Week 4 - Limitations to Copyright: First Sale, classroom and distance education exceptions, library/archive exceptions, and other defenses

Goals: This week you will learn about a few more exceptions to copyright law that may be applicable in educational context.

Background:

The Copyright Act provides rights for owners in the first few sections of the Chapter 1, but the rest of the Chapter is dedicated to exceptions -- including several that are specifically dedicated to protecting rights of libraries and archives, educational institutions, and disabled people.

It is important to note that these exceptions do not substitute for fair use -- they work in tandem with it. For example, Section 108(f) states that "Nothing in this section ... in any way affects the right of fair use as provided by section 107."

Also, these rights, and fair use, can be abrogated by contract and license. (More on that next class.)

Rights to Control Your Copy of a Work:

The First Sale Doctrine, sometimes called "exhaustion" (in other countries, and in patent law in the US), allows the owner of a copy of a work to sell it, give it away, lend it, or do other things with their personal copy. The name comes from the idea that the copyright holder's rights to control particular copies are "exhausted" after the "first sale". Section 109 of the Copyright Act codifies the First Sale Doctrine. This exception is fundamental to the rights of libraries to lend materials, as well as the development of "secondary markets" like used bookstores. Moreover, since software and graphic designs are copyrighted, any device with electronic components and any product with a printed label also can be governed by copyright laws.

Teaching Exceptions:

Section 110 permits performance and display of copyrighted works in the course of teaching. Whole works can be shown in face-to-face classes (17 USC 110(1)). The "TEACH Act" (Technology, Education, and Copyright Harmonization Act of 2002) extended this right for distance education, so long as certain conditions are met (17 USC 110(2)). If these conditions are not or cannot be met, use of the material will have to qualify as a fair use or have the permission of the copyright holder to be lawful.

Protections that Benefit People with Disabilities:

Section 110(8), Section 110(9), and Section 121 each permit special uses that benefit people with disabilities. For example, noncommercial educational radio or TV stations can broadcast performances of plays (published at least ten years before) under 17 USC 110(9), or short stories for the benefit of blind patrons under 17 USC 110(8). Digitizing a book for a print-disabled student, who cannot read printed text or turn pages, so they can use their text reader to read it, is permitted to "authorized entities" that have a "primary mission" to provide specialized services to disabled persons. (17 USC 121, also called the "Chafee Amendment") The exact definition of an "authorized entity" is a subject of some dispute, but one court has recently held that fair use, in combination with the Chafee Act and the Americans with Disabilities Act, is broadly protective of these rights. (Authors Guild v. HathiTrust; see the readings.)

Library & Archive Exceptions:

Section 108 of the copyright law allows libraries and archives to reproduce and distribute works under certain circumstances. For example, Sections 108(b) and (c) permit libraries to make copies for preservation, or to replace lost or damaged copies or obsolete formats. or damaged copies. Libraries may also photocopy journal articles and book chapters -- or even entire books -- for interlibrary loan (ILL) under Section 108(d) and Section 108(e). Section 108(f) guarantees that libraries, archives, and their employees cannot be held liable for copyright infringements committed on unsupervised copying equipment, such as copy machines, scanners, or 3D printers.

Protection from Damages for Schools and Libraries:

Another important provision of the Copyright Act protects libraries, archives, and nonprofit educational institutions from the large statutory damages that can be awarded. 17 USC 504(c)(2) requires that, even if a nonprofit educational institution or library is found to infringe copyright, the statutory damages MUST be "remitted" (not applied) if the entity reasonably believed the use was a fair use. So even if you are wrong, if you truly believed it was fair, and it wasn't unreasonable to do so, you are protected from statutory damages. Effectively, even if the worst happens, you will probably only have to change your policy going forward, or pay the actual damages that the rightsholder can prove (for instance, the cost of a lost sale).

Eleventh Amendment Sovereign Immunity:

These are all specific statutory rights. However, state agencies (like state universities) have another very important right: Sovereign Immunity, guaranteed by the 11th Amendment to the US Constitution. Under the 11th Amendment, the "sovereign" states cannot be sued for money damages in federal court. Since copyright cases can ONLY be brought in federal court, and not in state court, then the Eleventh Amendment applies. As a result, the very large "statutory damages" that could apply, can not be awarded. Instead, state agencies and their employees will only be ordered to refrain from infringement in the future, and/or to change their policies.

Remember, Case 2 Scenario is due April 12!

Reading Assignment:

• First Sale/Section 109

• Classroom performances and the TEACH Act in Section 110(1) and 110(2) -- Just for fun, read through the other exceptions in Section 110 too!
  

• The TEACH Act and Some Frequently Asked Questions by Kenneth Crews for the American Library Association (ALA)

• Re-read Principle 1 of the Code of Best Practices for Fair Use in Academic and Research Libraries, and consider it in relation to the information on the TEACH Act and Section 110

• Authors Guild v. HathiTrust, US District Court, Southern District of New York (SDNY), Oct. 10, 2012. Read first section and "Background" through page 14-23.

• Re-read Principle 5 of the Code of Best Practices for Fair Use in Academic and Research Libraries, and consider it in relation to the specific statutory provisions relating to providing access to persons with disabilities

• 17 USC Section 108 (the "library exceptions")

• 17 USC Section 504(c), the "good faith fair use" remission of statutory damages

Optional Readings and Resources:

• "What You Need To Know About Kirtsaeng v. Wiley", Chronicle of Higher Education
• Video on Supreme Court Case Kirtsaeng v. Wiley & Sons
• Copyright Law and Distance Education: Overview of the TEACH Act, by Kenneth Crews (Columbia University, Copyright Advisory Office)
• Just for fun, read through the other exceptions in Section 110 too!
  

• "Briefing: Accessibility, the Chafee Amendment, and Fair Use", by the Association of Research Libraries (ARL)

• "Eleventh Amendment to the United States Constitution", Wikipedia

• Section 108 Spinner, American Library Association

Discussion Questions:

These are questions provided for your understanding, to be discussed with your group and with the course facilitators in office hours. Answers to these questions do not have to be submitted and will not be part of your grade.

• What might you be able to do under the TEACH Act that you could NOT do under Fair Use? What might you be able to do under Fair Use that you could NOT do under the TEACH Act?

• What does the First Sale doctrine allow?

• Does Section 108 allow libraries to make a copy of an entire book for a teacher or student? If so, under what circumstances? How would things be different under Sections 110(8), 110(9), and 121?