Copyright StoriesHong Kong Library Association

April 2009

Derek WhiteheadPresident, ALIA

www.alia.org.au

Where I Come From

President of ALIA (Australian Library and Information Association) 2008-2009 at http://www.alia.org.au/advocacy/copyright

Librarian since 1976 Chair, Australian Digital Alliance at

http://www.digital.org.au University Copyright Officer at Swinburne

University of Technology Member of two national committees on

copyright: IPPTAG (IP & Privacy Technical Advisory Group) and Universities Australia Expert Reference Group

Where I Come From

We provide copyright services to another university – University of Ballarat

CAIRSS Copyright Service, 2009-2010 http://www.caul.edu.au/cairss

Australian Libraries Copyright Committee Our role is to maximise the use by the

university of other people’s intellectual property.

Not a lawyer, and nothing in this paper constitutes legal advice

Greetings from ALIA

President of ALIA until 19 May and vice president since 2007

ALIA surveyed its members recently and the main issues are Lobbying and advocacy Professional development The future library workforce Accreditation of courses . . . and the global economic crisis too

Not only copyright Happy to answer questions about ALIA later

Greetings from ALIA

A particular welcome to IFLA – Brisbane, 14-19 August 2010 http://www.ifla.org/IV/ifla76/index.htm

World Library and International Congress Libraries: Engaging, Embracing,

Empowering. Brisbane Convention Centre

Approach

I represent a viewpoint about copyright – a balance between the interests of owners and users

ADA: “promote balanced copyright law and provide an effective voice for a public interest perspective in the copyright debate.”

ADA members include universities, schools, consumer groups, cultural institutions, IT companies (Google), libraries and individuals.

Approach

ALIA: Relevant objective is to promote the free flow of information and ideas in the interest of all Australians and a thriving culture, economy and democracy.

ALIA also supports the interests of Australian copyright users.

ALIA has a Copyright and Intellectual Property Advisory Committee

Provides copyright advice

Approach

Swinburne: Copyright Policy at http://www.swin.edu.au/copyright

Some informal principles at Swinburne “Its not about principles, its about money.” Complete compliance is not a practical goal Intellectual property is not the same as real

or personal property – ownership is not absolute, and the primary goal is the advancement of knowledge

We take a risk management approach

What is copyright?

A bundle of exclusive rights, for a limited period, to do certain things with a work.

There are exceptions to these rights which enable others to use copyright material.

The rights of a copyright owner include to copy, publish, communicate, and perform.

The kinds of works include writing, visual images, music and moving images.

Copyright applies to the way an idea or information is expressed, not to ideas and information.

Libraries’ concerns

Exceptions – things you can do which are exceptions to the rights of owners

Fair use or fair dealing – the right to do some things because they are “fair”

Home copying and rights of owners Educational copying – most countries allow

some exceptions for schools & universities Preservation Inter-library loans Enforcement issues – libraries strongly

oppose being involved in enforcement

Moral rights

Belong to authors, not owners Most valuable copyright is not owned or

controlled by the author or artist – e.g. books, movies, music

Moral rights do not exist in all countries – e.g. not in the US

Right to be identified as the author Right to have works treated in a way that is

not derogatory Politeness is important too – sometimes it is

good to ask, even if you don’t have to

Stories

This presentation takes some stories which have been in the news, and explains What is the danger What the story tells us

Copyright is about people wanting to do things. Maybe they can and maybe they can’t

A Copyright Officer answers questions which start: “Can I . . .? And ends with “I’m afraid not” or “Yes, you can do that”.

Copyright stories are about what people want to do, and how we can find ways they can. Sometimes. And what we can learn.

What Characters?

There are six characters in these stories. A copyright owner in 2145. Accidental copyright owners Copyright owners who care more about

other things Copyright owners who care a lot about

copyright Governments – who make the rules Ordinary people doing ordinary things

What Characters?

and a koala

http://www.youtube.com/watch?v=-XSPx7S4jr4

Dangerous Times

These stories illustrate some trends, some of which are dangers.

The way copyright works in our world changes all the time.

Some people want to limit what we can do, others want to expand it.

Libraries generally favour expanding the rights of users, and oppose limiting those rights in favour of owners.

At the end, I will suggest some simple rules to follow for libraries and other institutions in working with copyright – to stay nice.

Today’s dangers1. Extension of copyright term2. Capture of the process by those with very

strong material interests.3. Undermining existing rights of fair use4. Criminalisation of copyright law5. Requirement of third parties to enforce the

law - denial of access is increasingly a draconian penalty.

6. The use of threats – chilling effects.7. Divorce between the law and what ordinary

people believe is right or common sense8. Threat to innovation and creativity.

What Stories? New Zealand’s Section 92 Punishment Shepard Fairey The Kindle Cliff Richard Child criminals Secrets and lies DRM Trespass: the public domain Copyright-free zones Orphans Creative Commons Popular movements

New Zealand: Sect 92

In 2008 New Zealand amended the Copyright Act

ISPs must act against customers who infringe copyright – repeat offenders

Libraries are covered by this – they are “downstream ISPs.”

Advice by LIANZA – libraries would need to ban infringers from Internet services other than online databases

New Zealand: Sect 92

Libraries may not be able to identify users They may disagree about the alleged

infringement Libraries must have a policy which

provides termination for infringers Libraries become part of the enforcement

mechanism for copyright owners Infringement is mostly not a criminal

offence

New Zealand: Sect 92

Implementation was postponed to the end of March.

The legislation has now been cancelled pending review.

But similar legislation is pending elsewhere – called “three strikes” (a baseball metaphor)

Aim is to have someone else deal with repeat offenders

The penalty – disconnection – is draconian.

Punishment

Copyright legislation includes penalties for infringing other peoples rights – mainly fines, prison for commercial-scale infringement (piracy)

Statutory damages are becoming more common – where the law prescribes a specific fine

Disconnection from the Internet is sought by owners – someone else would do it.

Punishment

Making examples of people. YouTomb – http://youtomb.mit.edu – has

examples of material taken down from YouTube for copyright infringement. E.g.

A 4-year-old miming a song, Juke Box Hero A baby dancing to a Prince song A rodeo association agreed to pay $25,000

to an animal rights group These are all fair use – no infringement, no

harm to the owner’s interests

Punishment

French legislation pending 57% of French 18-24 yr olds illegally

download HADOPI = Haute Autorite pour la diffusion

des oeuvres et la protection des droits sur Internet

Will manage graduated response Opposed by civil liberties advocates Alternatives? A monthly subscription for

music? File sharing for non-commercial purposes legalised and a fund for creators? Levy on ISP account holders of 2 Euros pm

Shepard Fairey

Shepard Fairey is a street artist based in Los Angeles.

He produced as red white and blue portrait of Barack Obama

The portrait has appeared on posters and t-shirts, and is now in the National Portrait Gallery in Washington and other places too

The image was based on a photograph taken by Mannie Garcia, a photographer working for Associated Press (AP)

The main version, Obama Hope, became Obama’s iconic image – see http://www.popcultureshock.com/blogs/shepard-fairey-obama-posters/

Shepard Fairey

AP is suing Shepard Fairey for in- fringing its copyright in the image

Fairey claims that the use is fair If no-one could ever build one work

from another, what happens to creativity?

Fair use in the United States is a right everyone has to make use of copyright material if that use is “fair”

Should the copyright owner have the right to control all versions, variants, developments?

The Kindle 2 Last year Amazon, the well-known Internet

bookseller, introduced a device for reading e-books, called the Kindle.

As well as putting the e-book onto a screen convenient for reading, the Kindle can actually read the book out loud to you.

It uses a synthesised voice – the kind you get in GPS systems, or recorded telephone messages. You couldn’t confuse it with an actor or the author.

Great for people who can’t see or handle the machine easily.

The Kindle 2

The Kindle 2

What’s the problem? Last year the Authors Guild sued Amazon

saying “They don’t have the right to read a book out loud.”

Authors would lose revenue from audio books – they get royalties for an ebook, but lose out on audio rights, they said

What if reading aloud was a plug-in on the home computer? Or a software download.

The world has moved on, but not the authors

Cliff Richard

Sir Cliff Richard is a popular musician who has the distinction of having a longer career as a pop singer than almost anyone.

His first hit was in the 1950s, and he is still singing and selling pretty well.

He must be quite well off nowadays. However, he is at the centre of a debate

taking place in the European Community about copyright.

What is the problem?

Cliff Richard

Cliff Richard Copyright in sound recordings expires after

50 years – now extension to 95 proposed Copyright exists to encourage creativity and

invention But term of copyright has lately extended

massively – to life + 70 years “Copyright fuels innovation in the short

term, by bringing an income to creators, but stifles it in the long term, by creating monopolies and preventing new and creative re-uses, or even any use at all, as most music is hidden away . . .”

80% of funds will go to recording companies

Cliff Richard

Why does copyright get extended?

“enhanced prospects for global earnings in an increasingly international copyright market”

(Jane Ginsburg)

Free trade agreements are being used to extend the term.

Fair return to creators becomes enhanced profits for large corporations – RIAA & MPAA lead the charge

Child criminals Tendency for copyright infringement to

become criminalised In the US, the music industry (RIAA) has

targeted individuals – elsewhere less so Over 30,000 individual prosecutions. New strategy is to aim to work with ISPs

whether they like it or not. Why? Too much negative publicity when you

sue your customers.

Child criminals Brianna Laharra, a 12 year old girl from New

York, faced a penalty of $150,000 per song when sued by the RIAA. Her mother settled for $2000.

Durward Pickle, a 71-year old grandfather from Texas, faced similar penalties when his grandsons downloaded music while they were visiting.

Secrets and lies Anti-Counterfeiting Trade Agreement (ACTA) Early discussions under way About “enforcement best practice” and

“enhancing the enforcement legal framework.”

Fears of “increased search powers for customs officers” and airport security officials

Concern that there is no public consultation on the treaty.

Concern about “asymmetrical release of information.”

Secrets and lies In the US, the draft text of the treaty has

been “classified in the interests of national security …”

Of 806 pages, 796 are classified In Australia, an alliance of Choice (the

consumer association), ALIA, ADA and Internet Industry Association has created a statement of principles.

Digital Rights Management DRM is a software lock which stops you

from doing things the copyright owner does not want done.

Such as printing, copying, cutting and pasting.

But iTunes has now begun to abandon this, and others are following. Why?

People hate DRM Rival firms were negotiating Software issues were significant Technology may not be the answer to a social

and market challenge Privacy issues are major Legal protection exists without DRM

Digital Rights Management If something is locked down, it only takes

one unlocked copy to make the lock useless

There is no evidence that DRM provides a clear benefit to copyright owners – and it does annoy the customers

The law increasingly permits people to do things which DRM tries to stop them doing – e.g. domestic copying

Trespass - the public domain

Victorian Government bushfire map Google wanted to overlay bushfire data

onto Google Maps Country Fire Authority (CFA) agreed to use

of its data and it went live But Victorian Government said no Access to the National Public Toilet Map –

also sought as an overlay to Google Maps In NSW Railcorp vetoed a railway timetable

application developed for iPhone and sold for $2.50 by Transit Sydney

Copyright-free zones

In some areas, copyright is mainly ignored Email Blogs Presentations like this Print, email & other buttons–implied licences Is advertising, PR and marketing copyright? http://www.youtube.com/watch?

v=vkXSMZBdTLUThere are many areas where WE DON’T

WANT copyright to apply.

Orphans

Definition: works where the copyright owner cannot be traced or has abandoned the work.

Major report by the Library of Congress in 2008. Danger is that we will have a cumbersome system

Copyright is often unintended Older works more likely to be orphaned Mostly a trivial commercial value

What to do about orphans

Take these steps: A reasonably diligent search Clear and adequate attribution Remuneration or restitution if the copyright

owner appears Use should be non-exclusive Use disclaimers

Creative Commons Founded in 2001 by Lawrence Lessig, author

of Free Culture Standardised licences which give more rights

to the user – “open licences” Contrast with “all rights reserved” They reserve only attribution, commercial

use, derivative works New licence is CC0 – it waives all rights http://www.creativecommons.org

Creative Commons

This has a CC licence My staff put it there There are advanced search

functions in Flickr and Google for CC content

e.g. China Open Resources for Education at http://www.core.org.cn/core/default.aspx

Much much more

Pooling ideas

Popular movements New copyright

legislation and new rights but . . .

Limits to right to copy Harsh anti-

circumvention provisions

“the law should stop treating paying customers like criminals by giving them the right to legally shift their music to the device of their choice.” (Michael Geist)

Popular movements New copyright

legislation and new rights but . . .

Limits to right to copy Harsh anti-

circumvention provisions

“the law should stop treating paying customers like criminals by giving them the right to legally shift their music to the device of their choice.” (Michael Geist)

Popular Movements Lawrence Lessig has a

bloghttp://www.lessig.org/blog

And this book:Free Culture by Lawrence LessigHow Big Media Uses Technology and the Law to Lock Down Culture and Control CreativityHardcover | 5.00 x 7.51 in | 348 pages | ISBN 1594200068 | 25 Mar 2004 | The Penguin Press

Don’t panic – eight rules

Some rules for getting by Understand the copyright owner’s interests. It

is mainly about money – high value content like films, music and software are more likely to be pursued by owners.

Understand risks – financial, reputational, operational.

Respect contractual obligations. Use disclaimers and a formal procedure for

investigation and takedown to mitigate risk. Easy to say sorry.

More rules

Use/promote open licences. Creative Commons provides a guide to open licensing and tools to use. All of these images have CC licences.

Respect the rights of authors and creators to be acknowledged as such.

There is an international movement to slow the growth of the copyright octopus. Join it.

And of course, be cool. Join your local library association.

Pooling ideas: we are what we share

Thank You

QUESTIONS?

Derek WhiteheadDirector, Information Resources and University

Copyright OfficerSwinburne University of Technology

dwhitehead@swin.edu.au