Wrap-up of Current Copyright Issues
Allan Adler
VP for Legal & Government Affairs
Association of American Publishers
Public Policy Is Everyone’s Concern:
Public Issues Task Force Session
AAP PSP 2009 Annual Meeting
February 5, 2009
Issues for Review
• Where has Allan been lately? CPSIA
• Electronic Course Content (E-Reserves)
• Google Litigation Settlement
• Peering Ahead: A New Administration,
A New Congress, and Some Old Business
Consumer Product Safety Improvement
Act (CPSIA)
• 2008 Response to highly-publicized reports of
Chinese-manufactured toys containing lead
• All “children’s products” must be tested and
certified as within “total lead content” limits
• Children’s books – previously unregulated by
CPSC – now, dangerous until proven safe!
• Retroactive applicability to inventory
• Even PSP members have children’s books…
Electronic Course Content (E-Reserves)
• Digital successor to print “course packs” under 1990s
Kinkos and MDS court decisions.
• Evidence shows widespread campus use directly
substitutes for print course packs, w/o permission or
fees, and often serves as exclusive curriculum reading
materials for many courses.
• Problem exacerbated by Nov. 2003 statement of ARL:
“Applying Fair Use in the Development of Electronic
Reserve Systems.”
• Basic concept: Any use of copyrighted course content
that requires permission as part of a print course pack
likewise requires permission when made available for
such use in a digital format.
AAP Actions on Electronic Reserves
• FAQs about Electronic Reserves” (6/04)
• “Dialogue” with UC San Diego and UC OGC on
UCSD and UC policies/practices (12/03 – 6/05)
• Desktop research led to discussions with Cornell
University & joint announcement of new Electronic
Course Content Copyright Guidelines (9/06)
• Phase 2 – similar approach to multiple schools –
resulted in similarly announced new guidelines at
Hofstra, Marquette & Syracuse (1/08); later, Duke
• Phase 3 – Suit Against Georgia State University
Basic Elements of Copyright Guidelines on
Electronic Course Content
• To the extent permission is needed to include a
copyrighted work (or portion thereof) in a print
course pack, it also would be needed for course
use of such material as electronic course content.
• Fair use applies to electronic course content in the
same way it applies to printed course packs. There
are no bright-line rules; in each case, whether fair
use applies depends on circumstances involved.
• First-time use, Internet availability, etc. are not
dispositive factors for “fair use” determinations.
Georgia State University Litigation
• Filed in April 2008 by Oxford University Press,
Cambridge University Press & Sage Publications,
with support from AAP
• Early settlement process discussions with State
Attorney General’s Office fizzled out; GSU hired
private counsel; parties proceeding with discovery
• Complaint amended to include individual Georgia
Board of Regents members as named defendants –
“sovereign immunity” issues
• Discovery to be extended past March deadline
• Trial? Cross summary judgment motions? Settle?
Google Settlement Agreement
• Announced in October 2008, class action
settlement would resolve both pending suits
• Settlement releases Google from liability
for scanning in-copyright works without
permission, and establishes “going forward”
framework for Google & copyright owners
to work together through new Book Rights
Registry to provide online access to books
through various access/revenue models
• Key Dates: January 5, May 5, June 11
• http://books.google.com/booksrightsholders/
New Administration, New Congress
and Some Old Business
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PRO-IP Act of 2008 – “IP Czar”
Elimination of House IP Subcommittee
Boucher to chair House Telecom Subcttee
Departure of key House & Senate staff
Orphan Works legislation – 3rd time charm?
Section 108 Study Group Recommendations?
Freedom of Speech issues: “libel tourism” and
“federal shield law” (i.e., confidential source
protection)
Orphan Works
• Jan. 2005 – USCO NOI defined problem
• Jan. 2006 – USCO issued its “Report on Orphan
Works” and recommended a legislative approach
• Mar. 2006 – AAP testified before the House
Subcommittee, asked by the Chairman to negotiate a
bill based on USCO recommendations
• May 2006 – “Orphan Works Act” (HR 5439)
introduced & approved by Subcommittee, but then
stalled in full House Judiciary Committee
• May 2008 – HR 5889 & S.2319 introduced
• September 2008 – S.2319 approved by Committee and
passed by Senate, but efforts to move in House fail
Key Elements of
“Orphan Works” Legislation
• Reasonably Diligent Search for Copyright Owner
– informed by “best practices” on USCO site
• If unsuccessful, infringing use OK with attribution
• Limitation of Remedies – no award of actual or
statutory damages or attorney fees or costs; no
injunction for use in new work with compensation
• Only “reasonable compensation” if owner appears,
except none for certain nonprofit uses that cease
expeditiously upon notice of claim; may get award
of full costs, including attorney fees, if infringer
fails to negotiate compensation in good faith.
• With provisions on sovereign immunity; report to
Congress; small claims inquiry by USCO.
Thanks for your kind attention.
Allan Adler
adler@publishers.org
202/220-4544