v32#1 Questions & Answers — Copyright Column

by | Apr 1, 2020 | 0 comments

Column Editor:  Will Cross  (Director, Copyright & Digital Scholarship Center, NC State University Libraries)  ORCID: 0000-0003-1287-1156

Column Editor’s Note:  I wanted to write briefly to introduce myself and recognize what a shining light Lolly has been for me and for everyone who reads this column.  Lolly was an incredible mentor and friend to me in law school and has continued to be an inspiration as I have worked at NC State and with groups from ARL to SPARC to make copyright issues clear and to express how the system is designed to support creativity, scholarship, and teaching.  I’m so excited to continue following Lolly’s example by untangling knots and highlighting significant developments in copyright in this column.  I hope you’ll feel free to share your own questions at the email address listed here and say hi next time you see me at a conference or workshop. — WC

QUESTION:  A librarian asks about using commercial services like Office Depot or Fedex Office to make copies of NC-licensed works for use in education.

ANSWER:  Applying Creative Commons (CC) licenses has become the standard method for making scholarship, teaching, and cultural materials more open and impactful.  These licenses serve as the backbone for much of the open access and open education movements but some users have felt uncertain about how to interpret aspects of the licenses.  The question about how and by whom NonCommercial (NC) licenses can be used is one of the big ones.

CC licenses are designed to allow creators to communicate which rights they reserve and which rights they waive for the benefit of recipients or other creators.  They do this by offering a variety of flavors of license that address things like attribution, remixing, and downstream use. The licenses at issue here are those that include the NonCommercial (NC) provision, which restricts the use of NC-licensed materials unless they are “not primarily intended for or directed towards commercial advantage or monetary compensation.”  You can read more about the NC-license itself, including the full text here: https://creativecommons.org/licenses/by-nc/4.0/.

If NC-licensed materials can only be used for activities that are “not primarily intended for or directed towards commercial advantage or monetary compensation” then a public school teacher or university instructor would be free to copy, display, or otherwise use materials with that license in their NonCommercial classroom teaching.  But what if they don’t make copies of the materials themselves, but instead rely on commercial services to make those copies, as is standard practice in many school systems? Does using a commercial provider make the copying commercial and thus forbidden under the NC-license? This type of question has discouraged some users from relying on NC-licensed materials.  Fortunately, two recent cases have helped clarify this issue.

In Great Minds v. FedEx Office & Print Services, Inc., No. 17-808 (2d Cir. 2018), the court considered a case where a school districts asked the for-profit FedEx Office to reproduce materials that included a curriculum called “Eureka Math” developed by a nonprofit called Great Minds and licensed under CC BY-NC-SA 4.0.  In a similar case, the Ninth Circuit considered a school system’s reliance on Office Depot to make copies of NC-licensed materials.  In both cases, CC itself took a public position that the licenses did not preclude this practice.  CC issued public statements and filed an amicus (“friend of the court”) brief arguing that so long as commercial actors are not acting independently for their own commercial gain but solely on behalf of NonCommercial actors, they are protected by the license granted to the NonCommercial actors.

In 2018, the Second Circuit held that the NC-license “unambiguously” permitted the school district to rely on FedEx Office to make copies.  In January of this year, the U.S. Court of Appeals for the Ninth Circuit reaffirmed that interpretation and CC’s argument, “which allow bona fide NonCommercial reusers to hire out the making of copies of NC-licensed content, even to profit-making businesses such as Office Depot and FedEx Office.”

Between clear statements from Creative Commons and these two recent decisions, educators can feel much more confident in using NC-licensed materials in their teaching, even when they rely on commercial third parties to make copies of those materials for their classroom.  These decisions substantially strengthen the open scholarly and pedagogical practices that rely on CC licenses and should go a long way towards allaying concerns about using or relying on NC-licensed materials.

QUESTION:  An instructional librarian asks about the ability of libraries, instructors, and publishers to provide captioning or otherwise make accessible materials still under copyright.

ANSWER:  Providing captions is central to the mission of providing accessible materials, but questions about copyright have made many uncertain about their ability to remediate inaccessible texts.  As a 2019 white paper from ARL and the University of Virginia Library observed, many institutions planning for accessibility “have been uncertain about what is permitted, and have constrained their activities in support of civil rights out of fear of violating copyrights.”  https://www.arl.org/resources/the-law-and-accessible-texts-reconciling-civil-rights-and-copyrights/

In fact, copyright law clearly supports accessibility efforts including captioning.  The signal case in this area is Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).  In Hathi, the Second Circuit reviewed a scanning project by the HathiTrust Digital Library (HDL) that makes its collection available to students with print disabilities by offering them secure system access for screen readers.  Hathi was sued by the Authors Guild for copyright infringement but the district court found in favor of Hathi’s program, noting that the court “cannot imagine a definition of fair use that would not encompass the transformative use made by [HDL].”  On appeal, the circuit court did not find the use to be transformative but still concluded, “fair use allows the libraries to provide full digital access to copyrighted works to their print-disabled patrons.”

Other areas of law also support accessibility work such as captioning including Section 121 (often called the Chafee Amendment).  In 2019, the U.S. also ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which facilitates the creation of accessible versions of books and other copyrighted works and makes it easier for accessible copies to be created and shared across international borders.

In light of this broad support for accessibility under the law, cultural institutions have been stepping up efforts to make their materials more accessible, including Harvard, which reached a settlement with the National Association of the Deaf (N.A.D.) in late 2019.  Under a consent decree, Harvard agreed to institute a series of new guidelines to make the university’s website and online resources accessible for those who are deaf or hard of hearing as part of a larger new digital accessibility policy.  Captioning is clearly in line with the mission of cultural institutions, copyright clearly supports that work, and the rising tide of work to make materials more accessible is great to see. 

QUESTION:  An archivist asks who owns copyright in the maps in our collections?

ANSWER:  Maps are one of the more interesting areas of copyright, with a history that goes back to the first United States Copyright Act, titled “An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned.”  As this (illuminating but somewhat unwieldy) title suggests, maps have been explicitly included among the works that copyright protects from the beginning of U.S. copyright law.

Despite this long history, maps present an interesting copyright challenge since so much of what is presented in a map is factual information that is not protected under copyright law.  A core principle of the law is that copyright does not cover facts and systems. Given that many maps are basically pictorial representations of geographic and demographic facts organized to allow the user to readily understand and easily extract that factual information, where might copyright apply?

More than a century ago, the Supreme Court addressed this question in Perris v. Hexamer 99 U.S. 674 (1879), where the Court held that a copyright in New York maps did not extend to a “system of coloring and signs” for identifying real property characteristics or to a “key” which explained symbolic meanings of coloring and signs.  In the leading modern case in this area, Feist Publications, Inc., v. Rural Telephone Service Co. 499 U.S. 340 (1991), the Supreme Court reaffirmed that facts are not protected but that creative selection or arrangement of facts can be protected with a “thin” copyright, as can design elements that are sufficiently creative.

So, the basic rule today is that the facts represented on a map and the systems of presenting information are not protected, but the creative elements and creative selection and arrangement may be.  Several recent cases raised these questions in some unusual circumstances. First, early this year the New York City Metropolitan Transportation Authority (MTA) filed a takedown request under the Digital Millennium Copyright Act against a seller on Etsy who created their own version of a New York subway map.  In a second map-related case, Victor Baker v. Penguin Random House, L.L.C., W.D. Tex., No. 20-004, mapmaker Victor Baker accused Netflix, along with Amazon and producer Penguin Random House, of using an antique-style map he created in the background of several scenes of the film Lay the Favorite without permission.

Despite this seeming uptick in map-related legal claims, most libraries probably don’t need to be very worried.  Both of these examples involved commercial actors and appear to be legal threats that may be quietly settled or dropped.  For maps in our own collections the same rules we have always relied on remain in force and the terms of a donor agreement may have as much to say about both who owns the physical artifact and who (if anyone) controls copyright in maps held at a particular institution.

QUESTION:  What new works are entering the public domain this year?

ANSWER:  As a reminder, this is the second year we have celebrated a new annual class of works entering the public domain since the Copyright Term Extension Act (CTEA) of 1998 extended copyright terms for 20 years.  With the exception of some unpublished works, most works that were scheduled to enter the public domain over the past two decades did not.  In 2018, we welcomed the first new class that included works such as Cecil B. DeMille’s The Ten Commandments as well as providing more certainty about works such as Robert Frost’s famous poem “Stopping by Woods on a Snowy Evening” whose copyright status had been uncertain.

On January 1, 2020, we again celebrated Public Domain Day and welcomed thousands of new works into the fold including Buster Keaton’s Sherlock, Jr. and The Navigator, A.A. Milne’s When We Were Very Young, and Rhapsody in Blue by George Gershwin.  A more complete list of notable works entering the public domain is available from Duke’s Center for the Study of the Public Domain at https://web.law.duke.edu/cspd/publicdomainday/2020/ as well as from The Public Domain Review’s Class of 2020 website at https://publicdomainreview.org/blog/2020/01/public-domain-in-2020.

It is exciting to welcome so many works into the public domain, but Public Domain Day is also a nice opportunity to reflect on the changing duration of copyright.  The Center for the Study of the Public Domain site notes that under the laws that were in effect until 1978, thousands of works from 1963 would also be entering the public domain.  Indeed, under the original 1790 Act a renewable term of fourteen years could have placed materials from the 1990’s and 2000’s in the public domain as well.

Of course, calculating the public domain status of a particular work can be particularly complicated.  Many works created or published after 1925 are in the public domain due to failure to comply with the formalities that were once required for copyright.  Some unpublished works created before 1925 may also still be protected. While many global copyright rules have been harmonized by the Berne Convention for the Protection of Literary and Artistic Works, many nuances and technical issues remain and those can be substantial barriers for assessing the status of a work.  While there are many excellent resources for understanding the public domain and calculating the rights status of particular works, it seems appropriate to close this column with a recognition of Lolly’s own “When Works Pass Into the Public Domain” chart that guided practice in this area for so long and is recognized in innumerable current resources such as:  https://copyright.cornell.edu/publicdomain.  

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