Libraries, Copyright, and the

World:The Internationalization of Collections and

Services

Presented by:

ALA Editions Workshop

December 4, 2012

Kenneth D. CrewsDirector, Copyright Advisory Office

Columbia University Libraries

www.copyright.columbia.edu

Main Objectives of this

Webcast

Answer practical and important

questions.

Survey the operation of U.S. and

international law for libraries.

Introduce major developments on

the horizon in the U.S. Supreme

Court, in Geneva, Switzerland,

and more.

Why International Copyright?

First: International Treaties and

Legal Developments are shaping

Domestic U.S. Law.

Second: Many of our collections

are international.

Third: Many of our service

transactions are international.

Familiar Questions

Are books, movies, and other

works from other countries

protected under U.S. copyright

law? Are the rules the same

about ownership and copyright

duration?

Does fair use apply to copyrighted

works from other countries?

Familiar Questions

The copyright on a work has

expired under U.S. law. Can I put

it on the web and share it with the

world?

My library is in the U.S., but we

have branches in research

centers and other locations

overseas. What rules do I apply

in my branch libraries in other

countries?

Familiar Questions

We get requests for copies from

researchers and libraries outside

the U.S. Are we OK sending

copies across borders? Are the

rules for mailing copies the same

rules for email attachments?

Start with Fundamentals

Rule One:

◦ When in the U.S. apply U.S. law.

◦ Call it a “90% Rule.”

Recall this question:

◦ “Does fair use apply to copyrighted works

from other countries?”

◦ Basic Answer: Yes

◦ But: We will see some Key Differences

Start with Fundamentals

Rule Two:

◦ When in another country, apply that

country’s law.

What about that branch library in

Beijing?

◦ Your library staff in China may have to

learn a bit of Chinese copyright law.

◦ The copy you make in the U.S. is under

U.S. law, but the copy made in China….

Outline of Copyright Law

Broad Scope of Protectible Works

Automatic Copyright Protection

Creator of Work as Initial Owner

Rights of Copyright Owners

Duration of Copyright Protection

Exceptions to Rights of Owners

Technological Protection Measures

Infringement and Remedies

Sources:

International Copyright Law

Berne Convention◦ Originated in 1886

◦ Today has 166 Member Countries

Trade Related Aspects of Intellectual Property (TRIPs)

◦ World Trade Organization◦ Established in 1994

◦ Today has 157 Member Countries

◦ Incorporates key provisions of the Berne Convention

Sources:

International Copyright Law

WIPO Copyright Treaty

◦ Adopted in 1996

◦ Today has 90 Member Countries

WIPO Phonograms and

Performances Treaty

◦ Adopted in 1996

◦ Today has 91 Member Countries

Beijing Treaty on AV Performances

Sources:

International Copyright Law

European Union Directives◦ Information Society Directive (2001)

◦ Copyright Term Directive (1993)

Free Trade Agreements◦ ACTA, Anticounterfeiting Trade Agreement

◦ NAFTA

◦ Australia, Colombia, South Korea, and More

Future WIPO Treaties◦ Limitations and Exceptions for Visually Impaired

Persons

◦ For Libraries? For Education?

What Do Treaties Do?

“Harmonize” Copyright Law

◦ Quest for predictability and assurance of

protection

Require countries to change their laws

◦ Set minimum standards

Require Protection for Foreign Works

◦ Concept of “National Treatment”

Mechanisms for review and

enforcement

Example:

Scope of Protectible Works

Berne Convention◦ Protection for “literary and scientific” works

◦ No defined standard of “originality”

◦ No requirement of “fixed”

◦ Prohibition against “formalities”

U.S. joined Berne in 1989

◦ Previously changed rule to “original works” that are “fixed in any tangible medium of expression”

◦ Dropped the notice formality

◦ Later dropped the renewal formality

Example:

Duration of

Copyright Protection

Berne Convention◦ General Rule: Life of the Author plus 50

Years

◦ Cinematographic Works: 50 years

◦ Photographs

◦ Anonymous and Pseudonymous Works

◦ Sound Recordings

However: Countries may provide longer terms of protection.

Result: Duration for Life plus 70 Years!

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Practical Meaning for

Libraries

Recall this question about public domain: “Can I put it on the web and share it with the world?”

Some Possible Answers:◦ Yes: Old enough to be public domain

everywhere.

◦ Maybe: Public domain in the U.S., but not everywhere.

◦ No: Public domain in the U.S., but clearly protected where needed.

Let’s get Practical:

◦ What do libraries actually do?

Example:

Duration & Formalities Together

Consider these Basics of U.S. Law:

Works created in and after 1978:◦ Duration is Life + 70 Years

Works created before 1978:

◦ Duration is Maximum of 95 Years

◦ But Shorter if no Copyright Notice or Renewal

Why the Change of Rules?◦ The Berne Convention!

Mind Games:

Copyright Restoration

Recall this Question: “Are the rules for

foreign works the same as for U.S.

works?”

Answer: Usually, but not always.

Works Published before 1978

◦ May be public domain due to lack of

formalities

Requirement of TRIPs:

◦ Restoration of Foreign Copyrights

◦ Restoration upheld in Golan v. Holder (2012)

Questions?

So Far….

Rules about Protection & Duration

Coming up Next…

Fair Use & Other Exceptions

Copyright Exceptions &

Limitations

Most Countries have Multiple

Exceptions

Library Research & Preservation

Copies for Education

Needs of the Visually Impaired

Private or Personal Copies

Architecture or “Panorama” Right

Industry Exceptions

Fair Use

Balancing of Four Factors

◦ Purpose, Nature, Amount, Effect

Distinctive American Doctrine

◦ Few other countries have

adopted it

Many countries have sought

flexibility

◦ But Exceptions are Local Law

Exceptions as

Local Law

Question:

“Does fair use apply to a work from France?”

Answer: Yes.

Question:

“Does fair use apply to the U.S. work

when it is used in India?”

Answer: Check the law of India.

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More Mind Games:

Exceptions about the Exceptions

Basic Premise: When in U.S. apply

U.S. law.

◦ 90% Principle: Apply U.S. law equally to

foreign works.

◦ Therefore: The law is 10% unequal.

Case Study:

◦ Kirtsaeng v. John Wiley & Sons

The Exception at Issue:

◦ The First Sale Doctrine

What is “First Sale”?

Concept: Once a copyrighted work

has been sold (the “first sale”), that

copy may be further sold, given away,

loaned, etc.

The Language of Section 109(a): The

concept applies to works “lawfully

made under this title.”

“This Title”: Title 17 of the United

States Code; i.e., the U.S. Copyright

Act

Kirtsaeng v. John Wiley &

Sons

Kirtsaeng purchased and imported

from Thailand low-priced editions of

major textbooks.

Question: Because the books were

made outside the U.S., were they

made “under this title”?

If Yes: Kirtsaeng and others may sell

the books.

Kirtsaeng v. John Wiley &

Sons

If no…..◦ No sales of foreign-made books and

more.

◦ No lending

◦ No renting

◦ No public display of works

What should libraries do?

Mind Games, continued:

More Exceptions about

Exceptions

Case Study: Section 108, Copies for

Researchers and ILL

Section 108 Allows: Libraries may

make copies of selected works,

generally for research and study, and

to send copies through ILL

arrangements that do not have as

their “purpose or effect” to substitute

for a “subscription to or purchase of”

the work.

Section 108 and The World

When in the U.S. apply U.S. law.

Library in the U.S. may apply Section

108.

Nothing in Section 108 bars Internat’l

ILL.

Receiving library is subject to

conditions:

◦ Subscription and Purchase Clause

◦ Local Domestic Copyright Law

◦ Local Domestic Import Laws

Confused? Perplexed??

Remember the 90% Rule:

◦ When in the U.S. apply U.S. law.

Remember the 90% Principle:

◦ Copyright applies to foreign works in the

same way that it applies to domestic

works.

Taking Action

Public Domain

◦ Copyright law varies around the world

◦ Learn and apply fundamentals

◦ Most expectations can be met locally

Fair Use

◦ Apply fair use responsibly and vigorously

◦ Apply it to foreign works

Taking Action

Library Lending

◦ Kirtsaeng case is a problem

◦ Could raise serious legal & ethical

concerns

◦ Could libraries even comply?

Copies for ILL

◦ Watch for legal developments

◦ Adhere to standards of Section 108

◦ Does requestor comply with Local Law?

Taking Action

Don’t Panic!

Don’t trash your foreign materials

Get Involved:

◦ Section 108 upcoming review in

Washington

◦ NOI regarding Orphan Works

◦ WIPO meetings on Copyright Treaties

Develop Policy for Your Library

Consult with Legal Advisors

Thank You!

Kenneth D. Crews

Copyright Advisory Office

Columbia University Libraries

www.copyright.columbia.edu

www.twitter.com/kcrews

Next Workshop?

Let Me Know Your

Suggestions!