(Bruce Strauch read the presentation of Bill Hannay, Schiff Hardin, LLC, who could not attend. Bill’s presentation was on some recent notable court cases affecting libraries.)
In the Apple lawsuit, the government charged Apple with conspiring with publishers to raise e-book prices. The publishers settled for $155 million.
Google was sued by publishers and claimed fair use, relying on the decision in the Hathi Trust case, in which digitization was found to be for a different purpose (search) and hence was permitted. It is hard to accept that searching is not a legally transformative use.
Georgia Harper continued the discussion of fair use and transformative uses. She explained that there have been several cases that help clarify what transformative uses are: the use of works to produce new ones. Transformative uses include research uses, uses to promote ongoing authorships, quotes to explain, uses to enable access by the blind, satires, or parodies. Orthogonal uses are wholly unrelated to the use envisaged by the original author, such as digitizing works to index them or enabling text mining of them.
There are limitations on transformative uses. Only the amount of the work needed to achieve the purpose can be used, and the benefit to the public must exceed the harm to the copyright owner’s interests.
Fair use is good for scholars, publishers, instructors, artists, and the public. It would be good to loosen our grip a little; an overzealous monopolist can stifle the creativity that fair use permits. The copyright law is purposely porous.
In her presentation, Madelyn Wessel moved away from describing cases and discussed “MOOCs and Not MOOCs”. Here are some of the legal issues relating to MOOCs:
Online course materials are heterogeneous, and different copyright constraints may apply to different materials. The instructor must be responsible to adhere to the rights of the publisher. Faculty typically do not think about copyright issues. “Regular” copyright exceptions are mostly not applicable to MOOCs; thus, fair use is extremely important. Here are some of the questions that arise:
Institutional policies distinguish between types of faculty output; faculty own the rights to scholarly articles and books, but MOOC course materials may be a compilation of works by multiple contributors. They are typically the product of significant university resource investment, so universities often claim ownership. (The average MOOC has been estimated to cost a university over $100,000 to produce.) Institutions receiving federal funds must comply with ADA laws to ensure accessibility to content.
Data use and privacy issues: Coursera disclaims any relationship with students and universities and hence claims that it is not subject to privacy laws. They say they are providing content, not enrolling students at an institution. But flipping courses at home can quickly bring privacy laws back into the picture. The provider’s online end user license (EULA) matters to librarians. When we employ products in the cloud, we should care about the terms of the license.
Platform providers are entering into deals for their course participants. If image or other rights are tied to a specific deal, courses may be locked into a specific platform forever! Cloud providers are seeing new opportunities and are reserving the right to change their policies at any time without notice.
It will not be good enough to win copyright battles in the courts if we lose the copyright and privacy wars in our contract. We need to be alert to these issues and not lay our skepticism aside.
Don Hawkins blogs about conferences for Information Today and Against The Grain. He also maintains the Conference Calendar on the Information Today website and is the Editor of Personal Archiving: Preserving Our Digital Heritage, published by Information Today in 2013, and Co-Editor of Public Knowledge: Access and Benefits, published by Information Today in 2016. He received his Ph.D. degree from the University of California, Berkeley, and has worked in the information industry for over 45 years.