Digitization 101

Andrew Albanese and Christopher Kenneally discussed two copyright cases in the August 4 installment of the Beyond the Book podcast.  The KinderGuides case has to do with the creation of plot summaries for young students of famous works.  Was this Fair Use?  The other is the continuing saga of the Georgia State e-reserves case.  The episode is 16 minutes in length.

In 2012, the Electronic Frontier Federation (EFF) published an information sheet on "Temporary Copies."  Temporary copies are made automatically by computer systems and are very necessary.  However, having a temporary copy could be seen as an infringing on copyright.  This three-page document provides background, the EFF stance on the matter, and even an overview of a relevant U.S. court case.  If you find yourself talking about temporary copies, this document might be one you will want to refer to.

This three-minute video is an introduction to Canadian copyright. Because of the impact of international treaties, you will find that Canada's laws are similar to those in other countries (like the U.S.), but you will also notice some differences (e.g., the length of protection). Still this is a good introduction and worth viewing/using.

According to the World Intellectual Property Organization (WIPO):

The Marrakesh Treaty eases the production and transfer across national boundaries of books that are specially adapted for use by people with visual impairments, most of whom live in lower-income countries.

The Marrakesh Treaty came into effect for WIPO member states on September 30, 2016, including the United States. However, the U.S. Senate has not ratified it yet. As of today, they last took action on it in early 2016.

To understand the effect the treaty will have on Title 17, we can just look at the letter sent from the U.S. Department of Commerce to Vice President Joe Biden, when the text of the treaty was given to him.  It says:

The bill implements provisions of the Marrakesh Treaty that aims to expand the availability of print materials in accessible formats such as braille, large print, and specialized digital audio files, for the use of persons who are blind, visually impaired or otherwise print disabled.  A limited set of changes is proposed to section 121 of the Copyright Act.  The proposed bill broadens the scope of works currently covered by section 121 and elaborates of the section's definition of "blind of other persons with disabilities."  It also specifies that accessible format copies may be exported for the exclusive use of such eligible persons in other countries that are parties to the treaty, and for U.S. citizens or domiciliaries located abroad.

In talking about the treaty, Secretary of State John Kerry wrote:

The Marrakesh Treaty includes two core elements designed to promote access to published works for persons with print disabilities. First, it requires every Treaty party to provide an exception or limitation in its national copyright law to copyright holders' exclusive rights of reproduction, distribution, and making available published works to the public, in order to facilitate the availability of books and other printed materials in accessible formats. Second, the Treaty requires that parties allow "authorized entities" (for example, libraries, or organizations devoted to assisting the visually impaired) to distribute such "accessible format copies" to other authorized entities and to "beneficiary persons" (individuals who meet defined criteria for visual or other reading-related impairments) in other countries that are party to the Treaty.

It has been said that millions of people world wide would be positively impacted by the Marrakesh Treaty if every country ratifies it.  Let's hope that the U.S. Senate is pushed to ratify the treaty soon and to make the requisite changes to our own law.

Here is another libguide on copyright, which is worth using as a reference.  It might also be a good model for other copyright guides.  This libguide from Monroe (NY) Community College covers both copyright and the Creative Commons for instructors.  Its major sections are:

• Copyright Overview
• Evaluating Resources for Use
• In the Online Classroom
• Copyright for Authors/Creators
• FAQ
• More Resources

One of my favorite copyright court cases is Tasini v. New York Times (filed in 1997), both because of its potential impact on databases and that I am a freelance author.  When looking online for information this case, the trail from its beginning to its final conclusion is not well documented. You have to know that it took several twists and turns in order to find those twists and turns.  And you have to know that there were two similarly named cases AND that there was at least one other case (class action lawsuit) which related to Tasini v. NYT.

When I do an Internet search on this case, I easily find older articles from the early decisions in this case.  Places like Wikipedia, which a person might use to locate additional sources, currently (May 2017) contains older information and is incomplete.  Therefore, it would be easy for anyone to research this case and come to an incorrect decision about its final conclusion (which actually occurred in 2014).

With all this in mind, I have compiled resources which can help someone research Tasini v. New York Times.  These should provide someone with "guideposts", which can help understand the path of the case and then locate additional resources.  (And if  this blog post does help a newbie understand Tasini, then I'll be pleased.)

Relevant Digitization 101 blog posts:

• Writers Settle Tasini Case for $18 Million (2005)
• Tasini v. New York Times: With the Freelance Settlement Rejected, What's Next? (2011)

Additional Resources on Tasini v. NYT and NYT v. Tasini:

• TASINI v. NEW YORK TIMES CO. (1997) [Leagle]
• Tasini v. New York Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997) [Justia]
• TASINI v. NEW YORK TIMES CO. (2000) [Leagle]
• Tasini v. New York Times Co., Inc., 184 F. Supp. 2d 350 (S.D.N.Y. 2002) [Justia]
• Twenty Years Later, Landmark Digital Lawsuit Concludes (2014) [Publishers Weekly]
• New York Times Co. v. Tasini 533 U.S. 483 (2001) [Justia]
• New York Times Co. v. Tasini (2002) [Berkeley]
• Copyright Class Action web site

While the copyright of U.S. federal government documents is governed by Title 17, Section 105, the copyright on state and local government documents is not.  As this Harvard Library web site  states:

It turns out that figuring out whether state documents are copyrighted is a tricky question....

Thankfully, the Harvard Library have created this web site to help people identify the relevant laws in each state. The U.S. map is a clickable infographic, which gives the viewer a quick indication of  whether state documents are protected by copyright or in the public domain. You can then click on a state to receive more details.

This State Copyright Resource Center is worth bookmarking, as is the web site Copyright at Harvard Library.

Meia Geddes has created a libguide on self-publishing.  Under the topic of "administrative," she includes content on copyright and Fair Use. Many new authors do not consider the impact of copyright on their work, so I'm pleased to see Geddes include it here.

Geddes, who is a published author, created this libguide as part of her MSLIS studies at Simmons.  This guide is in a Springshare sandbox for LIS programs, however, she intends to keep the guide up-to-date and active so it will not just be a temporary work. Perhaps there is a natural permanent home for this effort?

However you see fit, take a moment to acknowledge and celebrate this day.

Bryan Schuff

Bryan Schuff, who will graduate with his MSLIS degree in a few weeks (May 2017) from Syracuse University, wrote this for one of the online class discussions in my copyright class.  I thought it was worth sharing and Bryan has given me permission to do so.  Thanks, Bryan, for giving me something on music copyright (which is not my forte).

Bryan has been working with "sound" for a over a decade and is an audiophile, so this post was clearly about something he cares about. 

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Something we’ve touched on before is that there are copyrights in both the songs/music and in the sound recording. You may have noticed there are different copyright symbols to make this distinction on albums: © for the music and ℗ for the sound recordings (phonogram or phonorecord). This can lead to disputes between record labels and artists, especially when a band records an album and their label decides not to release it, or “shelve” it indefinitely. The artist rarely has much power in this situation when they're "held hostage," but some have found other ways to get their music out, usually by self-distributing the album for free (especially online now), by purchasing the master tapes, or by re-recording the material with a new label. I think the key in these examples is that the record label wasn’t making money off of the material, anyway, so if the artists released it for free, then no monetary harm was done. 

My favorite band, The Smashing Pumpkins, recorded enough material for two discs on their last (formative) album, MACHINA/the Machines of God, but because their previous album underperformed on the charts, their label Virgin Records rejected that idea and opted for a single-disc record. Band leader Billy Corgan announced the Pumpkins’ break-up shortly before releasing MACHINA, then proceeded to leak a few bootlegs to fans throughout the year leading up to their last show. This culminated with cutting 25 copies of a double LP and triple EP collection (25 songs total) on vinyl for those lucky people to distribute to fans. Radiohead often gets credit for being the first to release an album for free, but the Pumpkins did this in 2000, and their fans had to transfer the songs from vinyl records and burn them to CD-Rs or upload them online at the dawn of high-speed internet. Interestingly, Virgin Records included a few of these songs on the Pumpkins’ Greatest Hits compilation bonus disc the following year (though they were likely high-quality transfers from the vinyl records, not from the master tapes). The Pumpkins began remastering and reissuing their entire catalog in 2011 (after their material was no longer covered by their contract with Virgin), but that came to an abrupt halt after 2014 when the next album to receive this treatment was MACHINA; there has been a dearth of news regarding when this might continue.

Java Records, a subsidiary of Capitol, pulled the rug out from under Splashdown before releasing their major-label debut, Blueshift, so the band burned CDs for members of their mailing list and encouraged fans to share MP3s online; one of the band members has since also made the multi-track audio stems from two songs available for remixing. Aimee Mann purchased the master tapes from her record label so that she could release Bachelor No. 2 on her own, which got a lot of positive hype with the success of the movie Magnolia, for which about half of the soundtrack is comprised of songs from Bachelor. I recall hearing or reading about instances where bands re-recorded an entire album with a new label after their former label shelved it, but I can’t recall or find specific examples of this; I do know the Smashing Pumpkins re-recorded two songs for their major-label debut, Gish, that were previously recorded for singles on independent labels. 

Our fellow LIS classmate Pat reminded me of the prolific mash-up artist Girl Talk, who has made a successful living recording and touring to support albums that consist almost entirely of other artists’ works, but he seems to know what lines to not cross. This webpage breaks down the sources of Girl Talk's material for one of his albums, which is quite extensive! One who was not as (legally) successful with his mash-up was DJ Danger Mouse, who used source material made available by Jay-Z and he got the blessing from surviving Beatles, Paul and Ringo, but not from EMI, when he mashed up The Black Album and The White Album to create The Grey Album. Perhaps the major issue here is that Danger Mouse focused on only two works by using substantial portions of The White Album in order to create the new work. The Grey Album was heavily pirated in a campaign dubbed “Grey Tuesday,” and it’s now available on the Internet Archive. In a similar fashion, Panzah Zandahz remixed and mashed up Radiohead on an album called Me & THIS Army, which is available for free (or donation) on Bandcamp; I’m not sure how Radiohead or their former label feel about this, but since the material is still online, there must not have been a DMCA takedown notice issued. 

I hope these examples help shed some more light on how copyright can tangle up artists and record labels.

Graduate MSLIS students this spring noted several excellent copyright information centers on university campuses and one of them is at St. Joseph's University in Philadelphia, PA. The SJU Copyright Information Center web site contains five main sections:

• Copyright Law
• SJU Copyright Policy
• Obtaining Copyright Permission
• Copyright Clearance Center
• Copyright Resources

Students liked the layout of the site and the information it contains.

The site is part of the Academic Technology and Distributed Learning department.  I think placing the Copyright Information Center within a department which deals with distributed learning shows their concern for complying with the TEACH Act.  It places copyright as something faculty need to be concerned with, and I like that.

Since fall 2016, there have changes to the U.S. Copyright Office leadership as well as additional changes that have been proposed.  One place that is following those changes is the Copyright Clearance Center podcast, Beyond the Book.  CCC's Christopher Kenneally and Publisher Weekly's Andrew Albanese talk weekly and those conversations frequently include information on the proposed changes to the Copyright Office.  Albanese is clearly knowledge on the subject - and with good sources - which makes the 10-15 minute podcasts interesting and informative.  You can subscribe to the podcasts and then listen to them on your mobile device.

Michael Healy, executive director for international relations with Copyright Clearance Center (CCC), gave an interview recently where he discussed his 2017 outlook for copyright around the world.  There is much in the interview to note and digest, and you can read it here.  For example, Healy noted:

Nothing has happened recently that has allayed the concerns many of us have had for several years about the future of copyright.

The outlook overall remains very precarious for rightsholders of all kinds and I see no signs of that changing any time soon.  Whether it’s a new government review of copyright, new legislation, or a hostile judicial decision, there’s no shortage of worrying signals...

This is brand new.  Information on the proposed legislation can be tracked here and here. Full-text available here.  It would change the text of Title 17 (U.S. Copyright Law) to include:

The Register of Copyrights shall be a citizen of the United States with a professional background and experience in copyright law and shall be appointed by the President, by  and with the advice and consent of the Senate.

Andrew Albanese at Publisher's Weekly has already written an article on this.  One of the things that stands out to me is that Albanese said:

The President would also have the power to fire the Register at any time.

This is a change that requires deep thinking and a lot of input, because we do not want the Registrar to be beholden to any special interest or to lessen the exemptions/limitations already in place in Title 17.  (In fact, I would argue that we need to expand those limitations.)

Be sure to pay attention to those you follow for copyright news. Use them - and reputable news media - to stay informed on this.  And be willing to weigh-in with your comments and concerns.

This falls under the category of 'you never know what will become a copyright issue.'
U.S. farmers are battling with manufacturers over who can repair their tractors.  Manufacturers are installing firmware on the tractors, which inhibits non-authorized service centers from doing repairs.  However, farmers note that they cannot wait for an authorized dealer to do the repairs, because Mother Natures doesn't wait.  In order to speed up the repairs, farmers are allowing their tractors to be hacked.  Quoting Vice news:

On its face, pirating such software would seem to be illegal. But in 2015, the Librarian of Congress approved an exemption to the Digital Millennium Copyright Act for land vehicles, which includes tractors. The exemption allows modification of "computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle … when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair, or lawful modification of a vehicle function."

Okay...so what they are doing might be legal (emphasis on the word "might"), however, the manufacturers disagree. In addition to the hacking, farmers are pushing for new legislation at the state level.

The “Fair Repair” bill was designed to give owners increased rights over the software-embedded equipment and electronic items they purchase.

So far, none of the "Fair Repair" bills have passed. New reports state that opponents of these bills have included tractor manufacturers and technology companies, such as John Deere, Case IH, and Apple.  Tech companies view the bills as being too all-encompassing. 

I find this fascinating, especially since I can see problems occurring with cars, etc., that might include software/firmware which inhibits who can repair them.  I grew up watching my next door neighbor tear apart and rebuild engines.  In addition to those engines getting more complex, could manufacturers use DMCA to stop "unauthorized" repairs?

This 26-page report - "Video at Risk: Strategies for Preserving Commercial Video Collections in Libraries" - may be of interest to you.  What's it about? Quoting the report: (text below from NYU web site)

For Research Library collections across the continent, physical degradation of the media housing valuable, unique, and out–of–print video material looms immanent. Across the board, there is a pressing need to reframe principles and practices in situations where risk is defined by scarcity, and reformatting by legal and practical processes is not yet illuminated by common or best practices.

This Mellon Foundation–funded collaborative study brings together New York University's Division of Libraries with the Moving Image Archiving & Preservation program at NYU's Tisch School of the Arts, and the circulating media collections of the University of California Berkeley and Loyola University (New Orleans) to collaboratively address these challenges.

The United Kingdom proves a way for orphan works to be used.  Perhaps this is a model for other countries?

A year ago, Dr. Kenneth Crews conducted a webinar on  "Library copyright statutes around the world." The webinar attracted participants from 28 countries for this EIFL (Electronic Information for Libraries) event.  Information on the webinar is available here.  While the video recording of the event is no longer available, there webinar slides are available here (pdf). The slides do a nice job conveying what Crews was talking about. 


 

In 2012, the  Country of Origin Study Group of the International Literary and Artistic Association (ALAI) released its report.  The report is titled "Determination of Country of Origin When a Work is First Publicly Disclosed Over the Internet." Rather than considering the Internet connection or server where the work is stored on (and location of that piece of hardware), is there a way to connect the work with a specific country based on the author?  The Study Group provided recommendations in its eight-page report to do just that.  Those recommendations are:

• If the work has multiple co-authors, the country of origin will be one co-author’s country of  nationality, as designated by the co-authors 
• In the absence of such a designation, the country of origin will be that of the nationality of a majority of the known authors at the time of the work’s creation
• If none of the authors is known, but a person or entity has assembled and made the work available, that person shall be deemed to represent the authors under Berne art. 15(3), and the country of that person’s nationality or seat shall be the country of origin
• In the case of a work created by multiple authors, particularly one to which multiple authors contribute successively, and in the absence of a collective designation of a country of origin, then even if some or all of the contributors are known,the person or entity who has assembled and made the work available may, for purposes of interpretation of Berne art. 5(4), be deemed the author of the work as a whole -without prejudice to the authorship of individual contributions, if separately identifiable - and the country of that person’s nationality or seat shall be deemed the country of origin.

This is an important and fascinating topic, so you might want to read the entire report.

In celebration of Fair Use Week, I am posting Fair Use infographics.  This one is a two-page PDF.