national writers sought to shape American media in the wake of independence, they confronted what it meant to be a public figure and what value that role had in the creation of new forms of expression.

A legal doctrine highlighted this week through collaboration among libraries, institutions of higher education, and professional research organizations, fair use emerged as a formalized legal framework in the nineteenth century with infamous competing biographies of George Washington and the 1841 case of Folsom v. Marsh, as Kyle K. Courtney and Liz Covart discuss in the #FairUseWeek episode of Ben Franklin’s World. The concept is intended to protect the right to circulate information that would otherwise be covered by copyright.

Fair use doctrine intersects with similar principles around the globe, but several of its particular qualities were formulated in the United States and have roots that date to the beginning of the nation’s history. One root involves a proposed aspect of fair use called the “public figure exception.” As described in the 1985 case of Harper & Row v. The Nation, the public figure exception limits an author’s or proprietor’s right to be paid for their expression when the work contains “matters of high public concern.”[i] A work “containing matters of high public concern” can often be intertwined with the public role of the author. As a consequence, the public figure exception introduces the reputation or image of the author as a consideration in the balance between the individual claims of artists and innovators over their creative labor and the broad social need for the learning and engagement that comes from expression.

Turning to early America can provide a deeper understanding of why. When the phrase “public figure exception” appears today, it is frequently in the context of defamation. In my first book project, I look closely at the relationship between libel and copyright, and how they function in the construction authorial, as well as state, authority. To write and publish a criticism of a public figure was still considered seditious libel in the late eighteenth century. The logic that something could not be libelous if it wasn’t true was not formalized in United States law until 1805, and even then, was determined by state, and not federal, law.[ii] The truth defense evolved over the next century and a half, but in the early national period, the standing of a writer – through their racial, religious, ethnic or gender identity, political affiliation, wealth, education, networks, regional ties – determined the authenticity of their expression alongside any innovative qualities.

It is more Jedidiah Morse than Gigi Hadid then who ties together these complex threads of copyright, fair use, libel, and public opinion. Although media in the late eighteenth century was indeed very social, the media were quite different. Morse might not have been the most adept at the eighteenth-century equivalents of Twitter, like pamphlets and broadsides, but he was extremely skilled at social networking. For the “father of American geography,” Morse shrewdly marketed his nationalistic series of geography books, from 1784’s Geography Made Easy to the 1789 The American Geography to The American Universal Geography, which appeared in several editions in the 1790s and early 1800s. As a strong supporter of the Federalist coalition who consistently cultivated an image of expertise in topography, environmental science, history, and political commentary, Morse was extremely close with other leading figures in the knowledge industry like Noah Webster and employed Alexander Hamilton and James Kent as his copyright lawyers in what would be the first known federal copyright case, Morse v. Reid, in 1798.

Despite, or perhaps because he was such a staunch advocate for copyright, Morse relied heavily on what we would now consider fair use. Writing that he often “aimed at utility rather than originality, and of course, when he has met with publications suited to his purpose, has made free use of them,” Morse added, without irony, that he “frequently used the words as well as the ideas of [other] writers” without telling the reader.[iii] Morse did not see any issue with compiling the work of other writers and using it in his own. Morse conducted his own research and wrote much of The American Geography on his own, but to bolster his credibility, “maintained extensive correspondence with men of Science,” and “in every instance, has endeavored to derive his information from the most authentic sources.”[iv] In other words, he relied on the expertise of others, and in turn, shared their findings while expanding his own. So if one of these experts in turn relied upon Morse’s work for their own, it does not appear that he had much of a problem with it.

Where Morse did have a problem, however, was when someone whom Morse did not deem a valid authority did so. Even worse, when the “pirate” in question was a Baptist minister held in Newgate Prison for sermons in favor of the French Revolution, the Congregationalist, pro-British Morse was aghast. William Winterbotham was in reputation everything Morse feared. He published An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies in London in 1795; it was reprinted in New York in 1796.

Only then did Morse have any legal recourse, as international copyright did not exist. Alerted to Winterbotham’s book by Morse’s London publisher, John Stockdale, Morse immediately recruited Hamilton as his attorney, writing that “After going over the Work with care & a great deal of labour, I have estimated that nearly a third part of the whole of Winterbothams work, has been copied verbatim from my work, or about 600 pages out of about 2000.”[v] By current fair use standards, this was a high percentage, but what seemed to truly incense Morse was not the quantity, but rather how Winterbotham had “artfully, in many instances … transposed paragraphs & sentences, apparently with a view to deceive the reader.”[vi] It was evident, according to Morse and his legal team, that Winterbotham had copied more of Morse’s work than was appropriate to demonstrate expertise or “authentic sources.” As you can see in the images to the left, while maps were not a source of dispute for Morse, there was clear reliance on The American Geography (top) in the New York edition of An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies made by John Reid (bottom).

Winterbotham did not criticize Morse. In fact, when Winterbotham mentioned him at all, it was to praise his status as a geographer and writer. Still, because of Winterbotham’s politics and precarious position, Morse remained worried about his authority as a public figure. This was both a commercial and credit-based fear. If readers began to associate Morse and The American Geography series with the work of Winterbotham, it could encroach on Morse’s market share, but also influence American readers about Morse’s message and his political standing within the Federalist network. Winterbotham’s piracy, whether rational or irrational, reasonable or unreasonable, functioned to Morse like a libel.

Whether the people involved are presidents like George Washington or Gerald Ford, or well-known authors like Morse, the public figure exception is based on an understanding of fair use in which the public need for the expression contained within a writer’s work is pivotal to making informed choices. If the author is an authority in a given subject, especially one that has obvious relevance for pressing issues, financial barriers to that material can have drastic consequences. And yet writers, like all workers, need to make a living. Writing nearly two hundred years before Harper & Row v. The Nation, and fifty years before Folsom v. Marsh, Morse was not articulating clear legal doctrine by any means, but rather musing on exceptions to exceptions. The copyright consciousness in which Morse wrote and published was one in which he could both reap the benefits of fair use and complain of piracy at the same time, in large part because both relied upon his carefully crafted public persona as a geographic expert. When looking at media, authority, and access through the lens of fair use, the early history of copyright is thus as much about public opinion as it is property.

Nora Slonimsky works on the history of copyright and its relationship with media regulation, state formation, and knowledge production in the long eighteenth century. Dr. Slonimsky is the Gardiner Assistant Professor of History at Iona College and Director of the Institute for Thomas Paine Studies (ITPS). This post also appears at the Copyright At Harvard Library blog.

_______

[i] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985): 3.

[ii] This was in the case of People v. Croswell (1804), in which Alexander Hamilton argued the truth defense. It was written into law by New York State the following year.

[iii] Jedidiah Morse, The American Geography; Or, A View of the Present Situation of the United States of America Containing – Astronomical Geography, Geographical Definitions, Discovery, and General Descriptions of America and the United States – of their Boundaries, Mountains, Lakes, Bays and Rivers, Natural History, Production, Population, Government, Agriculture, Commerce, Manufactures, and History –a Concise Account of the War, and of the Important Events with have Succeeded with a Particular Description of Kentucky, the Western Territory and Vermont – of their Extent, Civil Divisions, Chief Towns, Climates, Soils, Terrain, Character, Constitutional, Courts of Justice, Colleges, Academies, Religion, Islands, Indian, Literary and Humane Societies, Springs, Curiosities, Histories &c to Which is Added an Abridgement of the Geography of British, Spanish, French and Dutch Dominions in America and the West Indies – of Europe, Asia and Africa Illustrated with Two Sheet Maps – One of the Southern, the Other of the Northern States – From the Latest surveyors. Shepard Kollock: Elizabeth, New Jersey, 1789: vi-vii.

[iv] Morse, The American Geography, iv.

[v] Jedidiah Morse, “Letter from Jedidiah Morse to James Kent, January 21st, 1796,” Box Two, Morse Family Papers, Sterling Memorial Library, Yale University.

[vi] Morse, “Letter from Jedidiah Morse to James Kent.”

Fair Use Week 2016: Day Five With Guest Expert Matthew Rimmer

FUW Logo OSC

 

 

Malcolm Turnbull, Copyright Law Reform, And The Innovation Agenda

by Matthew Rimmer

rimmer1

Australian Prime Minister the Hon. Malcolm Turnbull

2015 has been another tumultuous year in Australian Politics. There was a dramatic change in the leadership of the ruling conservative coalition between the Liberal Party of Australia and the National Party of Australia. Tony Abbott was replaced as Prime Minister of Australia by Malcolm Turnbull. This change of leadership has been consequential for Australian copyright politics. The transition from Tony Abbott to Malcolm Turnbull has resulted in a re-positioning of the Federal Government’s approach to copyright law and innovation policy.

Under the aggressive leadership of Tony Abbott, the Federal Government took a hard line on copyright enforcement. The film studio Village Roadshow made significant political donations to both the Liberal Party of Australia and the opposition, the Australian Labor Party. The Attorney-General George Brandis pushed through the passage of the Copyright Amendment (Online Infringement) Act 2015 (Cth), with the rather docile assistance of the Shadow Attorney-General Mark Dreyfus. The Internet site-blocking legislation was dubbed the worst piece of legislation by the Electronic Frontier Foundation in 2015. Village Roadshow has already launched a copyright action over the Solar Movie regime in the Federal Court of Australia to test the new regime. Moreover, the Attorney-General George Brandis pushed for a copyright code, governing the relationship between copyright owners, intermediaries, and Internet users. He scorned the recommendations of the Australian Law Reform Commission to introduce into Australia law a broad, open-ended defence of fair use like the United States. Furthermore, the Abbott Government was an enthusiastic cheerleader for the passage of the Trans-Pacific Partnership, with its arsenal of intellectual property enforcement measures.

In contrast to Tony Abbott, who was hostile to science and technology, Australia’s New urbane Prime Minister Malcolm Turnbull has promoted an innovation agenda, and placed emphasis upon entrepreneurship, economic agility, and digital disruption. He has had significant exposure to intellectual property law and policy, as is well documented by Paddy Manning’s new biography, Born to Rule. Turnbull made his name in the ‘Spycatcher’ case, taking on and defeating the United Kingdom Government. As chairman of OzEmail, he was no doubt sensitized to copyright issues. The copyright collecting society APRA threatened an action for copyright infringement against the internet service provider, which was later settled. Turnbull took carriage of reforms of film copyright during the Howard Government. He seemed uncomfortable with a number of policies of the Abbott Government affecting the Internet. Peter Hartcher reported that Malcolm Turnbull battled with Tony Abbott over the proposal for copyright fines for Australian internet users. Turnbull was of the view that Abbott’s heavy-handed copyright proposals were ‘politically explosive.’ Interestingly, Turnbull has also been an outspoken critic of gene patents – a stance that has been reinforced by the recent High Court of Australia ruling against Myriad Genetics Inc.

Malcolm Turnbull has shifted the responsibility for copyright law away from the Attorney-General George Brandis to the new Minister for Communications and the Arts, Senator Mitch Fifield. Just before Christmas, in December 2015, the Ministry for Communications and the Arts released an exposure bill, the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). The proposed legislation has several key components.

  1. The Marrakesh Treaty, Copyright Law and Disability Rights

Maryanne Diamond, ‘An Information Revolution for the Blind’

A number of prominent Australians pushed for the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Graeme Inness, Maryanne Diamond, and Ron McCallum provided eloquent testimony for the need for copyright law reform to address the problem of disability discrimination. The Director-General of the World Intellectual Property Organization Francis Gurry helped shepherd the agreement through the negotiations. The Australian Minister for Foreign Affairs, the Hon. Julie Bishop, has been a prominent supporter of the ratification of the agreement.

Australia has been a proud supporter of the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Australia ratified the agreement in December 2015. The Minister for Foreign Affairs, the Hon. Julie Bishop, emphasized : ‘Australians with vision impairment will have greater access to books and other published materials in accessible formats such as large print, braille or audio following Australia’s ratification of the Marrakesh Treaty’ She stressed that ‘the Treaty is a significant international agreement that will help 285 million people with vision impairment worldwide to access these materials.’ Bishop commented ‘Ratifying this treaty is an important part of the Government’s commitment to supporting Australians with disability. Accessible format materials are essential to ensuring all Australians can engage fully in school, work and our communities.’ She also observed: ‘By improving access to large print, braille and audio materials in the Indo-Pacific, the Marrakesh Treaty will also support economic and social development in our region.’

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to provide access to copyright works by persons with a disability. Section 113E (1) of the bill provides that ‘a fair dealing with copyright material does not infringe copyright in the material if the dealing is for the purpose of one or more persons with a disability having access to copyright material.’ Section 113E (2) considers a number of matters to be taken into account in an assessment of fair dealing. Section 113F deals with the use of copyright material by institutions assisting persons with a disability.

These amendments are certainly a significant improvement over the rather narrow, limited, and defective provisions currently found in Australia’s copyright laws. In its inquiry into Copyright and the Digital Economy, the Australian Law Reform Commission lamented

The digital era creates the potential for vastly improved access to copyright material for people with disability. However current legislative arrangements mean that this potential is not fully realised. The Copyright Act provides for a statutory licence for institutions assisting people with disability. The licence allows these institutions to make accessible versions of copyright works, but its scope of the licence is limited, the administrative requirements are onerous, and it has not facilitated the establishment of an online repository for people with print disability. The exceptions available for individuals—fair dealing, format shifting and the s 200AB ‘special case’ exception—are also limited in their scope. The widespread use of technological protection measures (TPMs) is creating significant barriers to access for people with disability.

The Australian Law Reform Commission recommended that access for people with disability should be addressed by a broad defence of fair use. The alternative proposal of the Australian Law Reform Commission was the introduction of a defence of fair dealing for the purpose of access for people with a disability. This fall-back option has been the one adopted and embraced by the Federal Government.

 

  1. Cultural Preservation

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) also proposes reforms in respect of copyright exceptions for public libraries, parliamentary libraries, and public archives.

Section 113H of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) provides that an authorised officer of a library or an archives does not infringe copyright by using material for the purpose of preserving the collection comprising the library or archives. This measure is subject to further procedural qualifications.

This reform is designed to address the rather clumsy way that Australian copyright law deals with cultural preservation. The moral rights regime has a clearcut exception for preservation. However, the system of economic rights has not dealt with the issue very clearly thus far.

There remain larger issues in respect of reforming copyright law for libraries, archives, galleries, museums, and other cultural institutions. In his book, BiblioTech: Why Libraries Matter More Than Ever in the Age of Google, John Palfrey reflects that ‘the law of copyright has become a hindrance when it comes to building strong libraries in a digital era.’ He observes that ‘librarians have been at the forefront of efforts to update the law to support their good works into the future.’ Palfrey concludes: ‘Without changes to current law and policy, librarians will have a terribly hard time accomplishing their public-spirited mission in support of people living in a democracy.’

 

  1. Cooking for Copyright

cooking

Cooking for Copyright at the QUT Library

In Australian, there has been much concern about the indefinite duration of copyright protection for unpublished works.

In response, Australian librarians held a Cooking for Copyright protest in 2015. Baking Bad, the librarians shared recipes of unpublished works on social media, and engaged in cooking festivals with the illicit recipes. The event was a runaway success, with massive media coverage of the issue, and wide popular support.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to address the issue in respect of term of protection. The Department of Communications and the Arts emphasize: ‘The proposed amendments seek to harmonise the copyright term for published and unpublished works by creating a new general protection period of life plus 70 years that does not differentiate between published and unpublished works.’ The legislation proposes that the general term of protection would apply to works made before 1st January 2018 that remain unpublished at that date.

The amendments also propose to deal with the situation of unknown authors, and Crown copyright.

 

  1. Safe Harbours

Since the passage of the Copyright Amendment (Digital Agenda) Act 2000 (Cth), Australia’s ‘safe habour’ regime has been limited to traditional service providers, such as telecommunications networks and internet service providers.

For many years, Google and other information technology companies have been lobbying successive Federal Governments for a more expansive definition of service providers. Such companies have been fearful of being exposed to copyright infringement lawsuits in Australia, without the protection of a ‘safe harbour’ regime. Copyright owners, though, have fought against an expansion of the ‘safe harbour’ regime.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) proposes to expand the current ‘safe harbour’ provisions in the Australian copyright legislation to include a broader range of entities.

  1. Parallel Importation

The Prime Minister Malcolm Turnbull and the Treasurer Scott Morrison have mooted the repeal of parallel importation restrictions in respect of books.

The parallel importation restrictions have been widely criticised by the High Court of Australia, the Australian Competition and Consumer Commission, the Productivity Commission, and Australian parliamentary investigations into IT Pricing.

There has been great concern that publishers have used parallel importation restrictions to keep book prices high in Australia, and to restrict foreign competition.

Rather shrilly, publishers and authors have accused the Turnbull Government of ‘ideological vandalism’.

However, looking at the text of the provisions, the parallel importation restrictions do not serve any direct purpose of protecting local cultural content.

Indeed, under international intellectual property agreements, the Australian Government would not be able to discriminate in favour of local authors and publishers, without breaching the basic principle of ‘national treatment’.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not contain, though, any legislative measures to repeal the parallel importation restrictions in respect of books.

 

  1. Fair Use

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not address the larger question of whether Australia should have a defence of fair use like the United States.

The Turnbull Government should go further and adopt a defence of fair use, as recommended by the Australian Law Reform Commission. The Australian Law Reform Commission observed:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

A defence of fair use would be an agile, innovative, and disruptive policy option, which would help reinforce the Turnbull Government’s Innovation Agenda.

Professor Kathy Bowrey from the University of New South Wales noted that the policy papers of the Innovation Agenda did not address copyright law. She noted that ‘copyright rules and regulations sit behind all the agendas found in the innovation statement.’ Bowrey insisted: ‘If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions.’ She maintained: ‘Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.’

The failure to address fair use would leave Australian innovators, entrepreneurs, and digital disruptors at a significant disadvantage. Start-ups in Silicon Valley, Boston, and Brooklyn have been able to thrive, with the help of the protection afforded by the United States defence of fair use. By contrast, Australian innovators would be exposed to the threat of actions for copyright infringement, given the narrow and limited operation of the defence of fair dealing.

The problem would be further exacerbated by the possible passage of the Trans-Pacific Partnership. The Trans-Pacific Partnership would provide for stronger, longer copyright protection throughout the Pacific Rim, and empower incumbent copyright industries, rather than start-ups and digital disruptors. As Maira Sutton points out, the Trans-Pacific Partnership poses certain threats and challenges to copyright defences and exceptions – like the defence of fair use.

Conclusion

It is an exciting time to be a copyright lawyer in Australia. The new Prime Minister Malcolm Turnbull has shifted the Conservative Coalition back towards a more centrist position in respect of Australian copyright politics. He has emphasized that copyright law should not only protect the private interests of copyright owners, but it should also promote innovation, competition, and the larger public interest. There have been a number of modest but meaningful copyright law reforms mooted in the new Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). Such measures address longstanding problems in respect of copyright law and disability rights; cultural preservation; the copyright duration of unpublished; and safe harbours. The proposals are still provisional and contingent. It remains to be seen whether this bill will pass before the next Australian election. Turnbull and his Treasurer Scott Morrison have also considered the repeal of anti-competitive parallel importation restrictions. There is a need for the new Turnbull Government to address the Australian Law Reform Commission’s outstanding proposals in respect of copyright exceptions and the digital economy. A defence of fair use would be of particular help and assistance for Australia’s innovators, entrepreneurs, and digital disruptors. The future balance and equilibrium of Australia’s copyright laws will also be affected by the potential passage of the Trans-Pacific Partnership, with its expansive Intellectual Property Chapter.

rimmer2Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law in the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC), the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program (QUT IL GG). Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at SSRN Abstracts and Bepress Selected Works.

 

 

 

Fair Use Week 2016: Day Two With Guest Expert Krista Cox

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Thankful for Fair Use

by Krista Cox

Fair use is a critical right in U.S. copyright law, permitting the use of copyrighted material without permission from the rightholder under certain circumstances. It has been called the “safety valve” of U.S. copyright law, responsive to change and able to accommodate new technologies and developments. Amending copyright law is not an easy task; the 1976 Copyright Act took twenty years to enact (and was where the fair use doctrine was officially codified, though it was certainly not a new doctrine). Fair use, as a broad and flexible doctrine, therefore allows copyright law to adapt to the changing environment and technologies and preserve the important balance in the law without requiring constant legislative attention.

 

Here are just some of the ways we rely on fair use each day in ways that were inconceivable when the doctrine was codified by the 1976 act, much less in 1841 when Folsom v. March (which forms the basis of the fair use doctrine) was decided:

  • Checking e-mails.
  • Forwarding e-mails and attachments.
  • Watching and sharing news clips online
  • Using social media, such as Facebook and Twitter.FUW.Infographic2
  • Recording shows with a DVR to watch later.
  • Sending a show from a DVR to a mobile device to watch.
  • Using a web search engine like Google or Bing.
  • Using Shazam or other sound search.
  • Reading a book on an iPhone.

We rely on fair use each day because of the prevalence of technology. For example, temporary copies are constantly being made when we access webpages or open e-mails and attachments. These copies could be unauthorized reproductions, but thanks to fair use, copyright law accommodates these advances in technology without requiring legislative changes. Without fair use, the growth of the Internet and technology as we know it today would not be possible. Flexibility in the fair use doctrine has already led to these new innovations and can continue to promote the progress of science and the useful arts for technology that we may are not even able to conceive of today.

Of course, fair use is not limited to new technologies or to those listed above. ARL’s “Fair Use in a Day in the Life of a College Student” infographic, released as part of the Fair Use Week 2016 celebration, for example, demonstrates how often a college student encounters fair use on a daily basis, often without even realizing that she is relying on this critical doctrine.

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From checking her e-mail, forwarding messages, doing research, writing papers, sharing information over social media, watching recordings of popular shows, taking selfies and more, the average student relies on fair use constantly. Fair uses are all around and we should be thankful that the broad, flexible fair use doctrine accommodates new ways of communicating, sharing, learning, researching, enjoying entertainment and more.

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2016: Day One With Guest Expert Kenneth D. Crews

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Welcome to the 3rd Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication!  We are proud to once again be hosting a week full of activities, celebrating Fair Use through expert posts, videos, “Fair Use Stories,” and a live panels on Tuesday Feb. 23rd, Wednesday, Feb. 24th, and Friday, February 26th.  For more information see http://bit.ly/fairuseweek16

We are delighted to kick off this year’s celebration with a post by Kenneth D. Crews.  Crews is an internationally recognized expert on copyright, libraries, and fair use.  

 

Fair Use: A Place in the World

by Kenneth D. Crews

Like so many scholars and commentators from the past and into the future, I have made the familiar observation that fair use is a distinctly American doctrine.  We trace its origins principally to an 1841 court decision handed down by the brilliant and influential Justice Joseph Story.  We repeat these chronicles and adages because they are among the essentials of fair use doctrine.  Fair use makes especially good sense in a legal system built on the adaptability of the common law and that fosters enterprise and creativity; Justice Story did articulate factors that are fundamental to our law today.  Indeed, I would dare say that fair use is not only about innovation, but it is also about diversity and business growth – hallmarks of American society.

It may, therefore, be with a bit of pride and confidence that I watch fair use become an increasingly international doctrine.  I am not trying to jingoistically unveil an American rule for all the world.  But I am comfortable in saying that flexibility in copyright law encourages creative scholarship, nurtures modern art, enables search engines for the web, and empowers teachers and students to pursue innovative teaching and learning.  Fair use also has proven to be downright practical.  It avoids an unduly strict reading of copyright in order to allow socially beneficial uses to prevail over often formalistic claims of copyright infringement.

The benefits of fair use have become increasingly vivid in an era of new technologies, diverse copyrighted works, unpredictable uses, and sometimes unstoppable pressure to experiment and explore.  As a result, this distinctly American doctrine has been invited into the law of a growing list of countries.  It has proven desirable, practical, and even necessary to get good things done.

In reality, fair use has a close foreign cousin, the doctrine of “fair dealing,” long part of copyright law in the United Kingdom and in many former British colonies.  Fair dealing has the virtues of flexibility, but it is often statutorily confined to specific applications such as research and education, so fair dealing would not likely sanction appropriation art or reverse engineering of software.  Moreover, while the factors in the fair dealing statutes may be similar to the fair use factors, courts have not given them the robust interpretations we find under fair use.  The more fluid application and scope – the “open norms” of fair use – continue their allure.

Bernt Hugenholz and Martin Senftleben have written brilliantly on court rulings that have been handed down in recent years the European Union countries that do not have fair use, but where the courts strive to find some means to infuse flexibility into national copyright laws.  Jonathan Band and Jonathan Gerafi in 2013 compiled in an important report the various fair dealing and fair use statutes found in dozens of countries.  Their study makes clear that a surprising number of countries are enacting statutes embodying language essentially identical to the American statute on fair use.

Fair use takes other routes, too.  The international nature of commerce and communication means that courts in one country often need to apply foreign law to decide cases, where events occur in multiple countries.  A court in Paris, for example, applied American fair use in a case against Google, although that ruling was overturned on appeal.  But just last year, a British court heard testimony from US experts and handed down a detailed ruling on fair use as applied to vintage videos of a Beatles concert.  Fair use, or some variation on it, is finding a home in diverse parts of the world.

That list is growing.  As I have studied copyright around the world, I find an escalating desire for fair use in many countries.  Not everyone will be enamored that fair use facilitates digitization for Google Books and the appropriation art of Richard Prince.  However, on a daily basis, fair use supports education, fosters business ingenuity, and opens technological enterprise.  It offers much to like.

In June of last year, I completed a comprehensive study of copyright exceptions applicable to libraries and archives for the World Intellectual Property Organization.  As I analyzed statutes from all 188 countries that are members of WIPO, I kept watch for any indications of fair use or variations on the familiar four factors creeping into national law.  Some of my findings on that score parallel the 2013 study by Band and Gerafi mentioned above.  In the context of the WIPO study, however, the language and spirit of fair use became a vital complement to library statutes that are often limited to specific uses under detailed conditions.

Diverse countries such as Israel, Liberia, Philippines, South Korea, and Sri Lanka are adopting the fair use almost verbatim from the U.S. statute.  A few countries go their own direction.  Laos enacted copyright law recently in 2007, amended in 2011, which includes a fair use reference (Article 111), but with sparse guidance from the statutory language.  A few Latin American countries (Dominican Republic, Ecuador, Guatemala, and Honduras) have a statute labeled “fair use,” but the substance is based on the treaty language of the “three-step test.”  While bringing that treaty language into domestic legislation raises a host of concerns, the effort to infuse some flexibility into the statutory exceptions and find appropriate local meaning of fair use gives much to applaud.

This quest for fair use around the world is no accident.  It is demand.  The demand is from public citizens who want to improve teaching and research.  It is from business leaders who want to build innovative software and develop crucial databases.  It is from publishers who need to include images and other materials in their new books and journals.  As I have visited distant parts of the world to talk about copyright, fair use is almost certain to jump into the conversation.  I have found myself in deep discussion of fair use possibilities in such places as Nepal, Armenia, Colombia, Ecuador, Finland, Azerbaijan, Nigeria, Kuwait, Uruguay, and many more destinations.

Fair Use Week may be a distinctly American holiday.  It probably already involves shopping and costumes.  But recent events demonstrate that fair use and its celebrations are quickly becoming a worldwide movement.

 

Kenneth D. Crews is based in Los Angeles, where he is of counsel with the firm of Gipson Hoffman & Pancione and represents universities, publishers, authors, research institutions, and many other clients on copyright and related matters.  Dr. Crews is also a faculty member in the Munich Intellectual Property Law Center and at Columbia Law School, and he is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (ALA, 3rd ed., 2012).