v31#4 Questions & Answers — Copyright Column

by | Oct 4, 2019 | 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) www.unc.edu/~unclng/gasaway.html

QUESTION:  A Texas school librarian asks about a recent court decision in which the Houston Independent School District was ordered to pay $9 million in damages for copyright infringement.  

ANSWER:  In a case that was little publicized until the decision was rendered, the Houston Independent School District (HISD) was found liable by a federal jury and ordered to pay $9.2 million in damages for allowing illicit copying and posting of the plaintiff DynaStudy’s copyrighted works.  DynaStudy, a small Texas company, repeatedly warned the school district that its actions violated copyright laws and that the company suffered lost sales and a devaluing of its work.  The company produces course notes with reference guides for various subjects and grade levels throughout the year along with study aids before unit tests and standardized assessments.  Some teachers in the district had duplicated the materials and then posted them on the web with the trademarks and copyright notices removed. DynaStudy presented evidence that the initial postings were reposted in various school districts across the state.

The 13-year-old company says that it provides supplemental materials that “fill the wide gap between large textbook publishers and teacher-created materials.  It has sold its product DynaNotes to more than 650 Texas school districts and a few others outside the state. 

HISD rejected four offers of settlement including one in 2016 for $250,000 but it decided to proceed to trial.  Both school districts and attorneys for districts typically issue warnings to teachers about illicit copying of materials.  HISD officials have now added training on copyright laws that is required annually for all employees of the district.  It is unclear whether the district will appeal the jury verdict.

QUESTION:  A public librarian asks about copying book jackets for display or to be included in the library’s calendar of monthly events.  Is this permissible?

ANSWER:  Section 109(c) of the Copyright permits the display of lawfully acquired copyrighted works.  So, if the library creates a display with original book jackets, there is no problem. Reproducing those book jackets is another issue since it involves making a copy of the book jacket.  The artwork on the book jacket is copyrighted, and the book publisher may not own the rights to it but instead acquired only the right to use the art on book jackets. In fact, the publisher may acquire the right for reproduction on the jacket only for the hard cover book only.  (Have you noticed that paperback editions of a book often have different cover art?) Making a copy of the book jacket is a reproduction for which permission is required. However, there seem to be no instances in which a copyright owner has complained about a library reproducing a book jacket for a display or to include in a calendar or newsletter.  It is possible that publishers would consider this to be advertising for their product and not object.

QUESTION:  A university archivist reports that it owns a handwritten manuscript.  If a staff member prepares a transcription, who owns the rights? Is the transcription an adaptation?  

ANSWER:  A transcription of a manuscript is considered a reproduction of the work and not an adaptation.  A transcription merely puts the handwritten text into typed text. If the manuscript were still under copyright, the author of the manuscript would own the copyright in the transcription, as well.  If the manuscript is in the public domain, then the transcription is also in the public domain. 

Assume that the work is still protected by copyright.  Thus, what is done with transcription is important. If it is made available to individual researchers in lieu of the original manuscript, and, if the donor agreement permits such access, there is no problem.  Making multiple copies or posting the transcription on the web would require permission of the copyright owner unless the donor agreement already permits such copying.

QUESTION:  A college librarian has several questions about databases.  (1) Who is liable for the content in databases, the provider of the content or the distributor?  (2) If the library acquires the database, what liability does it incur? (3) How is it determined what country’s law is used if a dispute arises?

ANSWER:  (1) It is the provider of the content in the database that is responsible for the content, not the distributor.  (2) A library’s access to a database is governed by a license agreement, and the license spells out any liability incurred by the library.  Typically, libraries agree only to provide notice to its user community to comply with the terms of the license agreement and not to police its users.  Liability tends to be one of the license terms that libraries negotiate with the database provider. (3) The license agreement usually contains a choice of law provision.  Many of the database providers are located outside of the United States and will tend to name their country for choice of law. State institutions likely are bound by state law that require disputes against state entities be litigated in that state under its laws.  Libraries should negotiate this license term also since trying a case in a foreign jurisdiction is difficult and expensive. 

QUESTION:  An author asks how copyrights are enforced in this country and who can bring suit.

ANSWER:  In the United States, copyrights are enforced by copyright owners or by their exclusive licensees.  Because the section 106 rights are divisible, many people and companies may have exclusive licenses for a particular work.  For example, someone may have the performance license while someone else has a license to reproduce the work in copies.

There is no government enforcement agency.  Owners or their exclusive licensees may sue in federal court for infringement of the exclusive rights protected by copyright, and federal courts have exclusive jurisdiction over copyright actions.  If the action involves breach of a license agreement, that suit may be brought in state court, however, since they are contract actions as opposed to copyright.

Most copyright litigation involves civil actions in which the plaintiff is seeking monetary damages for infringing the reproduction, distribution, adaptation, performance or display rights (and for sound recordings, public performance by digital audio transmission)  and/or an injunction to stop the infringing activity. Such actions typically begin with a cease and desist letter to the alleged infringer. There are also criminal actions that may be brought by the federal government at the request of the copyright owner for willful infringing activities for commercial gain such as counterfeiting or similar activity.

There is a three-year statute of limitations after the claim accrued for civil actions and five years for criminal actions.  

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