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Pre Conference Seminar: 1:00pm to 4:00pm

“The Public Domain and Fair Use” Lolly Gasaway

Lolly Gasaway discussed the purpose of copyright laws, namely to promote learning to the public, and encourage authors to create new works. The US Constitution gives Congress “the power to promote the progress of science and useful arts, (aka anything worth learning), by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The constitution was adopted in 1787 and just three years later, in 1790, the first copyright law was adopted. THAT’s how important it is.
Copyright can be affixed to any work that is creative and original, not facts or ideas. Before the copyright act of 1976, copyright needed to be applied and paid for. Copyright became automatic in 1976. The length of copyright continues to expand from 14 years, with one 14 year renewal in 1790, (and 85% of copyrighted works were not even renewed for copyright), to the present standard with the1998 amendment which allows for life of the author plus 70 years. She presented us a nifty schedule of when things pass into Public Domain at . The rights of the copyright holder include the right to limit reproduction and distribution, adaptation, performance, display. Once it passes into the Public Domain, it becomes available for any of these uses, without needing to seek permission from copyright holder.
Works become public domain: 1.) when the copyright has expired, 2) if published before copyright law was enacted. 3) for materials where the author never claimed copyright (pre 1976), 4) never entitled to copyright protection because they are not “original or creative”, 5) things created by the federal government, (but surprisingly, many states DO copyright and control distribution of their works.) 6) earlier statutes put all works by foreign nationals into the Public Domain, (ie, Charles Dickens works were never covered by copyright here in the US since they were published in Britain.) When a new preface is written on a work that has passed into the Public Domain, (ie a new edition of Jane Eyre is published) then only the preface is covered by the copyright. The work is still in the Public Domain.
To determine if a work is in the Public Domain, start with the chart of copyright dates. If it pre dates those cut offs, it is in the Public Domain. Then use Copyright Office online records, and then contact the publisher/author. Services, ie Thomson, also exist, and, while expensive, can get the answer much faster than the copyright office. Restoration of copyright once something has progressed into the Public Domain is also possible, but it isn’t automatic. Restoration requires an action on the part of the copyright holder. If a work was adapted from a work that was in the Public Domain and then was pulled back into a Copyrighted status, (ie a movie was made of a CS Lewis book while it was in the Public Domain, but now the book has copyright protection again) the adapter must pay reasonable royalties to the copyright holder for future sales, but not past sales.
Orphan works (works which no one can discern who owns the copyright even after a significant search), legislation is in congress now, and may pass. It will allow for users of orphan works to use the work as they intend, but will have to pay reasonable royalties should any copyright holder come forth in the future. Photographers and textile designers object to this legislation, but it seems to be enjoying enough support in Congress to pass before Summer, 08.
Fair use is described as the safety valve of copyright. Determining if a work is useable for your purposes under the terms of “fair use” an evaluation must be done to see if the use predominately meets the criteria of the four “fair use factors”: Purpose and character of the use, (ie is it for education or profit); Nature of the copyrighted work, (book, article, digital media); amount and substantiality used, (ie a chapter of a book, a line of a poem); and the Market effect, (ie will the author suffer a loss of profit.) Determining “fair use” has problems because it is so often claimed, and so few court decisions have been made to evaluate. Guidelines have been established to assist with determining fair use, but they are not case law and it’s still all hard to establish. Libraries who are utilizing “fair use” to make an argument to use copyrighted materials should strive to find an exception in ss 108 of the copyright law instead.
The future? Congress listens to money and the copyright industries of publishers and authors have it…not the libraries. So expect that Copyright terms to continue to lengthen.

Notes from the Keynote: 7:00pm
James Boyle, Duke University School of Law
Copyright 2.0? Re-emagining Copyright in a World of User-Generated Content

James Boyle was a very interesting speaker and he had the audience engaged and involved and laughing at the painful truths of exactly how un-helpful current copyright law is and how inadequate it is to control use and distribution in a digital age. These are pieces of his keynote. He was too quick and my fingers are too slow to do him justice.

As technologies of reproduction and production have advanced, so has the number of infringements of copyright. In the 1940s, copyright infringement was virtually impossible, or at least difficult, because even copy machines weren’t invented yet or widely available. Since the 1970s and 1980s and into today, producers of unique content have had many more opportunities to have their copyright rights infringed upon. Jessica Litman noted that copyright law is always written by those that are most affected: publishers, movie makers, song writers.
What’s wrong with copyright law? People believe that the limitations of copyright are unjust. And copyright holders frequently don’t pursue violators because an individual violator is too insignificant. Content is unprotected. Quite profound social and cultural goods are involved, and they have no real protection.
When copyright law was first written, copyright holders had exclusive use over their works for a very short period. Fourteen to 28 years. Now ALL works are protected for a much longer time, on average 95 years. All works are automatically protected even if they are not commercially viable. Two percent of copyrighted works are actually commercially successful. Ninety eight percent are held hostage, even the 50% of works that are orphaned during that time.
Copyright law undermines its own goals. It always says no, and harms its own legitimacy. Like an adolescent kid testing his parents, the public reacts to his by saying, “if you are always saying “no” then it must be worth it to me to not listen to you.” Morality is a better enforcer than the police. We don’t have the tools to be everywhere and control every infringement.
Two conflicting paths are before us. One allows for increases in new technology to be met with increases in monitoring and enforcement. This supports those that feel that their copyright rights are just as protectable today as they were in the 1940s. The other thought is to adjust copyright to allow non-commercially viable materials to pass immediately into the Public Domain. If the copyright holder isn’t making money on it, then why can’t the rest of us copy, distribute and use the material now. Secondarily, for the 2% that are commercially viable, let others use the material and alter or change it to their own liking (ex: the YouTube video “George Bush Don’t care about black people” that was released with 4 days work and $5 in materials, and criticized the governments failed policy to respond to Katrina in a powerful and timely way. The video, which violated copyright because it used samples of music still under copyright, began the movement to get greater assistance for victims, and was viewed over 1million times on the internet.), if money is made in such an alteration, allow for royalties to freely flow back to the original copyright holder.
James Boyle’s views were refreshing and had a hopeful tone. He sounded so logical and took into consideration all of today’s digital copyright issues. I long for the day when such views as this will dominate Congress’ discussions on copyright.