Minow: By the time copyright expires in a book, the book is often forgotten.  The University of Michigan , however, just inked a deal with Amazon to bring some 400,000 old titles back to life.  How does the library determine that a book is out of copyright?

Bonn:  First, we are really excited about this special opportunity to extend access to our collections and to connect our users with the information that they need. Since 2004, we have had about 10,000 19th and early 20th century books in reprint, and we know that they are widely appreciated. While our digitization efforts are intended to create greater online access, it’s a happy by-product that it also enables greater print access.

But to answer your question about copyright: On determining copyright status:  right now we are being fairly conservative in our copyright judgments. Keep in mind that these volumes are only for sale in the United States, so we are guided by U.S. copyright law. We run an automated analysis on the MARC records to identify all volumes published prior to 1923 and most U.S. government publications. After this analysis, he bibliographic information is sorted by publication date and undergoes a quick manual review to check for obvious errors or bibliographic oddities (such as a record for a book that asserted it had been published in 1099). These volumes are removed from the POD (Print On Demand) stream. There is a wealth of material that is relatively easy for us to identify as public domain, and these are the books that we are currently working on getting out into the world. There are many other books that are probably also public domain but we’ll need to do a more nuanced analysis in order to make that determination.

If we extend our arrangements with POD printers and distributors to allow for sale of books in other countries (we already have that option for the U.K and Germany, but have not acted on it), we will need to construct a similar process of analysis taking into account the copyright laws of the countries in which we are selling the books.

We are also in the midst of an effort funded by the Institute for Museum and Library Services (IMLS) to develop an efficient way to check the copyright renewal records for books published between 1923 and 1963.  As we identify books that have risen into the public domain, we will add them to our reprint program.

Minow: Readers can purchase the reprints directly from University of Michigan or from Amazon.  How does the revenue sharing model compare with the proposed Books Rights Registry that would be created if the Google settlement goes through? Does UM make a profit?

Bonn: I don’t know enough of the details of the settlement to say exactly how it compares. It is different in that the settlement is intended to address in-copyright works and we are only selling public domain materials.  

This arrangement with Amazon is essentially an efficient and effective way of doing large-scale fulfillment. After all of our costs of producing the books are recovered, we will split what we anticipate to be modest profits with Google.  Our share of these profits will be used to support the activities of the University Library, especially our digitization efforts. We hope to make a little money along the way, but the relationship with Amazon is mainly about having a quick way to get print copies into the hands of people who want them.

I should remind everybody that all of these works are currently online for free in HathiTrust (http://www.hathitrrust.org). We already create reprints of these books on our Espresso Book Machine (http://lib.umich.edu/ebm), but this arrangement allows us to do fulfillment on a much greater scale.  

It is really rewarding seeing the way in which people connect with our books. About 26,000 titles actually became available on Amazon this week, and we see people buying copies of The Adventures of Mabel (a turn of the century children’s book), 19th century editions of Shakespeare, a guide to walking by Henry David Thoreau and Swedenborg’s ruminations on Heaven and Its Wonders. We can only speculate on why and how these books find their readers, but as you might suspect from librarians, we’re very happy to be facilitating that connection.

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Maria Bonn is the Director of the University of Michigan’s Scholarly Publishing Office.  She is responsible for the production of electronic books and journals and for broadly developing the role of the Library in scholarly communication.

Mary Minow is the content editor for the Stanford Copyright and Fair Use website.

Minow:  What prompted you to create the Fair Use Evaluator?

Brewer: After creating the Digital Slider (on public domain & copyright terms) and the 108 Spinner (covering section 108 – the library and archive exception), it seemed like we were ready to take on creating a tool that could help people to learn more about fair use and become more comfortable making fair use evaluations. One of the primary drivers in creating this tool was to create something that not only would help individuals (or institutions) to make fair use evaluations, but which would also collect and publish for the user the information they provided in support of that use.  Because Section 504(c)(2) may provides significant protections for those users who can show they had every  reason to believe their use was fair, we felt this functionality could potentially be really useful, both to protect those who make good faith evaluations, as well as to reduce the level of fear many have asserting fair use as an exception.

Minow:  How does it work?

Brewer: The tool provides the user with two options: to learn about fair use, or to make a fair use evaluation.  Explanatory notes and other information are available as pop-ups throughout. The “educational” section describes the law and provides some of the criteria or circumstances that could be understood as supporting or opposing each of the four fair use factors – Purpose, Nature, Amount and Effect.  This is followed by a clear statement of why taking a reductive “checklist” approach to fair use (simply counting up how many criteria favor rather than oppose a fair use, or how many factors favor rather than oppose) is overly simplistic, and should not be considered determinative of the fairness of a use.  This is then balanced by detailing the 504(c)(2) protections that are given users under certain circumstances if they document their uses and make informed fair use evaluations.

The “evaluation” section offers the user the opportunity to provide detailed information about their use and how it relates to each of the four fair use factors.  If they choose, they can use the tool to pull in relevant criteria, provided in the educational section for each of the factors, and then modify those criteria as appropriate to describe their own use.  Upon completing their evaluation, the user is asked to select whether or not they’ve found the use to be a fair one, or if they’re undecided. They can then choose to have the tool create a time-stamped PDF of their evaluation, which they can save to their computer hard drive; print, sign and keep for their records, or share with a colleague or copyright specialist for feedback.

This and the other tools we’ve created (including those mentioned above, as well as the Exceptions for Instructor eTool) are available for institutions to modify (adding their own local copyright information and links; next steps, or other information for users, etc.) under a Creative Commons license.  Of course they’re also free to just link to them and use them as is. Our Google Analytics statistics show that these tools get pretty heavy use and are also having the unexpected (and welcome) consequence of steering more people to the Copyright Advisory Network, where they can get help with specific copyright questions from a cadre of specialists.

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Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee

Mary Minow is Content Editor for the Stanford Copyright & Fair Use site, which links to the Fair Use Evaluator in its Charts and Tools page

Minow: Disability rights groups are protesting the Amazon decision to allow publishers to opt-out of the text-to-speech function for their copyrighted books.  Yet the feature remains for works that haven’t been opted out.  Must users be disabled in order to legally use the feature?
 
Von Lohmann: No, copyright leaves us all free to use our digital devices to “read aloud” to us. Despite the misleading statements of the Author’s Guild, you don’t violate copyright law when you have your Kindle “read aloud”  to you.  Copyright law gives copyright owners certain limited rights, including the right to make copies, perform a work publicly (like showing a movie in a theater), or make a derivative work (like writing a screenplay from a novel).

When you have a Kindle (or your laptop) “read a book aloud,” you are not “publicly performing” it — if anything, it’s a *private* performance. And no additional “copy” of the work is being made (except perhaps in the computer’s memory, and recent cases suggest that those kinds of transitory digital copies don’t count for copyright purposes). Finally, simply reading the work aloud does not create a “derivative work” — courts generally require that a derivative work contain original, copyrightable expression, something that should require more than simply reading the text aloud.

So I don’t think there is anything about your right to have a computer “read aloud” to you that depends on whether or not you are disabled. 

In my view, there is just no copyright infringement going on here in the first place.

Minow: What defines a public performance?

Von Lohmann: Where we’re talking about a performance in a real place (as opposed to a transmission), the statute defines “public performance” this way:  “to perform or display [a copyrighted work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”

I don’t imagine many Kindles will be used to “read aloud” to an auditorium, so this shouldn’t apply to most Kindle users.

The real problem here is that Amazon needs a license in order to make digital copies of books and to transmit them to your Kindle. So the copyright owners can simply force Amazon to limit the “read aloud” feature as part of their license agreements with Amazon. In light of this, it’s not surprising that Amazon has decided to let the copyright owner decide whether “read aloud” will be enabled for any particular title.

It’s worth noting that device makers that are not also in the business of disseminating digital copies would not be as vulnerable to pressure from the book publishers — and that’s why I imagine that the future of “read aloud” functionality for the disabled and non-disabled like will be on laptops and e-book readers other than Kindle.

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Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation, specializing in intellectual property matters. In that role, he has represented programmers, technology innovators, and individuals in a variety of copyright and trademark litigation, including MGM v.Grokster, decided by the Supreme Court in 2005. Fred has an A.B. from Stanford University and a J.D. from Stanford Law School.

Here’s a quick interview with Kenneth Crews, who prepared the World Intellectual Property Organization’s Study on Copyright Limitations and Exceptions for Libraries and Archives for its Seventeenth Session in Geneva, November 3 to 7, 2008.
Minow:  What sparked your interest in studying library exceptions to copyright law around the world?

Crews: I was invited by the World Intellectual Property Organization to undertake this study.  I had the pleasure of sharing a program in the United Arab Emirates with an official from WIPO, and she put in the recommendation that I do the project.  I had long been interested in the issues.  They are central to much of my work for libraries and universities, and I have written about the U.S. library provision in some of my publications.  The chance to do a major worldwide study was an invitation I was quick to accept.

Minow: How do the United States exceptions for libraries compare to other countries?

Crews: The U.S. statute on library issues is Section 108 of the U.S. Copyright Act.  Like the statutes from most countries, it focuses on the terms and conditions under which a library may make copies of a work for a user’s private study, and copies for preservation or replacement of lost or damaged works in the library collections.  Those issues are the most common topics of the statutes from all parts of the world.  The U.S. law also includes a provision on copies for interlibrary loans, and not many countries have addressed that issue.

On the other hand, the U.S. law is distinctive in many ways.  On the issue of preservation and replacement, for example, the law allows up to three copies, and it explicitly permits digital reproductions.  Some countries explicitly permit digital technologies, other countries do not mention specific format, leaving the matter open to debate.  Yet other countries clearly limit library copying to reprographic copies that are not digital.  Interestingly, two other countries have modeled their statute on the U.S. language of Section 108: Liberia and South Africa.  However, both of those countries used the form of the statute as we enacted it in 1978.  The U.S. added the language about digital copying in 1998, but neither of the other countries adopted that change.

Minow:  Did you find any surprises when you were conducting your study?

Crews:  I think I was surprised at nearly every point in the study.  The most interesting finding has been the trends in statutory language.  The U.S. language influenced only two other countries.  By contrast, the United Kingdom has a relatively elaborate statute, and one can see the influence of that model in the shape of the laws in many former U.K. colonies, such as Australia, New Zealand, Singapore, and elsewhere.  In fact, the U.S., being also a former colony, vaguely follows the U.K. model.

I could see other trends.  For example, the European Union issued a directive in 2001 that mentioned library exceptions, and as a result, most EU countries have addressed the issues in a similar manner.  I could also see a pattern of countries in Africa that have adopted a simple and terse library statute that is flexible and generally free of the detail embodied in the U.S. or U.K. examples.  Finally, I found geographical groupings of countries that have no library copyright statute at all.  Clearly, countries seem to be learning from one another, often from their neighbors, when they make decisions about the exact shape of copyright law.

Minow: Thanks for talking with us today.

Kenneth Crews is Director of the Copyright Advisory Office, Columbia University.
Mary Minow is the content editor for the Stanford Copyright and Fair Use website.