Tuesday, March 20, 2018

Marrakesh Treaty Implementation Act

The March 19, 2018 email ALA Advocacy Alert contained the following text:
After many years of hard work, we are one step closer to seeing the Marrakesh Treaty implemented in the United States. The Marrakesh Treaty is an international copyright treaty that was adopted by the World Intellectual Property Organization and signed by the U.S. in October 2013. It provides a copyright exception - the first ever in an international treaty - for libraries as authorized entities to make accessible copies of articles and books for people with print disabilities and distribute those copies across borders. If the Marrakesh Treaty Implementation Act is passed the United States will be able to provide a wealth of new accessible content to Americans with print disabilities, including those who speak English as a second language. In many ways, this is a civil rights law. It affirms that access to information is a universal right for all people regardless of circumstance.
More information on the Marrakesh Treaty is available from WIPO and the World Blind Union. I like the World Blind Union's conclusion:
In plain language, this is a Treaty that should start to remedy the book famine. It provides a crucial legal framework for adoption of national copyright exceptions in countries that lack them. It creates an international import/export regime for the exchange of accessible books across borders. It is necessary for ending the book famine, but it is not sufficient. Countries need to sign, ratify and implement its provisions. Non-profit organizations, libraries, educational institutions and government need to take advantage of these provisions to actually deliver the accessible books people with disabilities need for education, employment and full social inclusion.
You can follow the progress of S. 2559, which would amend Title 17 (U.S. Copyright Law) on the Congress.gov web site. The Association of Research Libraries is keeping track of which countries have ratified the treaty.   While the U.S. is not among the first, let's hope we also are not among the last to do so.

If you are interested in seeing the Marrakesh Treaty approved in the U.S. Senate, consider contacting your senator.  It will then need to be ratified by our President.

Monday, March 12, 2018

Sound Recordings and Phonorecords

Music CDWhenever I read part of Copyright Law which contains the word "phonorecord", a little voice inside of me says "w-h-a-t-?".  None of us every go into a store and ask to purchase a phonorecord.   In case, you've never looked up the definitions, here they are.

According to Circular 56:
Generally, a sound recording is a recorded performance, often of another work. A sound recording must be fixed, meaning that the sounds must be captured in a medium from which they can be perceived, reproduced, or otherwise communicated.
 So a sound recording is what is recorded and what we listen to.  According to Section 101
“Sound recordings” are works that result from the fixation of a series of musical spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work...

 Then what is the medium?  Turning again to Circular 56:
A phonorecord is the statutory term for a physical object that contains a sound recording, such as a digital audio file, a compact disc, or an LP. The term “phonorecord” includes any type of object that may be used to store a sound recording,including digital formats such as .mp3 and .wav files.
 As Section 101 says:
“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Since 1790, when the U.S. enacted its first copyright law, the law has played catch-up with technology. Therefore, I like that it now try to include technologies that have not yet been developed ("any method now known or later developed").  So far, that forward looking phrase seems to be working for us!

Friday, March 09, 2018

Using Fair Use

PowerPoint slide with a Fair Use example
During Wednesday's webinar for ALA entitled "Understanding and Defending Copyright in Your Library: An Introduction", I talked about Fair Use. I contend that Fair Use is the concept which everyone uses and few understand.  It is easy to wave your hands and proclaim that your use is fair.  It is more work to decide whether your use is truly fair in your judgment.

When you consider Fair Use, there are questions that will be asked.  You might use some or all of these:
  • What is the situation?  
  • Why do you want to use this work?
  • What is being used and why?
  • How much is being used?
  • Will the use affect the market?
  • Can you use less of the work and still be effective?
  • Would it be possible for people to obtain the work themselves?
  • Can you find something similar that is in the public domain or which has a Creative Commons license?
  • And...what is the real risk if you use the work?
Even asking and answering a few of those questions requires patience, especially if some investigation is needed. Yet it is being patient enough to understand, consider and decide which can make the difference.  And if you decide to locate a different work, that can take time.  (I have spent more time than I care to admit finding images in the public domain or with a Creative Commons license to use in blog posts and presentations!)

During the webinar, I walked through four examples.  Honestly, as I talked about them, I began second guessing what I had written! Had I been true to the four factors?  Had I trivialized the details?  Could I make a different decision?  My internal conversation was running rampant, because I wanted to be sure of the path I was leading people on.  That internal conversation can lead people to want to make a quick decision and get it over with, yet it is that internal questioning that teaches us more about copyright and Fair Use.

Above is one of the slides I used.  The example is that of a patron who wants to make multiple copies of a recent political news article to distribute on the street.  Being on a college campus and around activists, this is a situation that I can imagine occurring.  While it would be easy to skip to a conclusion and decide that the use was not fair, I went though the four factors.  I noted that the last two factor - amount and substantiality as well as effect on the market - opposed Fair Use.  I believed that the nature of the copyrighted work (a news article) favored Fair Use.  However, I felt that the first factor (nature of the use) was unclear, because it seemed to me that it could go either way.  The result would either be a toss-up or a situation where the use was clearly not fair.  Given the third and fourth factors, I think you would agree that the use really would not be fair.  Yes, a bit of work for a result that we might have guessed, but it is that work which would hopefully stop us from abusing someone's property.

I encouraged webinar participants to walk through examples with coworkers, as a way for everyone to get comfortable with Fair Use.  The conversations which would emerge would be educational.  Even any disagreements would be educational.  If those conversations and disagreements lead people to learn more about Fair Use, then that's a good thing. 

Thursday, March 08, 2018

Copyright and the value we place owning property

Statue of someone deep in thoughtYesterday, I gave a webinar for ALA entitled "Understanding and Defending Copyright in Your Library: An Introduction."  As I spoke about briefly about Section 109, it struck me hard the value we put on owning property.  Section 109, referred to as the First Sale Doctrine, is about physical materials.  As a human race, we have shown century after century that we value ownership of material items, whether those items be money, land, equipment, or - sadly at some parts of our history - people. The "American Dream" equates a good life with owning a home and other items.  That Dream was a way of separating people who could afford to own from those who could not.  It is not about community ownership or living a life that is in balance with the world around us; it is about acquiring possessions whether they be immovable (real property, e.g., land) or movable (personal property, e.g., clothes).

Copyright is about asserting property right on our ownership "original works of authorship fixed in any tangible medium of expression" (Section 102).  The word tangible stands out because  it is difficult to own something that is not fixed in some way.  We know from our use of the Internet that exerting ownership on digital items can be impossible.  We can quickly lose our control over those digital items.  For example, Facebook strips ownership information out of photos that are uploaded to it.  Where that photo came from and who took it is quickly lost.  Our ability to not own digital works has impacted what we can do with ebooks (a topic I discussed yesterday), for example. 

By the way, at the moment, many of us - no matter our station in life - have many digital objects in our procession.  We see them as personal property, yet given how society values property these digital objects has no real value at all.  Does that may it easier to abuse those digital objects (improperly copy, share, etc.)?  Subliminally, perhaps yes.

When people ask questions about copyright, there is always a question about attribution. What if I just acknowledge that the work belongs to someone else, I am okay then?  The answer is "no", because we have not fully respected that someone else owns and controls the work.  We have not fully respected their property.  Consider some equivalent such as moving into your home and acknowledging that is us yours, while simultaneously redecorating in a style that I like!

You might be expecting a thoughtful conclusion to this ramble. I'm not sure that I have one.  I believe that we need to teach children about their rights as creators when they are in elementary school.  I believe that if children understand that they are creators and what that means in terms of their creations, then they will better respect the creations of others.  This, however, is about owning and respecting property.  Perhaps along side those lessons there should be lessons that allow them to think about property in different ways.  That is it not about personal ownership and acquisitions, but about a respectful sharing or co-ownership.  I don't know where those lessons might lead, but I would hope that it might lead to positive changes.

Book: Managing Copyright in Higher Education: A Guidebook

Book cover
Continuing with highlighting books from Rowman & Littlefield, an exhibitor at the ALISE 2018 conference, next up...

Originally published in 2014, Managing Copyright in Higher Education: A Guidebook by Donna Ferullo (Purdue University) was released in 2017 in a paperback version. According to the publisher:
As more and more colleges and universities establish copyright offices and/or assign the responsibilities of copyright education and advisory services to specific individuals within the institution, many times librarians, there is a paucity of resources available on how to manage that responsibility. Most works on copyright discuss the law and court cases interpreting the law but few address the situational application of it and the management and coordination of copyright efforts on a campus.
This book is available in both hard and soft covers, as well as in an ebook edition.

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