Digital Rights Issues for Libraries
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Transcript of Digital Rights Issues for Libraries
DIGITAL RIGHTS ISSUES
FOR LIBRARIES
PRESENTED BY LILA BAILEY, DIGITAL COPYRIGHT LAWYER
OAKLAND, CA
DECEMBER 16, 2014
OVERVIEW
Part I: Digital Copyright Issues
Part II: Patron Privacy Issues
Part III: Contracts & Licensing Issues
EXCEPTIONS TO ©
Sections 107-121 of the Copyright Act set forth a variety of
exceptions to copyright.
Most relevant to libraries:
• 107 = fair use
• 108 = library reproductions
• 109 = first sale
SECTION 108:
LIBRARY EXCEPTION
Allows libraries and archives to reproduce and distribute works under certain circumstances.
For example:
• Preservation of unpublished works
• Replacement of lost or damaged copies
• Replacement of obsolete formats
• Photocopies for Users & Inter-Library Loans
Also guarantees that libraries can’t be held responsible for copyright infringements committed on unsupervised copying equipment, such as photocopiers, scanners, and 3D printers.
Copyright interest is “exhausted”
after the first lawful sale or transfer
of a physical copy of the
copyrighted work.
Provides a limitation on the
distribution right only.
Allows libraries to lend books, and
also enables secondary markets like
used book stores.
SECTION 109:
FIRST SALE
[Photo by Karen Cox, CC BY-ND.]
DIGITAL FIRST SALE?
• Unfortunately, the law has not caught up with
technology yet.
• So far, the first sale only applies to physical
copies of books, CDs, movies, etc.
• There is no official “digital first sale doctrine” in
the U.S.
• Libraries need to be involved in reforming the
law to ensure ongoing public access to
information and creativity, regardless of the
format!
SECTION 107:
FAIR USE
“The fair use of a copyrighted work,
including such use by reproduction in
copies … for purposes such as
criticism, comment, news reporting,
teaching (including multiple copies for
classroom use), scholarship, or
research, is not an infringement of
copyright.”
IMPORTANCE OF FAIR
USE
• Fair use is an important First Amendment
safeguard
• Balances the need to both protect
copyrighted works and allow others to build
on them.
• Prevents copyright from stifling the very
creativity it was designed to encourage.
FOUR FACTORS
17 U.S.C. § 107
• Purpose and character of the use
• Nature of the original work
• Amount and substantiality of the portion
used
• Effect of the use on the potential market
for or value of the original
TODAY, TRANSFORMATION
IS THE KEY
• Add something new with further
purpose or character?
• New expression, meaning or message?
• Or does it supersede or supplant the
objects of the original creation?
LIBRARIES & PRIVACY
“Protecting user privacy and confidentiality is
necessary for intellectual freedom and
fundamental to the ethics and practice of
librarianship.” – ALA Policy Manual
Resolution on Retention of Library Records
• Limits the creation, retention and disclosure of
library patron records
• Encourages security of necessary records
CA READER PRIVACY
LAW
• All library circulation records are CONFIDENTIAL and
shall not be disclosed, except as permitted by this law.
• Personal information is “any information that relates to or
is capable of being associated with a particular user’s
access to or use of a book”
• “Book services” may only disclose personal information
to law enforcement/gov entities under very specific and
limited circumstances.
• They may only disclose personal information to a private
party only if the user has given “informed, affirmative
consent to the specific disclosure for a particular
purpose.”
THIRD PARTY
VENDORS & PRIVACY
• ISPs who provide Internet service
• Publishers of databases of journal articles
• E-Book platforms
• Children’s educations games
• Streaming music and video vendors
LESSONS FROM THE
ADOBE “SCANDAL”
• Not only do vendors collect sensitive reader information,
but they don’t secure it
• Important to understand that “aggregated data” can be
linked to personally identifiable information – once the
info is out there, attackers can easily put it together with
other public info and trace it to a specific person
• The public outcry over the Adobe breach shows that the
public DOES care about its privacy!
• Trust in libraries as champions of privacy could be eroded
by these third party vendors
SOME PRIVACY-
FRIENDLY RESOURCES
Two ILSs:
Biblionix – super strict about data sent in transit
Evergreen – open source, less good about security
Library Thing for Libraries – enables “enhancements” for
OPAC/Online Public Access Catalog
• Enhancements are a layer that sits on top of the regular
OPAC and adds things like reviews, ratings,
personalization options, etc. so you don’t need to use an
outside vendor for this functionality
ONLINE VS. OFFLINE
LICENSE
• Contract terms apply (can override first sale and fair use!)
• Lasts as long as the deal
• Different deals for different vendors/publishers
• May not be able to move content to another platform
• Access to particular books can be revoked at any time
OWNERSHIP
• First sale doctrine
applies
• Lasts forever
• Easy to move from
one place to another,
or to sell/dispose of
books when done
• Public can’t donate
eBooks
• No DRM!
DEALING WITH
DIGITAL CONTENT
These rules apply to music, movies and other digital content as well as books.
When considering whether to “buy” access to digital content, consider:
• You may need different vendors for access to different publishers’ content
• Costs may go up year over year
• It’s hard to switch between different technical platforms and devices – incompatibility issues abound
• You may not be allowed to take content with you when you switch vendors
• There are “copyright safe” options available, such as the Open Library and the Internet Archive
CONTRACTS:
READ THEM CAREFULLY!
• Contract terms almost always trump copyright law, so you
need to know what you’re getting into.
• Highlight concerning terms, and bring them to legal
counsel when you can.
• You do have some power to negotiate!
• Look out for language that limits fair use rights
• Limit cost increases year over year
• Remember user privacy! Reader Privacy Act of 2011.
• Understand what content you will have access to, with a
notice & remuneration process if content is removed or
changed
A FEW TIPS FOR
READING CONTRACTS
1. Mentally prepare. What do you want to be in the
agreement? What are your “must haves?” Important
especially when reading a “take it or leave it” contract
2. There are very few “magic words” in contracts. Many are
frankly just badly written. Read them like an editor.
3. Any stranger SHOULD be able to understand what the
agreement says. If not, it’s vague and that’s not good.
4. Terms should be defined. If you don’t know what a word or
phrase means, ASK.
5. Never sign a contract you don’t understand!
STATEMENT OF COMMON
UNDERSTANDING
• Libraries have developed a “Statement of Common Understanding for Library Use of Electronic Content.”
• Intent is to secure outright ownership of ebooks, keeping intact the same rights that public libraries have always had with print works.
• URL: http://jaslarue.blogspot.com/2012/01/statement-of-common-understanding-for.html
• Features:
• Outright purchase of ebooks (at the usual discount)
• Preserves first sale rights
• Preserves fair use rights
• Spells put library’s obligations to safeguard materials (one user, one loan)
SHARED ELECTRONIC
RESOURCE UNDERSTANDING
• Developed by NISO (National Information Standards
Organization)
• Has standardized terms for access, use, privacy and more
• http://www.niso.org/publications/rp/RP-7-2012_SERU.pdf
CONTACT INFO
Lila Bailey
Partner, The Law Office of Lila Bailey
@LilaBaileyLaw
www.lilabailey.com