v31 #3 Questions & Answers — Copyright Column

by | Jun 28, 2019 | 0 comments


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 university librarian asks about the impact of the new 2019 European Union Directive on Copyright in the Single Digital Market.

ANSWER:  The intent of the Directive is to make sure that creators, news publishers and journalists benefit from the online use of their works just as they do in the physical world.  A key goal is to protect press publications and reduce the “value gap” between the profits made by Internet platforms and by content creators. The Directive does not create new rights but intends to see that rights are better enforced.  For the general user of copyrighted works, use may be more expensive since the large Internet platforms and news aggregators such as YouTube and GoogleNews must pay creators, publishers and journalists for even short clips of copyrighted content.  Some scholars believe that the Directive will encourage fair licensing agreements between creators, etc., and these large platforms.

Measures will require that sites that violate copyright are legally responsible for those violations by assuming that the content is guilty unless proven innocent.  There are specific exemptions for parody, text and data mining, and for Wikipedia. Large sites with uploaded content will need to automate copyright compliance systems.  While the Directive does not require automated filters, it is likely the only large sites can evade liability. There is still concern that the automated filters will also filter out legal content or that content may be blocked in excessive caution.  The next step is for each of the 28 EU countries to decide within two years how it will implement the Directive. This means there will be as many as 28 enforcement regimes.

QUESTION:  A school librarian asks if under Creative Commons (CC) she can use images and videos found on the web.

ANSWER:  The first step is to make sure that the item found on the web is covered by a CC license.  There are two ways to determine whether the work is covered:  (1) if the work contains the CC symbol and (2) by accessing the site https://ccsearch.creativecommons.org/ to search the database of over 1.1 billion works including three million images.  The second step is to determine the type of CC license under which the work is made available.  Generally, a CC license allows copyrighted material to be shared and reused under flexible and sound terms. 

According to the Creative Commons website, “All of our licenses require that users provide attribution (BY) to the creator when the material is used and shared.  Some licensors choose the BY license, which requires attribution to the creator as the only condition to reuse of the material. The other five licenses combine BY with one or more of three additional license elements: NonCommercial (NC), which prohibits commercial use of the material;  NoDerivatives (ND), which prohibits the sharing of adaptations of the material; and ShareAlike (SA), which requires adaptations of the material be released under the same license.”

CC licenses are non-exclusive and irrevocable unless there has been a breach by the licensee.  Creators and owners may enter into different licensing arrangements for the same material, however.  

QUESTION:  A public librarian noted that the Authors Guild recently called for a public lending right in the United States.  What does this mean?

ANSWER:  The public lending right (PLR) has existed in many European countries, since the 1940s.  In the 33 PLR countries, the government remunerates authors for their works lent by public libraries.  The European Union added PLR in 1992 that was reconstituted in 2006 by the Rental and Lending Right Directive.  Authors may authorize or prohibit the lending of their works by libraries. Member states may derogate that exclusive right if they remunerate authors for use of their works.  PLR schemes in the various countries must include public library lending, but they may exclude lending of works from other types of libraries. Further, a country may give priority to their national cultural objectives in their PLR schemes, such as favoring works written in the country’s native language.

In 2016, European Court of Justice ruled that the Lending Right Directive covers the loan of eBooks based on lending one copy of the eBook per user.  The eBook cannot be loaned to another user until the first user returns it. The United Kingdom and Canada have already royalties for eBooks and Denmark introduced it last year.

The Authors Guild call for a PLR in the United States will meet stiff opposition since taxpayers would ultimately pay the fees to authors.  PLR has been especially important in countries where production of literature in the language of the country must be encouraged — hardly a problem for English language works.  Moreover, the authors who would most benefit from a PLR in this country are authors of scholarly works, poets, etc. The result in all countries with a PLR has been that best-selling authors are the primary beneficiaries of the fees, and they are the authors who least need this remuneration.  In my opinion, we are unlikely to see a PLR in the United States.

QUESTION:  A children’s librarian asks whether a government agency (such as a public library) must get permission to read stories by telephone to children who phone into the library.

ANSWER:  The Copyright Act actually permits the noncommercial public performance of nondramatic literary work.  A public performance is defined as a performance in a place open to the public or even performance of the same work to individuals one at a time.  Section 110(4) of the Act provides an exception to the exclusive rights of the copyright holder to permit nonprofit performances of nondramatic literary works as long as there is no admission fee or payment to performers;  or if there is a fee, proceeds are used for educational, religious or charitable purposes. While this exception excludes the transmission or works, telephone transmission to individual callers is unlikely to be a problem for copyright holders.

QUESTION:  A college librarian asks about the recent controversy involving photographs of slaves owned by Harvard University.

ANSWER:  A suit filed in a Massachusetts state court in March 2019 claims that Harvard has “shamelessly” profited from the reproduction of a series of 1850 daguerreotypes of two South Carolina slaves, identified as Renty and his daughter, Delia.  The plaintiff claims that these are her ancestors and that she has verified her genealogical ties to Renty, her great-great-great-grandfather.

The photographs were commissioned by a Harvard biologist, Louis Agassiz, and are among the earliest known pictures taken of slaves.  Agassiz’s theories on racial difference were used to support slavery in the United States.  The suit raises the issue of who owns the rights in a photograph: the photographer, the subject of the photograph or the owner of the photograph.  The case argues that Agassiz never legally owned the photos because he did not have his subjects’ consent and that he did not have the right to pass them to Harvard.  Instead, the plaintiff claims that she is the rightful owner as Renty’s next of kin.

The plaintiff claims that the university has wrongfully used the images by charging high fees for their use and by “capitalizing on the intentional damage done to black Americans’ genealogy by a century’s worth of policies that forcibly separated families, erased slaves’ family names, withheld birth and death, and criminalized literacy.”  The suit also argues that Harvard’s continued possession of the images violates the 13th Amendment, which abolished slavery.  The suit demands that the university turn over the photos at once, acknowledge her ancestry and pay an unspecified sum in damages.  



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