Global Copyright Challenges: 2011 Special Libraries Association Conference
Libraries, Copyright and the World
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Transcript of Libraries, Copyright and the World
Libraries, Copyright, and the
World:The Internationalization of Collections and
Services
Presented by:
ALA Editions Workshop
December 4, 2012
Kenneth D. CrewsDirector, Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu
Main Objectives of this
Webcast
Answer practical and important
questions.
Survey the operation of U.S. and
international law for libraries.
Introduce major developments on
the horizon in the U.S. Supreme
Court, in Geneva, Switzerland,
and more.
Why International Copyright?
First: International Treaties and
Legal Developments are shaping
Domestic U.S. Law.
Second: Many of our collections
are international.
Third: Many of our service
transactions are international.
Familiar Questions
Are books, movies, and other
works from other countries
protected under U.S. copyright
law? Are the rules the same
about ownership and copyright
duration?
Does fair use apply to copyrighted
works from other countries?
Familiar Questions
The copyright on a work has
expired under U.S. law. Can I put
it on the web and share it with the
world?
My library is in the U.S., but we
have branches in research
centers and other locations
overseas. What rules do I apply
in my branch libraries in other
countries?
Familiar Questions
We get requests for copies from
researchers and libraries outside
the U.S. Are we OK sending
copies across borders? Are the
rules for mailing copies the same
rules for email attachments?
Start with Fundamentals
Rule One:
◦ When in the U.S. apply U.S. law.
◦ Call it a “90% Rule.”
Recall this question:
◦ “Does fair use apply to copyrighted works
from other countries?”
◦ Basic Answer: Yes
◦ But: We will see some Key Differences
Start with Fundamentals
Rule Two:
◦ When in another country, apply that
country’s law.
What about that branch library in
Beijing?
◦ Your library staff in China may have to
learn a bit of Chinese copyright law.
◦ The copy you make in the U.S. is under
U.S. law, but the copy made in China….
Outline of Copyright Law
Broad Scope of Protectible Works
Automatic Copyright Protection
Creator of Work as Initial Owner
Rights of Copyright Owners
Duration of Copyright Protection
Exceptions to Rights of Owners
Technological Protection Measures
Infringement and Remedies
Sources:
International Copyright Law
Berne Convention◦ Originated in 1886
◦ Today has 166 Member Countries
Trade Related Aspects of Intellectual Property (TRIPs)
◦ World Trade Organization◦ Established in 1994
◦ Today has 157 Member Countries
◦ Incorporates key provisions of the Berne Convention
Sources:
International Copyright Law
WIPO Copyright Treaty
◦ Adopted in 1996
◦ Today has 90 Member Countries
WIPO Phonograms and
Performances Treaty
◦ Adopted in 1996
◦ Today has 91 Member Countries
Beijing Treaty on AV Performances
Sources:
International Copyright Law
European Union Directives◦ Information Society Directive (2001)
◦ Copyright Term Directive (1993)
Free Trade Agreements◦ ACTA, Anticounterfeiting Trade Agreement
◦ NAFTA
◦ Australia, Colombia, South Korea, and More
Future WIPO Treaties◦ Limitations and Exceptions for Visually Impaired
Persons
◦ For Libraries? For Education?
What Do Treaties Do?
“Harmonize” Copyright Law
◦ Quest for predictability and assurance of
protection
Require countries to change their laws
◦ Set minimum standards
Require Protection for Foreign Works
◦ Concept of “National Treatment”
Mechanisms for review and
enforcement
Example:
Scope of Protectible Works
Berne Convention◦ Protection for “literary and scientific” works
◦ No defined standard of “originality”
◦ No requirement of “fixed”
◦ Prohibition against “formalities”
U.S. joined Berne in 1989
◦ Previously changed rule to “original works” that are “fixed in any tangible medium of expression”
◦ Dropped the notice formality
◦ Later dropped the renewal formality
Example:
Duration of
Copyright Protection
Berne Convention◦ General Rule: Life of the Author plus 50
Years
◦ Cinematographic Works: 50 years
◦ Photographs
◦ Anonymous and Pseudonymous Works
◦ Sound Recordings
However: Countries may provide longer terms of protection.
Result: Duration for Life plus 70 Years!
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Practical Meaning for
Libraries
Recall this question about public domain: “Can I put it on the web and share it with the world?”
Some Possible Answers:◦ Yes: Old enough to be public domain
everywhere.
◦ Maybe: Public domain in the U.S., but not everywhere.
◦ No: Public domain in the U.S., but clearly protected where needed.
Let’s get Practical:
◦ What do libraries actually do?
Example:
Duration & Formalities Together
Consider these Basics of U.S. Law:
Works created in and after 1978:◦ Duration is Life + 70 Years
Works created before 1978:
◦ Duration is Maximum of 95 Years
◦ But Shorter if no Copyright Notice or Renewal
Why the Change of Rules?◦ The Berne Convention!
Mind Games:
Copyright Restoration
Recall this Question: “Are the rules for
foreign works the same as for U.S.
works?”
Answer: Usually, but not always.
Works Published before 1978
◦ May be public domain due to lack of
formalities
Requirement of TRIPs:
◦ Restoration of Foreign Copyrights
◦ Restoration upheld in Golan v. Holder (2012)
Questions?
So Far….
Rules about Protection & Duration
Coming up Next…
Fair Use & Other Exceptions
Copyright Exceptions &
Limitations
Most Countries have Multiple
Exceptions
Library Research & Preservation
Copies for Education
Needs of the Visually Impaired
Private or Personal Copies
Architecture or “Panorama” Right
Industry Exceptions
Fair Use
Balancing of Four Factors
◦ Purpose, Nature, Amount, Effect
Distinctive American Doctrine
◦ Few other countries have
adopted it
Many countries have sought
flexibility
◦ But Exceptions are Local Law
Exceptions as
Local Law
Question:
“Does fair use apply to a work from France?”
Answer: Yes.
Question:
“Does fair use apply to the U.S. work
when it is used in India?”
Answer: Check the law of India.
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More Mind Games:
Exceptions about the Exceptions
Basic Premise: When in U.S. apply
U.S. law.
◦ 90% Principle: Apply U.S. law equally to
foreign works.
◦ Therefore: The law is 10% unequal.
Case Study:
◦ Kirtsaeng v. John Wiley & Sons
The Exception at Issue:
◦ The First Sale Doctrine
What is “First Sale”?
Concept: Once a copyrighted work
has been sold (the “first sale”), that
copy may be further sold, given away,
loaned, etc.
The Language of Section 109(a): The
concept applies to works “lawfully
made under this title.”
“This Title”: Title 17 of the United
States Code; i.e., the U.S. Copyright
Act
Kirtsaeng v. John Wiley &
Sons
Kirtsaeng purchased and imported
from Thailand low-priced editions of
major textbooks.
Question: Because the books were
made outside the U.S., were they
made “under this title”?
If Yes: Kirtsaeng and others may sell
the books.
Kirtsaeng v. John Wiley &
Sons
If no…..◦ No sales of foreign-made books and
more.
◦ No lending
◦ No renting
◦ No public display of works
What should libraries do?
Mind Games, continued:
More Exceptions about
Exceptions
Case Study: Section 108, Copies for
Researchers and ILL
Section 108 Allows: Libraries may
make copies of selected works,
generally for research and study, and
to send copies through ILL
arrangements that do not have as
their “purpose or effect” to substitute
for a “subscription to or purchase of”
the work.
Section 108 and The World
When in the U.S. apply U.S. law.
Library in the U.S. may apply Section
108.
Nothing in Section 108 bars Internat’l
ILL.
Receiving library is subject to
conditions:
◦ Subscription and Purchase Clause
◦ Local Domestic Copyright Law
◦ Local Domestic Import Laws
Confused? Perplexed??
Remember the 90% Rule:
◦ When in the U.S. apply U.S. law.
Remember the 90% Principle:
◦ Copyright applies to foreign works in the
same way that it applies to domestic
works.
Taking Action
Public Domain
◦ Copyright law varies around the world
◦ Learn and apply fundamentals
◦ Most expectations can be met locally
Fair Use
◦ Apply fair use responsibly and vigorously
◦ Apply it to foreign works
Taking Action
Library Lending
◦ Kirtsaeng case is a problem
◦ Could raise serious legal & ethical
concerns
◦ Could libraries even comply?
Copies for ILL
◦ Watch for legal developments
◦ Adhere to standards of Section 108
◦ Does requestor comply with Local Law?
Taking Action
Don’t Panic!
Don’t trash your foreign materials
Get Involved:
◦ Section 108 upcoming review in
Washington
◦ NOI regarding Orphan Works
◦ WIPO meetings on Copyright Treaties
Develop Policy for Your Library
Consult with Legal Advisors
Thank You!
Kenneth D. Crews
Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu
www.twitter.com/kcrews
Next Workshop?
Let Me Know Your
Suggestions!