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Copyright Stories Hong Kong Library Association April 2009 Derek Whitehead President, ALIA

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1 Copyright Stories Hong Kong Library Association April 2009 Derek Whitehead President, ALIA

2 Where I Come From President of ALIA (Australian Library and Information Association) 2008-2009 at Librarian since 1976 Chair, Australian Digital Alliance at University Copyright Officer at Swinburne University of Technology Member of two national committees on copyright: IPPTAG (IP & Privacy Technical Advisory Group) and Universities Australia Expert Reference Group

3 Where I Come From We provide copyright services to another university – University of Ballarat CAIRSS Copyright Service, 2009-2010 Australian Libraries Copyright Committee Our role is to maximise the use by the university of other people’s intellectual property. Not a lawyer, and nothing in this paper constitutes legal advice

4 Greetings from ALIA President of ALIA until 19 May and vice president since 2007 ALIA surveyed its members recently and the main issues are Lobbying and advocacy Professional development The future library workforce Accreditation of courses... and the global economic crisis too Not only copyright Happy to answer questions about ALIA later

5 Greetings from ALIA A particular welcome to IFLA – Brisbane, 14-19 August 2010 World Library and International Congress Libraries: Engaging, Embracing, Empowering. Brisbane Convention Centre

6 Approach I represent a viewpoint about copyright – a balance between the interests of owners and users ADA: “promote balanced copyright law and provide an effective voice for a public interest perspective in the copyright debate.” ADA members include universities, schools, consumer groups, cultural institutions, IT companies (Google), libraries and individuals.

7 Approach ALIA: Relevant objective is to promote the free flow of information and ideas in the interest of all Australians and a thriving culture, economy and democracy. ALIA also supports the interests of Australian copyright users. ALIA has a Copyright and Intellectual Property Advisory Committee Provides copyright advice

8 Approach Swinburne: Copyright Policy at Some informal principles at Swinburne “Its not about principles, its about money.” Complete compliance is not a practical goal Intellectual property is not the same as real or personal property – ownership is not absolute, and the primary goal is the advancement of knowledge We take a risk management approach

9 What is copyright? A bundle of exclusive rights, for a limited period, to do certain things with a work. There are exceptions to these rights which enable others to use copyright material. The rights of a copyright owner include to copy, publish, communicate, and perform. The kinds of works include writing, visual images, music and moving images. Copyright applies to the way an idea or information is expressed, not to ideas and information.

10 Libraries’ concerns Exceptions – things you can do which are exceptions to the rights of owners Fair use or fair dealing – the right to do some things because they are “fair” Home copying and rights of owners Educational copying – most countries allow some exceptions for schools & universities Preservation Inter-library loans Enforcement issues – libraries strongly oppose being involved in enforcement

11 Moral rights Belong to authors, not owners Most valuable copyright is not owned or controlled by the author or artist – e.g. books, movies, music Moral rights do not exist in all countries – e.g. not in the US Right to be identified as the author Right to have works treated in a way that is not derogatory Politeness is important too – sometimes it is good to ask, even if you don’t have to

12 Stories This presentation takes some stories which have been in the news, and explains What is the danger What the story tells us Copyright is about people wanting to do things. Maybe they can and maybe they can’t A Copyright Officer answers questions which start: “Can I...? And ends with “I’m afraid not” or “Yes, you can do that”. Copyright stories are about what people want to do, and how we can find ways they can. Sometimes. And what we can learn.

13 What Characters? There are six characters in these stories. A copyright owner in 2145. Accidental copyright owners Copyright owners who care more about other things Copyright owners who care a lot about copyright Governments – who make the rules Ordinary people doing ordinary things

14 What Characters? and a koala

15 Dangerous Times These stories illustrate some trends, some of which are dangers. The way copyright works in our world changes all the time. Some people want to limit what we can do, others want to expand it. Libraries generally favour expanding the rights of users, and oppose limiting those rights in favour of owners. At the end, I will suggest some simple rules to follow for libraries and other institutions in working with copyright – to stay nice.

16 Today’s dangers 1. Extension of copyright term 2. Capture of the process by those with very strong material interests. 3. Undermining existing rights of fair use 4. Criminalisation of copyright law 5. Requirement of third parties to enforce the law - denial of access is increasingly a draconian penalty. 6. The use of threats – chilling effects. 7. Divorce between the law and what ordinary people believe is right or common sense 8. Threat to innovation and creativity.

17 What Stories? New Zealand’s Section 92 Punishment Shepard Fairey The Kindle Cliff Richard Child criminals Secrets and lies DRM Trespass: the public domain Copyright-free zones Orphans Creative Commons Popular movements

18 New Zealand: Sect 92 In 2008 New Zealand amended the Copyright Act ISPs must act against customers who infringe copyright – repeat offenders Libraries are covered by this – they are “downstream ISPs.” Advice by LIANZA – libraries would need to ban infringers from Internet services other than online databases

19 New Zealand: Sect 92 Libraries may not be able to identify users They may disagree about the alleged infringement Libraries must have a policy which provides termination for infringers Libraries become part of the enforcement mechanism for copyright owners Infringement is mostly not a criminal offence

20 New Zealand: Sect 92 Implementation was postponed to the end of March. The legislation has now been cancelled pending review. But similar legislation is pending elsewhere – called “three strikes” (a baseball metaphor) Aim is to have someone else deal with repeat offenders The penalty – disconnection – is draconian.

21 Punishment Copyright legislation includes penalties for infringing other peoples rights – mainly fines, prison for commercial-scale infringement (piracy) Statutory damages are becoming more common – where the law prescribes a specific fine Disconnection from the Internet is sought by owners – someone else would do it.

22 Punishment Making examples of people. YouTomb – – has examples of material taken down from YouTube for copyright infringement. E.g. A 4-year-old miming a song, Juke Box Hero A baby dancing to a Prince song A rodeo association agreed to pay $25,000 to an animal rights group These are all fair use – no infringement, no harm to the owner’s interests

23 Punishment French legislation pending 57% of French 18-24 yr olds illegally download HADOPI = Haute Autorite pour la diffusion des oeuvres et la protection des droits sur Internet Will manage graduated response Opposed by civil liberties advocates Alternatives? A monthly subscription for music? File sharing for non-commercial purposes legalised and a fund for creators? Levy on ISP account holders of 2 Euros pm

24 Shepard Fairey Shepard Fairey is a street artist based in Los Angeles. He produced as red white and blue portrait of Barack Obama The portrait has appeared on posters and t- shirts, and is now in the National Portrait Gallery in Washington and other places too The image was based on a photograph taken by Mannie Garcia, a photographer working for Associated Press (AP) The main version, Obama Hope, became Obama’s iconic image – see obama-posters/ obama-posters/

25 Shepard Fairey AP is suing Shepard Fairey for in- fringing its copyright in the image Fairey claims that the use is fair If no-one could ever build one work from another, what happens to creativity? Fair use in the United States is a right everyone has to make use of copyright material if that use is “fair” Should the copyright owner have the right to control all versions, variants, developments?

26 The Kindle 2 Last year Amazon, the well-known Internet bookseller, introduced a device for reading e-books, called the Kindle. As well as putting the e-book onto a screen convenient for reading, the Kindle can actually read the book out loud to you. It uses a synthesised voice – the kind you get in GPS systems, or recorded telephone messages. You couldn’t confuse it with an actor or the author. Great for people who can’t see or handle the machine easily.

27 The Kindle 2

28 What’s the problem? Last year the Authors Guild sued Amazon saying “They don’t have the right to read a book out loud.” Authors would lose revenue from audio books – they get royalties for an ebook, but lose out on audio rights, they said What if reading aloud was a plug-in on the home computer? Or a software download. The world has moved on, but not the authors

29 Cliff Richard Sir Cliff Richard is a popular musician who has the distinction of having a longer career as a pop singer than almost anyone. His first hit was in the 1950s, and he is still singing and selling pretty well. He must be quite well off nowadays. However, he is at the centre of a debate taking place in the European Community about copyright. What is the problem?

30 Cliff Richard

31 Copyright in sound recordings expires after 50 years – now extension to 95 proposed Copyright exists to encourage creativity and invention But term of copyright has lately extended massively – to life + 70 years “Copyright fuels innovation in the short term, by bringing an income to creators, but stifles it in the long term, by creating monopolies and preventing new and creative re-uses, or even any use at all, as most music is hidden away...” 80% of funds will go to recording companies

32 Cliff Richard Why does copyright get extended? “enhanced prospects for global earnings in an increasingly international copyright market” (Jane Ginsburg) Free trade agreements are being used to extend the term. Fair return to creators becomes enhanced profits for large corporations – RIAA & MPAA lead the charge

33 Child criminals Tendency for copyright infringement to become criminalised In the US, the music industry (RIAA) has targeted individuals – elsewhere less so Over 30,000 individual prosecutions. New strategy is to aim to work with ISPs whether they like it or not. Why? Too much negative publicity when you sue your customers.

34 Child criminals Brianna Laharra, a 12 year old girl from New York, faced a penalty of $150,000 per song when sued by the RIAA. Her mother settled for $2000. Durward Pickle, a 71-year old grandfather from Texas, faced similar penalties when his grandsons downloaded music while they were visiting.

35 Secrets and lies Anti-Counterfeiting Trade Agreement (ACTA) Early discussions under way About “enforcement best practice” and “enhancing the enforcement legal framework.” Fears of “increased search powers for customs officers” and airport security officials Concern that there is no public consultation on the treaty. Concern about “asymmetrical release of information.”

36 Secrets and lies In the US, the draft text of the treaty has been “classified in the interests of national security …” Of 806 pages, 796 are classified In Australia, an alliance of Choice (the consumer association), ALIA, ADA and Internet Industry Association has created a statement of principles.

37 Digital Rights Management DRM is a software lock which stops you from doing things the copyright owner does not want done. Such as printing, copying, cutting and pasting. But iTunes has now begun to abandon this, and others are following. Why? People hate DRM Rival firms were negotiating Software issues were significant Technology may not be the answer to a social and market challenge Privacy issues are major Legal protection exists without DRM

38 Digital Rights Management If something is locked down, it only takes one unlocked copy to make the lock useless There is no evidence that DRM provides a clear benefit to copyright owners – and it does annoy the customers The law increasingly permits people to do things which DRM tries to stop them doing – e.g. domestic copying

39 Trespass - the public domain Victorian Government bushfire map Google wanted to overlay bushfire data onto Google Maps Country Fire Authority (CFA) agreed to use of its data and it went live But Victorian Government said no Access to the National Public Toilet Map – also sought as an overlay to Google Maps In NSW Railcorp vetoed a railway timetable application developed for iPhone and sold for $2.50 by Transit Sydney

40 Copyright-free zones In some areas, copyright is mainly ignored Email Blogs Presentations like this Print, email & other buttons–implied licences Is advertising, PR and marketing copyright? dTLU dTLU There are many areas where WE DON’T WANT copyright to apply.

41 Orphans Definition: works where the copyright owner cannot be traced or has abandoned the work. Major report by the Library of Congress in 2008. Danger is that we will have a cumbersome system Copyright is often unintended Older works more likely to be orphaned Mostly a trivial commercial value

42 What to do about orphans Take these steps: A reasonably diligent search Clear and adequate attribution Remuneration or restitution if the copyright owner appears Use should be non-exclusive Use disclaimers

43 Creative Commons Founded in 2001 by Lawrence Lessig, author of Free Culture Standardised licences which give more rights to the user – “open licences” Contrast with “all rights reserved” They reserve only attribution, commercial use, derivative works New licence is CC0 – it waives all rights

44 Creative Commons This has a CC licence My staff put it there There are advanced search functions in Flickr and Google for CC content e.g. China Open Resources for Education at t.aspx t.aspx Much much more

45 Pooling ideas

46 Popular movements New copyright legislation and new rights but... Limits to right to copy Harsh anti- circumvention provisions “the law should stop treating paying customers like criminals by giving them the right to legally shift their music to the device of their choice.” (Michael Geist)

47 Popular movements New copyright legislation and new rights but... Limits to right to copy Harsh anti- circumvention provisions “the law should stop treating paying customers like criminals by giving them the right to legally shift their music to the device of their choice.” (Michael Geist)

48 Popular Movements Lawrence Lessig has a blog And this book: Free Culture by Lawrence Lessig How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity Hardcover | 5.00 x 7.51 in | 348 pages | ISBN 1594200068 | 25 Mar 2004 | The Penguin Press

49 Don’t panic – eight rules Some rules for getting by Understand the copyright owner’s interests. It is mainly about money – high value content like films, music and software are more likely to be pursued by owners. Understand risks – financial, reputational, operational. Respect contractual obligations. Use disclaimers and a formal procedure for investigation and takedown to mitigate risk. Easy to say sorry.

50 More rules Use/promote open licences. Creative Commons provides a guide to open licensing and tools to use. All of these images have CC licences. Respect the rights of authors and creators to be acknowledged as such. There is an international movement to slow the growth of the copyright octopus. Join it. And of course, be cool. Join your local library association.

51 Pooling ideas: we are what we share

52 Thank You QUESTIONS? Derek Whitehead Director, Information Resources and University Copyright Officer Swinburne University of Technology

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