International Copyright
and Libraries
Janice T. Pilch
Associate Professor of Library Administration
Modern Languages and Linguistics Library
University of Illinois at Urbana-Champaign
Mortenson Center for International
Library Programs
June 30, 2009
International copyright landscape
• Rapid growth in information technology since 1980s
• View of intellectual property as key to economic growth
in post-industrial age
• Culture of copying
– The Web has been called “one of the world’s largest
libraries and surely the world’s largest copying
machine.” -- Committee on Intellectual Property Rights and
the Emerging Information Infrastructure, The Digital Dilemma:
Intellectual Property in the Information Age (Washington, D.C.:
National Academy Press, 2000), 23.
• Growth in pirate industries and fighting piracy
International copyright principles
• Not a defined body of law
• Terms of international treaties and agreements
are implemented in national laws
• Operates on basis of relations between nations
– Country of origin
– Protecting country
• Operates on principles of:
– Territoriality
– National treatment
– Minimum protection
International copyright principles
• Role of national law—governs use within that
nation of eligible foreign works
– Whether a work is copyrighted in U.S.
– Copyright term
– How a work may be used
• Law of country of origin generally determines
– Issues of ownership and transfer
– Definition of author
• Challenges in the digital age
- National laws differ
- Copyright is nation-centric, the Internet is not
International treaties, conventions,
and agreements
• World Intellectual Property Organization
(WIPO)
– Berne Convention for the Protection of
Literary and Artistic Works (1886)
• U.S. entry into force March 1, 1989
• PRC entry into force October 15, 1992
• Oldest international copyright treaty
• 164 members
International treaties, conventions,
and agreements
- WIPO Copyright Treaty (1996)
• U.S. entry into force March 6, 2002
• PRC entry info force June 9, 2007
• Extends Berne Convention into digital age
• 70 members
– WIPO Performances and Phonograms Treaty
(1996)
• U.S. entry into force May 20, 2002
• PRC entry into force June 9, 2007
• Extends Berne Convention into digital age
• 68 members
International treaties, conventions,
and agreements
• United Nations Educational, Scientific and
Cultural Organization (UNESCO)
– Universal Copyright Convention (1952)
• U.S. entry into force September 16, 1955
• PRC entry info force October 30, 1992
• Alternative to Berne Convention-- Berne
Convention has priority if nations belong to both
treaties
• 100 parties to 1952 convention; 65 parties to 1972
convention
International treaties, conventions,
and agreements
• World Trade Organization (WTO)
– Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) (1995)
• U.S. entered January 1, 1995
• PRC entered December 11, 2001
• Enforces Berne Convention
• 153 members
International treaties, conventions,
and agreements
• Regional copyright treaties and agreements
• Bilateral treaties and agreements
– U.S.-China bilateral agreement of January 13, 1904
Not considered by PRC as binding. In the territory
administered on Taiwan, the treaty is considered to be in force
– U.S.-China bilateral agreement of November 30, 1948
– U.S.-PRC bilateral agreement of March 17, 1992
National copyright law
Terms of international treaties and agreements are
implemented in national laws
• Copyright Law of the People’s Republic of China (1990),
as amended (2001)
• Regulations for the Implementation of the Copyright
Law of the People’s Republic of China (2002)
• Regulations on the Protection of the Right of
Communication Via Information Network (2006)
Aspects of international copyright
protection common to national laws
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Formalities
Criteria for protection
Authorship and ownership
Protected subject matter
Unprotected subject matter
Moral rights (personality rights)
Economic rights (property rights)
Limitations and exceptions (flexibilities)
Aspects of international copyright
protection common to national laws
• Duration of copyright
– Moral rights
– Economic rights
• Provisions for copyright restoration under Berne
Convention
• Related rights (rights of performers, producers
of sound recordings, broadcasting
organizations)
U.S. copyright law
• Copyright Act of 1976 (17 United States Code)
– Took effect on January 1, 1978
– Has been amended numerous times
– http://www.copyright.gov/title17
• Formalities no longer required
• Requirements for copyright protection in U.S.
– Originality
– Fixation in tangible medium of expression
– Minimal creativity
U.S. copyright law
• What is protected in U.S.
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Literary works
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
• Works of visual art
– Motion pictures and other audiovisual works
– Sound recordings
– Architectural works
U.S. copyright law
• What is not protected in U.S.
– Ideas, procedures, processes, systems, methods of
operation, concepts, principles, discoveries
– U.S. federal government works
– Facts
– Works in public domain
• Who owns copyright in U.S.
– Authors (initial authorship)
– Employers for works made for hire
– Assignees (not licensees)
Exclusive rights of copyright holders
in U.S.
1.
2.
3.
4.
5.
6.
Reproduction [Section 106(1)]
Preparing a derivative work [Section 106(2)]
Public distribution [Section 106(3)]
Public performance [Section 106(4)]
Public display [Section 106(5)]
Public performance by means of a digital
audio transmission [Section 106(6)]
Limitations and Exceptions in U.S.
Section 107 (fair use)
Section 108 (library and archival exception)
Section 109 (first sale doctrine)
Sections 110 and 112 (performance and display of
works for classroom use)
U.S. copyright duration in eligible
foreign works
– If published before 1923, in public domain
– If published from 1923-1977, 95 years from date of
publication
– If created, but not published, before 1978, life + 70 or
12/31/2002, whichever is greater
– If created before 1978 and published between 1978
and 12/31/2002, life + 70 or 12/31/2047, whichever is
greater
– If created from 1978- life + 70 (for works of corporate
authorship, works for hire, anonymous and
pseudonymous works, the shorter of 95 years from
publication or 120 years from creation)
Common questions concerning
international works
• Is the work protected by copyright in the U.S.
today?
• International copyright and digitization projects
• International copyright and the Internet
• How to obtain copyright permission to use a
foreign work
U.S. copyright assessment:
Example
 In the U.S. a work may be protected by copyright if the
work was first published in the U.S. or in a foreign
nation that, on the date of first publication, was a treaty
party.
Pasternak, Boris. Doktor Zhivago. Moscow:
Knizhnaia palata, 1989 [in Russian]
Investigation
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
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Published or unpublished? Published
Date of creation or first publication? November 1957
First edition or subsequent edition? Subsequent
Place of first publication: Italy
Focus narrows to the first edition.
First published simultaneously in another country? No.
Country of origin: Italy
– Date when U.S copyright relations established with Italy:
October 31, 1892
• Who is the author? Boris Pasternak (1890-1960)
Investigation
• Nationality of the author? Citizen of USSR.
Other relevant facts? Posthumously rehabilitated in 1987.
• Is the work anonymous/pseudonymous? No
• Was the work first published posthumously? No.
• Type of work: literary work
• Compilation? No, although poems in the novel are
individual works
• Derivative work? Yes.
• Work for hire? Yes
• Was the work first published with notice and renewed in
the U.S. Copyright Office? Yes
Investigation
• Was the work first published lawfully? Yes.
• How long is the original work protected in the U.S.?
95 years from date of publication, through 2052.
Investigation continues
 Back to 1989 Moscow publication, in Russian.
• Russian-language edition by University of Michigan
Press appeared in December 1958, with a copyright
notice in Feltrinelli’s name and with a date of 1959.
• Russian-language edition printed in Milan by Feltrinelli
Editore Milano in 1958 or early 1959. There is no date on
the title page, and there is a copyright notice indicating a
date of November 1957.
Investigation continues
• Copyright in Russian version used for the 1989 text
- 1957/1958/1959 publications expire in U.S. in 2052/2053/2054*
- No new copyright in the 1989 text of the novel
• Copyright in new matter published in 1989 based on
lifespan of authors/artists.
• Foreword*
• Afterword*
• Artistic design*
• Copyright in first edition of 1957 published in Italy,
expires in U.S. in 2052.*
*Final assessment involves five layers of copyright!
International copyright and
digitization projects
• Due diligence involves a case-by-case analysis and legal
expertise
• Not feasible to determine status of individual works
• Mass identification of copyright status
• Hathi Trust Repository cut-off date for published works
of 1869
See http://www.hathitrust.org/rights_database
• Google cut-off date
Practical copyright questions:
libraries
• Preservation of published and unpublished
works
• Interlibrary loan of physical volumes
• Interlibrary loan of copies
• Document delivery of copies
• Direct use copies
• Unsupervised copying
• Public display of works in exhibits
• Print and electronic reserves
• Digitization projects
Practical copyright questions:
teaching
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Classroom teaching
Distance education
Classroom handouts
Academic coursepacks
Print and electronic reserves
Use of course management software
Web 2.0 applications
Practical copyright questions:
research
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Term papers
Assignments
Class projects
Delivering classroom presentations
Use in publications
Compiling material for research
Theses and dissertations
International copyright and the
Internet
• Law of a foreign country can apply to a dispute
involving Internet activity originating in U.S. but
committed in and violating the law of that country
– LICRA (League Against Racism and Antisemitism) v. Yahoo!
Inc. (France)
• See David G. Post, “Whose Law? The Problem of Jurisdiction
on the Internet,” Educause Live Web Seminar, September 15,
2005, at http://www.educause.edu/live
– International Music Score Library Project
• See http://www.michaelgeist.ca/content/view/2308/125/ and
http://www.michaelgeist.ca/index.php?option=com_content&t
ask=view&id=2333&Itemid=159
• Hague Convention on Choice of Court Agreements
International copyright permissions:
General practices
1. Identify copyright holder
2. Contact copyright holder directly –or—
contact a collective rights organization to
negotiate permissions
3. Draft permissions letter
4. Negotiate permissions agreement, possibly
involving fee
5. Obtain signed permissions agreement
 Lack of response does not substitute for permission
Challenges in international copyright
Factors related to traditional copyright law:
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Levels of copyright protection vary across nations.
Copyright laws are frequently amended.
Copyright assessments require time and legal expertise.
Copyright holders are often difficult to identify and
locate.
• Legislative solutions are needed for orphan works.
• Growth in licensing of digital resources often hinders
application of copyright limitations and exceptions.
Challenges in international copyright
Factors related to digital technology:
• Copyright is territorial, the Internet is not.
• Digital technology is only useful when there is national
infrastructure and capacity to support it.
• Digital technology makes possible new types of uses that
are not addressed in national copyright laws.
• Growth in licensing of digital resources often hinders
application of copyright limitations and exceptions.
Challenges in international copyright
Economic factors:
• Powerful private interests pressure governments to
adopt higher standards for IP protection to retain their
economic rights in IP.
• Limitations and exceptions to copyright, which exist as a
counterbalance to exclusive rights, have not expanded at
an equal pace with enhanced rights and obligations.
• Growth in licensing of digital resources often hinders
application of copyright limitations and exceptions.
Copyright should serve as a means and a stimulus for knowledge, innovation,
and creativity for people everywhere. It is not an end in itself.
International copyright advocacy
for libraries
• Library Copyright Alliance (LCA)
http://www.librarycopyrightalliance.org
• Electronic Information for Libraries (eIFL.net)
http://www.eifl.net/cps/sections/home
• International Federation of Library Associations and
Institutions (IFLA)
http://www.ifla.org
WIPO Standing Committee on
Copyright and Related Rights
Copyright limitations and exceptions
• Study on Copyright Limitations and Exceptions for
Educational Activities (requested)
• Study on Copyright Limitations and Exceptions for
Libraries and Archives, by Kenneth D. Crews (2008)
http://www.wipo.int/meetings/en/archive_docs.jsp?organisatio
n=WIPO&doc_code=sccr/17/2&doc_title=&doc_author=&doc_l
ang_code=
• Study on Copyright Limitations and Exceptions for the
Visually Impaired, by Judith Sullivan (2007)
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696
WIPO Standing Committee on
Copyright and Related Rights
• Automated Rights Management Systems and Copyright
Limitations and Exceptions, by Nic Garnett (2006)
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952
• WIPO Study on Limitations and Exceptions of Copyright
and Related Rights in the Digital Environment, by Mr.
Sam Ricketson (2003)
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=
16805
WIPO Standing Committee on
Copyright and Related Rights
• Proposed Treaty for Improved Access for Blind, Visually
Impaired and Other Reading Disabled Persons
http://www.keionline.org/content/view/210/1/
• Statement of Principles on Copyright Exceptions and
Limitations for Libraries and Archives, May 2009 (IFLA,
EIFL, LCA)
http://www.ifla.org/en/publications/statement-of-principles- oncopyright-exceptions-and-limitations-for-libraries-and-archi
WIPO Standing Committee on
Copyright and Related Rights
• WIPO International Workshop on Digital Preservation
and Copyright (July 2008)
– International Study on the Impact of Copyright Law
on Digital Preservation: A Joint Report of The Library
of Congress National Digital Information
Infrastructure and Preservation Program, The Joint
Information Systems Committee, The Open Access to
Knowledge (OAK) Law Project, The SURF
Foundation
http://www.digitalpreservation.gov/library/resources/pubs/
docs/digital_preservation_final_report2008.pdf
WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore
• Longstanding efforts to find solution to protection of
traditional cultural expressions
• WIPO IGC efforts toward possible sui generis protection
of Traditional Cultural Expressions (2001- )
• WIPO Creative Heritage Project
http://www.wipo.int/tk/en/folklore/culturalheritage
WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore
• Need for recognition of and respect for traditional
cultures
• Libraries play a primary role in preserving and
providing access to cultural heritage
• American Library Association, Office for Information
Technology Policy
Conference on Cultural Heritage and Living Culture:
Defining the U.S. Library Position on Access and
Protection of Traditional Cultural Expression
(November 12-14, 2008)
http://www.ala.org/tce/
WIPO Committee on Development
and Intellectual Property
WIPO Development Agenda, a set of 45 proposals adopted
on September 2007 by the WIPO General Assembly:
• Aims to address inequities in the IP system and to
improve information technology infrastructure in
developing and least developed countries
• Seeks to ensure that IP law and policy continue to serve
the public good by encouraging and rewarding
innovation and creativity in a balanced way in all parts
of the world
WIPO Committee on Development
and Intellectual Property
International library community advocates for:
• a fair balance between intellectual property protections
and the public interest
• minimizing levels of copyright protection in developing
and least developed countries
• a robust public domain
• adequate limitations and exceptions for the purposes of
education, scholarship, and creativity; and preservation
of information
• access to knowledge and technology to foster
innovation, material progress, and welfare
WIPO Committee on Development
and Intellectual Property
• the goals of information literacy
• bridging the digital divide
• library participation in local efforts at technical
assistance and capacity building in developing and least
developed countries
• balanced IP education in developing and least
developed countries
• new approaches to the licensing of copyrighted works
• the social good that results from a true balance between
intellectual property protections and the public interest.
Additional resources
• World Intellectual Property Organization (WIPO):
http://www.wipo.int/copyright/en/
• WIPO Collection of Laws for Electronic Access:
http://www.wipo.int/clea/en/index.jsp
• UNESCO website, including database of national copyright
laws:
http://portal.unesco.org/culture/en/ev.phpURL_ID=35170&URL_DO=DO_TOPIC&URL_SECTION=471.html
http://portal.unesco.org/culture/en/ev.phpURL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.ht
ml
• World Trade Organization website, section on intellectual
property:
http://www.wto.org/english/tratop_e/trips_e/trips_e.htm
Additional resources
• International Federation of Library Associations and Institutions:
http://www.ifla.org
• Electronic Information for Libraries
http://www.eifl.net/cps/sections/home
• International Federation of Reproduction Rights Organizations:
http://www.ifrro.org/show.aspx?pageid=home
• Knowledge Ecology International:
http://www.keionline.org/
• A2K (Access to Knowledge) list by CPTech:
http://www.cptech.org/a2k/
• Intellectual Property Watch:
http://www.ip-watch.org/weblog/
Thank you!
Janice T. Pilch
Associate Professor of Library Administration
Modern Languages and Linguistics Library
University of Illinois at Urbana-Champaign
E-mail: pilch@illinoisedu