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: A public librarian asks why libraries are allowing publishers to determine the reproduction parameters for eBooks. Why cannot a user print a copy for purposes of reading it in a more comfortable environment than at a computer station?
ANSWER: Publishers own the rights to the eBooks that they make available to libraries through license agreements. A license agreement is a contract that the library signs to acquire access to eBooks for its users, and libraries are bound by the contracts they sign. (See 17 U.S.C. § 108(f)(4) (2012). It is critical to publishers that eBooks not be copied and shared since publishers’ income depends on selling licenses.
Some licenses may permit printing of a single copy for a single use, but it depends on the license agreement. If the right to print a reading copy for a single use is important to a library’s users, librarians should negotiate with publishers to have the right included in the next license agreement. Most libraries lend eBooks to read and enjoy at the users’ home or office.
QUESTION: A university librarian asks why there have been so many articles concerning copyrighted works entering the public domain on January 1, 2019, and why it is important.
ANSWER: When the Copyright Act of 1976 was enacted, one change was to make all works for which the copyright term expired in a particular year to enter the public domain on January 1 of that year. In 1998, the Sonny Bono Term Extension Act, an amendment to the Copyright Act, extended the copyright term for works published between 1923 and 1964 from 75 to 95 years. These works received an initial term of 28 years and could be renewed for an additional 47 years. If not renewed for copyright, these works entered the public domain. The Term Extension Act added another 19 years to the renewal term, giving them a total of 67 years renewal plus the initial 28 years for a total of 95 years. The works from 1923 for which the copyright was not renewed expired at the end of 2018 and entered the public domain on January 1, 2019.
Because the Disney Company lobbied so hard for the Term Extension Act, it is often referred to as the Mickey Mouse act. Why copyright protection in the Disney characters is so important is somewhat of a mystery since these characters also enjoy trademark protection. Further, trademark can be perpetual as long as a company continues using the character as a mark and renews the trademark every ten years. True, the Act did extend the copyright to 2024 on “Steamboat Willie,” the first cartoon in which Mickey Mouse appeared. Nonetheless, in 1998 a 19-year hiatus was placed on works entering the public domain. This resulted in works from the mid-20th century that are still under copyright not being available on the Internet. Many feared as 2019 drew near that the copyright industry would again lobby for term extension. Fortunately, this did not happen. Congress and others have recognized that for these works created before 1964, 95 years of protection is enough.
Many of the articles and blogs discussing works entering the public domain in 2019 list many of these important works. Google Books will begin to offer full text of the books from 1923. The HathiTrust has made over 50,000 titles from 1923 available in its database. Unfortunately, many of these works may have been lost over the years, for example, many silent films. The importance of copyright expiration for works published in 1923 means that anyone might reproduce them, make them available on the Internet, perform them, adapt them, etc., without extensive research to locate the copyright owner and seek permission. It is a boon for scholars everywhere as well as for individuals.
QUESTION: A school library has a film on VHS that has never been published on DVD. Teachers in the school are actually using it in class. Another library has requested the tape via interlibrary loan. The librarian asks if she can copy the tape and send it to the other library.
ANSWER: Unfortunately no. The library may lend the original but not reproduce it. It would be similar to copying an entire book for interlibrary loan. Most librarians would recognize that copying an entire exceeds fair use and the Interlibrary Loan Guidelines.
QUESTION: A publisher asks about an author who wants to use a figure from a white paper published by an Indian company in 2002. The adapted figure is crucial to the author’s manuscript. Despite attempting multiple means to reach the company to seek permission, the author has been unsuccessful. The publisher asks if the figure must be removed from her manuscript even though it rather destroys her work to omit it. Is there any “reasonable person” dimension to such efforts?
ANSWER: While there is no formal “reasonable person” standard, a court would likely pay attention to the efforts of the author to obtain permission and be sympathetic. Retaining copies of emails, records of phone calls, etc., is advisable. Further, the author should fully cite the original article and include a note to the effect that she tried repeatedly without success to obtain permission to use the figure.
While there is some risk in publishing the adapted figure, it likely is slight. The white paper is several years old. Using the figure as defined is a type of critique of the figure, which tends to make it a fair use. There is little way to do a critique without reproducing the figure itself. One figure from the white paper is definitely a small amount. Further, the author has done all she can to get permission. The publisher now has to evaluate the importance of publishing the work versus the potential risk of using the figure without permission.
QUESTION: A university librarian asks about the recent suit filed by Elsevier and the American Chemical Society against ResearchGate (RG) over some 3,000 articles. He is concerned because faculty at his institution depend on RG and many of the articles on RG are authored by his faculty members.
ANSWER: The complaint filed in the federal district court in Maryland claims that RG provides anyone connected to the Internet with free access to infringing digital copies of peer-reviewed articles published in scholarly journals. Further, the complaint states that RG is not a passive host of a forum where infringement just happens to occur but instead it directly engages by reproducing, displaying and distributing unauthorized copies of these journal articles as well as facilitates, supports and lures users into uploading and downloading unauthorized materials. A similar lawsuit was filed in Germany in 2017.
Many librarians may be surprised to learn that RG is a for-profit firm located in Germany. It was founded in 2008 as a large social networking site that focuses on the academic community. According to RG’s website, it has over 15 million members who can upload their papers and meeting presentations. It has been funded by science funders and investors. It has raised more than $87 million from the Welcome Trust charity, Goldman Sachs and Bill Gates personally.
Prior to filing the suit, publishers worked through the International Association of Scientific Technical and Medical Publishers and asked RG to agree to a voluntary scheme to regulate article sharing, but the company refused. According to the complaint, the suit “is not about researchers and scientists collaborating, asking and answering questions; promoting themselves, their projects, or their findings; or sharing research findings, raw data, or pre-prints of articles.” Instead, it focuses on RG’s “intentional misconduct vis-à-vis online file-sharing / download service, where the dissemination of unauthorized copies … constitutes an enormous infringement of the copyrights owned by ACS, Elsevier and other journal publishers.” The complaint asks the court to order RG to cease reproducing or distributing material under copyright by ACS or Elsevier and to delete all unauthorized infringing copies from its servers. Additionally, publishers seek damages of $150,000 per work infringed.
Critiques of the complaint are many. For example, the complaint makes little mention of the authors of these articles and what rights these authors might have. For example, are any of the author’s government employees producing the works within the scope of their employment who had no right to transfer the copyright to a publisher? Were any of the authors subject to university open access policies? Were any authors the subject of an open access mandate from a funder? Or had authors paid for open access for any of these articles?