DIGITAL RIGHTS ISSUES

FOR LIBRARIES

PRESENTED BY LILA BAILEY, DIGITAL COPYRIGHT LAWYER

OAKLAND, CA

DECEMBER 16, 2014

QUICK NOTES

• Not legal advice!

• I’m skipping the basics. Ask

questions!

OVERVIEW

Part I: Digital Copyright Issues

Part II: Patron Privacy Issues

Part III: Contracts & Licensing Issues

PART I

DIGITAL COPYRIGHT ISSUES

EBOOK READING ON

THE RISE

Total (any format) Read a print book Read an eBook

EXCEPTIONS TO ©

Sections 107-121 of the Copyright Act set forth a variety of

exceptions to copyright.

Most relevant to libraries:

• 107 = fair use

• 108 = library reproductions

• 109 = first sale

SECTION 108:

LIBRARY EXCEPTION

Allows libraries and archives to reproduce and distribute works under certain circumstances.

For example:

• Preservation of unpublished works

• Replacement of lost or damaged copies

• Replacement of obsolete formats

• Photocopies for Users & Inter-Library Loans

Also guarantees that libraries can’t be held responsible for copyright infringements committed on unsupervised copying equipment, such as photocopiers, scanners, and 3D printers.

Copyright interest is “exhausted”

after the first lawful sale or transfer

of a physical copy of the

copyrighted work.

Provides a limitation on the

distribution right only.

Allows libraries to lend books, and

also enables secondary markets like

used book stores.

SECTION 109:

FIRST SALE

[Photo by Karen Cox, CC BY-ND.]

DIGITAL FIRST SALE?

• Unfortunately, the law has not caught up with

technology yet.

• So far, the first sale only applies to physical

copies of books, CDs, movies, etc.

• There is no official “digital first sale doctrine” in

the U.S.

• Libraries need to be involved in reforming the

law to ensure ongoing public access to

information and creativity, regardless of the

format!

SECTION 107:

FAIR USE

“The fair use of a copyrighted work,

including such use by reproduction in

copies … for purposes such as

criticism, comment, news reporting,

teaching (including multiple copies for

classroom use), scholarship, or

research, is not an infringement of

copyright.”

IMPORTANCE OF FAIR

USE

• Fair use is an important First Amendment

safeguard

• Balances the need to both protect

copyrighted works and allow others to build

on them.

• Prevents copyright from stifling the very

creativity it was designed to encourage.

FOUR FACTORS

17 U.S.C. § 107

• Purpose and character of the use

• Nature of the original work

• Amount and substantiality of the portion

used

• Effect of the use on the potential market

for or value of the original

TODAY, TRANSFORMATION

IS THE KEY

• Add something new with further

purpose or character?

• New expression, meaning or message?

• Or does it supersede or supplant the

objects of the original creation?

CASE LAW

FAIR USE

BEST PRACTICES IN FAIR USE

Discussion/Questions

PART II

PATRON PRIVACY ISSUES

LIBRARIES & PRIVACY

“Protecting user privacy and confidentiality is

necessary for intellectual freedom and

fundamental to the ethics and practice of

librarianship.” – ALA Policy Manual

Resolution on Retention of Library Records

• Limits the creation, retention and disclosure of

library patron records

• Encourages security of necessary records

CA READER PRIVACY

LAW

• All library circulation records are CONFIDENTIAL and

shall not be disclosed, except as permitted by this law.

• Personal information is “any information that relates to or

is capable of being associated with a particular user’s

access to or use of a book”

• “Book services” may only disclose personal information

to law enforcement/gov entities under very specific and

limited circumstances.

• They may only disclose personal information to a private

party only if the user has given “informed, affirmative

consent to the specific disclosure for a particular

purpose.”

THIRD PARTY

VENDORS & PRIVACY

• ISPs who provide Internet service

• Publishers of databases of journal articles

• E-Book platforms

• Children’s educations games

• Streaming music and video vendors

3M EXAMPLE

LESSONS FROM THE

ADOBE “SCANDAL”

• Not only do vendors collect sensitive reader information,

but they don’t secure it

• Important to understand that “aggregated data” can be

linked to personally identifiable information – once the

info is out there, attackers can easily put it together with

other public info and trace it to a specific person

• The public outcry over the Adobe breach shows that the

public DOES care about its privacy!

• Trust in libraries as champions of privacy could be eroded

by these third party vendors

BEST PRACTICES?

Um, about that…

SOME PRIVACY-

FRIENDLY RESOURCES

Two ILSs:

Biblionix – super strict about data sent in transit

Evergreen – open source, less good about security

Library Thing for Libraries – enables “enhancements” for

OPAC/Online Public Access Catalog

• Enhancements are a layer that sits on top of the regular

OPAC and adds things like reviews, ratings,

personalization options, etc. so you don’t need to use an

outside vendor for this functionality

PART III

CONTRACTS & LICENSING

ONLINE VS. OFFLINE

LICENSE

• Contract terms apply (can override first sale and fair use!)

• Lasts as long as the deal

• Different deals for different vendors/publishers

• May not be able to move content to another platform

• Access to particular books can be revoked at any time

OWNERSHIP

• First sale doctrine

applies

• Lasts forever

• Easy to move from

one place to another,

or to sell/dispose of

books when done

• Public can’t donate

eBooks

• No DRM!

DEALING WITH

DIGITAL CONTENT

These rules apply to music, movies and other digital content as well as books.

When considering whether to “buy” access to digital content, consider:

• You may need different vendors for access to different publishers’ content

• Costs may go up year over year

• It’s hard to switch between different technical platforms and devices – incompatibility issues abound

• You may not be allowed to take content with you when you switch vendors

• There are “copyright safe” options available, such as the Open Library and the Internet Archive

CONTRACTS:

READ THEM CAREFULLY!

• Contract terms almost always trump copyright law, so you

need to know what you’re getting into.

• Highlight concerning terms, and bring them to legal

counsel when you can.

• You do have some power to negotiate!

• Look out for language that limits fair use rights

• Limit cost increases year over year

• Remember user privacy! Reader Privacy Act of 2011.

• Understand what content you will have access to, with a

notice & remuneration process if content is removed or

changed

A FEW TIPS FOR

READING CONTRACTS

1. Mentally prepare. What do you want to be in the

agreement? What are your “must haves?” Important

especially when reading a “take it or leave it” contract

2. There are very few “magic words” in contracts. Many are

frankly just badly written. Read them like an editor.

3. Any stranger SHOULD be able to understand what the

agreement says. If not, it’s vague and that’s not good.

4. Terms should be defined. If you don’t know what a word or

phrase means, ASK.

5. Never sign a contract you don’t understand!

EXAMPLE FROM 3M TERMS AND

CONDITIONS

STATEMENT OF COMMON

UNDERSTANDING

• Libraries have developed a “Statement of Common Understanding for Library Use of Electronic Content.”

• Intent is to secure outright ownership of ebooks, keeping intact the same rights that public libraries have always had with print works.

• URL: http://jaslarue.blogspot.com/2012/01/statement-of-common-understanding-for.html

• Features:

• Outright purchase of ebooks (at the usual discount)

• Preserves first sale rights

• Preserves fair use rights

• Spells put library’s obligations to safeguard materials (one user, one loan)

SHARED ELECTRONIC

RESOURCE UNDERSTANDING

• Developed by NISO (National Information Standards

Organization)

• Has standardized terms for access, use, privacy and more

• http://www.niso.org/publications/rp/RP-7-2012_SERU.pdf

Discussion/Questions

CONTACT INFO

Lila Bailey

Partner, The Law Office of Lila Bailey

lila@lilabailey.com

@LilaBaileyLaw

www.lilabailey.com