<span class="padlock_text"></span> v30#5 Questions & Answers — Copyright Column

by | Dec 27, 2018 | 0 comments

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 about the copyright status of makerspace projects.  When are they considered intellectual property, and is there any legislation governing them?

ANSWER:  Before I could answer this question, I had to ask what is a “makerspace.”  The questioner indicated that this is a developing area in libraries that started in computer/IT areas.  It is a “community-operated physical place, where people can meet and work on their projects.” It is sometimes called hacker space.  Then I realized that I did know about these — they were earlier called “collabratoriums,” learning labs, etc.

There is no special legislation dealing with makerspaces and the products of those collaborations.  So, the normal copyright rules apply. Works created in a makerspace are eligible for copyright protection if they are original works that have at least a smidgen of creativity.  Absent an agreement otherwise among the creators, the copyright would be owned jointly by them. If the work incorporates other copyrighted works, the creators need permission from the copyright owner if the new work is to be distributed, displayed, etc., (such as posting on the web).

Today, 3-D printing capability is often included in a makerspace.  It may be that the 3-D printed work created is eligible for patent protection, if it is an original device that meets the other patent requirements.

Libraries should recognize that all of the equipment is likely to be reproduction technology, thus requiring posting the warning of copyright, that was first required for photocopy machines.

QUESTION:  A public librarian asks about eBook annotations developed by Atypon or Hypothesis that will allow interaction with eBooks.  How are these annotations different from others? How long will they be active? If the user leaves Atypon or Hypothesis, may they keep their annotations?  What is the copyright law re annotations?

ANSWER:  Created as a way to permit readers of an eBook to collaborate with one another, this is how the media described eBook annotations.  “eBook annotations add a layer of conversation on top of book content, allowing readers to discuss that book with other readers in real-time.  Annotations are very close to becoming a permanent part of both the EPUB standard and the open web-publishing standard, thanks to a partnership between Hypothes.is, EPUB.js, and the World Wide Web Consortium (W3C).”

Not only can users’ groups (such as book clubs) use eBook annotations for conversations, but they also have substantial use in the publishing industry.  For example, in copy editing, collaborative research, pre-publication peer review, and citation. The goal of these projects is to create a way for readers to discuss a book digitally, in real-time, and on any platform or device.  

Hypothes.is is an open source technology organization.  Its “user-friendly tool” allows academics and scientists to make notes on documents they are reading and share those notes with others.  A couple of years ago, it was reported that approximately 3.4 million Hypothes.is annotations have already been created across the web.  Atypon’s Literatum publishing platform hosts nearly about one-half of the world’s English language scholarly journals.  With eBook annotations, Atypon customers will be able to add an annotation layer to their content for the creation of additional commentary, deep linking to supplementary resources or data, or post-publication peer review on top of the version of record.

Whether users may retain these annotated versions depends on the licenses for these products.  The same is true for how long the annotations will remain active.

There are concerns about author trolling which would require moderated discussion to prevent.  Annotations in a public domain work, such as Moby Dick, would be copyrightable by each author unless participants agree that their comments are public domain.  With such an agreement, then the work with the annotations could be published or posted online with no concerns.  If the work being discussed were under copyright, then publishing the work with the annotations would constitute a derivative work and would require permission of the author of the original work for publication or posting.

QUESTION:  A scholarly communications officer at a research university asks about the creation of promotional or recruitment videos for the institution.  Is the use of copyrighted music in such videos fair use? What about music for athletic performances?

ANSWER:  The short answer to both is no, if the music is copyrighted.  There are both blanket licenses (available for a fee) and open licenses available to colleges and universities.  Additionally, there is a wealth of public domain music available. Of course, public domain music is not the latest thing that a college or university might want to use for a promotional video.  Some universities have received cease and desist letters for using copyrighted music without a license in videos and for events and athletic performances.

QUESTION:  An association publisher asks about including the full text of a couple of the Center for Disease Control documents from its public domain website into an online course that has a nominal charge for access to the course.  Will this make it appear that the association is charging for access to government documents?

ANSWER:  The good news is that this is not a problem.  Publications of the U.S. government are not eligible for copyright protection, and the CDC is a government agency.  It is certainly possible to link to the CDC documents in the online course, but there is no copyright problem with including the entire document in the course content.  The charge for accessing the course is not for acquiring copies of the government document but for accessing the course.

Even commercial publishers often incorporate parts of U.S. documents into their works and then charge for their publications.  This is not a problem, however. The Copyright Act actually states that one must identify the copyright free portions of publications that are government documents.  See 17 U.S.C. § 403 (2014).  One seldom sees this done, however.

QUESTION:  A corporate librarian asks about a recent case involving the copying of industry standards.

ANSWER:  The question of reproducing industry standards is a persistent one for special librarians.  The recent case is Am. Soc’y for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437, D.C. Cir. (2018).  The defendant, a nonprofit organization that makes available a variety of public documents including federal safety rules, government-produced videos and product designs, purchased copies of the standards and uploaded them to a public website.  Several standards developing organizations filed suit claiming copyright in the materials uploaded by the defendant.

The district court held that private standards groups could claim copyright ownership in standards that they publish.  Further, the defendant had not created a genuine issue of fact about whether the use was a fair use. The D.C. Circuit U.S. Court of Appeals disagreed and found that the standards were primarily factual and that the amount and substantiality used was to be weighed in light of the public need being met.  The appeals court found that the district court erred in its application of fair use and remanded the case to the district court directing that it develop a fuller record regarding: (1) the nature of each standards posted; (2) how they were incorporated; and (3) the manner and extent to which they were adopted by the plaintiffs.

QUESTION:  A North Carolina school librarian asks about the photographs of Queen Anne’s Revenge, the vessel of the pirate, Blackbeard, found shipwrecked off the coast of North Carolina and the recent litigation with the State of North Carolina for copyright infringement.

ANSWER:  In Allen v. Cooper, 895 F.3d 337, 4th Cir. (2018), the appeals court reversed the district court decision.  Plaintiffs claimed copyright infringement for the posting of six photographs of the shipwreck on a state website violated a 2013 settlement between North Carolina on one side and the salvage company and photographer on the other.  The district court held that the Copyright Remedy Clarification Act of 1990 abrogated Eleventh Amendment immunity for states from copyright infringement suits.  The Fourth Circuit disagreed and found that the settlement’s language did not constitute a waiver of Eleventh Amendment immunity, nor did the aforementioned Act abrogate sovereign immunity of the state.  Further, none of the exceptions to sovereign immunity applied. The case was remanded to the district court instructing it to dismiss with prejudice all claims against state officials.


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