Digital Copyright Issues are one of the new kids on the block that directly affect school librarians. Students, teachers and librarians all bump up against ownership and fair use issues way too often for comfort. We are not lawyers. We are not experts in copyright law. We are a lot of things, but few of us are expert in the law that governs these new issues.
Why new issues? Haven't issues of plagiarism been around since students had to write essays and term papers? Yes, plagiarism has been around seemingly forever, but the ubiquitous World Wide Web and the interactivity associated with Web 2.0 has upped the ante. Digital images, audio and video are just a few of the newer technologies that are now in the forefront of copyright law. How much is too much to use? Where and when can they be used? How can we limit our liability to lawsuits?
These types of issues are dealt with in libraries today and will grow increasingly thorny and recalcitrant as media use accelerates and becomes more insinuated into all things electronic in the media center.
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Hi Chuck- We would like to start an online book discussion group & blog on our middle school web page. Kathleen Odean gave us the idea of using book jacket covers from various digital sites to post online. Does anyone know the copyright restrictions on using digital jacket covers? -Kathleen Todd S-E
Digital copyright is in a developmental or evolutionary phase at this time. That being said, where does this leave the teacher / librarian just trying to make things relevant to students and accessible for patrons? Some issues are fairly cut and dry whereas digital use issues associated with the Internet are grayer and open to interpretation.
See the website:
Copyright Crash Course with Link to Copyright Crash Course
Fair Use Guidelines For Educational Multimedia*
http://www.utsystem.edu/OGC/IntellectualProperty/ccmcguid.htm#3
In 1996, a conference on Fair Use convened with 93 groups representing the software industry, publishers, artists, and scholars. They attempted to create a document detailing “Fair Use” guidelines for multimedia. A document was created, but due to consensus it was declared null in 1997 by Bruce Lehman, Commissioner of Patents and Trademarks.
Today, we are left in the hands of our courts as behaviors are dictated by results and findings in case outcomes. Nevertheless, the Fair Use guidelines are useful as a baseline for what we on the front lines can be doing.
Digital Images
2.2 Creating Thumbnail Images.
An educational institution may create thumbnail images of lawfully acquired images for inclusion in a visual catalog for use at the institution. These thumbnail images may be combined with descriptive text in a visual catalog that is searchable by a number of fields, such as the source.
http://www.utsystem.edu/OGC/IntellectualProperty/imagguid.htm#2
4.2.4 Illustrations and Photographs
The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2.
Password Protection
The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 11
http://www.copyright.gov/legislation/dmca.pdf
The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic technical process for the purpose of making the material available to subscribers who subsequently request it. It is subject to the following conditions:
! The content of the retained material must not be modified.
! The provider must comply with rules about “refreshing” material—replacing retained copies of material with material from the original location— when specified in accordance with a generally accepted industry standard data communication protocol.
! The provider must not interfere with technology that returns “hit” information to the person who posted the material, where such technology meets certain requirements.
! The provider must limit users’ access to the material in accordance with conditions on access (e.g., password protection) imposed by the person who posted the material.
! Any material that was posted without the copyright owner’s authorization must be removed or blocked promptly once the service provider has been notified that it has been removed, blocked, or ordered to be removed or blocked, at the originating site.
Limitation for Information Residing on Systems or Networks at the
Direction of Users
Section 512(c) limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:
! The provider must not have the requisite level of knowledge of the infringing activity, as described below.
! If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
! Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.
In addition, a service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement. The Office provides a suggested form for the purpose of designating an agent
(http://www.loc.gov/copyright/onlinesp/) and maintains a list of agents on the
Copyright Office website (http://www.loc.gov/copyright/onlinesp/list/).
Limitation for Information Residing on Systems or Networks at the
Direction of Users
Section 512(c) limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to
The Digital Millennium Copyright Act of 1998
The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 12
Under the knowledge standard, a service provider is eligible for the limitation on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it.
The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability.
In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)).
In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.
Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider.
(Section 512(f)).
Special Rules Regarding Liability of Nonprofit Educational Institutions
Section 512(e) determines when the actions or knowledge of a faculty member or graduate student employee who is performing a teaching or research function may affect the eligibility of a nonprofit educational institution for one of the four limitations on liability. As to the limitations for transitory communications or system caching, the faculty member or student shall be considered a “person other than the provider,” so as to avoid disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. The following conditions must be met:
! The faculty member or graduate student’s infringing activities do not involve providing online access to course materials that were required or recommended during the past three years;
! The institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing; and
! The institution provides all of its users with informational materials describing and promoting compliance with copyright law.
The latest ruling on the use of digital images is found in the case of Kelly v. Arriba Soft Corporation:
http://docs.law.gwu.edu/facweb/claw/ArribaSo.htm
In this case the court determined that the use of thumbnails was allowable, but a direct link from the images to an expanded, full size image was not allowable.
Because of this finding, it might be advisable to freely include thumbnail pictures on your blog, website or in your library catalog, but not to link these images from a mouse-over function, or to have them enlarge upon a mouse-click. It would likely be O.K. to have the thumbnail present, but to hyperlink the image description, i.e. title to the full-sized image. This sounds a bit funky, clunky and redundant, but without actually purchasing the image use rights, or obtaining these from the copyright holder, this might just pass the Fair Use test.
External email:
Chuck - I understand that you can use the book covers on Amazon without copyright concerns. Beyond that I am not sure. Hope all is well with you - Regards - Mary
Chuck is correct in that thumbnails are allowable for use on websites without permission from the book publisher or owner of the website the thumbnail is found on. As long as the image remains a thumbnail (does not enlarge when clicked on), use does not fall under copyright infringement. This right is defined in the case Chuck mentioned - Kelly v. Arriba Soft Corporation, 2003.
I am at Computers in Libraries where this very thing was mentioned this morning. We were discussing the photos of book covers in library opacs. The presenter mentioned that Amazon has recently edited their license and it appears to be more restricted and may disallow use by libraries UNLESS you agree to link back to the option to purchase the book from Amazon. Of course, their bottom line is getting users to put in that credit card number!
Google Books may be a little more friendly and that may be the one you should check out.
Linda
From external email:
You might want to familiarize yourself with the LMNET Archive at: http://www.eduref.org/lm_net/archive/
One can usually find answers to questions on all issues relating to school libraries there.
Also the serial, LMC: LIBRARY MEDIA CONNECTIONS has a page in each issue on copyright issues.
--Diana
Here are a few comments.... there are several levels to this discussion....
1) Linking to archives of thumbnails that have been aggregated by a vendor (ex. Amazon.com, Syndetics, etc)
A vendor that creates an archive of book jacket covers can establish rules for using the content of that database. The vendor might be legally allowed to establish conditions for linking to their archive (...e.g. Amazon.com) ... or might charge a subscription fee for the service of having collected the thumbnails and other enriched data (...e.g. Syndetics)
2) "Fair use" Copyright law concerning the actual display of book jacket thumbnails....
The vendor however, does not own the copyright for those book jacket covers (... the publisher does). In fact, the vendor benefits from a court ruling that "fair use" copyright applies to thumbnails.... please see details of a court ruling on this topic at FindLaw::
http://www.au.findlaw.com/articles/default.asp?task=read&id=9812&site=CN
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Amazon.com has created some rules for linking to and displaying book jacket thumbnails that they have archived at their site. When Amazon.com is chosen as the source for book jackets that are displayed in OPALS' OPAC, it displays this message that links to the Amazon.com site... "Thumbnails courtesy of Amazon.com"
Because of this stipulation, it is not our preferred method to display the book jacket thumbnails.
OPALS' programmers have begun programming and are beta testing links to the Syndetics subscription services... which we believe, to date has not infringed on any copyright laws. Incidentally, Syndetics does not own book jacket copyrights either... they also benefit from the FindLaw ruling
One vendor, Mackin Books, is considering a project to enable OPALS users to link to their large archive of thumbnails. Mackin Book has archived a large collection of reviews, age levels and other enriched data that will provide an alternative
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OPALS, on behalf of several SLS directors, has approached several major publishers about using their thumbnails in a proposed cooperative archive that would be available for all to use. Both Scholastic and Random House have communicated that they would have no objection to their book jacket thumbnails being used for this proposed initiative. We believe that if other publishers were approached that they would also agree... after all, most of them already offer these as a service to book sellers. Publisher approval and the court ruling about "fair use" copyright law and thumbnails should legitimize this initiative.
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Hope this helps... some of this information was provided by Suzanne Feldberg... SLS director of ONC...
Au revoir
Harry Chan
Media Flex Inc.
P.O. Box 1107
Champlain, NY 12919
Tel: 877-331-1022
Email: harry@bibliofiche.com
Learn more about us & our partners: www.mediaflex.net,
www.cerfinfo.com,
www.opals-na.org,
www.curriculink.org,
http://kbn.cerfinfo.com
www.bibliofiche.com
Chuck & others-
Thank you for the valuable info. I'm interpreting this to mean that thumbnails obtained directly from publishers are preferable. We'll try using these for our purposes in the middle school blog.
-Kathleen
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