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Copyright Resources: Legal Background

Information...not Advice

The information on this site should NOT be considered legal advice.  The author is a librarian, not a lawyer, and this LibGuide is intended as just that: a guide.  If you are unsure of whether or not something is legal, please talk to an attorney.

Help! I Need Somebody...

If you are concerned about an issue related to course content on Moodle or ERes at Kenyon, please contact one of the reference librarians.  We have resources to help you determine if your use is fair or if we need to get permission.

Read more information and submit a form request here on the Digital Course Reserve Page

License

Why are people hating on Sonny Bono?

There have been many amendments and changes to copyright law over the years, but one of the most well known is the Sonny Bono Copyright Extension Act, passed in 1998 when Mr. Bono was serving in Congress.  This act changed the duration of copyright from 50 years to 70 years in the case of known individual authors, and from 75 to 95 years in the case of corporate authorship.  Hence, the former entertainer is often associated with the seemingly endless modern copyright terms.

The DMCA

The Digital Millenium Copyright Act, or DMCA, is an oft-villified piece of legislation passed in 1998 which represents effort by Congress to overhaul copyright law for the digital age.  From Bonner et al:

"The key statutory elements of the DMCA are rules:

  1. to prohibit circumvention of technological measures designed to control access to digital copyrighted works
  2. to publish and protect copyright management information
  3. to limit the liability of online service providers" (88)

The reason the DMCA often takes heat is the first rule listed above. By making circumvention a crime, the legislation eliminates potential fair uses.  For example, to make a copy of certain items which are protected by digital rights management, like DVDs, may have been a fair use under certain conditions.  However, now if you circumvent those protections you've broken the law already, without taking the purpose into account.

The reason DMCA is so relevant to colleges and universities is rule #3.  The network provided to students, faculty and staff which allows them out into the wider internet is a conduit over which many things may occur: email, social networking, research...and copyright infringement.  This part of the DMCA provides protection from monetary damanges for the college in its role as a service provider, but only if the institution meets all the requirements set forth in the legistlation.

SOPA, PIPA, and RWA, oh my!

SOPA & PIPA

Chances are, if you follow politics or twitter, or pretty much use the Internet at all, you may have heard about SOPA & PIPA, two recent pieces of legislation in the United States which aimed to stop online piracy. I'll do my best to break it down for you, but PC World also published a good "just the facts" summary of the bills.

SOPA, The Stop Online Piracy Act (or H.R.3261 - click the link for the full bill text) was a resolution introduced in the House of Representatives by Lamar Smith (TX). PIPA, The Protect IP Act (or S.968) was the sister bill in the Senate, introduced by Patrick Leahy (VT).

Both bills aimed to combat online piracy by providing methods to cut off funding and access to international sites which engage in piracy, or trafficking counterfeit or stolen goods.  On its surface, that idea doesn't sound so bad, does it?  We can probably all agree that stealing is a crime, and the owners of that property should be protected.  Piracy of content poses a threat to several major U.S. industries.

The problem was the way those protections were written into the bill.  Under the proposed law, copyright holders could submit a claim against a site which was infringing their copyrights, and internet service providers and payment providers would need to cut off access to that site, unless the site owners filed a counter-notice and could prove they weren't infringeing copyright.  Also, sites could be shut down for the actions of their users.  Users familiar with DMCA takedown notice procedures worried that this would amount to censorship: if I don't like what your site says, I can issue a takedown notice alleging infringement and unless you have the financial means to fight me, your site will be blocked.

Opponenets of SOPA also decried Senate Judicial committee hearings, at which no engineers testifed, so the technological implications of what was being proposed could not be discussed.

So, technology companies and Internet users across the country organized and protested and both bills have been shelved as of February 29, 2012.  Alternative legislation has been offered in the form of OPEN, which we will discuss here soon.

RWA

The Research Works Act (or H.R. 3699) essentially aimed to reverse the National Institute of Health (NIH) mandate that taxpayer funded research be availably freely to taxpayers.  While the bill specifically mentions "private-sector research" it goes on to define that as any research not being undertaken by the federal government itself.  So, if the NIH gives money to a researcher at a state university, the NIH would not be able to require that researcher to deposit a copy of the article in an open online database as a condition of funding.  This was supported by publishers, who assert that charging for this material is the only way they can assure quality peer review.

A recent major protest has targeted Elsevier, a publisher, in part for their support of the bill.  Over 7500 researchers and academics have pledged to refrain from supporting any Elsevier journal by publishing or reviewing content.  At the time I am writing this, however, Elsevier has dropped their support for this bill and the bill appears to have collapsed.

Landmark Cases

Golan v. Holder

Arguments for this case were heard by the Supreme Court in late 2011, and the issue at hand is: "Can Congress restore copyright protection to a work whose copyright protection had previously expired and was therefore in the public domain?"  There's a good summary in the first part of this SCOTUSblog entry.  Update: decision was handed down in January 2012, and the court ruled that works which had previously passed into the public domain could be placed back under copyright by Congress.

Cambridge University Press et al v. Patton et al

This is more commonly known as "The Georgia State case", in which publishers are suing the University due to their use of electronic reserve materials without permission.  There are lots of good sources for analysis on this case, which is still pending, but I would start with the EDUCAUSE resource guide.  Another good read is Peter Jaszi's analysis on what we can learn from the outcome of the case, and for analysis from a variety of scholarly communications experts, check out this Chronicle of Higher Education article.

Basic Books, Inc. v. Kinko's Graphics Corporation

You may know it as one of the coursepack cases.  From the case: "[P]laintiffs allege that Kinko's infringed their copyrights when Kinko's copied excerpts from books, whose rights are held by the plaintiffs, without permission and without payment of required fees and sold the copies for a profit."

Winner: Basic Books - the Court ruled that the use by Kinko's was not a fair use and that Basic Books had nothing to forfeit their right to the items in question.

Princeton University Press v. Michigan Document Services

Another coursepack case in which the court (in this case, the 6th Circuit Court of Appeals) found for the publisher.  Kids, don't sell coursepacks without permission from the copyright holders.

Suggestions?

This LibGuide is a work in progress.  Have suggestions?  See something you don't understand?  Please contact LBIS.

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