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Questions & Answers — Copyright Column

by | Sep 30, 2021 | 0 comments

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Column Editor:  Will Cross  (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries)    ORCID: 0000-0003-1287-1156

Against the Grain Vol. 33#4

QUESTION:  A researcher asks, “What happened in the Access Copyright case?”

ANSWERYork v. Access Copyright, 2021 SCC 32, has been one of the most closely watched Canadian copyright cases in higher education.  Sometimes compared to the litigation around Georgia State University’s electronic reserve system and the Copyright Clearance Center’s blanket license in the United States (Cambridge University Press v. Becker, 863 F.Supp.2d 1190 (N.D. Ga. 11 May 2012)), the case dealt with core questions about the role of copyright exceptions in academic libraries supporting their educational mission.

The case considered an attempt by Access Copyright, a collective society who licenses access to copyright materials, to enforce a tariff against York University in order to collect royalties for copying done as part of York’s educational mission.  York argued that copies made for students enrolled in courses were permitted under fair dealing.  A trial judge found the tariff enforceable against York but the Court of Appeals reversed, holding that the tariff was voluntary and thus not enforceable.

The Supreme Court of Canada agreed with the Court of Appeals and held that, since the tariff was not mandatory York had no obligation to pay.  Further, because Access Copyright was not the rightsholder for most of the works at issue it had no standing to bring an infringement claim.  York also argued that the copying was permitted under fair dealing in reliance on a set of institutional fair dealing Guidelines.  While the Supreme Court declined to rule on the fair dealing issue, it did go out of its way to endorse the role of guidelines, writing that “There is no doubt…that guidelines are important to an educational institution’s ability to actualize fair dealing for its students.”  The Court also explicitly endorsed “copyright’s public interest goals” and noted that “the public benefits of our system of copyright are much more than a fortunate by-product of private entitlement.”  Instead, “increasing public access to and dissemination of artistic and intellectual works…is a primary goal of copyright.”

As such, the Court concluded that “When teaching staff at a university make copies for their students’ education, they are not ‘hid[ing] behind the shield of the user’s allowable purpose in order to engage in a separate purpose that tends to make the dealing unfair.’”  Instead, they are fulfilling their mission to engage with copyright in a way that balances the rights of creators and of the public.

As with the U.S. Georgia State decision and more recently, Google v. Oracle, this case is a powerful reaffirmation of the core public-serving character of copyright law and the special role that educational institutions play in copyright’s balance.  As Professor Michael Geist wrote shortly after the decision was announced, “The decision removes any doubt that the Supreme Court remains strongly supportive of user’s rights in copyright and vindicates years of educational policy in shifting away from Access Copyright toward alternative means of ensuring compliance with copyright law.”

QUESTION:  A collections librarian asks, “What is going on with the recent Maryland eBooks bill?”

ANSWER:  Library struggles with licensing eBooks is nothing new.  From disappearing copies of Orwell’s 1984 to titles that “self-destruct” after 26 checkouts, eBook access has often been confusing and fraught.  Because libraries cannot rely on their rights under Section 109 to lend titles they have often been at the mercy of licenses that charge unreasonable rates for a single copy and that place burdensome limits on use by patrons.  As a result, library groups from the American Library Association to Library Futures have advocated for sustainable models that support libraries and the public.

One response to these challenges is a recent bill (SB432) passed in Maryland that requires any publisher offering to license “an electronic literary product” to consumers in the state to also offer to license the content to public libraries “on reasonable terms” that would enable library users to have access.  The law does not define “reasonable terms” and publishers retain broad discretion to define how they license materials as long as they do not discriminate against public libraries.  Publisher groups such as the American Association of Publishers (AAP) have objected to the bill and in particular, to state legislatures taking action in this area, which they argue should be left to federal lawmakers.

For libraries, this law offers one path for enabling their role as conduits for public access.  As the AAP statement notes, it also highlights a strange intersection of public, primarily federal copyright law and private, often-state regulated contract law.  Here, a state legislature is defining some of the terms for private agreements that exist in the shadow of federal and state copyright law.  Whether this represents an inappropriate intervention by the state legislature that undercuts federal law or it represents an attempt to remedy private agreements that subvert copyright’s baseline balance may depend on your pre-existing assumptions about the purpose of copyright law itself.  Either way, the Maryland eBook bill is not a silver bullet for the larger complexities of digital lending and information policy, but it may be a first step in recentering copyright’s public-serving role rather than leaving libraries at the mercy of private law agreements, as they too often have been for the past two decades.

QUESTION:  A graduate student asks, “What is legislative history and how does it impact copyright law?”

ANSWER:  Legislative history is a term that refers to the documents that are produced by Congress as a bill is introduced, studied, and debated.  These legislative documents – including committee reports and debates as well as various versions of a bill – are often used by attorneys and courts in an attempt to determine Congressional intent or to clarify vague or ambiguous statutory language.

The appeal of reliance on legislative history is obvious: referencing the discussions and materials that were involved in the passage of a law can potentially shed new light — or more cynically, produce support for an argument in favor of a particular reading of a law.  On the other hand, legislative history can be limited and even misleading since it reflects the process of deliberation conducted by a large group of people with differing and often conflicting views.  After all, the statutory language is the only thing that a majority of legislators have actually agreed on; everything else contained in the history simply documents the process used to reach that decision.  For this reason, legislative history is generally considered persuasive authority, meaning that a court can consider it but is not bound by anything in the documents.

In copyright, legislative history can be quite useful since so much of copyright law is governed by statutes.  This is particularly true in areas that are rarely litigated such as library copying under Section 108 and educational use under Section 110.  On the other hand, legislative history here contains the same pitfalls as in other areas of the law.  For example, a practitioner seeking to understand whether the requirement that certain kinds of works copied under the Technology Education and Copyright Harmonization (TEACH) Act be “reasonable and limited portions” might turn to the legislative history of 17 USC 110(2).  What they would find, however, is that there is language in the legislative history supporting both the idea that a “reasonable and limited portion” can never constitute an entire work and language that says exactly the opposite:  that a “reasonable and limited portion” could, in some circumstances, include an entire work.  Which language is more persuasive may ultimately come down to your policy preference on the issue.

Nevertheless, legislative history provides an important window into the process of creating the law and can be a useful tool for understanding and interpreting the law.  One excellent resource for legislative history is the LIPA – Copyright Legislative Histories hosted at the University of New Hampshire:  https://ipmall.law.unh.edu/content/lipa-copyright-legislative-histories.

QUESTION:  A publisher asks, “I’ve been hearing stories about copyright lawsuits based on misuse of Creative Commons licensed work.  What’s going on?”

ANSWER:  Copyright trolling — the practice of opportunistic threats of litigation based on copyright’s high statutory damages — has been a well-documented issue for years.  In the past, however, trolls like Righthaven LLC generally purchased rights to existing all-rights-reserved works such as newspaper articles and photographs for the purpose of shaking down unsuspecting users.

A recent variation documented by Professor Daxon Stewart, however, leverages openly licensed work to generate litigation.  In his recent article “Rise of the Copyleft Trolls: When Photographers Sue After Creative Commons Licenses Go Awry” (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3844180) Stewart documents more than 30 cases “involving photographers suing after a Creative Commons license terminated.”  These trolls have often targeted users who have used a Creative Commons-licensed photograph of dubious commercial value but failed to provide proper attribution as required by the license.  Without appropriate attribution, users cannot rely on the open license and, the trolls argue, should therefore be liable for the large statutory damages provided under copyright law.

The good news, as reported by Stewart, is that courts very often find that the users can still rely on fair use to support their use.  Nevertheless, this opportunistic abuse of open licenses has raised concerns, including with the Creative Commons, which released a set of Statement of Principles Around License Enforcement for public comment in August.  While the principles have limited legal weight, they are a strong statement from the organization that “enforcement of the licenses should be a way of making sure that creators are treated fairly, not a scheme to trap well-meaning reusers who would be willing to correct errors.” As of this writing, Creative Commons offers three core principles:

1. The primary goal of license enforcement should be getting reusers to comply with the license;

2. Legal action should be taken sparingly;  and

3. Enforcement may involve financial recovery, but should not be a business model.

There can be no disagreement that users of openly-licensed materials should honor the licenses they rely upon.  The Creative Commons principles offer a path to assuring that fear of punitive and opportunistic enforcement will not be a deterrent for those seeking to use the materials in good faith.  You can read the full set of principles and offer your own comments here:  https://docs.google.com/document/d/1bunttwLFQmc4y-nh-TX2w7hIX_5KgTZlgzlpNfwldWs/edit.  

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