The CopyKat

A photograph of the Northern Lights sparkling above a village in Belarus (right) has no artistic merit whatsoever according to a recent court ruling in a copyright dispute between a well-known photographer and Belarus's state-run television network.
Belteleradiocompany, which ran a feature using photographer Anton Motolko's work that compared the hues in his photos to the red and green Belarusian flag. The television channel did not pay or credit Motolko, and had not asked permission to use the pictures.  The unauthorized use of their work is something photographers have become accustomed to in Belarus, Motolko told RFE/RL. "They [the television network] do it all the time." Motolko decided to sue. "I was asking for about 1,000 euros ($1,100)," he said. But as the case wore on, he decided to drop the amount in damages he sought to just one kopek -- less than a cent. "I wanted to be clear that this wasn't about the money, that I just wanted professional respect." But the snapper failed - key to the television network's case was testimony from an expert (paid for by Motolko) who said that Motolko's photographs did not have "any signs of creative freshness, originality, uniqueness, or exceptionality" and were simply a record of a "social event," and therefore copyright protection did not apply - that despite thet fact he drove some 60km North of his home in Minsk to find the perfect location, framed the image and used his skill and judgment editing the shot. But the decision is certainly not that out of step with decisions in some other European nations - the  French decision to deny copyright protection to the iconic image of Jimi Hendrix by Gered Mankowitz springs to mind. An appeal is planned. (Radio Free Europe/Radio Liberty).

So you thought copyright law for libraries was the same across the world. It isn’t! There’s a patchwork quilt of differing interpretations and applicable rights and exceptions, and this applies even within the EU!. Dr Kenneth Crews, on behalf of WIPO, has compiled a Study on Copyright Limitations and Exceptions for Libraries and Archives that brings together information that relates to the activities of libraries and archives from 188 countries. The study shows that whilst some 66 countries have amended or updated their copyright laws in the past 6 years, many countries still have no provision for library activity within their domestic law! Nearly half do not even explicitly allow libraries to make copies for research or study. As for adapting to the fast paced changes driven by the internet and digital activities some countries are incredibly slow to make their laws fit for purpose. Teresa Hackett, writing a CILIP blog about this also points the reader to a EIFL Core Library Exceptions Checklist which is based on the findings and provides a way to assess what you think about your laws (and perhaps identify areas where you need to find more information) in relation to library activity. It’s described as ‘a practical and, we hope, a fun way to help librarians’ and those interested in this area. Image by Marcus Hansson. 

In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement claim initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. The publishers argued that the creation of course packs and the photocopying of academic material amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Indian Copyright Act - and prevailed with the court noting changes in both technology and student approaches to studying, and saying: "Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public." An excellent report fro Lawrence Liang on Hindu,com here and comment on Forbes here and TechDirt here who add that the court also noted the hypocrisy of lawyers who regularly photocopy things "now complaining about students doing the same". Image courtesy of Solomon203.

And finally - whilst there have been some dark mutterings in Europe from songwriters and self composing performers about the activities of CMOs, including Buma-Stemra and GEMA, who have been offering established concert promoters 'discounts' or 'kickbacks'  on published public performance tariffs - and indeed in Spain the Supreme Court ruled that SGAE's tariff was abusive and ordered the CMO to scrap the rate and set up a new fair tariff - in Macedonia things have gone a lot further: Local music CMO ZAMP, previously the sole music copyright collection organization for Macedonia, has withdrawn ALL broadcast licences because Macedonia's culture ministry allowed the formation of a second collection group alongside new rules governing how much money ZAMP can deduct from its members for its administration services.  ZAMP has informed Macedonia's broadcasters that they may not play any music created by Macedonian artists, whom ZAMP claims to represent with ZAMP saying “Their goal is to divide the authors and to put a hand on the money collected by ZAMP. Thus the new association, SOKOM MAP, has become an instrument in the culture ministry’s hands,” SOKOM MAP says it is an independent non-profit group representing songwriters.

Is a Paper Book Sharing App Illegal Under French Law?

French startup Booxup has created an app allowing its users to borrow hard cover or paperback books from the libraries of other users. It launched its service last spring. This is how it works: a user uploads her library on Booxup, or, at least, the books she does not mind to lend, by scanning their bar codes. If a fellow user is interested in one of these books, he contacts her, and the two arrange the way the book will be provided to the borrower, from shipping to meeting at a café, as the site suggests (this is a French startup, after all).

So Many Books, So Litle Time

But an agent of the Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF), the French consumer protection agency, recently visited the Booxup offices, apparently after a person working in the book industry, whose identity is unknown, contacted the DGCCRF to express concerns over this business model. Indeed, Booxup uses a sharing economy model, where users offer their  property or services to others, either for a fee, like Airbnb, or Uber, or for free, such as Booxup.

Uber suspended its services in France in July after its services were found to be illegal by the French government, and the DGCCRF agent who visited Booxup had been in charge of the Uber case. Could such a fate await Booxup? It may depend on how its business model fits within French intellectual property law. Let’s examine some of it.

French law recognizes the droit de destination, which is right of the author to have the primary purpose of the work be respected. Under this theory, the author has the right to prevent certain uses of her work even after it is no longer her property. The droit de destination is a creation of legal experts, but has a legal base in several articles of the French Intellectual Property Code (IPC). One of these articles, Article L.131-3, provides that a transfer of authors’ rights is subject to each of the assigned rights being separately mentioned in the instrument of assignment, and that the scope and purpose (“son étendue et … sa destination”) of these assigned rights must be defined as to their place and duration. However, it is difficult to imagine an author negotiating in a contract that the purpose of subsequent assignments of his books is that there are never be to be borrowed, not to mention the impossibility of enforcing such a clause.

Another article of the French IPC, article L. 332-1 2° authorizes the seizures of copies of a work which have been “unlawfully used,” and article L. 335-3 of the same code provides that “any …dissemination of a work of the mind, by any means whatsoever, in violation of the author’s rights as defined and regulated by law “ is an infringement. However, it remains to be seen if the droit de destination theory could apply to a book-sharing business model [I don’t think so].

What about distribution rights? One of the founders of Booxup explained in an interview he had the idea of creating a paper books sharing app when looking as his well-stocked library: according to him, 95% of the books in people’s libraries are never read again. As such, our libraries can be seen as cemeteries of books. If we exhume one of them and lend it to someone, do we distribute it again? Article 4.1 of Directive of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society provides that Member States must provide authors, “in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.” However, France has not transposed this particular article, even though it has recognized the first sale exhaustion of such right in article L. 122-3-1 of the IPC: “Once the first sale of a work or copies of a work has been authorized by the author or his successors in the territory of a Member State of the European [Union] or another State party to the Agreement on the European Economic Area, the sale of the copies of this work cannot be prohibited in the Member States of the European [Union] and the States party to the Agreement on the European Economic Area.” It seems that Booxup would be legal under article L. 122-3-1.

What about libraries? French Intellectual Property Code also regulates libraries, as France finally transposed in 2003 Council Directive No. 92/100/EEC of 19 November 1992 on rental right and lending right. Article L. 133-1 of the French IPC provides that if “a work is subject to a publishing contract for its publication and distribution in a book form, the author may not object to the lending of copies of this publication by a library open to the public.” However, this creates a right for the author to be financially compensated. But Booxup is probably not a library open to the public under French law, as the French “bibliothèque accueillant du public” implies that the library welcomes/hosts the public, just as the Directive defines such libraries as “establishments which are accessible to the public, and so article L. 133-1 is probably not applicable.  

It is interesting to see an example of the new sharing economy challenging IP laws, especially as Booxup, while a French company, boasts users from all over the world. Do readers know of similar programs in their own countries?

Image is courtesy of Flickr user BiblioArchives/Library Archives under a CC BY 2.0 license. 

Looking for a festive survey on copyright literacy? Here you go

Are you a librarian, information professional or someone working in educational, cultural and scientific institutions in the UK? This survey might be for you then, as 1709 Blog friend Chris Morrison (University of Kent) explains:

"Jane Secker (LSE) and I are carrying out research into levels of copyright literacy amongst professionals in UK information, cultural and heritage institutions. 

This research is part of an international project originating in the National Library of Bulgaria and analyses have already taken place in Bulgaria, Croatia and Turkey (July – October 2013) and in France (January-March 2014). Further research is currently taking place in Finland, Hungary, Italy, Lithuania, Mexico, Norway, Portugal, Romania and USA.

We are calling on all librarians, information professionals or those working in educational, cultural and scientific institutions within the UK to complete this survey before 31 December 2014. We are asking for the assistance of influential copyright experts and practitioners to get as many people to complete this as possible. 

The survey comprises 27 multiple choice questions and should take no more than 15 minutes to complete. The research outputs are intended to assist institutions and policy makers in identifying strengths and weaknesses in the comprehension of and engagement with copyright issues in the UK. We think this is of particular importance during the current period of copyright reform.

Further details are available here, and people can complete the survey online here.

If you have any questions about the research or the survey please contact copyright@kent.ac.uk."

Here come some new Exceptions

As Eleonora reported earlier over on the IPKat,
the Government has finally issued an extensive pile of paperwork dealing with its implementation of the new Exceptions recommended by the Hargreaves report.

There are to be five separate exceptions, dealing with:

• what used to be called private copying and what we must now learn to call Personal Copying for Private Use;
• Quotation and Parody;
• Public Administration;
• Research, Education, Libraries and Archives; and
• Disabilities.

While the process that has led to these drafts has been long and convoluted, at least (from a purely legal perspective) the drafting has been much improved since the initial attempts were put out for consultation in July of last year.

To take personal copying as an example, the new Regulations have made clear that the personal copying right does not extend to copies that have been made pursuant to other exceptions, such as time shifting; they have also made clear that the exception only applies to (purchased or gifted) copies that can be kept forever and does not apply to streams or to rented or other temporary copies - including time limited downloads.   The right is backdated so that a copy made before implementation which would have been permitted if it was made post-implementation becomes lawful.

However, other controversial measures remain in place - the much-debated "contractual over-ride" and the Secretary of State's powers to intervene to protect user rights where technological measures (such as DRM) are being used to prevent permitted personal copying.  The latter power is now at least modelled on the existing powers to intervene - so the delightfully numbered section 296ZEA is, at least in form, very similar to the existing section 296ZE which applies where technological measures prevent other permitted acts.  There is also a recognition that the Secretary of State needs to take account of what rights-holders are offering voluntarily in terms of copiability of DRM protected works.

Finally - there is still no provision of fair compensation for private copying - which appears to be a requirement of the Directive.

Alongside the draft laws, the IPO has issued an Explanatory Memorandum, an explanation of the outcome of last Summer's consultation, new Impact Assessments - and a set of guidelines designed to explain the new laws to a range of different interest groups.   All of this is available here.  Once the 1709ers have had a chance to read the other exceptions, further coverage may follow.

The Regulations are set to come into force on 1 June, having been approved by a vote in both Houses of Parliament after Easter.

The Authors Guild Inc. v HathiTrust: library digitisation project held to be fair use

A matter of days after the Google Books case between Google and Association of American Publishers settled, comes the decision of the District Court of New York in HathiTrust. In this case the Authors Guild claimed that digital copies made by Google and the HathiTrust were infringing. Litigation against Google is proceeding separately, however in respect of the actions of the HathiTrust the District Court of New York has held that:

- The rights granted to libraries under s.108 of the US Copyright Act (the right to make a limited number of copies of certain works for specified purposes) do not preclude a library from relying on fair use as a defence;

- Converting hard copy texts into digital texts is transformative use as the copies serve "an entirely different purpose than the original works"; that purpose being superior search capabilities rather than actual access to the material. The search capabilities of digital texts have given rise to new methods of academic inquiry such as text mining;

- The use of digital copies to facilitate
access for print-disabled persons is
transformative; and

- HathiTrust's activities are fair use.

Facts

The HathiTrust entered into agreements with Google which allowed Google to create digital copies of works in the various universities' libraries in exchange for which Google provided digital copies to HathiTrust.

The HathiTrust partnership is in the process of creating "a shared digital repository that already contains almost 10 million digital volumes, approximately 73% of which are protected by copyright." After digitization, Google retains a copy of the digital book that is available through Google Books, an online system through which Google users can search the content and view "snippets" of the books. Google also provides a digital copy of each scanned work to the relevant universities, which includes scanned image files of the pages and a text file from the printed work.  According to the Authors Guild, this process creates two unlawful copies of the original.

After Google provides the universities with digital copies of their works, the universities then "contribute" these digital copies to the HathiTrust Digital Library. Authors Guild therefore claimed that  in total, twelve unauthorized digital copies were created during this digitization process.
Google's use of the digital works is the subject of a separate lawsuit.

Summary Judgment

First it is interesting to note that this is a summary judgment: in order for the case to be dismissed, the HathiTrust had to show that there was "no genuine issue of material fact" as to whether their use was fair. Judge Baer found the Authors Guild's arguments to be without merit and granted the HathiTrust's motion for summary judgment on the basis that the HathiTrust's actions are protected under fair use.

Fair Use

Before examining each of the fair use factors, which are set out at s.107 of the US Copyright Act, Judge Baer considered the Authors Guild's argument that fair use should not apply at all as it is excluded by s.108 which accords libraries the right to make a limited number of copies of certain works for specified purposes. However s.108 explicitly states that "[n]othing in this section . . . in any way affects the right of fair use as provided by section 107." Judge Baer said that: "In spite of the clear language that Section 108 provides rights to libraries in addition to fair-use rights that might be available, Plaintiffs argue that I should find that the Section 107 fair-use defense is precluded by Section 108 in this case", before going on to conclude, seemingly without much difficulty, that fair use was available as a defence.

Purpose and character of the use

The first fair use factor considers the "purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes." Judge Baer found that the digital scanning project in this case was  undertaken with several goals in mind: (1) it allows scholars to identify relevant works more efficiently - this tilts the first factor in HathiTrust's favour; (2)  it helps the HathiTrust preserve its book collections from wear and tear, loss and theft (as well as from natural disasters); and (3) it provides print-disabled individuals with "access to the wealth of information within library collections" - this is, according to Judge Baer a transformative use.

Nature of the copyrighted works

US case law says that "[S]ome works are closer to the core of intended copyright protection than others." (Campbell), which has been interpreted to mean that copying factual works is more likely to be fair use than copying creative works (Blanch v. Koons).

In this case the Authors Guild identified 116 allegedly infringing works of which 76 percent of the were fiction. However in the digitised library as a whole, approximately 9 percent of the works consist of prose fiction, poetry and drama. These numbers appear however to have been disregarded by the judge who held that: "Because the use is transformative, intended to facilitate key-word searches or access for print-disabled individuals, the second factor is not dispositive."

Amount of the work copied
The third fair use factor considers whether the amount of copying was reasonable in relation to the purpose.  The question is whether "no more was taken than necessary" (Campbell). With that in mind sometimes it is necessary to copy entire works: in this instance entire copies were necessary to fulfill the HathiTrust's purpose of facilitating searches and giving access to print-disabled individuals.

Impact on the market for or value of the works

The fourth factor examines "whether the secondary use usurps the market of the original work." Where a use is non-commercial, as it is in this case, the claimant has to show "by a preponderance of the evidence that some meaningful likelihood of future harm exists" (Sony). Judge Baer held that the Authors Guild failed this test.

The Authors Guild argued that each digital copy of a book represents a lost sale as it might otherwise have been bought through legal channels. Judge Baer comments that this argument ignores the fact that purchase of an additional copy would not have allowed either full-text searches or access for the print-disabled individuals, two transformative uses that are central to the digitisation project.

The Authors Guild's second argument was that the HathiTrust "expose[d] Plaintiffs' property to immense security risks that have the potential to cannibalize the book market through . . . widespread internet piracy." Their expert was however not able to substantiate this and therefore the judge held that the "unsupported argument fails to demonstrate a meaningful likelihood of future harm."

Finally, the Authors Guild argued that "Defendants activities will harm Plaintiffs by undermining existing and emerging licensing opportunities" such as a "collective management system [which would] permit certain of the activities of the Defendants in this case while providing compensation to copyright owners." Unfortunately the Authors Guild admitted that it could not identify "any specific, quantifiable past harm, or any documents relating to such past harm" leading the judge to hold that their argument about a potential market was "conjecture".

The HathiTrust offered substantial evidence that it would be prohibitively expensive to develop a market to license the use of works for search purposes, access for print-disabled individuals, or preservation purposes.

Decision

In weighing up the fair use factors, with the aim of copyright law of "promoting the Progress of Science" in mind, Judge Baer considered that the enhanced search capabilities, the protection of the HathiTrust's fragile books, and the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers protect the copies made by the HathiTrust as fair use. Judge Baer summed up by saying:

"Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants' [Mass Digitisation Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act]."

Given that the digitisation project is not for profit, so authors are not losing sales of books, this seems to be an entirely rational and pragmatic decision which takes into account how we use our ever-evolving technology as well as the needs of partially-sighted readers. Perhaps it is a wake-up call to publishers that they need to adapt to use technology in such a way that there is no need for them to bring claims like this one.

***14 November 2012: by way of update the Authors Guild has notified the court that it will appeal Judge Baer's decision in this case. 

Academics v Publishers: Revolution in the air?

Following George Monbiot's scathing article in the Guardian last month, the subject of academic publishing has been weighed and been found wanting. Of course, librarians and academics have long known that journal publishers monopolise the market; even as much as ten years ago the larger publishers were busy buying out the smaller ones who weren't strong enough to compete with them. But outside of academia people are largely unaware of the struggles every electronic resources librarian faces each year as budgets shrink and journal bundle prices steadily increase. Tough decisions often have to be made, and naturally the impact is felt by researchers, academics and students.

Which is why today's announcement that Princeton University is enforcing an Open Access policy forbidding academics from transferring the copyright in their articles to journal publishers is so significant. Academics are required to licence their work instead, so that they retain the copyright and are therefore able to reproduce it elsewhere without having to seek the permission of the publisher. This could spark a welcome trend which would allow academics and universities to maximise their outputs and revolutionise knowledge sharing.

Certainly in the UK, where most universities now have institutional repositories which host research outputs (scholarly articles written by their academics), this trend would be welcome and would resolve numerous difficulties in attempting to interpret publisher policies. Part of the problem is that academics are often unaware of the terms they agree to when they sign a Copyright Transfer Agreement (for an example see here). Yet even when they are aware, academics often don't have time to negotiate licence agreements with publishers as they are under pressure from their institution and/or funding body to publish. Most of the larger publishers either do not allow a version to be deposited in the repository or are very specific about the version which can be deposited, and attempting to contact publishers for permission is usually incredibly difficult if not impossible. And whilst organisations such as SHERPA/RoMEO provide a useful source of information on publisher policies, policies are changing all the time and it is difficult to maintain up-to-date records. Recent woes include publishers moving to automated systems which invoice funding bodies and universities directly for open access; these sorts of issues cause headaches for repository managers and copyright officers alike.

This is is not to decry the value of academic publishing, and indeed it has been interesting to read reactionary pieces and comments to the Monbiot article (including from the publishers themselves) which indicate moves afoot in the publishing world. But what is increasingly obvious is that the current mainstream system cannot continue forever; something's got to give, and one wonders whether Princeton has just thrown down the gauntlet to universities everywhere...

Photo from Flickr: Princeton University by Yakinodi (CC-BY 2.0)