The Long Arm of the Law

(L-R) Ann Okerson, Bill Hannay, Lauren Schoenthaler, Jack Bernard

Ann Okerson, Sr. Advisor,  Center for Research Libraryes, moderated a panel on current legal issues and cases in our industry.  Panelists were Jack Bernard, Associate General Counsel, University of Michigan; William Hannay, Schiff Hardin LLP; and Lauren Schoenthaler, Sr. University Counsel, Stanford University.  Ann began by noting that lawyers disccovered libraries as early as 1973.  The 1990s were a rich legal environment, and the present century has seen much action.  Here is a list of some of the more notable cases:

In the international arena, IFLA has an outstanding legal committee.

Jack Bernard began the discussion by reviewing the U.S. copyright law and what we believe about copyright.  In a survey, only about 3% of the public knew that the purpose of the copyright law, according to the U.S. Constitution, is to advance and promote progress.   We always must keep in mind the balance among all the players and focus on the work of authorship. The moment a work is authored, the author receives 5 amazing exclusive rights:  reproduction, derivative rights, distribution, and public performance of the work.

Sometimes there is a question about who is the copyright holder.  The default is the author, but it could also be an employer or an independent contractor.  Holders are very anxious to protect their rights because they are very valuable.Authors can only authorize specific things subject to Sections 107-122 of the act. There is lots of confusion which leads people to erroneous conclusions about copyright. You are not infringing copyright if you are the owner, you have express permission from the owner, the work is in the public domain, or your use falls within a specific statutory limitation covered in Sections 107-122 of the Copyright Act.  For example, Section 109 supersedes Section 106, so you are allowed to sell your copy of a book.

It is important to recognize the “first sale” limitations, which control the first instance in which a work enters the marketplace.  But these limitations do not cover works produced outside the U.S., which was used in a well known case in which a student from Thailand imported copies of textbooks published by a U.S. publisher but manufactured outside the U.S.  However the term “manufactured” as used in the Copyright Act is ambiguous, which has led to appeals of the various court decisions in the case, and it is still not resolved.  In particular, how this will affect library lending of books is unclear.  The case has other implications as well:  it encourages foreign manufacture, invites mass unwitting infringement, runs counter to common sense, and protects some markets but is anti-competitive in others.

Lauren Schoenthaler noted that in 1976, when the present copyright law was enacted, we had no digital technology or instant licensing. But 1976 is not the best judge of 2011.   She reviewed the case of Georgia State University litigation involving allegations of mass unauthorized copying by faculty creating electronic reserves.  There is no decision yet in this case, but we need to watch it closely. It will be temporary because there will certainly be an appeal.

In analyzing Fair Use, we must consider several factors, the most important of which is whether the use will be “transformative” and will change its original purpose into something new and different.  We must use caution and recognize that:

  • Licensing terms trump copyright,
  • Privacy concerns of students persist long after they graduate, and
  • Documents can be “hacked” (make sure the copy was lawfully acquired).

Bill Hannay reviewed the status of the Google book case.  He began by noting that we are entering into a problematic phase of libraries. What if there were competition in electronic libraries of the future?  Competition is good for our country. Congress originally feared concentration of economic power not only on economic grounds but also because of its threat to democratic values.

The Google Book Case is not resolved and could have unpredictable negative impacts. The court rejected the settlement because of competition issues. It was a private arrangement on the way people would do business in the future, and created rights that Google would have going forward and could reduce the ability of current and future competitors to enter the market.  It is not really a dispute of actions in the past. Google and the plaintiffs wanted a settlement outside the laws.  One objector to the settlement said that “Google pursued its copyright project in calculated disregard of authors’ rights.”

In the 7 months since the settlement was rejected, Google and the plaintiffs have continue to negotiate but have not reached any agreement.

There doesn’t seem to be any way to resolve this: at conferences, nobody agreed with anybody else. If we wait long enough, things may work out on their own.  The Internet Archive is digitizing over 1000 books a day, and the Hathi Trust includes over 6 million volumes.

Hannay concluded that more competition is better than less competition because it spurs lower prices and higher quality of service.

Don Hawkins
Columnist, Information Today and Conference Circuit Blog Editor



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