New Copyright News on the European Front

Read on to learn how unintended consequences for a suit brought against Google hinges on a German law referred to as English as the Ancillary Copyright for Press Publishers:  “German Publishers’ Lawsuit Against Google Threatens to Backfire.”

New twist in the copyright wars

The proverb “he who laughs last, laughs longest” comes to mind here:  http://www.npr.org/sections/thetwo-way/2017/05/17/528680860/can-you-copyright-your-dumb-joke-and-how-can-you-prove-its-yours

Important Copyright Legislation to watch

In light of last week’s passage of House bill H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017 this blog spot offers three articles and a blog post gleaned from Against the Grain that illustrate the problems of politicizing this key Copyright position, traditionally appointed and managed by the Librarian of Congress.

As illustrated in “A Worrisome Harbinger of Changes in Copyright Law” from the Chronicle, in addition to H.R. 1695, there are two more bills on the horizon:

Copyright Office for the Digital Economy Act (H.R.4241) and the Copyright Alternative in Small-Claims Enforcement Act of 2016 (H.R.5757), expected to be re-introduced as part of the copyright-reform movement.

H.R. 4241: “This bill establishes the U.S. Copyright Office as a separate independent agency in the legislative branch, to be headed by a Director appointed by the President with the advice and consent of the Senate. (Currently, the Copyright Office is part of the Library of Congress [LOC] and is headed by the Register of Copyrights.)”

H.R.5757:  “This bill establishes in the U.S. Copyright Office a small claims board to serve as an alternative forum for parties to voluntarily seek to resolve certain copyright claims if the total monetary recovery sought by a party does not exceed $30,000.”

All three legislative initiatives could have wide-ranging implications for academic institutions, starting with making the Register of Copyrights a Presidential political appointee, the move that just passed the House last week.

Notably from “Big Content Cheers as Congress Votes on Changes to US Copyright Office” (an article posted in Ars Technica) opponents to these measures cite this concern among others:

“Special interests will be involved in picking the person who makes decisions over copyright,” said Rep. Jared Polis (D-Colo.) during debate today on the House floor. “Congress is choosing big powerful interests over consumers, over innovation, and over the little guy.”

Further reading on this important development to watch:

“New Bill Would Let Trump Pick the Next Register of Copyrights”

“‘Register of Copyrights’ Bill Easily Passes House”

“Library Copyright Alliance Continues Opposition to Register of Copyrights Bill”

 

 

 

EU Decision on E-book Lending

An important EU Court case advances the doctrine of first sale for e-books in the Europe Union:  https://teleread.org/2016/11/14/bill-rosenblatt-inconclusive-ruling-on-library-e-book-lending-in-europe/

Program Manager and Copyright Advisor for Harvard University, Kyle K. Courtney, responded to this recent decision: “Although strictly an EU decision, this could generate some thoughts for our struggles with e-books here in the U.S. Remember, the case comes from the Netherlands, where public libraries are required to pay royalties for the books they lend out as part of a “public lending” right.  These fees are distributed to writers, artists, and publishers via collecting societies. However, this public lending right in the Netherlands did not apply to e-books. Therefore, libraries could only lend out e-books for which they have purchased a license from the publisher.

That’s where we are in the U.S.: We “rent” our e-books. We don’t own them. And when we don’t own them, we lose a lot of use-based options. These e-books are governed by restrictive licensing (truly, it looks a lot like a lease or limited license) that can prevent some of our core practices such as basic loans, interlibrary loan, preservation copies, or even printing for distribution.

This EU decision is hopeful because it suggests that a “dynamic” or “evolving” interpretation of the EU copyright directive should be applied, and that lending of e-books is certainly the modern equivalent of the lending of printed books. That is a big statement! We need something like that here in the U.S. – a fresh reading of the copyright act, especially the first sale doctrine, which is the law that allows libraries to loan print books, as long as they have purchased the work legally.

But our courts, our copyright office, and others have rejected this notion of a “digital first sale” right.  This rejection makes it clear that first sale rights mainly apply to physical, not digital, disposal of copies.

If we can’t have legislation, and we are stuck with licensing, then maybe we can do what the EU court advocated for in its opinion via license: If libraries are purchasing e-books, they need to advocate for clauses in the contract that best serve their mission, their community, and their collection policies. A contract isn’t formalized until it is signed – take the time to try and negotiate. Introduce interlibrary loan clauses, preservation clauses, reject terms that harm collection development goals, or the mission of the libraries.

Perhaps we can learn from this decision on how to advocate for our own U.S.-based e-book purchasing and lending.”

Stay tuned for Kyle’s full analysis in the next issue of CRIV Sheet.

Congress.gov Webinar

Set your calendars for a webinar which will provide a basic overview of the newly launched Congress.gov, formerly THOMAS.gov, for Thursday, November 10 (2:00 to 3:00 PM EST).  From their announcement:  “While the focus of the session will be searching legislation and the Congressional member information attached to the legislation, the new features of Congress.gov will be highlighted as well.”  Click here to register:  https://www.eventbrite.com/e/congressgov-webinar-tickets-28053155744