The Ginger (Law) Librarian

Happy Fair Use Week 2017! Fair Use Week is an annual celebration of the important doctrines of fair use and fair dealing. The week is designed to highlight and promote opportunities presented by fair use and fair dealing, to celebrate successful stories, and to explain these doctrines. For law libraries, AALL has created a wonderful resource called Guidelines on the Use of Copyrighted Works by Law Libraries . This guide discusses, among other things: The Copyright Act Fair Use The Library Exemption The TEACH Act And the various rules that govern reproduction of copyrighted material The area of copyright law is constantly in flux as we learn more about what fair use means through case precedent, particularly for libraries and archives.  We've seen the ongoing Google Books litigation, with post on the progression of the case  here  (District Court), here  (Court of Appeals), and here (SCOTUS).  The Georgia State case that involves libr...

Librarians were surprised to hear at the ALA Annual conference that the U.S. Copyright Office planned to hold closed meetings to discuss revision of Section 108 , the “library exception.” The process was announced in the Federal Register on June 2. Interested parties were asked to schedule a meeting with the Copyright Office, located in Washington, DC. (Soon after the announcement the Copyright Office said that phone conversations could also be scheduled). There will be no public record of who attends the meetings or what is discussed. Although, the Copyright Office has been upfront about the changes. They believe that Section 108 needs to be updated to better reflect the digital environment. Indeed, they have said that Section 108 needs to be re-written altogether. They have already drafted Section 108 legislation that librarians haven’t seen. According to The Internet Archive Blog , the Library Copyright Alliance (which represents the American Library Association and the Associ...

The Elsevier takeover of SSRN is getting interesting. Recently we heard that Elsevier made a positive change when it adopted full-text searching on SSRN . But it appears there have also been some negative copyright changes. One author's recent experience highlights the negative: It appears that the corporate takeover of SSRN is already having a real impact. When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well.  Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract.  So, download counts are gone, and no article.  Not the former working version nor the final version.  And then in the revision comments, I found this: It appears that you do not retain copyright to the paper, and the PDF has been removed from publ...

The Chronicle of Higher Education posted commentary  about the ongoing Georgia State Case . A short overview of the long history of the lawsuit is as follows: The lawsuit, now in its eighth year, challenged GSU’s policy that allowed faculty members to upload excerpts (mainly chapters) of in-copyright books for students to read and download from online course repositories. Four years ago, a trial court held that 70 of the 75 challenged uses were fair uses. Two years ago, an appellate court sent the case back for a reassessment under a revised fair-use standard. The trial court has just recently ruled that of the 48 claims remaining in the case, only four uses, each involving multiple chapters, infringed. In the recent trial court ruling, Sage was the only publisher that prevailed at all, and it lost more infringement claims than it won. Cambridge and Oxford came away empty-handed.  Given that Georgia State is considered to be the prevailing party in the suit, it's just...

The newly revised Interlibrary Loan Code for the United States (2016) has been approved by the ALA RUSA Board of Directors and is now in effect. All librarians and library staff in the United States who handle interlibrary loan requests or supervise resource sharing operations should read and familiarize themselves with the new ILL Code and its associated documents: •         Interlibrary Loan Code for the United States •         Interlibrary Loan Code for the United States Explanatory Supplement •         ALA Interlibrary Loan Request Form (Fillable PDF) One of the most notable changes in the new ILL Code is that Due Date has been redefined as the “date by which the material is due to be checked in at the requesting library for return to the supplying library.”  See sections 4.12 and 5.7 of both the ILL Code and Supplement for more information.  Please consider any local implications of this change; for exam...

Last week, I had the pleasure of hearing Linda K. Enghagen, a national expert on copyright compliance, discuss copyright issues in distance education. As more law schools enter the distance-education game, these principles are extremely important. Enghagen specifically discussed copyright and fair use in the educational realm but also made sure to mention university policies that come into play. Her presentation on course design was intriguing and highlighted many important concepts for copyright and distance education, including fair use considerations and the TEACH Act. She discussed the threshold inquiry for a fair use analysis and discussed each of the four fair-use factors to weigh when deciding if permission must be granted to use a copyrighted work. A few of many key principles include: For many things that we do, the qualifying purpose is met through teaching or research Fair use factor 1 generally requires restricted access - make sure to password protect content on...

The Ginger Law Librarian has been following the Google Books case since 2013 - here , here , here , and here . It's culminated the point where is has finally landed in front of the highest court in the land. The Washington Post reported that the Authors Guild has officially asked the Supreme Court to hear its case against Google for its Google Books service. The group filed a writ of certiorari with the Supreme Court on December 31, 2015. If you are not familiar with the suit, here's the gist: Google's free service allows users to search for particular lines or quotes in books through the company's main search engine, and also displays parts of scanned pages of books. The Authors Guild and Google have fought for 10 years over whether that qualifies as "fair use." The Authors Guild first complained in 2005 that this violates copyright and undermines the value of authors' work by providing their books online and for free.  The group has argued that Goo...

The Polish have figured something out that the United States can't seem to get right. While the United States is slowly allowing digitization of print after long, drawn-out litigation, (i.e., HathiTrust & Google Books ), the Polish have revised their copyright law to account for the digitization of materials. The new Polish Copyright Act enters into force on 20th November 2015 bringing library services in Poland into the twenty-first century. Major new provisions enabling digitization for socially beneficial purposes, such as education and preservation of cultural heritage, are the centrepiece for libraries of the new law. The law also implements a European Directive enabling the use of orphan works (in-copyright works where the copyright holder cannot be identified or found to obtain permission), and an EU Memorandum of Understanding on the use of works that are no longer commercially available. In addition, the introduction of public lending right is limited to work...

Many outlets, including The Chronicle of Higher Ed , note that Google Books recently received another big win in favor of fair use. The U.S. Court of Appeals for the Second Circuit handed Google another victory on Friday in a high-profile case about copyright infringement, declaring that its scanning of books as part of the Google Books project constitutes fair use. In its ruling, a unanimous three-judge panel of the court upheld a federal judge’s 2013 ruling against the Authors Guild, which sued the tech giant in 2005. As The Atlantic notes , "the Google Books case had seemed to drag on forever: The Authors Guild first filed suit 10 years ago. But the theory behind the eventual ruling was a quarter-century in the making." In 2004, Google began scanning books—copyrighted and non-copyrighted alike—in academic libraries with the plan of making portions of that material available online for free. Users of Google Books now know how this works: You can search Google’s scanned-...

Harvard Library has created an interactive map of the copyright policies in all 50 states. The map is color coded for openness. Federal copyright law says that “Copyright protection under this title is not available for any work of the United States Government.” 17 U.S.C. § 105. This is a broad and clear statement that works of the federal government are in the public domain and are free for use by all, but by specifying works of the United States Government, the statute fails to address the copyright status of any works of state governments, Puerto Rico, and the District of Columbia. It turns out that figuring out whether state documents are copyrighted is a tricky question, and we’ve created this website to help identify the relevant laws in each state. If you click on the individual states, along with the openness score, you will find: The copyright status (red for copyrightable, green for presumptively public domain) Binding law Advisory sources Related law Specific exam...

Libraries are in a state of transition. As mentioned in previous posts, with the constant innovation taking place, our role as librarian is also changing . Barbara Fister put it best when she noted  "T. Scott Plutchak wrote in the Journal of the American Medical Association a couple of years ago that the great age of libraries has passed, but if we’re paying attention we may see a great age of librarians. We will shift from paying most of our attention to the care and feeding of collections and buildings (not to mention trying to coax people into those buildings to use the collections) and will instead will provide specialized services to scholar-collaborators as they create knowledge. Or we'll become irrelevant." In so many words, this is what I mean when I say that librarians will shift from the curators of print collections to the curators and navigators of electronic collections. And Fister goes on to discuss how librarians must collaborate if we want to conti...

Both lawyers and librarians are on the  front  lines of enforcing copyright. If you are interested in learning more about copyright from  preeminent  scholars, you may be interested in  Harvard Law School and the Berkman Center for Internet & Society's free online class called CopyrightX. "CopyrightX is a networked course that explores the current law of copyright; the impact of that law on art, entertainment, and industry; and the ongoing debates concerning how the law should be reformed. Through a combination of recorded lectures, assigned readings, weekly seminars, live interactive webcasts, and online discussions, participants in the course examine and assess the ways in which the copyright system seeks to stimulate and regulate creative expression." Three types of courses make up the CopyrightX Community: a  residential course  on Copyright Law, taught by Prof. Fisher to approximately 100 Harvard Law School students; an online course di...

The 11th Circuit Court of Appeals recently released its opinion in Cambridge v. Patton , the Georgia State course reserves case . As InsideHigherEd noted , "proponents of fair use said the opinion in Cambridge v. Patton recognizes that colleges and universities can legally create digital reserves of books in their collections," but the appeals court reversed the lower court's decision creating a bright-line rule for fair use. "[T]he appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes -- specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit." Cambridge v. Patton  "concerns an initiative created by Georgia State University, which in 2004 began letting faculty members scan book and journal excerpts and host them in the university’s e-reserves. Instead of waiting in turn for their classmates to finish an assigned readin...

Law Librarians posted a wonderful summary of the litigation surrounding the copyright infringement claim of the brief offerings on WEXIS. There was an attempt to "copyright legal briefs with the intention to gain royalties or prevent others from using them." As noted, "[t]he particular case that litigates the issue is White v. West Publishing Company and Reed Elsevier (USDC Southern District NY).  District Judge Rakoff ruled that the use by West and Lexis is fair use. Both companies transform the documents to a different purpose and use according to the Judge’s analysis under the four fair use factors: The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool. See Blanch v. Koo...

Law Librarians posted about the recent  HathiTrust decision from the U.S. Second Circuit Court of Appeals, which "upheld the ruling in Authors Guild v.HathiTrust , deciding that providing a full text search database and providing access to works for people with print disabilities is fair use." The Second Circuit's summary states, in part, "[w]e ... hold that the doctrine of 'fair use' allows [ HathiTrust ] to create a full‐text searchable database of copyrighted works and to  provide those works in formats accessible to those with disabilities, and that the claims predicated upon the Orphan Works Project are not ripe for adjudication." As Law Librarians noted, The American Library Association issued a statement on the case: "Today, the U.S. Second Circuit Court of Appeals upheld the ruling in Authors Guild v.HathiTrust, deciding that providing a full text search database and providing access to works for people with print disabilities is fa...

As a lawyer-librarian, I thought that it would be prudent to fully research using images for a blog. Previously, I had been doing a Google Image search, finding an image that I liked, and posting it to my blog. I found out that this is a very bad (and often costly) idea. BlogHer posted a great article  about using copyrighted images on blogs. From the post: "Like most of you, I'm a casual blogger and learned my way into blogging by watching others. And one of the things I learned early on was that a post with a photo always looked nicer than one with just text. So I looked at what other people were doing for pictures. And mostly it seemed that everyone was grabbing pics from Google Images and pasting them on their sites. Sometimes with attribution, most of the time without. And when I asked others (or looked at disclaimers on websites and Tumblrs), it seemed that everyone agreed using pics that way was okay under Fair Use standards." But as BlogHer recently found out...

In a victory for librarians everywhere, LLB reports that " Judge Denny Chin ruled today in favor Google in the book scanning case.  The ruling is consistent with the results in the Georgia State electronic reserve case and the HathiTrust case in particular." According to LLB, Judge Chin used the established fair use factors to make his determination: Purpose and character of the use (factor one):  Google’s use is “highly” transformative in that the word index helps readers, scholars, researchers, and other to find books.  Moreover, the manipulation of electronic text can help researchers discover historical trends in how words are used.  Google’s for-profit status is of slight concern because of the important educational purpose served by Google Books.  Factor one favors Google.  Nature of copyrighted work (factor two):  The majority of books scanned are non-fiction.  Though fiction deserves greater protection, all scanned books were p...

Open Access Week runs from October 21 - October 27, 2013. Although we are nearing the end of this "holiday," it is an important event that celebrates the ideals that inform society.  From the website: "'Open Access' to information – the free, immediate, online access to the results of scholarly research, and the right to use and re-use those results as you need – has the power to transform the way research and scientific inquiry are conducted. It has direct and widespread implications for academia, medicine, science, industry, and for society as a whole." In addition, "Open Access (OA) has the potential to maximize research investments, increase the exposure and use of published research, facilitate the ability to conduct research across available literature, and enhance the overall advancement of scholarship. Research funding agencies, academic institutions, researchers and scientists, teachers, students, and members of the general public are...

The NYTimes reports on the ongoing saga of the Google Books Project . "Google, based in Mountain View, California, has scanned more than 20 million books since its 2004 agreement with libraries worldwide to digitize books." At issue is the content that has been scanned and put online without the copyright holders' permission. "The Authors Guild and groups representing photographers and graphic artists say the project amounts to massive copyright infringement." However, "[a] federal judge on Monday appeared to favor Google Inc's legal defense of its digital books project, which could imperil efforts by authors seeking to block it. Google argues the practice constitutes fair use, an exception under U.S. copyright law, because it only provides portions of the works online." Judge Chin noted that the "question of fair use relies in part on whether the project 'is a benefit to society.' Chin then rattled off several examples of how Go...

There was a post on InsideHigherEd the other day about duplicative spending on library holdings. Professors often assign articles for additional reading or inclusion in coursepacks, and many "[c]ollege students ... spend hundreds of thousands of dollars extra per year on buying rights for digital versions of readings to which they have free access [through their library]." Stanford University, for one, wanted to see exactly how much duplicative spending was occurring. They "found that more than $100,000 was being spent, mostly by students, on course materials that could be found in the 1,200 databases the university spends millions of dollars to make available. Stanford analyzed its own records from July 2010 to June 2011. About 60 percent of the course materials the university sought to license from the Copyright Clearance Center for student coursepacks was already among Stanford’s library holdings." The question is, why is this happening? "This is beca...