Sunday, June 05, 2011

Copyright Cases Looming over Academia

There are a raft of big copyright cases looming involving higher education and copyright issues.

Cambridge University Press et al. v. Patton et al, (U.S. District Ct. Northern D. Georgia, Atlanta Division)

Cambridge University Press, Oxford University Press and the Copyright Clearance Center are suing Georgia State University over its practice of not charging students any copyright license fees for online reserves, or, as the publishers characterize it, online coursepacks. The university claims the use is within the ambit of fair use. The publishers seek to limit the university to 1,000 words before exceed “fair use” and be required to seek a license to use materials from copyright holders. This case has many academics and librarians very anxious.

Association for Information Media and Equipment and Ambrose Video Publishing Inc. v. The Regents of the University of California et al. (no link available at this time)

The educational video producer sold DVDs of Shakespeare plays to UCLA, which then put them on e-reserve where students could streamed them to view as a reserve study item. The video producer and its trade group argue that this is a violation of copyright and breaches the contract which only gave the right to lend copies to teachers for in-class use or to display the videos in the library. UCLA argues that copyright allows streaming under the fair use principle which allows reproductions for teaching. The TEACH Act also allows limited use of copyrighted materials for online educations. Ambrose sells its own streaming service, which of course, they would like to sell to the university. But universities and libraries fear that a narrow decision would affect many purchasing and e-reserve policies.
(Chronicle of Higher Education, “Two Universities Under the Legal Gun”by Marc Parry and Jennifer Howard, May 29, 2011

Chronicle of Higher Education “What’s at Stake in the Georgia State Copyright Case” May 30, 2011 Experts”
Kevin L. Smith, Dir. of Scholarly Communications, Duke University,
Peter J. Givler, Exec. Dir., Assoc. of American University Presses,
Siva Vaidhyanathan, Prof. of media studies and law, U. of Va.
David E. Shulenburger, Sr. Fellow, Assoc. of Public & Land-Grant Universities, and former chancellor and provost at U. of Kansas,
Kate Douglas Torrey, Dir., U. of N.C. Press
Dorothea Salo, Research-services librarian, U. of Wisconsin at Madison,
Brandon Butler, Dir of public-policy initiatives, Assoc. of Rsch. Libraries

The comments run fairly predictably by the affiliation.
Plus interesting lengthy comments from Mott Greene, Sandy Thatcher, and a Paul MM.

Golan v. Holder (Supreme Court)

The Uruguay Round Agreements Act (URAA) moves some foreign works that had been in the public domain in the United States into copyright, by extending the copyright on the titles retroactively. The policy may be to encourage foreign jurisdictions to grant more copyright protection to U.S. works, but the passage of the URAA was driven by the U.S. signing of the Berne Convention, which in Article 18 requires the US to harmonize its law with that of members of the European Union and other signatories. (text of Convention)

However, the effect for small orchestras, bands and symphonies, for instance, in the U.S., has been devastating. Material from early 20th Century composers such as Shostakovich, Stravinsky and Prokofiev had been available in the public domain, and much used. Suddenly, these are suddenly under copyright again. When a symphony’s annual budget to pay for music may only be $500, this has had a terrible impact.

But the copyrights are not limited to music. They cover books by H.G. Wells and C.S. Lewis, art by M.C. Escher and Picasso and films by Federico Fellini and Alfred Hitchcock as well. There are millions of works qualifying for copyright restoration by the estimate of the U.S. Copyright Office. Combined with the effect of the Sonny Bono Copyright Term Extension Act (CTEA), which extends copyright length to life of the creator plus seventy years, this restoration of copyright to millions of works that had been in the public domain will have a wide-ranging effect on many parts of the academy.

The case was filed originally in 1994 as Luck’s Music Library, Inc. v. Ashcroft in the U.S. District Court for the District of Columbia. The case of Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L. Ed. 683 (2003) was taken up by the Supreme Court after the initial filing and the parties paused for the decision to come out, and then refiled their briefs in response to that opinion.

In 2004, the case was decided as Golan v. Ashcroft, 310 F. Supp. 1215 (D. Colo. 2004), (Golan I), granting and denying in part the government’s motion to dismiss. Both parties then moved for summary judgment, and the court granted the government’s motion, Golan II, 2005 WL 914754 (D. Colo. April 20, 2005).

The case was then appealed to the Court of Appeals for the 10th Circuit as Golan v. Gonzales. The court ruled in favor of the appellants. The government petitioned for a rehearing
Response from appellants.

The Circuit Court ruling holds that the URAA violates the First Amendment rights of the appellants. Golan v. Gonzales is the first case to find any of the copyright statutes unconstitutional, so it’s very important. But then on rehearing, as Golan v. Holder, the 10th Circuit reversed its earlier holding and found that the URAA did not violate First Amendment rights.

Now the case is before the Supreme Court on cert. (see The Center for Internet and Society at Stanford Law School’s website on this case, which takes it up to the cert. stage). See also

The Chronicle of Higher Education, “Supreme Court Takes Up Scholars’ Rights,” by Marc Parry, May 29, 2011.
Mostly color. Lawrence Golan conducts student orchestras and is a professor of music at the University of Denver. Prof. Golan explains the impact of the changes the URAA made on small orchestras. There is a very short section looking at a PhD candidate whose dissertation topic involved original documents from early 20th Century archives that suddenly became questionably available for use in large part for her dissertation near the very end. She had to suddenly broaden her topic.

Modestly helpful for links: Wikipedia article. See Berkman, though most of its links are dead, it has good links for statutory. Good link at U.S. Copyright Office on Definition of “reliance party” (those like the orchestras who may have purchased an item that suddenly is back in copyright). There is special protection in the URAA for such parties, though the reliance parties may not feel it is adequate. See and SCOTUSblog

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