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Minow: What sparked you to write this book?

Hirtle: I used to be Director of the Cornell Institute for Digital Collections, where I led a number of library and museum digitization projects. With all of the projects, much of my time was spent worrying about what was legal and/or acceptable for us to do. Based on my experiences and what I learned about copyright, I started offering workshops on copyright and digitization. When I read Hudson and Kenyon’s Australian manual on the topic, I realized that this was exactly the sort of information that I wished I had at my fingertips when I started out. Their manual was written to assist understanding and compliance with copyright law. It addresses the basics of copyright law, the exclusive rights of the copyright owner, and the major exemptions used by cultural heritage institutions. I realized that an American version would be of great use, and fortunately they agreed that we could collaborate on such a volume.

Minow: If you could condense your book to one paragraph, what would it say?

Copyright and Cultural Institutions: Guidelines for U.S. Libraries, Archives, and Museums Hirtle: The development of new digital technologies has led to fundamental changes in the ways that cultural institutions fulfill their public missions of access, preservation, research, and education. Many institutions are developing publicly accessible Web sites that allow users to visit online exhibitions, search collection databases, access images of collection items, and in some cases create their own digital content. Digitization, however, also raises the possibility of copyright infringement. It is imperative, therefore, that staff in libraries, archives, and museums understand fundamental copyright principles and how institutional procedures can be affected by the law. Copyright and Cultural Institutions was written to further understanding and compliance with copyright law.

Minow: What were the challenges or surprises you found when writing it?

Hirtle: I knew that very few of the things that cultural institutions want to do with new technologies are explicitly authorized in copyright law. What I didn’t realize is how many non-digital practices are similarly unauthorized. Cultural institutions have unknowingly engaged in a string of behaviors that in theory place them at some risk. This has not been a problem, however, because very, very few institutions have ever been sued – and many of the activities that they have undertaken may be perfectly legal, even if they are not explicitly recognized in the law. These cultural institutions have been engaged in a kind of intuitive risk analysis, and have assumed (correctly) that their risks are low. I hope the book will help institutions engage in an informed risk analysis that leads them to conclude that the public interest, as well as the many protections the law affords them, warrants providing greater access to their collections.

Minow: When will it be available?

Hirtle: Now! The volume is available for free download from SSRN and Cornell University Library’s eCommons. In addition, print copies are available for sale from createspace.com. We are hoping that enough individuals and institutions will purchase the print copy that we can recover the out-of-pocket production expenses and justify making a copy available for free on the web.


* Peter B. Hirtle is a Senior Policy Advisor in the Cornell University Library and member of the Stanford Copyright & Fair Use Advisory Board.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

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Copyright Office Notice of Inquiry and Request for Comments on
the Topic of Facilitating Access to Copyrighted Works for the Blind or
Other Persons With Disabilities

The proposal would permit the cross-border import,
export and qualified distribution of copyrighted works in accessible
formats without the permission of the rights holders, including to
countries that presently lack, in their national laws, a specific
copyright exception or other legal framework for serving the visually
impaired. The proposal would also permit the circumvention of
technological protection measures for the purpose of making works
accessible.

In particular, the Copyright Office and USPTO are interested in learning
about 1) how the treaty proposal would interact with existing U.S. law;
2) how the treaty proposal would interact with existing international
obligations of the U.S.; 3) the possible benefits of or concerns about
the treaty proposal, including with regard to the objectives of the
treaty proposal, how those objectives could lead to improved access for
the blind and visually impaired, and any concerns about the
implementation of the proposed treaty provisions in the U.S. or abroad;
and 4) other possible courses of action that would facilitate access by
“blind, visually impaired, and other reading disabled persons.”

http://regulations.justia.com/view/156017/

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(posted by Peter Hirtle; cross-posted from http://blog.librarylaw.com)

Earlier this fall I wrote about what I called “the other coursepack case” (in Michigan, as opposed to the Georgia State case).  Partial summary judgment has been granted, and it is a mixed bag for educational fair use.

In
the decision, the judge rejected all of the defenses that the
defendant, Excel Copying, put forward.  First, the court rejected, as I
suspected it would, the argument that the licenses secured by the
University of Michigan library authorized the copying. 

It also
rejected the stronger argument that Excel engaged in no direct
infringing activity itself, since it was the students, and not Excel,
that made the copies.  The court found that because Excel “is the
source of the reproduction,” it had the same liability as if it had
made the reproductions.  Excel gathered the material, collated and
numbered the copies, assisted students who were having trouble copying,
and did everything except actually push the “start” button on the
photocopy machine.  The court therefore concluded that Excel, and not
the students, made the copies.  Furthermore, it found that lending the
master copy of the course pack to the students violated the publishers’
distribution right – even though there is no discussion in the opinion
as to whether the master is itself a legal copy, and hence could be
loaned under the first sale doctrine.

Lastly, the court completely rejected a fair use argument.  It accepted the reasoning of the majority in the Michigan Document Services (MDS) case
that fair use was not applicable.  Because Excel is a commercial
operation, the purpose of the copying was not educational.  As to the
second factor, the court ignored the informational character of the
readings, but said that since they were creative, it ruled against fair
use.  (“The nature of the material is certainly creative, which
militates against a finding of fair use.”)  Of course, to be protected
by copyright, a work must be creative.  If the court’s reasoning were
followed, the second factor must always
weigh against fair use.  The court found that the third factor, the
amount of the use, also weighed against the defendant, since the
professors had selected the excerpts, which means that they must have
substance.  Again, if one accepted this reasoning, it would be hard to
know when an excerpt selected for a class could ever be a fair use. 
Finally, on the fourth factor, the court found that because Excel does
not pay licensing fees when its competitors do, the market for the
copyrighted works is harmed.

I suppose that it should come as no
surprise that in its fair use analysis, the court clung closely to the
decision in MDS.  (It is also telling that the one commentator on MDS
that it cited was Doug Lichtman of UCLA.  While I greatly enjoy his podcasts,
he does seem to believe that if a use can be licensed, there should be
no fair use.  Fair use should only apply in those situations, such as
criticism or parody, when it is unlikely a license could be secured.) 

I
was more surprised by the conclusion that because Excel enabled
students to make copies, it was directly responsible for that copying. 
To the eyes of this non-lawyer, this would seem to be a classic case of
contributory, not direct, infringement. 

It makes me wonder as
well about the potential liability of libraries.  It is common for
libraries to receive from a faculty member a copy of a course pack and
place it on reserve (much as faculty members provided copies of their
course packs to Excel).  If a student then borrowed that course pack
and copied it on a library photocopy machine, would the library be
liable?  Section 108(f)
of the Copyright Act protects libraries from charges of contributory
infringement for copying done by patrons on library equipment, but
could this decision be extended to suggest that libraries, just like
Excel, have direct, not contributory, liability  for infringing copies
made by students?  If so, the “safe harbor” of 108(f) would evaporate. 
The court did
concede that if a student secured a copy of a course pack from a friend
“or other third party,” brought it to a commercial copy shop, and made
the copy, the copy shop may not be liable for copyright infringement. 
Perhaps a library could be “a third party.”

The
potential good news for fair use in the decision rests more in what the
court did not decide.  First, as with the MDS decision, by focusing on
the commercial nature of Excel’s copying, the court left open the
question of the legality of similar copying conducted by a
not-for-profit educational institution.  We will have to wait for a
decision in the Georgia State case to see how that plays out.  Second,
the court acknowledged MDS’s contention that copying by
students is problematic and may not be a fair use, but it chose not to
address that issue as well.

All
in all, this case seems to be one more rejection of the plain language
of the fair use statute, which indicates that multiple copies for
classroom use are not infringements of copyright. 

(Note: Mary Minow also briefly discusses this case.  There is also a very useful discussion that echoes many of the same points I make on the Exclusive Rights blog.  PH)

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Although the students press the “start” button to make a copy of a coursepack, the copyshop is the “source of the reproduction” supplying a master copy of the coursepack, equipment and staff assistance.  This is vastly different, says the court, from a scenario in which a student gets a coursepack from a friend and steps into a copyshop to duplicate.  Short work is made of the Fair Use analysis: 
Purpose is commercial (it’s the copyshop’s purpose, not the student’s)
Nature – creative
Amount – MDS case cited, showing that professors tend to choose qualitatively important material
Market – adverse impact because the copyshop can undercut competing shops that pay royalty fees
Blackwell Publishing v Miller at

http://docs.justia.com/cases/federal/district-courts/michigan/miedce/2:2007cv12731/222190/54/

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