Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193)
QUESTION: A prison librarian asks about placing sound recordings on a server so that individual inmates are able to listen to the recordings via the server.
ANSWER: Individual listening to sound recordings is fair use. There are a couple of caveats, however. The recording should be available to one inmate at a time or played in one living area even if multiple inmates are in the room. There should also be no ability for inmates to download the sound recording or share copies electronically.
QUESTION: An academic librarian asks why publishers object to controlled digital lending.
ANSWER: Controlled digital lending (CDL) is based on the idea that it is fair use for libraries to digitize printed books that they have legally acquired and to lend those digital copies under restrictions similar to those physical copies of books such as lending only one copy of the book at a time for a defined loan period. The Internet Archives has been doing this for some time, as have some other libraries even for works that are still under copyright.
Publishers and authors certainly have noticed this movement, and they claim that CDL is systematic infringement that negatively affects the incentives the Copyright Act provides them. Publishers argue that they are now making out-of-print works available digitally under license agreements and CDL interferes with exploitation of the copyright and this new source of income for them. A number of publishers’ group have joined in objecting to CDL including the Authors Guild, the National Writers Union, the Association of American Publishers, the International Publishers Association and the U.K.’s Society of Authors.
Publishers have repeatedly questioned the Internet Archives, and according to the Association of American Publishers, the Internet Archives has inconsistently responded to take down notices under the Digital Millennium Copyright Act. Publishers do not accept that CDL is the functional equivalent to hard copy lending. Section 109(a) of the Copyright Act is the first sale doctrine under which libraries lend physical books in their collections. It provides that once someone has legally acquired a copy of a physical work, he or she may dispose of that copy however he or she chooses. The doctrine does not authorize reproduction of the work, however.
Therefore, the first question is whether digitizing a work without permission of the copyright owner is fair use. Traditionally, the answer is no. The owner determines the format in which a work is made available and users are not permitted to reproduce it or to change that format. It is certainly understandable that librarians would be attracted to the idea that digital copies are no different from physical copies. This idea may not be supported by the Act, however, or an important recent court decision. The Register of Copyrights has repeatedly opined that there is no first sale doctrine for digital works. (See https://www.copyright.gov/reports/studies/dmca/dmca_executive.html). In addition, in a report on orphan works, the Copyright Office concluded, “there is broad agreement that no colorable fair use claim exists [for] providing digital access to copyrighted works in their entirety.”
In Capitol Records v. ReDigi, (910 F.3d 649 (2d Cir. 2018)), the court affirmed the district court’s decision that finding that ReDigi infringed copyright through its service that allowed the resale of iTunes files. The court pretty much closed the door on the concept of a digital first sale doctrine. The case raises concerns about CDL even though ReDigi was a commercial enterprise and the libraries involved in CDL are nonprofit. The underlying theory of CDL is now called into question. ReDigi has announced that it will appeal the Second Circuit ruling to the U.S. Supreme Court, but there is no indication that the Court will even agree to hear the case.
QUESTION: A school librarian asks about the reproduction of unedited and unpublished works found on a webpage.
ANSWER: Unedited really makes no difference regardless of whether the work is published or not. Unpublished works posted on the Internet are published by the simple act of posting. The problem is that under the Copyright Act, only the copyright holder has the right to publish the work or to decide that it will not be published. If the poster of the work does not have permission to post the work, he or she has infringed the copyright. If the owner posts the work on the web, then it is published and copyright attached at the time the work was created and will last for life of the author plus 70 years.
Assume that the work is unpublished. Even unpublished works are eligible for copyright protection. Determining when the work will enter the public domain is more difficult for unpublished works, however. If the work was created before January 1, 1978, but never published, it entered the public domain on 12-31-2002, or life of the author plus 70 years, whichever is greater. For works created before 1978 but which were published between 1978 and the end of 2002, it enters the public domain 70 years after the author’s death or the end of 2047, whichever is greater.
QUESTION: A university librarian notes the recent announcement that the University of California system has canceled its multi-million dollar subscription with Elsevier. While academic libraries have long complained about high prices charged by Elsevier and the bundling of journals, this came as a surprise. What brought this about? What is the likely outcome?
ANSWER: The University of California (UC) system accounts for about 10% of U.S. scholarly output and its annual Elsevier subscription cost is more than $10 million. So, this cancellation is a big deal. Pressure on Elsevier has been increasing, and last year hundreds of German and Swedish institutions refused to sign a deal with Elsevier unless it changed fundamentally the way it charges institutions for the subscriptions to online journals. According to articles in the higher education press, UC pushed to offset the cost of open access publishing against the cost of access to subscription content. Under such a deal, all UC research published in Elsevier journals would be publicly available immediately, in other words, with no time embargo. Elsevier did offer to combine the cost of accessing pay walled content and publishing open access articles but at a high price. UC was unable or unwilling to pay that hefty amount. According to Ivy Anderson of UC, the UC system wanted to integrate its fees and reduce costs while Elsevier wanted to charge publishing fees on top of subscription fees. This made it impossible to reach an agreement and the libraries stepped away from the negotiations.
It is difficult to predict the outcome. The parties could come back to the negotiating table and reach some sort of agreement. Students and faculty in the UC system could simply adjust to using the pre-2019 journals to which UC has perpetual access and paying a per article charge for journal articles going forward. Or, students and faculty could demand reinstatement of the Elsevier subscriptions. Politically, this is not good for Elsevier but the impact on students and faculty could be negative.
Librarians do not want the big publishers to go out of business. In the era of shrinking library budgets and huge annual price increases for digital content there may now be an impasse, not only for UC but also for institutions. The open access movement is, in part, a response to these trends.