And while debates over copyright enforcement, length of protection and the extent of exemptions continue in the U.S., similar efforts and arguments are being made in Canada, the UK and Europe. Our video page has excerpts from the ongoing conversation. One highlight is a speech on copyright from Mathias Klang, a researcher and senior lecturer at the University of Göteborg in Sweden. Most of the latest videos are from a July 2010 conference called ORGCon, conducted by the Open Rights Group, a group devoted to advocating digital rights in the UK.

But for you hardcore Lawrence Lessig fans (and I am one, thank you very much), there’s also a new TED talk from him on copyright, fair use and remix culture mashed up with politics. Brief, but humorous and thought-provoking, as one would expect from Prof. Lessig.

   — Eli Edwards, Content Minion

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An Insider’s View of the WIPO: Interview with Janice T. Pilch, Associate Professor of Library Administration and Humanities Librarian at the University of Illinois at Urbana-Champaign

An international copyright advocate for the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, Janice has represented the interests of U.S. libraries and the public at copyright-related meetings of the World Intellectual Property Organization (WIPO) and other international fora for the past three years. As an advocate, she develops position statements to advance fair and equitable access to information, contributing to LCA’s strategic effort to influence legislation and public policy governing use of copyrighted materials.

In 2009-2010 Janice also served as Visiting Program Officer on International Copyright for the Association of Research Libraries, responsible for research and policy formulation on international copyright issues relating to libraries.

At the ALA Annual Conference in June 2010 in Washington, Janice was a member of a panel co-sponsored by ACRL and the ALA Office for Information Technology Policy on “Why WIPO? Why International Copyright Matters.” We thought we would invite her to share some of her insights on the important work being done by the Library Copyright Alliance at WIPO in the global IP debate.

Mary Minow:
How did you find yourself before WIPO in June, representing library, and by extension, the public’s interests?

Janice Pilch: When the Library Copyright Alliance launched its international copyright advocacy program in October 2007, it gained accreditation as an NGO with observer status at WIPO. We set out to cover the work of three key WIPO committees: the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), as well as the WIPO General Assembly.

These committees are dealing with international treaty proposals and initiatives that impact the way that libraries and the public use copyrighted works and the future of information access. It’s critical for library organizations to be at the table for the discussions. In the most general terms, it’s about restoring the balance between private and public interests in copyright. I should mention that the LCA international copyright advocacy program has been generously funded by a grant from the John D. and Catherine T. MacArthur Foundation.

I have attended meetings of the General Assembly, CDIP and SCCR. In December 2009 and June 2010 I was the LCA representative to the SCCR, which is now is engaged in historic discussions on copyright limitations and exceptions in three areas: for blind, visually impaired, and reading disabled persons, for libraries and archives, and for education.

Mary Minow: Why is international copyright important for libraries?

Janice Pilch: There are several levels at which law is shaped — directly through the national legislation, and indirectly through international treaties and other international instruments that influence the national law. In some parts of the world, regional agreements also play an important role. In the U.S. we can influence lawmaking nationally, by reaching out to Congress — this is something that ALA does very well — and internationally, by sending representatives to WIPO to work from the top down, to shape the treaties and other instruments that condition the national law.

Because libraries preserve and provide access to the world’s intellectual heritage, they have an interest in promoting copyright laws that provide the broadest possible use of information for creativity, research and education. Library activity is made possible by limitations and exceptions to the exclusive rights of copyright holders. But there are no limitations or exceptions in the international instruments underlying the responsible work that libraries and archives do to keep information alive and circulating. Copyright limitations and exceptions for libraries exist as a matter of common practice in national laws, but they are not mandated by treaties. They are being compromised in the digital environment. They can disappear. Copyright limitations and exceptions are one of the most important issues currently on the agenda of the SCCR.

Engagement in international copyright issues is especially important for libraries in developing nations, that experience the uneven effects of globalization, compounded by external pressure to adopt high standards of protection that do not benefit them domestically. We support the goals of the WIPO Development Agenda that was adopted at the 2007 WIPO General Assembly to change this. It aims to bridge the “digital divide” — the technology gap and the knowledge gap that has come about as a result of globalization, technological change, and trends toward higher protection of intellectual property associated with the WTO TRIPS Agreement. The work that LCA does at the CDIP is about improving access to knowledge for developing and least developed nations.

And in the IGC, WIPO is currently considering adoption of a treaty to protect traditional cultural expressions (TCEs), works of indigenous peoples and traditional communities. This would have far-reaching implications for indigenous peoples and other communities that are tradition bearers of these expressions. It would also affect libraries and museums holding collections that include TCEs — texts, audiovisual works, sound recordings, art, photographs, artifacts, and more, and also derivative works, such as collections of native folk tales and archives of anthropological research related to native history and culture. Because libraries and museums play a primary role in preserving cultural heritage, this is a key issue for us.

Mary Minow: Can you describe the atmosphere at the WIPO proceedings?

Janice Pilch: WIPO is a specialized agency of the U.N. Discussion is formal, governed by U.N. protocols. Government delegations raise their flags and speak in queue. The meetings are held in a large assembly room, consisting of delegations of WIPO Member States — 184 nations belong to WIPO — plus plus accredited IGO and NGO representatives. They are typically week-long meetings. Meetings go all day long, sometimes into the night.

Government delegations consist of a combination one or more heads of copyright, patent, or trademark offices, representatives from U.N. missions, government ambassadors, diplomats, or other senior government officials. Although it varies from meeting to meeting, usually there are several hundred government delegates present, plus the IGOs and NGOs.

The atmosphere is refined and polite, but discussions can be polarized, often with highly industrialized nations and developing nations presenting opposing interests. Regional groups play an important role. As in other U.N. bodies, regional groups wield power collectively. Examples of regional groups are the Group of Latin American and Caribbean Countries, the African Group, and the Asian Group. Group B is a cluster of industrialized countries. Agreement between several regional groups is the way to get things done.

Mary Minow: What do you do as an NGO representative at WIPO?

Janice Pilch: We do a lot at the meetings, and put a lot into the preparation for meetings. As an observer organization, we prepare written statements and give statements, called interventions, on the floor. NGOs are given time usually at the end of a topic discussion, or at the beginning of a meeting, or end of a week-long meeting — usually 3 minutes — to take the microphone and deliver an intervention. We have to anticipate the flow of a discussion and also be ready to give statements on the fly if there is not a lot of advance notice.

We also prepare written documents for distribution to WIPO delegates, to clarify and reinforce library concerns. Our aim in doing this is to offer to government delegations information about libraries and archives, as well as our concerns, so that they will make better decisions. Copyright law is not absolute — it is constantly changing, and it’s created by human beings. Who can better explain the practicalities of copyright law for libraries than librarians?

An example of such a written document is the Statement of Principles on Copyright Exceptions and Limitations for Libraries and Archives that LCA, along with eIFL.net and IFLA, wrote and distributed at the WIPO SCCR meeting in May 2009. The Statement outlines the urgency of taking action to expand limitations and exceptions to meet the needs of librarians and the public in the digital environment. It followed the WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives prepared by Kenneth Crews, whom we all know as a leader in the area of libraries and copyright.

In addition, we work on new ideas related to committee meeting agendas that will benefit libraries. Sometimes the work results in new proposals officially put forward by government delegations, or studies, or information incorporated into studies. For example, in the CDIP there is a project involving the digital divide and access to knowledge that will include analysis on education and research, open access, and e-information services. Contributing feedback to projects like this enriches the discussion. The more information there is on the table, the greater the likelihood that the outcome will be reasonable and will consider the interests of all stakeholders.

In Geneva we also attend and speak at side meetings organized by official delegations, IGOs and NGOs, at lunchtime sessions or in the evening. They are sometimes on a specific issue, such as a new breaking development, and sometimes they are general meetings. During the breaks and other available free time, we engage with delegates, to make our concerns known, and to be supportive to them as well. We sometimes meet with the U.S delegation and we appreciate those meetings very much.

The work is collaborative. We work with other civil society organizations, especially other library organizations. Civil society organizations support each other, and do enormous amount of work. Increasingly committee chairs and delegations acknowledge the beneficial influence of NGOs, including library organizations, and this is gratifying for us. Our presence alone is important.

Mary Minow: You’ve been to WIPO sessions before. Have you noticed any changes over the years?

Janice Pilch: I have noticed changes in the three years that I have attended, since 2007 — all positive. Colleagues who have been involved in this work for much longer also note that the influence of NGOs has increased over the years, and that there is more acknowledgment of their participation. When library organizations started attending WIPO meetings, the organization was less receptive to our views. Now there is more cooperation. WIPO welcomes civil society participation but at the same time the main focus of WIPO is the promotion of IP protection worldwide, and that is the context we work in.

Many WIPO delegates express gratitude for our presence and support us, in their interventions. We feel that there is a cumulative effort in the work we do. On the issue of copyright limitations and exceptions for blind, visually impaired and other reading disabled persons, over time we have seen a move from resistance to the issue, to tenuous acceptance, to full agreement that this is an issue that demands a solution at WIPO.

Mary Minow: Can you describe some of the surprising twists and turns on the copyright front for blind and reading disabled persons?

Janice Pilch: This is such an important issue, and it has a long history. For decades, blind and visually disabled persons have been struggling for improved access to copyrighted works. In most countries it is difficult legally to copy and transform a copyrighted work into an accessible format, even as digital technology has made this easier. There is no international copyright treaty that contains a specific provision relating to the needs of blind and visually impaired people. The result is that provisions in national laws vary greatly from
country to country. And there is no international framework that facilitates cross-border distribution of accessible versions.

The need for a solution has been under discussion since the early 1980s. A 1985 report issued by the Executive Committee for the Berne Convention and the Intergovernmental Committee of the Universal Copyright Convention recommended a solution in the form of a new treaty. But nothing happened. Even now it is estimated that in the U.S., less than 5% of published works are available in accessible formats. The problem is more acute in developing nations. This is an appalling figure.

To get the issue on the WIPO agenda, in 2004-2005 the government of Chile made several proposals to WIPO to address exceptions and limitations for education, libraries, and disabled persons, and the public interest. Library groups were fully behind these proposals.

WIPO responded positively to the 2005 proposal by Chile, and commissioned a series of new studies on limitations and exceptions in the digital environment covering three areas: for the visually impaired, for libraries and archives; and on educational activities and distance education, including cross-border issues. The WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired by Judith Sullivan in 2007 identified only 57 nations that have a provision for visually impaired people in the national copyright law.

In July 2008 Brazil, Chile, Nicaragua and Uruguay presented a new proposal. There was discussion but no real action. Remarkably, the idea came under a lot of criticism when it was discussed at a November 2008 SCCR information session.

But one group was ready to take the process a step further to make something happen — the blind and reading disabled community. The World Blind Union made something happen. In October 2008 the WBU submitted to WIPO their proposal for a Treaty for Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons. It was formally introduced at the May 2009 SCCR meeting by Brazil, Ecuador and Paraguay. It is now also supported by Mexico.

The proposal was introduced at about the same time that there was public reaction in the U.S. over Amazon’s Kindle 2 E-book reader. In April 2009 hundreds of people organized by the Reading Rights Coalition gathered in front of the headquarters of the Authors Guild in New York to protest the removal of the text-to-speech capabilities in Amazon’s new Kindle 2 E-book device. The Authors Guild had pressured Amazon to disable the synthetic speech function of Kindle 2, which it stated was a violation of copyright law.

Back to Geneva. The text step for WIPO was to discuss the treaty proposal. It was on the agenda for discussion at the SCCR meeting in December 2009, and was the most anticipated agenda item of the meeting. Seventeen NGOs representing blind and reading disabled persons had applied for special ad hoc accreditation to attend the meeting in
support of the proposal.

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When I give seminars to librarians on copyright, the most popular question is: “What happens if we get sued? How much money are we talking about?” Answer? In ever popular lawyer-speak, “It depends.” The good news for libraries, archives, and nonprofit educational institutions, is that a good understanding and application of Fair Use can reduce your liability down to $0. This article aims to help you evaluate a given situation involving the fair use of copyrighted materials.

“Fair Use?” , you say. “Absolutely. Everything we do is Fair Use. That is, we think it’s fair.” That kind of thinking won’t go too far in court. Although Fair Use is the grayest area of copyright law (I always color my PowerPoint slides on Fair Use gray), 17 U.S.C. § 107 outlines criteria including four specific factors that courts weigh to determine if what you’ve done would lawfully be considered Fair Use.

Copyright Infringement

When considering whether or not you’ve infringed on someone’s copyright, you’ll first want to make the case that you are innocent of infringing which means you should look at sections of U.S. copyright law that directly protect libraries, archives and some educational institutions. See especially, 17 U.S.C. § 108 and § 110. If your use isn’t covered (be sure to also look through other user exceptions from § 109 – § 122), you’ll want to look at Fair Use, the slipperiest defense in copyright law, § 107 .

Q: Before we get to Fair Use, I’d like to know — can I go to jail if I unintentionally infringe on someone’s copyright?

Only willful copyright infringement is a federal crime, punishable by imprisonment, fines or both. If you willfully copy or distribute by electronic or other means a work with a retail value of $1,000 but less than $2,500, you could be imprisoned up to one year and/or fined. See § 506. The terms go up if the infringement is greater.

The Digital Millennium Copyright Act added criminal penalties to persons who circumvent (loose definition: hackers) copyright protection systems or mess with copyright management information. Not only must your actions be willful, but there’s a specific provision exempting nonprofit libraries, archives, and educational institutions from criminal liability. See § 1204. They may be accountable for civil remedies, although there’s a particularly odd provision that allows them to hack copyright protection systems if done, “solely in order to make a good faith determination of whether to acquire a copy of that work” See § 1201(d).

Q: How much money could I be sued for in a civil copyright lawsuit?

A: If the lawsuit is for a work that has been registered at the Copyright Office, the damages can be quite stiff. A copyright owner may elect to recover statutory damages under § 504, even if she can’t show any lost profits. Statutory damages are amounts set by law. A copyright owner whose work was registered with the U.S. Copyright Office before the infringement (or within three months of publication) can elect to choose statutory damages or actual damages. Actual damages (also known as compensatory damages) are the dollar amount of any demonstrable loss suffered because of the infringement. Most copyright owners will choose statutory over actual damages because there is less to prove in order to obtain payment. If you’re found to be an infringer (and don’t have reasonable ground to believe your use was Fair Use), statutory damages are set by law at a minimum of $750 and a maximum of $30,000 per infringement, “as the court considers just.” If the court finds that you’ve infringed on ten photographs that have registered copyrights, for example, you may be facing a $300,000 lawsuit. If the copyright owner can prove that the infringement was committed willfully, the court has the discretion to increase the damages up to $150,000 per infringement. Further, the court may determine that the losing party must pay the winner’s costs and attorneys fees, under § 505. On the other hand, if the infringer can prove that she was not aware and had no reason to believe the act was infringement, the court may reduce the award down to $200.

If you work for a nonprofit educational institution, library, or archives and are acting within the scope of employment the court can bring the statutory damage award down to $0, even if you are found to be infringing copyright. For this to happen, you must show that you believed and had reasonable grounds for believing that your use was Fair Use

Fair Use

Q: What is Fair Use?

Fair Use is codified in U.S. Copyright law at 17 U.S.C. § 107. It states that the Fair Use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.

The bad news is that even after careful consideration whenever you try to figure out if what you want to do is Fair Use you will most likely still be left with a giant gray area. The good news is that with some study of the four nonexclusive factors which form a framework to make your evaluations, your good faith effort may help enormously if you get sued.

The law lists four nonexclusive factors to consider in determining whether a use is Fair Use:

FACTOR ONE: PURPOSE and Character of the Use

Conditions Which Tend Toward Finding Fair Use

+ Use is for nonprofit educational purposes

Note: Although it is quite helpful to be a nonprofit library, archives or educational institution, the purpose of the use should also be nonprofit educational.

+ Use is to create a new work with a different purpose (called “transformative use”)

Note: Of special interest to libraries, archives and educational institutions is a recent 9th Circuit decision that found this factor in favor of an operator of a visual search engine. Arriba-Soft was sued by a professional photographer whose photographs were copied (in thumbnail form). The court said that the search engine was designed to “catalog and improve access to images on the Internet,” and was thus considered a “transformative use” (i.e., it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.) Further, the thumbnail form made it unlikely that users would enlarge the images for the original, artistic purpose because of the low quality. Kelly v. Arriba-Soft, 03 C.D.O.S 5888 (9^thCir. 2003).

Conditions Which Tend Against Finding of Fair Use

– Use is of a commercial nature

– Use is not transformative

FACTOR TWO: NATURE of the Copyrighted Work

Conditions Which Tend Toward Finding Fair Use

+ The work has a thin or weak copyright

Note: Reference works, science, other works that are primarily factual have elements that are not copyrightable.

+ The work has already been published

Conditions Which Tend Against Finding of Fair Use

– The work has a strong copyright

Note: Highly creative works, such as poetry, fiction, and art are really pure expression, and as such enjoy greater protection.

– The work is unpublished

Note: This surprises some librarians, who keep rich local history files, filled with unpublished letters, photographs etc. Yet copyright law favors the right of the copyright owners (including heirs) to make the decision whether or not to publish their work.

FACTOR THREE: AMOUNT and Substantiality of portion used in relation to the copyrighted work as a whole

Conditions Which Tend Toward Finding Fair Use

+ The smaller the amount copied the better

Note: This is measured in proportion to the size of the original. This was easier to measure in the print world than online.

+ Portion used is not “the heart of the work”

Note: A classic example here is taking the key moment from the I Love Lucy episode where Lucy is trying, in vain, to keep up with a fast moving chocolate candy conveyer belt.

Conditions Which Tend Against Finding of Fair Use

– The more that is takeneither in proportional size or importancethe more difficult it is to claim fair use.

FACTOR FOUR: MARKET Effect (Including Potential Effect) on Value of Copyrighted Work

Conditions Which Tend Toward Finding Fair Use

+ There isn’t a significant effect (including potential effect) on the market for the original work

Note: If you can demonstrate that your use doesn’t deprive the copyright owner of income, you’re more likely to persuade a judge regarding this factor.

Conditions Which Tend Against Finding of Fair Use

– There is a market for the work

Note: A 1994 Supreme Court decision says that the market factor is only one of the four factors, and not more important. The reality is that courts often weigh this factor much more heavily than the other three so beware if your use undermines an existing or potential market for the work.

Memory Trick to remember the Fair Use Factors: PNAM

Purpose

Nature

Amount

Market

Q: How will I know if what I’m doing is Fair Use?

Get sued and get a court to determine your case. Sadly, unless your facts ma
tch perfectly with a previous court case in your jurisdiction, this is what you need to do. Remember, though, that if you work for a nonprofit educational institution, library, or archives and are acting within the scope of employment, your statutory damages could go down to $0. You must show that you believed and had reasonable grounds for believing that your use was Fair Use. Keep track of your analyses, item by item. A handy way to do this is to use the Fair Use Checklist developed by Kenneth Crews at the Copyright Management Center of Indiana University.

Q: How do I find out more about how to handle a lawsuit against me?

Most copyright owners will send a “cease and desist” letter to you before filing a lawsuit. A new joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law school clinics,Chilling Effects Clearinghouse, is incredibly helpful in understanding these letters and their legal terminology. Samples of real “cease and desist letters” are posted.

Another important note is to check your institution’s insurance policy to make sure it adequately covers copyright lawsuits. If it does, be sure to contact your insurance company before spending money on attorneys. In a recent New York case, a sunglass company paid some legal fees to a law firm it had hired to litigate a patent infringement case. Its insurance company would have paid the fees if it had been approached initially, but would not pay after the fact. Darby & Darby v. VSI, 701 N.Y.S.2d 50 (2000). For an overview of how to handle a copyright infringement lawsuit against you, including insurance, see Mark H. Miller’s Copyright Infringement: What It Is; What to Do If You’re Accused of It (Jackson Walker LLP: 2000).

Note: Attributionthat is giving credit to the copyright ownerwill not relieve you of a claim of infringement.

More Resources

The very best sites for libraries, archives and nonprofit educational institutions on fair use:

Kenneth Crews, Copyright Management Center of Indiana University

http://www.copyright.iupui.edu/fairuse.htm

****See especially its Fair Use Checklist that you can use to evaluate each item and then keep on file to protect yourself at http://www.copyright.iupui.edu/checklist.htm****

Georgia Harper, University of Texas Copyright Crash Course: Fair Use

http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm

United States Copyright Office.

http://www.copyright.gov/circs/circ21.pdf

Circular 21 Reproductions of Copyrighted Works by Educators and Librarians includes excerpts from H.R. Rep. No. 94-1476, and some discussion of S. Rep. No. 94-473, noting that the codification of Sect. 107 is intended to offer guidance to users, but the “endless variety ofsituations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlargeit in any way.” The Circular also reprints the Classroom Guidelines (also found here), noting that the purpose of the guidelines “is to state the minimum and not the maximum standards of educational fair use” at http://www.copyright.gov/circs/circ21.pdf

APPENDIX

17 U.S.C. § 107 Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the Fair Use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a Fair Use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

and the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.

¹Also, everybody seems to throw the term “Fair Use” around casually at parties. With a little learning, you can be the only one there to use it correctly. This might even help you land your next job.

²A jury recently awarded a photographer $400,000 from the nonprofit National Geographic Society when it digitized four photographs for its, “108 Years of National Geographic on CD-ROM” collection, Greenberg v. National Geographic Society ,U.S. District Court, Miami FL (March 2003). See American Society of Media Photographers, Inc.http://www.asmp.org/news/spec2003/greenberg.shtml National Geographic says it will appeal the decision, which was already on remand from an 11^th Circuit opinion in favor of the photographer. Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001).

³ Snippets like this license for small fortunes. If you happen to find someone else has blatantly posted it on the Internet, stop and turn away. These works are strongly protected by copyright and the fact that you are not the original thief has no bearing.

⁴ Campbell v. Acuff-Rose Music, 510 US 569 (1994).

⁵ Okay, maybe thats not the worlds best memory trick, but its worked for me and some folks I’ve shared it with for years. Maybe you can gussy it up, like “Please, Not Another Muffin!” One workshop participant changed the “M” to and “E”, did a little rearranging and suggested PANE – purpose, amount, nature and economic impact. Then you can tell yourself that Fair Use analysis is a PANE. If it is, its a muddy pane.

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