Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193)
QUESTION: An academic librarian asks whether she may make a copy of a published work to use that while the original is being conserved.
ANSWER: The Copyright Act of 1976 permits libraries to reproduce works for the library itself when the reason for that is either to preserve an unpublished work or to replace a lost, damaged, stolen, deteriorating or obsolete copy. This question seems to assume that the library’s copy of the work is deteriorating. Section 108(c) requires that a copy of the published work be currently in the collection and that that the library make a reasonable effort to determine that an unused copy cannot be obtained at a fair price. If the work is deteriorating, and the other conditions are met, then the library may reproduce the work for its collection as a replacement copy.
Making a temporary copy for use during the time when the original copy is being conserved is not mentioned in the statute. It makes sense, however, that this would not be problematic since the purpose of that reproduction is to replace the original because it has deteriorated and the library is conserving it to ensure that it can continue to be available to users. After conservation, the temporary copy should be destroyed.
QUESTION: A library blogger asks whether embedding a photograph in a tweet is copyright infringement.
ANSWER: Everyone thought the answer to this was clear based on an earlier 9th Circuit U.S. Court of Appeals decision. A recent case from the Southern District of New York has decided a case involving embedding a photograph in a tweet, and that decision disagrees with the 9th Circuit holding. In Goldman v. Breitbart News, 2018 U.S. Dist. LEXIS 25215 (S.D.N.Y. Feb 15, 2018), the plaintiff took a photo of New England Quarterback, Tom Brady, walking down the street and then uploaded it to Snapchat. It was copied from Snapchat and posted to Reddit and Twitter by others. Then news outlets and blogs picked up the story and embedded the tweet with their photograph in their online articles. Goldman sued for copyright infringement of his photograph.
The test used in the 9th Circuit came from Amazon v. Perfect 10, 508 F.3d 1146 (9th Cir. 2007) and is known as the “server.” It holds that copyright liability attaches only if the defendant hosted the copyrighted material on its own server. Thus, embedding the infringing material of others has usually been liability free for the embedder. The judge in Goldman rejected the server test finding that defendants took “active steps to embed the copyrighted material and display it to the public which made hosting the material irrelevant.” The court found that defendants transmitted the material to the public and infringed the photographer’s exclusive right of public display. The judge also cited a U.S. Supreme Court case of ABC v. Aereo, 571 U.S. 1118 (2014), which said that mere technical distinctions invisible to the user should not be the linchpin to decide whether copyright infringement exists.
Some have characterized the dispute as one between the ends and the means. The decision of the district court is currently on appeal to the Second Circuit U.S. Court of Appeals, leaving the issue unclear and with a dispute among courts.
QUESTION: A government documents librarian asks about the recent announcement that the Government Printing Office plans to include copyright information in GPO created bibliographic records.
ANSWER: In May 2018, the U.S. GPO developed a plan to implement a recommendation from the Depository Library Council to provide copyright information in the bibliographic records that the GPO creates to support the Federal Depository Library Program and the mandated Cataloging and Indexing Program (CGP). The general statement will be added to the records, “Works of the U.S. Government are not subject to copyright protection pursuant to 17 U.S.C. § 105. This work may contain copyrighted material used with permission of the copyright owner. Learn more at the CGP’s About page.”
The plan is set for implementation in October 2018. Existing previously created bibliographic records will also be updated.
QUESTION: A middle school librarian asks whether importing information from the web into PowerPoints is a copyright issue.
ANSWER: The short answer is that it depends on what information is imported. Many materials posted on the web are copyright free or are covered by a Creative Commons license that permits reuse. The second issue is how the PowerPoint presentation will be used. Only in the classroom, placed in a content management system for use by students in a course or posted on the web for all to see?
In order to display the presentation to the class in a nonprofit educational institution as a part of instruction, section 110(1) of the Copyright Act generally permits the display without permission of the copyright owner. If the PowerPoint presentation is posted on a course management system and its use is limited to students enrolled in a course, section 110(2) allows use of a reasonable and limited portion of work. There are some other requirements that must be met in order to take advantage of this exception.
If PowerPoint presentation is to be posted on the web with no restrictions on access, and it contains copyrighted materials, then permission should be obtained.
QUESTION: A publisher asks why the concern about the proposed new European Union copyright law requiring mandatory filters to ensure that works are uploaded with permission.
ANSWER: Although this is still just a draft proposal, it is moving closer to adoption in the European Union. Should it become law, there is fear that it will have a chilling effect on Internet norms such as memes and could negatively affect online freedom of expression.
The EU Parliament’s legal affairs committee adopted two provisions on June 20, 2018. Article 11, “Protection of press publications concerning online uses” targets the news aggregator business models by creating a neighboring right for snippets of journalistic content that requires a license from the publisher to use this type of content. Article 13, “Use of protected content by online content sharing service providers,” makes platforms directly liable for copyright infringements by their users. This pushes them to create filters that monitor all content uploads. One concern is that mandatory filters cannot distinguish between things like parody and infringing content. Small businesses may be especially negatively impacted if the EU Parliament adopts these proposals. An additional concern is that content owners can easily abuse such filtering systems.