ERIC EJ1119272: Copyright Updates for K-12 Librarians

2016·0.25 MB·English

by  ERIC

All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
FEATURE usage requests to the ALA Office of Rights and Permissions.
26 Knowledge Quest | Copyright and School Libraries in the Digital Age
All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
usage requests to the ALA Office of Rights and Permissions.
Copyright
Updates
for K–12
Librarians
Wendell G. Johnson
[email protected]
Volume 45, No. 2 | November/December 2016 27
All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
usage requests to the ALA Office of Rights and Permissions.
Introduction university. At first glance, it might material, and consumers, who
appear that the publishers should use this material to build on the
As this special issue goes to press, a
prevail. Before the widespread ideas of others. The court found
civil lawsuit accusing Robert Plant
distribution of digital material middle ground by distinguishing
and Jimmy Page of Led Zeppelin
(via course management systems between Georgia State University’s
of plagiarizing the opening chords
such as Blackboard or WebCT), nonprofit use of copyrighted
of the 1971 rock classic “Stairway
instructors who wanted to distribute materials (placing the works on
to Heaven” heads to federal court
copyrighted texts to students would e-reserve) from the commercial sale
in Los Angeles. Federal judge Gary
assign a coursepack created by of coursepacks.
Klausner ruled that “Stairway to
campus bookstores or commercial
Heaven” and the 1967 instrumental
copying companies (for example, Annemarie Bridy, a copyright and
“Taurus” by the band Spirit were
Kinko’s). The creators of these fair use scholar at the University
similar enough that a jury should
coursepacks paid licensing fees of Idaho, has explained three
decide whether Led Zeppelin was
to the publishers for permission takeaways for school librarians from
liable for copyright infringement
to reproduce and distribute the GSU case. First, librarians
(“Led” 2016). Copyright concerns
copyrighted material. Digital who follow the doctrine of fair use
continue to bedevil K–12 librarians,
distribution, however, bypasses do not need to obtain a license
who are often called upon to act
bookstores and commercial copying when they are the secondary users
as the copyright officers in public
companies. Consequently, no third of copyright material (placing
schools. As the Led Zeppelin
party exists to pay the publishers the items on e-reserve). Further,
case demonstrates, students who
for permission to use protected failure to obtain such a license
borrow even brief riffs or short
material. In this instance, GSU does not convert such nonprofit
chord progressions from rock
professors essentially replaced paper secondary use into commercial
and roll standards for a school
coursepacks, which were licensed, use (that is, librarians do not
band program may inadvertently
with e-reserves, which were not become commercial users simply
engage in copyright violation. This
licensed. The academic publishers because they failed to obtain
article describes recent copyright
bringing the suit, Cambridge a license). Second, the court
developments of concern to these
University Press et al., claimed decision did away with arbitrary
librarians in three areas: a recent
that they were suffering economic quantitative thresholds for fair
court case involving a university
harm at the hands of Georgia State use of copyrighted material. The
library, pending legislation
University. 10 percent threshold contained in
supported by ALA, and a regulatory
the legislative history of the 1976
update. Many recent cases, laws,
The Patton court disagreed. The Copyright Act does not carry the
and regulations stem from issues
court noted that, while publishers force of law and may represent a
raised by the Digital Millennium
may have a system for licensing of floor rather than a ceiling of fair use.
Copyright Act (DMCA) of 1998.
paper excerpts, they did not always Third, a secondary user’s failure to
have one for digital excerpts. This, “transform” a digital work (such as
Court Case according to the court, implied that offering a critique or a parody) does
there was no market for licensing not violate fair use if the material
The most recent court case related
of digital excerpts. Therefore, is used for educational purposes
to copyright that is of interest to
allowing GSU professors to (Bridy 2014). Thus, posting digital
K–12 school librarians is Cambridge
distribute excerpts digitally caused work on a library’s website or
University Press v. Carl Patton et al. Three
little market harm to the plaintiffs. institution’s course management
academic publishers, Cambridge
In its decision, the court noted system without “transforming” it
University Press, Oxford University
that technological advances had does not violate fair use standards.
Press, and Sage Publications, sued
created new means for delivering Regardless, K–12 librarians should
Georgia State University (GSU)
copyrighted material to end users, still proceed with caution and
for copyright infringement. Carl
causing headaches for consumers evaluate each fair use situation on a
Patton was named as a defendant
(including librarians) to define fair case-by-case basis.
in the suit since, at the time it
use standards for digital material.
was initiated, he was president
The court wanted to strike a balance Legal research presents a daunting
of the university. GSU routinely
between the rights of copyright challenge to information profes-
placed copyrighted material on
holders, who must be provided with sionals. However, school librarians
e-reserve, without paying licensing
an economic incentive to produce do not need to go to a law library
fees, for courses offered by the
28 Knowledge Quest | Copyright and School Libraries in the Digital Age
All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
usage requests to the ALA Office of Rights and Permissions.
The court wanted to strike a
balance between the rights of
copyright holders, who must
be provided with an economic
incentive to produce material, and
consumers, who use this material
to build on the ideas of others.
to do this specialized research. H.R. 862, Your Own Devices 862 is signed into law, these
LexisNexis, an extensive online Act (YODA), introduced by Rep. librarians and patrons can use
database of legal materials, is widely Blake Farenthold (R-TX), amends newly purchased hardware (and
available and contains the texts of federal copyright law “to allow embedded software) without fear of
federal and state court cases. This the owner of a machine or other violating copyright law. By the same
resource provides “Headnotes” on product operated in any part by a token, when end users sell surplus
most cases, which illustrate and computer program to transfer an hardware, they are also transferring
explain the key legal points under authorized copy of the computer ownership of software contained
consideration. The transcript of program, or the right to obtain in that hardware. However, YODA
the Patton case contained in Lexis- such copy, when the owner sells, would prohibit school librarians,
Nexis also provides the core terms leases, or otherwise transfers the libraries, and library patrons from
librarians can use to decipher the machine or product to another retaining an unauthorized copy of a
case and conduct further research person” (U.S. House of Rep. 2015a). computer program after transferring
into the topic: fair use, excerpt, In other words, when a librarian or that program to another user or
infringement, copyrighted, copying, library purchases (or sells) a digital institution.
permission, digital, coursepack, device, YODA transfers a copy of
license, educational, classroom, the embedded software with that Breaking Down Barriers to Innovation
publisher, user, guidelines, device and overrides the end-user
Act
nonprofit, weigh, copied, electronic, license agreements usually included
The second pending bill supported
educational purposes, holder, with such software. Further, if the
by ALA, S. 990, Breaking Down
secondary, transformative, licensing, owner of the device has the right to
Barriers to Innovation Act of 2015
injunctive, original work, favored, receive security updates or patches
(BDBI), revises procedures under
work-by-work, unpaid, Copyright that right passes to the subsequent
the DMCA “for the Librarian
Act, and copyright infringement. owner of the device. YODA is an
of Congress to conduct an
Also, the particular glossary for important step toward addressing
administrative rulemaking every
Patton is very good on civil infringe- the problem of restricted licenses on
three years to determine whether
ment and fair use. software imbedded in digital devices
to exempt certain noninfringing
(Walsh 2014).
uses of a copyrighted work from
Pending Legislation the statutory prohibition on
Many K–12 school librarians, as well
circumventing a technological
Your Own Devices Act as their students and faculty, bring
measure controlling access to a
their own devices (smartphones,
As of June 2016, ALA supports
particular class of work” (U.S.
laptops, tablets) to work. If H.R.
three pieces of pending legislation.
Senate 2015). The question,
Volume 45, No. 2 | November/December 2016 29
All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
usage requests to the ALA Office of Rights and Permissions.
according to the bill’s sponsor Thus, librarians who engage in
Senator Ron Wyden (D-OR), is a technological workaround to
whether Americans can unlock provide fair use access to library
phones and other devices they material are not guilty of copyright
have purchased. At present, the infringement. A further upshot is
DMCA prohibits individuals that librarians can unlock mobile
from breaking the technological devices (smartphones, tablets, and
“lock” that protects copyrighted library networking devices) without
material. This provision of the obtaining consent of the original
DMCA can prevent Americans carrier network before switching to
with disabilities from accessing a new carrier.
e-books and other electronic
media currently available in school
Regulatory Update
libraries. Every three years the
Copyright Office considers whether Today, user-upload services such
to grant exemptions against the as SoundCloud, YouTube, and
blanket restriction prohibiting the Vimeo make massive amounts of
circumventing of software locks on music and video content available.
copyrighted works (Wyden 2015). Regrettably, users of those websites
BDBI would automatically renew post large quantities of infringing
previously granted exemptions and content, often under the guise of
provide increased and improved “fair use.” Consider the following
access to adaptive technologies caveat posted on YouTube regarding
for library patrons in need of this a Moody Blues album:
assistance.
Copyright Disclaimer Under
Title 17 Section 107 of the
Unlocking Technology Act
Copyright Act 1976, allowance
The third legislation granted ALA’s
is made for “fair use” for
approval is H.R. 1587, Unlocking
purposes such as criticism,
Technology Act of 2015 (UTA).
comment, news reporting,
The UTA declares that it is not a
teaching, scholarship, and
violation of copyright law to:
research. Fair use is a use
permitted by copyright
circumvent a technologi-
statute that might otherwise
cal measure if the purpose is
be infringing. Non-profit,
to engage in a use that is not
educational or personal use
an infringement of federal
tips the balance in favor of
copyright law; or (2) use,
fair use. I receive No Profit
manufacture, import, offer
on this audio/video, strictly
to the public, provide, or
for comment only, YouTube
otherwise traffic in any tech-
controls the commercials.
nology, product, service, device,
NO INFRINGEMENT OF
component, or part primarily
COPYRIGHT IS INTENDED.
designed or produced to
(“Hippie Chick” 2012)
facilitate noninfringing uses of
protected works by circumvent-
Commercial trade organizations
ing a technological measure
such as ASCAP (American Society
that effectively controls access
of Composers, Authors and
to such work, unless the intent
Publishers) and IFPI (International
is to infringe or facilitate
Federation of the Phonographic
infringement of a copyright.
Industry) contend that the users of
(U.S. House of Rep. 2015b)
these websites post massive amounts
of copyrighted material. Since 2012
30 Knowledge Quest | Copyright and School Libraries in the Digital Age
All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
usage requests to the ALA Office of Rights and Permissions.
[A] secondary user’s failure
to “transform” a digital work
(such as offering a critique or
a parody) does not violate fair
use if the material is used for
educational purposes (Bridy 2014).
Volume 45, No. 2 | November/December 2016 31
All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
usage requests to the ALA Office of Rights and Permissions.
the recording industry has sent Keeping Up with Changes
over seventeen million takedown Wendell G.
Librarians have two excellent
notices (May and Cooper 2016).
options to check the status of Johnson is head at
The industry argues that upload
pending legislation. (The material Reference and Research,
services draw revenue from Internet
on these two websites overlaps.)
advertising (for example, the University Libraries,
ALA tracks copyright issues and
pop-up ads in YouTube videos) and, at Northern Illinois
legislation here: <www.ala.org/
thus, have a financial disincentive
advocacy/advleg/federallegislation/ University in DeKalb. He is the former editor
to comply with takedown requests.
copyright>. The federal government of Community and Junior College
The search engines create added
provides status updates on
traffic (and revenue) by linking to Libraries and in January will begin serving
intellectual property legislation
infringing content, an action that as editor of Journal of Religious and
here: <www.copyright.gov/
raises the question: Should the safe
legislation>. Theological Information.
harbor provision of section 512 of
the DMCA also apply to user-upload
services (May and Cooper 2016)?
The Registrar of the U.S. Copyright
Office is authorized to establish
regulations consistent with U.S.
copyright law (Bailey 2016). At
present, the DMCA provides for
a notice and takedown process Works Cited: May, Randolph J., and Seth Cooper.
for copyright works on the 2016. “Copyright ‘Notice
Bailey, Lila. 2016. “Copyright Office’s and Takedown System Needs
Internet. Those who comply with Proposed Notice and Staydown Fixing.” The Hill (May 9). <http://
the takedown notice often are System Would Force the Internet thehill.com/blogs/pundits-blog/
extended immunity from legal Archive and Other Platforms technology/279179-copyright-notice-
to Censor the Web.” <https:// and-takedown-system-needs-fixing>
action. However, the Copyright blog.archive.org/2016/06/02/ (accessed July 18, 2016).
Office is considering changing copyright-offices-proposed-notice-
and-staydown-system-would-force- U.S. House of Representatives. 2015a.
the DMCA mandate to a notice the-internet-archive-and-other- “H.R. 862. Your Own Devices
and staydown process in which the platforms-to-censor-the-web> Act.” <www.congress.gov/bill/114th-
hosting organization cannot merely (accessed June 2, 2016). congress/house-bill/862> (accessed
June 20, 2016).
remove the copyrighted material Bridy, Annemarie. 2014. “Four Fair
Use Takeaways from Cambridge ———. 2015b. “H.R. 1587. Unlocking
from its platform; it must also
University Press v. Patton.” Technology Act of 2015.” <www.
ensure that the material does not Freedom to Tinker. Research and Expert congress.gov/bill/114th-congress/
appear on it in the future (Bailey Commentary on Digital Technologies in house-bill/1587> (accessed June 20,
Public Life (October 23). <https:// 2016).
2016). This change, if implemented,
freedom-to-tinker.com/blog/ U.S. Senate. 2015. “S. 990. Breaking
would have implications for abridy/four-fair-use-takeaways- Down Barriers to Innovation Act of
school librarians and school from-cambridge-university-press- 2015.” <www.congress.gov/bill/114th-
libraries because librarians may be v-patton> (accessed August 15, congress/senate-bill/990> (accessed
2016). June 20, 2016).
responsible for ensuring that the
copyrighted work never appears “Hippie Chick.” 2012. “The Moody Walsh, Kit. 2014. “Bill Introduced
Blues—On the Threshold of a in Congress to Let You Actually
on the school’s Internet platform Dream.” <www.youtube.com/ Own Things, Even If They Contain
again. Historically, using recorded watch?v=-4pw31njqio> (accessed Software.” Electronic Frontier Foundation
material has been frowned upon June 21, 2016). (September 19). <www.eff.org/
“Led Zeppelin’s ‘Stairway to Heaven’ deeplinks/2014/09/bill-introduced-
by the courts, even though fair use
Plagiarism Lawsuit Heads to Trial.” congress-let-you-actually-own-
standards exist. School librarians 2016. Huffington Post (June 15). things-even-if-they-contain-software>
must tread carefully before posting <www.huffingtonpost.com/entry/ (accessed June 21, 2016).
audio material on a school’s website led-zeppelins-stairway-to-heaven- Wyden, Ron. 2015. “Fixing the DMCA,
plagiarism-lawsuit-heads-to-trial_ Step 1: The Breaking Down Barriers
lest they become responsible for us_57601063e4b053d43306453b> to Innovation Act.” Huffington Post.
filtering Internet content to prevent (accessed June 15, 2016). <www.huffingtonpost.com/sen-ron-
copyright infringement. wyden/breaking-down-barriers-to-
innovation-act_b_7513924.html>
(accessed June 21, 2016).
32 Knowledge Quest | Copyright and School Libraries in the Digital Age
All materials in this journal subject to copyright by the American Library Association
may be used for the noncommercial purpose of scientific or educational advancement
granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Address
usage requests to the ALA Office of Rights and Permissions.
Volume 45, No. 2 | November/December 2016 33