v32#6 Questions & Answers — Copyright Column

by | Feb 11, 2021 | 0 comments


Column Editor:  Will Cross  (Director, Copyright & Digital Scholarship Center, NC State University Libraries)   ORCID: 0000-0003-1287-1156

QUESTION:  An academic publisher asks, “What new works are entering the public domain this year?”

ANSWER:  As a reminder, this is the third year we have celebrated a new annual class of works entering the public domain and after the Copyright Term Extension Act (CTEA) of 1998 extended copyright terms for 20 years.  With the exception of some unpublished works, most works that were scheduled to enter the public domain over the past two decades simply did not.  In recent years, however, we have welcomed works that included Cecil B. DeMille’s The Ten Commandments, A.A. Milne’s When We Were Very Young, and Rhapsody in Blue by George Gershwin.

On January 1, 2021 we again celebrated Public Domain Day and welcomed thousands of new works into the fold including F. Scott Fitzgerald’s The Great Gatsby, Virginia Woolf’s Mrs. Dalloway, and many songs by Gertrude “Ma” Rainey, W.C. Handy, and Fats Waller.  A more complete list of notable works entering the public domain is available from Duke’s Center for the Study of the Public Domain at:  https://web.law.duke.edu/cspd/publicdomainday/2021/.

It is really exciting to welcome so many works into the public domain, but Public Domain Day is also a nice opportunity to reflect on the changing duration of copyright.  The Center for the Study of the Public Domain site notes that under the laws that were in effect until 1978, thousands of works from 1964 would also be entering the public domain.  Indeed, under the original 1790 Act a renewable term of fourteen years could have placed materials from the 1990s and 2000s in the public domain as well.

Of course, calculating the public domain status of a particular work can be particularly complicated.  Many works created or published after 1925 are in the public domain due to failure to comply with the formalities that were once required for copyright.  Some unpublished works created before 1926 may also still be protected.  While many of the global copyright rules have been harmonized by the Berne Convention for the Protection of Literary and Artistic Works, huge nuances and technical issues remain and those can be substantial barriers for assessing the status of a work.  In the past I’ve pointed to excellent resources to understanding the public domain and to calculating the rights status of particular works including Laura Gasaway’s “When Works Pass Into the Public Domain” chart and Cornell’s similar chart at:  https://copyright.cornell.edu/publicdomain.  This year, I’m happy to share a new resource from ALA, the Public Domain Slider:  https://librarycopyright.net/resources/digitalslider/index.html.  Whatever tools you use, I hope you will join me in celebrating the public’s ability to use this new class of works.

QUESTION:  A history professor asks, “What new DMCA exemptions are on the horizon?”

ANSWER:  Along with a new class of public domain works, 2021 also brings a new set of exemptions that permit socially valuable use of works that are in-copyright.  Generally speaking, section 1201 of the Digital Millennium Copyright Act (DMCA) prohibits the circumvention of Technical Protection Measures (TPM) used by copyright owners to control access to their works.  This means that a scholar, student, or librarian is generally prohibited from breaking digital locks in order to use a work they have bought, even for lawful uses such as those permitted under fair use. 

In order to address this issue, the DMCA also provides for a triennial rulemaking process to grant temporary exemptions to these prohibitions.  In past years, exemptions have been granted for uses such as repairing digital devices, use video clips for education, and security research.  In preparation for the 2021 exemptions the Copyright Office has released a notice (https://www.federalregister.gov/documents/2020/10/15/2020-22893/exemptions-to-permit-circumvention-of-access-controls-on-copyrighted-works) calling for petitions for the renewal of exemptions that were granted during the last triennial rulemaking along with petitions for new exemptions to engage in activities not currently permitted by existing exemptions.

In June of 2020, the Office released a call for renewal of existing exemptions and received thirty-two petitions to renew, including at least one petition to renew each currently adopted exemption.  The Office also received twenty-seven petitions for new exemptions and categorized those petitions into seventeen proposed classes of works from criticism and commentary of audiovisual works to gathering data from medical devices.  Initial comments were submitted to the Copyright Office on December 14th, with written responses due February 9th and subsequent replies to those due March 10, 2021.  The Office will hold public hearings in the spring and readers are encouraged to review the proposals and offer your own comments as the process moves forward.

QUESTION:  An academic librarian asks, “What is happening with the Georgia State case?”

ANSWER:  As a reminder, the case of Cambridge Univ. Press v. Becker (and later Patton) considered a lawsuit filed by three academic publishers, and financed by the Copyright Clearance Center, against Georgia State University’s electronic reserves system for “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials.”  Originally filed in 2008, the case raised significant questions about the application of the fair use doctrine to library activities as well as the scope of permitted academic support for teaching and learning.

In 2012 the District Court found that fair use generally supports the practice of making limited portions of works available in this way and that the GSU Library had mostly been acting in good faith.  That remains the core takeaway from the case today but a series of appeals and subsequent decisions in 2014, 2016, and 2018 wrestled with questions about how to put those principles into practice, with the Eleventh Circuit repeatedly holding that applying bright line rules such as “no more than 10%” were inappropriate when considering fair use.

In 2020, twelve years after the original complaint, the case seems to finally be over.  On March 2, the District Court issued its final opinion, noting that the “bottom line” for the Eleventh Circuit was that the Court “must eschew a quantitative approach to the weighing and balancing of the fair use factors and give each excerpt the holistic, qualitative and individual analysis that the Act demands” and found only ten infringing uses.

Six months later, the Court issued its final order, awarding declaratory relief on ten copyright infringement claims and holding that Georgia State prevailed on the remaining 89 claims.  The court entered an injunction directing Georgia State to maintain copyright policies which are not inconsistent with the rulings of the United States Court of Appeals for the Eleventh Circuit and to inform all professors and other instructors in writing of these rulings.  All of the opinions, as well as a timeline of the case, a set of articles on the case, and related content can be found at the GSU LibGuide:  https://libguides.law.gsu.edu/gsucopyrightcase.

After more than a decade of back and forth, however, many questions about hosting course readings remain unanswered.  Many of the old sources of conventional wisdom, like the Classroom Copying Guidelines which provided nonbinding bright-line rules such as “no more than 10%” or “no more than 250 words from a poem,” have been discredited.  Similarly, the so-called “Coursepack” or “Copyshop Cases” from the early 1990s have been rightly distinguished from the type of noncommercial academic work done here.

Unfortunately, even as this fair use folklore has been set aside, it has not been replaced by clear rules that can easily be followed by a lay audience.  For institutions that can afford to have copyright expertise in the library, the affirmation of fair use as a powerful and flexible exception has been reassuring and often quite empowering.  For those without access to that expertise, however, the issues can seem daunting. 

In many cases, the pandemic in 2020 only exacerbated this uncertainty as libraries were asked to rely on these cases as they navigated relatively uncharted territory of social distancing and sudden moves to digital-only access.  Resources such as Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research (https://tinyurl.com/tvnty3a) helped address some of this uncertainty and the Code of Best Practices in Fair Use for Academic and Research Libraries (https://www.arl.org/code-of-best-practices-in-fair-use-for-academic-and-research-libraries/) remains a critical source of principled guidance in this area.  Nevertheless, these issues remain vexing, especially when compounded by the move away from owned physical materials and into licensed resources, as described by the Guelph Statement on Textbooks in the Virtual Environment: https://www.lib.uoguelph.ca/news/commercial-textbooks-present-challenges-virtual-environment.  More than two decades after the Georgia State case began, the legal challenge may be over, but the questions remain very much alive, particularly for those without in-house expertise.

QUESTION:  A Canadian librarian asks, “How can I find out more about Canadian copyright law for educators?”

ANSWER:  There are many excellent sources for Canadian copyright information to support those looking to build up their own expertise, but I would specifically like to highlight the Canadian Association for Research Libraries (CARL), which recently released the Copyright Open Educational Resource for University Instructors and Staff (https://www.carl-abrc.ca/copyright-open-educational-resource/).  This open resource includes a series of video-based modules and quizzes designed to educate instructors and staff at Canadian universities about copyright.

The resource was developed by an impressive set of Canadian copyright experts from across the major research institutions and, as of this writing, has been endorsed by 16 Canadian universities.  It also represents a model for the intersection of copyright and open educational resources (OER) — openly-licensed materials designed to support teaching and learning.  The resource presents free, high-quality materials that can be used to learn more about copyright as well as being easy to update, translate, and remix.  It also serves as a model for using copyright and open licensing to develop new resources.  In 2021, I will be excited to see more openly-licensed copyright resources released.  


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