Within education, uncertainty and misunderstanding of copyright and fair use can lead to less than optimal choices of educational “inserts”, which includes a full range of resources and material from third-party sources that educators may wish to incorporate into OER. The Code is meant to provide guidance within this environment, not with strict lists of specific guidelines for fair use as it relates to OED inserts, e.g., specific percentages or word counts, but rather as an “analytical framework” for its users. When educators use this framework, they may be less constrained from strictly using materials from commercial publishers, in turn creating more impactful resources, in a variety of formats, for their students.

Announcement: Launch of the Code of Best Practices in Fair Use for Open Educational Resources

Read the Code

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What Is It?

The CASE Act creates a “Copyright Claims Board” (the Board) within the U.S. Copyright Office which can hand out awards for copyright infringement for those seeking damages of $30,000 or less.  Of consternation to its critics, decisions by the Board are binding unless a party proactively opts-out of the claims process. Opt-ing out isn’t a one time thing, either. A person must do this every time a claim is filed against them. While the opt out system has not yet been put in place (the Copyright Office has until the end of 2021 to create it), once in place, if you receive a notice of infringement and do nothing, the assumption will be made that you have “opted-in” to the process. The Board’s decision will be binding and you will have limited recourse to appeal or overturn it. On the other hand, claims of infringement handled in court have multiple levels of appeal. Critics of the CASE Act fear that the law does not protect individuals from copyright trolls and “sophisticated actors”, such as large companies, especially if a person does not understand the opt-out process. Large copyright owners may also target those using materials under fair use.

You can find out more about the history of the CASE Act here.

Additional Resources

US copyright law comes under scrutiny as new legislation makes its way before Congress

The CASE Act Is Just the Beginning of the Next Copyright Battle

Submitted public comments regarding regulations implementing to establish the new Copyright Claims Board (CCB) as a part of the Copyright Alternative in Small-Claims Enforcement Act

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Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo

Q: Thank you for updating the copyright overview on this site. What are the most important changes that you want us to know?

A: Because the update reflects changes from 2014 through 2016 it includes a few decisions that readers may be familiar with such as the Google book scanning decision (Author’s Guild v. Hathitrust, discussed below), the sequel rights to Catcher in the Rye, (Salinger v. Colting), the use of news – including business news and video clips – for transformative purposes (Swatch Grp. Mgmt. Servs. Ltd. and Fox News v. TVEYES, Inc.), the use of pop culture references (the “Who’s on First” comedy routine) within a play (Fox News v. TVEYES, Inc), and the ability to parody a popular movie (Point Break). (Keeling v. Hars). I think the cumulative importance of these and other cases that are discussed, is the evolving liberalization of fair use standards.

Q: Do we have any more clarity on Fair Use with respect to academic or library uses?

A: In order to provide more clarity, I think academics and librarians would like to see courts or legislators adopt quantitative guidelines – for example, establishing what percentage of a book or article constituted fair use. That seems unlikely based on the Eleventh Circuit rejection of the “10% rule” in Cambridge University Press v. Patton. The District court had allowed copying of 10% of a work as recommended by the Code of Best Practices, a set of fair use guidelines established by a group of publishers and academics. But the Eleventh Circuit rejected that standard and instead emphasized the importance of a flexible case-by-case fair use analysis. The good news for the academics was that on remand the majority of copying at issue was permitted under fair use.

The other good news for academics was the ruling in Author’s Guild v. Hathitrust. Most of your readers are probably aware of this case, in which the Second Circuit ruled that digital scans of a book constituted a fair use when used for two purposes: a full-text search engine, and electronic access for disabled patrons who could not read the print versions. The Second Circuit remanded as to whether “preservation” constituted a third fair use purpose, but the parties settled in 2015 before the issue could be litigated.

Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo

The post Stanford Copyright & Fair Use – Key Overview Updates appeared first on Stanford Copyright and Fair Use Center.

The court looked to the Cariou v Prince decision, but complained that its approach to appropriation art looked only at whether a work is “transformative” and doesn’t fully address a copyright owner’s derivative rights under 17 U.S.C. Sect. 106(2).  This court analyzes the market effect, looking to see if the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).

The photographer in this case did not claim that the t-shirt was a disruption to his own plans to license the photo for t-shirts or tank tops. He did not argue that demand for the original work was reduced.

And as for Fair Use factor three, the amount and substantiality of the portion used … the court wrote “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”  The original background is gone, its colors and shading are gone, the expression in the eyes can no longer be read, and the effect of the lighting is “almost extinguished.”  “What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

Kienitz v Sconnie Nation

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The post Guidance on websites and copyright registration from the U.S. Copyright Office appeared first on Stanford Copyright and Fair Use Center.

The roundtable was conducted by Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office.

Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office

The White Paper was submitted to Brauneis by Ariel Green, Sean Harb, Peter Holm, Kingdar Prussien, Kasonni Scales, and Juliana Yee, Copyright Policy Lab Practicum

Mary Minow: What was the impetus that led Stanford to research and write this White Paper?

Peter Holm:  The Copyright Office contacted Stanford initially and Professor Paul Goldstein contacted us.  I took a copyright class in the Fall of 2012 with Professor Goldstein. He emailed a few of us over the summer to see if we were interested. He described it as a chance to offer concrete suggestions to modernize the Copyright Office operations.

Minow: That sounds broad.  When did the focus narrow to copyright document recordations?

Holm:  That narrower focus developed in the Fall as we spoke with Maria Pallante, Register of Copyrights; Jacqueline Charlesworth, General Counsel, United States Copyright Office, and then with Professor Bob Brauneis who is there as a scholar in residence on these issues.

Minow:  Why does this matter?

Holm:  To have economic value, an owner of copyrighted works has to be able to sell and make his works available. If you don’t know who the owner is, you can’t make those transactions and the works lose value, so availability of this information is integral.

Minow: How do people find out now about who owns what copyrights?

Holm: It varies by industry.  Neither registration of copyrights nor recordation of copyright transfers are required, but both have benefits to the owner. Because taking these steps is voluntary, the amount of information available for any given work varies considerably.  So for example, in the music industry, there is extensive ownership information and licensing availability through ASCAP, BMI and the Harry Fox agency.  So if I want to play Elton John at a party open to all Stanford students, I can get a license from those collecting societies and not worry about who owns the rights.

Whereas if I find a book in the library, published in 1955 and I want to use it, it’s harder to find information.  There are probably records at the Copyright Office for the initial owner, as registration used to be required, but subsequent transfers might not have been recorded, so many questions remain. Did he transfer the copyright at some point? If not, is the author still alive? Did it go to his heirs, and who are they?

There is a substantial cost to investigating this, and often one doesn’t know who to talk to.

Minow: What’s the gist of your proposal?

Holm: It’s not a proposal per se. It’s really a list of options and tradeoffs.  We look at the role of the copyright office. Should it hold a giant database, partner with third parties?  Really it comes down to how do we best provide access to the public and get the information they need without overly burdening authors with unnecessary requirements?  We don’t want to make it too hard for them to exercise their rights to transfer works, since transfers are potentially beneficial.

Minow: What are the benefits of recording transfer documents, since it’s not required?

Holm:  It gives constructive notice of the transfer.  Also, if you record a transfer document there is a presumption of validity for that document over subsequent instruments of transfer of the same title.

Minow: Thanks for talking with us today.

——

Peter Holm is a third year law student at Stanford Law School.

Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use page.

The post Who’s the Owner: A White Paper on “Improving Copyright Information Management: An Investigation of Options and Areas for Further Research” appeared first on Stanford Copyright and Fair Use Center.

The Copyright Office just held two days of public roundtables on Orphan Works (See twitter #orphanworks for some flavor of the sessions). The Copyright Office has now opened up the floodgates for public comment from those of us who were not in D.C.

Update from last go round:  the Copyright Office, in the Federal Register notice, notes that the Authors Guild, Inc. v. Google Inc court said it’s up to Congress, not the courts, to resolve orphan works issues.  The court later ruled that the Google Books project is fair use, stating that “Google Books provides significant public benefits.”  Yet orphan works are not really addressed and it’s not known how broadly that opinion justifies other mass digitization projects. The HathiTrust decision found a related mass digitization project to be fair use. Again, orphans are not really addressed, and in fact The Hathi Trust suspended its orphan works project right after the complaint was filed. [Note: Justia makes the full dockets of these cases available with RSS feeds for those of you who want to be notified of new filings as they come in.]

So how do resolve our desire to use the orphan works?  Many library digitization projects are replete with rich content in completely untraceable photos, letters, scrapbooks, etc. Do we need legislation to help these and other projects go forward? If so, what shape should legislation take?

Public comment is sought for the following topics. More detail on the contours of each of these topics can be found in the Federal Register notice.

The U.S. Copyright Office held public roundtables on orphan works the last two days in D.C.  Now is the time for those who couldn’t attend to weigh in during the open public comment period.  The deadline is April 14th.

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The post CopyrightX lectures fully available to the public appeared first on Stanford Copyright and Fair Use Center.

A little hidden on the Internets, so we bring the Congressional hearings on Fair Use here to you:

January 28, 2014

Subcommittee on Courts, Intellectual Property, and the Internet, 2141 Rayburn House Office Building

• Professor Peter Jaszi
  Faculty Director of the Glushko-Samuelson Intellectual Property Clinic
  American University Washington College of Law
  012814 Testimony – Jaszi.pdf (599.9 KBs)
• Professor June Besek
  Executive Director of Kernochan Center for Law, Media and the Arts
  Columbia Law School
  012814 Testimony – Besek.pdf (539.5 KBs)
• Ms. Naomi Novik
  Author and Co-Founder
  Organization for Transformative Works
  012814 Testimony – Novik.pdf (200.3 KBs)
• Mr. David Lowery
  Singer/Songwriter and Lecturer
  Terry College of Business at the University of Georgia
  012814 Testimony – Lowery.pdf (1.1 MBs)
• Mr. Kurt Wimmer
  General Counsel
  Newspaper Association of America
  012814 Testimony – Wimmer.pdf (288.1 KBs)

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UELMA was approved in July 2011 by the National Conference of Commissioners on Uniform State Laws (now the Uniform Law Commission). UELMA addresses the challenges states face in providing permanent public access to trustworthy electronic legal material. UELMA gives states a lot of flexibility. It does not require them to make an online version of the law official. But if a state does designate an online version as official, then UELMA requires that the online version be:

1. Authenticated, by providing a method to determine that it is unaltered;
2. Preserved, either in electronic or print form; and
3. Accessible, for use by the public on a permanent basis.

The types of legal materials that might be included in an UELMA enactment are state constitutions, state session laws, codified laws, and agency regulations which have the effect of law. UELMA also establishes a presumption that a state’s authenticated laws are accurate copies, and that presumption applies in every state that has enacted UELMA. So adopting UELMA will harmonize standards for acceptance of electronic legal material across state boundaries.

If a state designates an online version of its primary legal materials as official, UELMA’s preservation component requires provisions for backup and recovery, and procedures to ensure the integrity and continued usability of the material.

When UELMA was first enacted, the Government Relations Office (GRO) of the American Association of Law Libraries (AALL) reached out to AALL members and chapters, looking for people to get involved with promoting the passage of UELMA.

I had moved to Colorado in July, 2011. In November, the GRO got in touch with me and asked if I would be the lead advocate in Colorado for UELMA. I was really excited about UELMA and I said yes. The GRO sent me position statements and FAQs and a contact in the Colorado Senate. It was about then that I began to wonder what I had done.

I was entirely new to the state, had no personal relations with any state legislators, stakeholders, librarians, Library groups, or anyone else. But I read my materials and went off to meet the senator with all my materials to ask for someone to sponsor the uniform law.

So what did I actually wind up doing, besides meeting with the senator? I personally emailed every senator on the senate judiciary committee and every representative on the house judiciary committee, explaining what UELMA was, sending links, and offering to help. The senator who introduced the bill asked for some further help with issues about disability access under UELMA, and I sent her my comments.

No one else took me up on my offer until a day in March 2012 when I got an email, apologizing for the lateness and asking if I could testify before the Senate Judiciary committee on UELMA the next day .  Sadly I was on a business trip in California, so I called the trusty GRO and asked for help. Together we put together a letter, which I emailed in. It was a helpful letter, according to the sponsor. It was read into the record. The bill passed the senate committee unanimously and was sent to finance.

I sent legislators lots of information about the many ways that documents can be authenticated because the Code of Colorado Regulations online is the official version and if UELMA was passed in Colorado, it was going to cost money to authenticate it. The bill sailed through the finance committee and headed to the house. Without any help from me, it passed through both committees in the house and went to the governor.

After UELMA was law, I got in touch with the agency that had been given the job of implementing UELMA and sent them all of the information the GRO had gathered on authentication and put them in contact with Michele Timmons, the Minnesota Revisor of Statutes, who was working on an in-house authentication system.

The key takeaways for me from this process were:  you don’t need to know your legislators or have a network in place in order to effect change and work within a new system; there don’t need to be large groups of people involved; the GRO was an amazing resource; and it wasn’t really that much work!

Other states have had a much different road to enactment. For example, in California, an experienced group of law librarian advocates worked closely with Uniform Law Commissioner and Legislative Counsel of California Diane Boyer-Vine to ensure enactment.  Each story is different and some of these stories are collected at Local Advocacy Networks: Adopting UELMA in Your State and How You Can Help, by Catherine M. Dunn, Head of Reference Services at the University of Connecticut School of Law Library. There are wonderful resources at the GRO’s UELMA Resources page. AALL has also posted case studies about the Colorado and California experiences written by me and Michele Finerty, Assistant Director for Technical Services at the Pacific McGeorge School of Law.

Which states have enacted UELMA so far? In order of enactment: Colorado, California, Minnesota, North Dakota, Hawai’i, Oregon, Connecticut and Nevada.

Bills to enact UELMA are pending in the District of Columbia and Pennsylvania. For more details on dates of passage, and the status of pending bills, go to the American Association of Law Libraries’ Government Relations Office website, the Uniform Electronic Legal Material Act Bill Chart, at http://www.aallnet.org/Documents/Government-Relations/UELMA/uelmabilltrack2013.pdf.

If your state has not already passed UELMA, think about getting involved as an advocate. You can contact AALL’s Government Relations Office or your local law library chapter. A few people can really make a difference!

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