The Friday Keynote: The Long Arm Of the Law

by | Nov 12, 2018 | 0 comments

Ann Okerson, Bill Hannay, Kenneth Crews, Ruth Okedji

(L-R) Ann Okerson, Bill Hannay, Kenneth Crews, Ruth Okedji

This was the 9th running of The Long Arm of the Law session that was moderated by Ann Okerson, Senior Advisor, Center for Research Libraries. Participants were Bill Hannay, Partner, Schiff Hardin; and Kenneth Crews, Partner, Gipson Hoffman & Pancione. (The title of the session is based on a song entitled The Long Arm of the Law which can be viewed here.)

Kenneth Crews discussed International Agreements, US Statutes, and Copyright Office Regulations. He noted that when we work with the law, sometimes we win, and sometimes the law wins. And the law has many long arms, not just one.

International agreements: 
  • The Marrakesh Treaty, adopted in 2013, provides copyright exceptions to facilitate the creation of accessible versions of books and other copyrighted works for visually impaired persons. It has been ratified by member states of the World Intellectual Property Organization  (WIPO, an agency of the UN based in Geneva, which now has 191 member countries–almost all countries in the world). Cross-border provisions have been established by 60 countries and implemented by 40, so an author can supply a work to an authorized entity in another country that has agreed to the cross-border provisions. WIPO is therefore going into the exceptions business.
  • Exceptions for libraries and archives are not as well developed as the broader terms of the Marrakesh Treaty. They may cover preservation and copies for research and other reasons not yet determined. Whether a contract can override licenses is not known yet.
US Statutes:
  • The US has ratified the Marrakesh Treaty and has created some exceptions (Sections 121 and 121A) to adopt Marrakesh provisions applying to preservation, research and study, contracts and licenses, and digital technologies for published literary and musical works, formats for persons with disabilities, and domestic and cross-border uses.
  • The Music Modernization Act gives copyright protection to pre-1972 sound recordings. Section 1401 that creates a new chapter in the Copyright Act and establishes quasi-copyright protection for about 95 years, preserves Fair Use (Sections 107 and 108), and exceptions for non-commercial use. There was no copyright protection for pre-1972 recordings until this new section was enacted. Libraries might be able to take advantage of the new non-commercial uses exception.
Copyright Office regulations:
  • The Digital Millennium Copyright Act (DMCA) was enacted in 1998. A new Section 1201 establishes a procedure in which the Copyright Office will issue regulatory exceptions for streamlined renewals, uses of audiovisual works that must be renewed every three years. The present cycle began in October 2018. Copyright law comes at us from many different sources: courts, Congress, regulatory agencies, and international negotiations.

Bill Hannay titled his speech “The Long Arm of the Law As My Whimsy Takes Me” and presented updates on four topics:

  • Right to be Forgotten: The European Court of Justice (ECJ) heard oral arguments in which Google argued that expanding this right globally would impinge on “freedom of speech”. A ruling expected some time in 2019. Meanwhile, Google is struggling to respond to 2.7 million requests to take down information. They granted the requests 44% of the time. When it denies a request, Google frequently faces further litigation.
  • Pornography is not education v. EBSCO. A group of parents in Colorado claimed that EBSCO’s databases and the Colorado Library Consortium contain many explicit and obscene materials and asked for an injunction to prevent EBSCO from providing these databases to underage children. As a result, 130 school districts have terminated their relationships with EBSCO. An ALA spokesman said “EBSCO’s databases are mainly a curated collection of mainstream journals, newspaper articles, and magazines. There is no evidence that students are using it in the manner claimed by the parents. Furthermore, students looking for sex on the internet do not start with library databases.”
  • ACS and Elsevier vs. ResearchGate: The American Chemical Society (ACS) sued ResearchGate in a Maryland federal court for “massive infringement of peer reviewed published journal articles”. (This follows a similar suit by Elsevier against ResearchGate in Germany last year as well as one against Sci-Hub.) ResearchGate responded that publishers must submit takedown notices on an article-by-article basis, which the publishers deemed to be impractical. This lawsuit will have a profound influence on academia. It challenges the whole OA movement.
  • Georgia State Re-redux: This is a long-running case, and this is the third time it has been reversed. In 2016, the court rebalanced the four fair use factors which favored Georgia State. The publishers appealed. This is an important case. Fair use is a hard concept to master.

As he customarily does, Bill concluded his presentation with a musical tribute. Here are the lyrics:

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