Copyright

Introducing Amy Dygert

Author: K. Matthew Dames

It is comical at this point — shortly after her one year anniversary as our Copyright and Information Policy Adviser — to say that an introduction to Amy V. Dygert is overdue. I could wax poetic about her qualifications (four – four – degrees at SU), or talk about the grand plans I have in mentoring her to serve as future director of the University’s Copyright and Information Policy Office.

I could even make reference to Amy’s understated, yet razor sharp wit – which is dry, intelligent and effective – and how this sense of humor can help dull the sting of telling someone that no, copying an entire textbook and placing it on Blackboard actually does not qualify as a fair use “for purposes such as teaching … scholarship, or research.”

But to do justice to what Amy has brought to the Libraries since she began in August 2013, I must share my original vision for this office, explain how institutional needs required me to diverge from that original direction, and describe why I think Amy is the best person to fulfill not only my original vision for the Office, but eventually her own vision moving forward.

My career as a Syracuse University employee began in 2008, when Dean Emeritus Suzanne E. Thorin appointed me as the university’s first Copyright and Information Policy Adviser. There were many early challenges, the first of which was determining the proper title. The first functional title I had was “copyright officer,” which sounded too prosecutorial; the general counsel also thought that title sounded like it had too much institutional authority.

Dean Thorin and I settled on the current title for two reasons. First, we wanted to emphasize the consulting, training, teaching, and tutoring functions inherent in “adviser.” Second, we realized soon after I began that the “information policy” function in my job would be more important than the copyright function.

The sagacity of this title soon became evident when I began what ultimately became a 4-year process of writing and getting published SU’s first university-wide policy on the use of copyrighted works in teaching and instruction. That policy, codified in the booklet Using Copyrighted Works in Teaching: A Guide for Syracuse University Faculty, has been recommended by the Copyright Clearance Center, the United States’ primary collective rights organization for corporate and academic users of copyrighted materials. In addition, several other United States colleges and universities have adopted all or part of the copyright policy for their institutions.

Drafting, codifying, and publishing policy is an exhausting, engrossing process that necessarily requires bargaining, concession, trade, and compromise. Doing such work within and on behalf of an academic research institution exacerbates those requirements tenfold. While I am satisfied with the work we have completed, accomplishing this objective required me to drastically alter my original vision for the Office.

For example, my original vision involved developing and disseminating a comprehensive, multimedia copyright education program for information professionals. It also included doing a lot more public speaking and writing (especially on this long dormant blog), all in the name of helping scholars navigate the intricacies and inanities of the world’s most prevalent form of intellectual property.

Enter Amy.

Amy’s expertise as a former litigator and a current teacher provides this Office and the University a deft balance of skills. In her year with us, Amy has adapted well to balancing the detachment that is necessary to manage existing and emerging policy work with the engagement that is necessary for interacting constructively with students, faculty, and Libraries’ staff.

While I remain involved in coordinating the Office’s vision and direction, Amy already has proven she is capable of managing the Office’s workload and daily affairs. It is my hope and expectation that she will fulfill my original vision for the University’s Copyright and Information Policy Office, and at some point, move the Office in a direction she feels is appropriate.

Belatedly, please join me in welcoming Amy Dygert as Syracuse University’s newest Copyright and Information Policy Adviser.

K. Matthew Dames is Interim Dean of Libraries and University Librarian, as well as the founding Director of the Copyright and Information Policy Office, at Syracuse University.

About Amy V. Dygert: Amy V. Dygert, Esq. is the Copyright and Information Policy Adviser at Syracuse University Libraries, succeeding K. Matthew Dames in August 2013. Amy is a four-time graduate of Syracuse University, having earned three masters degrees from the S.I. Newhouse School of Public Communications and the School of Education, and a juris doctor degree from the College of Law. She earned her B.A. in Journalism from the State University of New York at Oswego.

Before joining the Libraries, Ms. Dygert worked in private practice as a litigation attorney handling First Amendment, Internet, and media law claims, as well as serious injury and wrongful death claims. Ms. Dygert is admitted to practice before state and federal courts in New York, and teaches communications law at the Newhouse School.

HathiTrust Decision Summary

Author: K. Matthew Dames

In September 2011, the Authors Guild, various international authors’ rights organizations and one dozen individual authors sued HathiTrust, Cornell, and the presidents of the universities of Michigan, California, Wisconsin and Indiana, claiming that HathiTrust’s online storage, searchability and public availability of a digital corpus developed as part of the Google Books scanning project constituted copyright infringement. More than three-quarters of the books that Google scanned as part of the Books project remain subject to copyright protection.

In June 2011, Michigan announced it would share with the public “orphan works” — works to presumed to be subject to copyright protection, but for whom a copyright owner cannot be found.

On October 10, 2012, Judge Harold Baer issued a 23-page decision that held, among other things, that HathiTrust’s activities are consistent with the fair use provisions of the Copyright Act of 1976.

The remainder of this post summarizes the key holdings from the decision.

Court Refuses to Rule on Legality of Michigan’s Orphan Works Project

The plaintiffs sought a ruling and an injunction from the court that the distribution and display of copyrighted works through the HathiTrust Orphan Works Project would constitute copyright infringement (“Absent an injunction, Defendants will proceed with the OWP and infringe the copyrights of Plaintiffs, the Associational Plaintiffs’ members and other unsuspecting authors and rights holders.”). Judge Baer declined to provide the plaintiffs such a ruling on the grounds that the legal issues are not ready for a court to decide them. “Were I to enjoin the OWP, I would do so in the absence of crucial information about what that program will look like should it come to pass and whom it will impact. ” Judge Baer wrote. “In addition, Plaintiffs suffer no hardship from litigation of this claim after Defendants release the details of their new OWP and a revised list of Orphan Work Candidates.”

“The ‘mere possibility’ that one of Plaintiffs’ works might be included on a future list of orphan works or made available is not enough,” concluded Judge Baer.

Court Rules Section 108 Limitations Do Not Preclude Fair Use Analysis

The plaintiffs argued that if the defendant universities claimed that HathiTrust’s activities constituted fair use, the universities could not also claim that, alternatively, the storage and availability of HathiTrust’s corpus alternative was allowed under Section 108, the limitation that allows libraries and archives reproduce protected works in certain contexts related to teaching, research and preservation.

Noting that the plaintiffs provided no case law for this argument and devoted but one paragraph to it, Judge Baer rejected this proposition. “The briefs submitted by Defendant Intervenors and the Library Amici, to whom I granted leave to file a memorandum as amici curiae, further convince me that fair use is available as a defense for the Defendants, and nothing Plaintiffs submitted convinces me that fair use is unavailable as a defense, or that the manner of reproduction is prohibited simply because it does not fall within Section 108,” wrote Judge Baer.

Court Rules HathiTrust’s Use of Publishers Works Constitutes a Fair Use

In order to prove copyright infringement, a plaintiff must prove that he (or it) (1) owns the copyright; and (2) the defendant has copied original elements of the work. If the plaintiff proves this, then the defendant bears the evidentiary burden of proving defenses or an applicable limitation. Fair use is one such defense to a plaintiff’s case of copyright infringement.

 The fair use provision of the Copyright Act of 1976 reads as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

A court will weigh each of the four factors, which constitute the core of the fair use, to determine whether the defense applies. A defendant does NOT need to prevail on all four factors in order for the court to find a fair use defense.

The court analyzed each of the four factors, ruling as follows:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

The [Mass Digitization Project, or MDP] was undertaken with several goals in mind. The MDP allows scholars to identify relevant works far more efficiently. … In addition, the program helps Defendants preserve their collections in the face of normal deterioration during circulation, natural disasters, or other catastrophes that decimate library collections, as well as loss due to theft or misplacement. … The program provides print-disabled individuals with “access to the wealth of information within library collections.” … Where the purpose of the use is for scholarship and research—uses explicitly mentioned in the preamble to Section 107—the Second Circuit has concluded that the first factor “tilt[s] in the defendants’ favor.” …

Transformative uses are likely to satisfy the first factor. … A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose. … The use to which the works in the [HathiTrust Digitial Library, or HDL] are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining.

Plaintiffs’ argument that the use is not transformative merely because defendants have not added anything “new” misses the point. … Plaintiffs also argue that Defendants are not shielded from charges of copyright infringement by virtue of their status as educational non-profits. The cases they cite in support of this claim are cases where the use being made by the non-profit was not transformative, as it is here. … Likewise, Plaintiffs’ argument that Defendants had a primarily “commercial” purpose when they allowed Google to digitize their libraries is without merit. Although Plaintiffs quote A&M Records, Inc. v. Napster, Inc. … for the point that Defendants cannot make “unauthorized copies of copyrighted works . . . to save the expense of purchasing authorized copies,” this argument too is off the mark as to what Defendants use the copies for. While additional copies might have sufficed were Defendants’ goal solely preservation, the purchase of additional paper copies, or even electronic copies, would not have allowed Defendants to create a searchable inventory of their works or provide access to print-disabled individuals on an equal footing with sighted individuals. Defendants satisfy the first factor not merely because they are non-profit institutions, but because the use to which the copies have been put is transformative.

(2) the nature of the copyrighted work

… Copying factual works is more likely fair use than copying creative works. … However, where a use is transformative, the nature of the copyrighted works is not likely to “separate the fair use sheep from the infringing goats.” … Here, Plaintiffs identify 116 works that they allege were unlawfully digitized by Defendants as part of the MDP. … Approximately 76 percent of the identified works are fiction. … In the HDL as a whole, approximately 9 percent consists of prose fiction, poetry, and drama. … Because the use is transformative, intended to facilitate key-word searches or access for print-disabled individuals, the second factor is not dispositive.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

“[T]he extent of permissible copying varies with the purpose and character of the use.” [quoting a Supreme Court case]. The question is whether “no more was taken than necessary.” … Sometimes it is necessary to copy entire works. “Intermediate” copies may not be infringing when that copying is necessary for fair use. Here, entire copies were necessary to fulfill Defendants’ purposes of facilitation of searches and access for print-disabled individuals. … Plaintiffs argue that Defendants did not need to retain copies to facilitate searches; however, the maintenance of an electronic copy was necessary to provide access for print-disabled individuals.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fourth factor examines “whether the secondary use usurps the market of the original work.” Courts consider “only those [markets] that the creators of original works would in general develop or license others to develop.” … Where a use is noncommercial, as it is here, the plaintiff must show “by a preponderance of the evidence that some meaningful likelihood of future harm exists”, …, a test Plaintiffs fail at least on this fact pattern.

Plaintiffs allege market harm on several distinct bases. First, they argue that “[e]ach digital copy of a book that Defendants created . . . rather than [purchased] through lawful channels, represents a lost sale.” … This argument ignores the fact that purchase of an additional copy would not have allowed either full-text searches or access for the print-disabled individuals, two transformative uses that are central to the MDP.

Plaintiffs’ second argument is that Defendants have “expose[d] Plaintiffs’ property to immense security risks that have the potential to cannibalize the book market through . . . widespread internet piracy.” … However, the expert economist that Plaintiffs rely on in support of this argument admitted that he was unfamiliar with the security procedures in place at the Universities. Edelman Dep. at 248:11–12 (“I don’t know about all of the security systems that [the Libraries] have.”). Defendants respond with a declaration from the individual in charge of security for the works in the HDL, who describes the security measures in place, …, and notes that the Libraries have been certified as a trustworthy depository by the Center for Research Libraries. … Plaintiffs’ unsupported argument fails to demonstrate a meaningful likelihood of future harm.

Finally, Plaintiffs argue that “Defendants activities will harm Plaintiffs by undermining existing and emerging licensing opportunities” such as a “collective management system [which would] permit certain of the activities of the Defendants in this case while providing compensation to copyright owners.” … Plaintiffs admit that they cannot identify “any specific, quantifiable past harm, or any documents relating to such past harm.” … Plaintiffs’ argument about a potential market is conjecture. … “Were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth factor would always favor the copyright owner.” … Because I conclude that at least two of the uses are transformative —that is, the provision of search capabilities and access for print-disabled individuals — any harm arises, if at all, to a “transformative market.” … A use that “falls within a transformative market” does not cause the copyright holder to “suffer market harm due to the loss of license fees.”

Balancing the four factors

The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it.” … The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement. In addition to the briefs submitted by the parties, the two memoranda filed by amici further confirm that the underlying rationale of copyright law is enhanced by the HDL.

Court Rules Americans With Disabilities Act Allows Libraries to Make Copies to Serve Persons With Disabilities

Section 121 of the Copyright Act allows an “authorized entity” to reproduce or distribute copies of certain protected works in specialized formats so those with vision or other impairments can use them. The Act defines an “authorized entity” as a nonprofit organization or governmental agency “that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.”

There has been a longstanding question whether college and university libraries qualify as an “authorized entity” pursuant to the definition in Section 121. The Court resolved this question, answering affirmatively. “The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals, making each library a potential “authorized entity” under [Section 121],” wrote Judge Baer. “The provision of access to previously published non-dramatic literary works within the HDL fits squarely within [Section 121], although Defendants may certainly rely on fair use, as explained above, to justify copies made outside of these categories or in the event that they are not authorized entities.”

 

Discussing the Copyright Guide

Author: K. Matthew Dames

By now, most faculty have received a copy of Using Copyrighted Works in Teaching: A Guide for Syracuse University Faculty. This Guide provides recommendations that will help members of the SU community legally use a variety of works for curricular purposes.

As Provost Spina’s introductory message indicates, the Guide remains a living document that I will update regularly to reflect new modes of instruction and improve its clarity and utility. In the spirit of meeting the Provost’s desire for continually improved utility, I welcome the opportunity to discuss the Guide with all interested academic departments, faculty, ITS personnel, graduate assistants, and teaching assistants.

Such a session allows faculty and other community members an opportunity to comment on what works, what doesn’t work (generally or specific to discipline), and suggest improvements. I welcome such a meeting because it gives me the chance to contextualize the Guide’s development and gather ideas for subsequent editions.

If you are a faculty member and would like me to visit with your department or with select faculty to discuss the Copyright Guide or other information policy matters, please coordinate a session with your Subject Specialist. Other members of the University community can coordinate a meeting with me using the Inquiry Request form.

I look forward to working with you.

Copyright Guide Distribution

Author: K. Matthew Dames

The University’s Bulk Distribution unit has begun the process of distributing more than 2,500 copies of the first edition of Using Copyrighted Works in Teaching: A Guide for Syracuse University Faculty. This Guide provides recommendations that will help Syracuse University faculty members, teaching assistants and online course administrators legally use a variety of protected works for curricular purposes.

Hard Copy Distribution

Per the Library’s instructions, Bulk Distribution is mailing the Guide to deans, directors, faculty (both tenure-track and adjunct), graduate assistants and teaching assistants. After these constituents have received their copies, the Library will manage additional distribution to others across the University who would like hard copies.

If you are a member of the University community who would like to receive multiple hard copies of the Guide for your colleagues, and are not part of the original group to whom Bulk Distribution is mailing a copy, please contact me by completing the Inquiry Request Form. Include in the request the number of copies you need — typically, more than a couple — and whom will receive those copies. Library staff will begin sending these additional copies through University interoffice mail later this month.

Members of the University community who would like to receive individual copies will be able to get them from the Library’s first-floor service desks later this month.

Electronic Copy Distribution

While we are distributing hard copies of the Guide only to members of the Syracuse University community, anyone can download the Adobe Acrobat version from the Guide’s permanent page.

We are aware that the Guide is not rendering properly is some Web browsers, especially Mac OS X versions of Safari and Firefox. While we are resolving that problem, you can also download the Guide from here [pdf].

 

Syracuse University Publishes Copyright Guide

Author: K. Matthew Dames

Syracuse University has published the first edition of Using Copyrighted Works in Teaching: A Guide for Syracuse University Faculty. This Guide provides recommendations that will help Syracuse University faculty members, teaching assistants and online course administrators legally use a variety of protected works for curricular purposes.

This Guide will remain publicly available as an Adobe Acrobat download for the Syracuse University community and others in higher education. While the Guide provides recommendations and best practices for personnel and circumstances at Syracuse University, we welcome faculty and administrators at other colleges and universities to use the Guide.

The Library is mailing print copies of the Guide to deans, directors, department heads, and all faculty. Distribution should be complete by September 15. Syracuse University personnel can arrange to get additional print copies of the Guide by contacting me at cipa@syr.edu.

I will update the Guide occasionally to reflect new modes of instruction and changes in the law. I will publish these changes first on the latest version of the Guide available online. Any changes in the online version of the Guide will supersede previous print versions that are in circulation. I will publish a running list of Guide changes, edits and updates on Pending Updates page; I will explain the rationale for such changes in various Blog postings.

The Guide’s publication closes the work of an ad hoc University committee on copyright, appointed by Vice Chancellor and Provost Eric F. Spina and chaired by College of Law Professor Lisa Dolak, that worked from 2010 through 2012 to help frame these complex issues and determine how best to provide guidance to our faculty. Several Senate committees reviewed earlier drafts and provided helpful comments and suggestions, which helped to improve this document. Dean of Libraries Suzanne Thorin and Library Director of Communications Pamela McLaughlin helped shepherd the Guide to publication, and Lynn Hoppel from Syracuse University Press designed and typset the document. I thank all of these people and others who provided helpful comments. Any errors that remain are mine alone.

This Guide will remain a living document, so I encourage anyone with questions about this Guide, or recommendations for improving its clarity and utility, to contact me at cipa@syr.edu. Syracuse University personnel who need legal interpretations or advice regarding copyright law should contact Senior Vice President and General Counsel Thomas S. Evans, at (315) 443-9732.

Decision Summary: Publishers v. Georgia State University

Author: K. Matthew Dames

This article discusses the impact of a the recent federal district court decision [pdf] that, for the first time, provides colleges and university with some guidance on the use of copyrighted works for instructional purposes.

Case Summary

In April 2008, Cambridge University Press, Sage Publications and Oxford University Press sued officials at Georgia State University (“GSU”), claiming they were responsible for copyright infringement. The publishers’ complaint arose from Georgia State’s practice of allowing faculty to use university networks and university library E-reserves systems to copy and distribute book excerpts to students without paying licensing fees.

Officials for GSU, a public university, claimed that the creation and use of the unlicensed copies were allowable pursuant to the the fair use doctrine, and therefore not copyright infringement. The officials also responded that the sovereign immunity doctrine precluded GSU or its officials from copyright infringement liability.

Judge Orinda D. Evans ruled May 11, 2012, that GSU professors had committed five copyright infringements from four of the publishers’ titles. The publishers had alleged 75 copyright infringement claims. The publishers will file within 20 days their proposed injunction.

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New Site: The Piracy Paradigm

Author: K. Matthew Dames

From my new project, The Piracy Paradigm:

Any time we discuss rhetoric or metaphors, it is appropriate to explore the ideology, mindset, beliefs and values that support that language. To engage properly and thoroughly, such an exploration requires multidisciplinary historical and cultural research. In studying U.S. copyright law and policy since its inception, I believe the “piracy” meme has little to do with unauthorized “theft” or “taking” of another ’s creative “property.” Instead, “piracy” is the lens through which copyright law’s decision makers view the regime and its boundaries.

I call this lens the piracy paradigm. This project explores that lens.

 

HathiTrust: Authors Guild Claims Libraries Ineligible for Fair Use

Author: K. Matthew Dames

Librarians who pay attention to copyright long have believed (and have been taught) that the the law’s fair use and library preservation provisions work cooperatively (if not simultaneously) to allow libraries and archives the opportunity to use limited portions of protected works without requiring the owner’s permission, and without having to pay a license fee to the owner. In the case of Section 108, the provision allows libraries and archives to reproduce and distribute all of a protected work under specific circumstances in the event the library or archive qualifies for such protection.

The theory behind the librarians’ belief is that the fair use provisions in Section 107 act as a backstop to all the Act’s other limitations, including those under Section 108. I long have considered fair use to be the “all-you-can-eat” limitation – one that is available to libraries (or to any other member of the public) even when they cannot fulfill specific requirements Section 108 demands. (Let’s defer, for a moment, the argument about whether fair use is best classified as a privilege, a limitation, a right, or an affirmative defense.)

As law professor James Grimmelman observes, fair use is a standard that is broadly and vaguely phrased, inherently case-specific, and requires judicial elaboration and interpretation. In contrast, the library preservation allowances under Section 108 are rules that are narrowly and tightly phrased, able for librarians to apply mechanically without judicial intervention. I always have taught, in countless workshops and classes, that Section 107 and Section 108 coexist synergistically, and should be deployed in a very specific way: try to qualify for Section 108 first, and if you cannot qualify for Section 108, then use fair use as your safety net.

Now the Authors Guild is openly disputing librarians’ beliefs and interpretations.

In a recent filing in its lawsuit against HathiTrust, the Authors Guild argues [pdf] that HathiTrust and its partner defendant colleges and universities cannot claim its planned orphan works digitization program qualifies as a fair use because the libraries actions fail to qualify for Section 108. Further, the Guild argues, by failing to qualify for the Section 108 exemption, the libraries automatically disqualify themselves from being able to claim a fair use defense.

The crux of the Authors Guild’s argument begins at page 21 of its memorandum [pdf] in support of its motion for partial summary judgment (“Authors Guild memo”). This argument caught my attention, even though it is a secondary argument in the Guild’s motion. (Most of the memorandum argues, with much more legal justification, that the HathiTrust project does not qualify as an activity that the Section 108 limitation allows.)

If the Authors Guild’s fair use argument prevailed, however, it not only would guarantee that the Authors Guild wins the HathiTrust lawsuit, but it also would disrupt the digitization programs of virtually every library, museum, or university in the United States.

There are several reasons, however, why the Authors Guild’s fair use argument should not prevail. Researching copyright’s legislative history provides many of them.

Arguments based upon legislative history are difficult to make in copyright because, as Jessica Litman has written, copyright laws history historically has been whatever large, multinational content corporations have wanted it to be. Even with that caveat, however, the legislative history of Section 108 is instructive.

Grimmelman points out correctly that Section 108 was not even a part of copyright law until the passage of the current Act. As part of the current Act’s legislative history, legislators considered the interaction between fair use and the proposed library and archives exception. Senate Report No. 94-473 (1975) noted:

The Register of Copyrights has recommended that the committee report describe the relationship between this section and the provisions of section 108 relating to reproduction by libraries and archives. The doctrine of fair use applies to library photocopying, and nothing contained in section 108 “in any way affects the right of fair use.” No provision of section 108 is intended to take away any rights existing under the fair use doctrine. To the contrary, section 108 authorizes certain photocopying practices which may not qualify as a fair use.

The criteria of fair use are necessarily set forth in general terms. In the application of the criteria of fair use to specific photocopying practices of libraries, it is the intent of this legislation to provide an appropriate balancing of the rights of creators, and the needs of users.

Senate Report No. 94-473 at 67.

William Patry has interpreted this to say that if certain library copying fails to qualify under Section 108, then that copying would be evaluated under a fair use analysis. Patry on Copyright § 11.3.

The Authors Guild does not mention Senate Report No. 94-473 in its memorandum. Instead, the Guild cites a January 1983 report Report of the Register of Copyrights, Library Reproduction of Copyrighted Works (“1983 Report”) [pdf] to support its claim that Section 108 and Section 107 are (or should be) mutually exclusive.

The Guild begins its argument by referring to rules of statutory construction, then it reinforces its argument about the mutual exclusivity of fair use and the library exemptions by citing Section 108(f)(4), which says

Nothing in [Section 108] … in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.”

Section 108(f)(4) is what practitioners refer to as a “savings clause.” In legislation, a savings clause is language lawmakers insert into a bill that effectively says “if one part of this law is illegal or is considered to be legally invalid, the rest of the law will remain valid and enforceable.” The Section 108(f)(4) savings clause is supposed to reaffirm fair use principles and the availability of those principles to libraries.

Instead, the Guild argues that the savings clause makes fair use principles unavailable to libraries

[T]o read the savings clause as permitting ‘post-108’ reliance on fair use as if no § 108 copying had occurred is to come dangerously close to reading § 108 out of the statute. Given that Congress deemed Section 108 “necessary to exempt much library photocopying from copyright liability, and since Congress did not likely intend to construct complex mechanisms in most of the section only to render them moot via subsection (f)(4), that result is implausible.

Authors Guild memo at 23. The quote comes from page 98 of the 1983 Report.

There is ample evidence, however, that the Authors Guild is selectively reading the 1983 report.

First, the Guild’s quote in its memo fails to identify the origins of the “fair use and Section 108 are mutually exclusive” theory. That theory never has been codified as law, nor has it been an opinion of the Register of Copyrights. Instead, the theory has been an advocacy position that the Association of American Publishers (AAP) has been advancing for more than three decades. 1983 Report at 96. In other words, it has been AAP’s opinion of how to interpret this provision of copyright law, nothing more.

Second, in the sentence immediately following the quote the Authors Guild has cited to support AAP’s theory that Section 108 and Section 107 are mutually exclusive, Register David Ladd writes

The better position is that library photocopying “beyond” 108 may be fair use if both:

(a) the transaction is of a type which could be fair use in the absence of §108, and

(b) the fair use analysis (conducted only if (a) applies) of this transaction takes into account the “108” copying which has already occurred.

The first part of the test is important. … Part (a) means that, for either type of transaction — beyond 108 — one should first consider whether fair use could ever apply to such a transaction, i.e., whether, if there were no §108, such a transaction could be lawful. In the examples given, one would likely conclude that the replacement of a lost, stolen, damaged, or deteriorating copy could be a fair use, while all ILL copying, a form of systematic copying lawful only via the proviso, could not be a fair use. This means that for copying beyond 108, the examination of a specific transaction (part (b) of the test) would occur with respect to replacement copying, but not with respect to systematic copying, which could never be fair use.

Finally, with respect to the that savings clause that the Authors Guild argues should be stricken, William Patry offers another reading

Although it would be preferable to delete section 108(f)(4) from the statute, as it serves only to give rise to the erroneous interpretation of section 107 as a “spillover” provision after section 108 limits have been reached, its inclusion suggests that section 107 is available, when, as the Register commented, the “transaction is of a type which would be considered fair use in the absence of § 108,” e.g., where the copying is for nonprofit educational purposes but the library collection is not open to the public or the distribution of the work does not include a notice of copyright – circumstances that would disqualify a library from receiving section 108 treatment. Construed this way rather than as covering copying “beyond section 108,” section 108(f)(4), while still unnecessary, is at least consonant with the provisions of both sections. If one could copy up to the limit allowed in section 108 and the CONTU guidelines and then turn to section 107 to permit additional copying (and pretend that the copies made under Section 108 did not take place), multiple copying would never be multiple but rather an infinite succession of single copies while factors three and four in section 107 … would always have to be considered in relation to a single copy and not to the multiple copies, contrary to the facts and the law.

Patry on Copyright § 11.4.

As a result, it seems clear that any theory in which the Copyright Act’s Section 108 limitations and fair use are mutually exclusive is one that has been perpetuated exclusively by lobbyists for large publishers. It also is a theory that never has found doctrinal or legislative support.

A compendium of court filings in Authors Guild vs. HathiTrust, et al. is available online from Justia.

Copyright Workshop: Dissertations & Theses

Author: K. Matthew Dames

Post last updated: February 15, 2012, 17:13 EST

Title: Copyright for Dissertations, Theses & Publication: What Every Grad Student Needs to Know
Lecturer: Dr. K. Matthew Dames, Copyright & Information Policy Adviser, Syracuse University
Date: Friday, February 10, 2012
Time: 12:00 PM to 1:30 PM
Location: Hall of Languages 107
Sponsors: Graduate School, Syracuse University Library

Intended Audience

Post-doctoral scholars, doctoral candidates, doctoral students, master’s students, advisers, doctoral program administrators.

Description

Copyright is the most prevalent form of intellectual property that graduate students encounter during their respective programs. This 90 minute session will identify and explain to graduate students the main copyright issues that affects their their dissertations and theses, from composition to degree certification. The session also will review the University’s new guidelines for dissertation and thesis submission, which the Graduate School instituted in Spring 2011. Lunch will be served.

Resources

University Resources

External Resources

Slide Deck

ARL Issues Fair Use Best Practices Guide

Author: K. Matthew Dames

Last updated: February 8, 2012

Copyright law affects the work of academic and research librarians pervasively and in complex ways, because the great bulk of these librarians’ work deals with accessing, storing, exhibiting, or providing access to copyrighted material. The rights of copyright holders create incentives for the publication of important work that forms the core of library collections, while at the same time constraining academic and research librarians in the exercise of their mission. Similarly, limitations on and exceptions to copyright rights enable academic and research librarians to use copyrighted materials in important ways, but impose limits and responsibilities of their own.

In addition to specific exceptions for libraries and educators, academic and research librarians use the important general exemption of fair use to accomplish their mission. Fair use is the right to use copyrighted material without permission or payment under some circumstances, especially when the cultural or social benefits of the use are predominant. It is a general right that applies even—and especially— in situations where the law provides no specific statutory authorization for the use in question. Consequently, the fair use doctrine is described only generally in the law, and it is not tailored to the mission of any particular community. Ultimately, determining whether any use is likely to be considered “fair” requires a thoughtful evaluation of the facts, the law, and the norms of the relevant community.

Association of Research Libraries (January 2012). Code of Best Practices in Fair Use for Academic and Research Libraries.

Association of Research Libraries. Code of Best Practices in Fair Use: Rollout Webcast (Jan. 26, 2012)