Questions and Answers — Copyright Column

Questions & Answers — Copyright Column

Column Editor: Will Cross (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries) <wmcross@ncsu.edu> ORCID: 0000-0003-1287-1156

QUESTION: An academic publisher asks, “What new works are entering the public domain this year?”

ANSWER: After a two-decade hiatus due to the Copyright Term Extension Act, we have had the pleasure of welcoming a new “graduating class” of works into the public domain on January 1 for four years and counting. This year, works first published in 1926 enter the public domain in the United States including A.A. Milne’s classic children’s book Winnie the Pooh, Ernest Hemingway’s The Sun Also Rises, and Dorothy Parker’s debut poetry collection Enough Rope. They are joined by thousands of other works as they graduate from copyright’s monopoly and become available for everyone to read, watch, and build on. In honor of this new class, The Public Domain Review created a Public Domain Advent Calendar highlighting their top picks of what lies in store for 2022. You can see the full calendar and learn more about the latest crop of works here: https://publicdomainreview.org/features/entering-the-publicdomain/2022/.

This year the public domain also gains an unusual new set of works due to the Music Modernization Act (MMA). Because sound recordings were not protected at all under the 1909 Copyright Act — only the underlying written scores, scripts, and so forth — early sound recordings were often covered instead by local laws with a variety of terms including some common law protections which never expire! While the copyright term for sound recordings from 1972 and forward was addressed by the Sound Recordings Act of 1971 and the Copyright Act of 1976, earlier recordings remained in this limbo of local laws until the recent passage of the MMA. Under this new law, not only do all pre-1923 sound recordings enter the U.S. public domain in 2022, recordings from 1923 will enter in 2023, those from 1924 in 2024, and so on, up to and including 2046. As a result, the new books, films, and visual artwork discussed above will be joined by recorded songs from Scott Joplin, the first recording of Swing Low Sweet Chariot, and thousands of other sound recordings. You can view a huge selection of these materials on the Internet Archive and the Library of Congress is also celebrating this milestone with the opening of most songs in the National Jukebox (www.loc.gov/collections/national-jukebox/). The Library of Congress will also be supporting the creation of new works that remix and build on these newly-freed materials with the Citizen DJ project (https://citizen-dj.labs.loc.gov/publicdomain-2022/). Check out these sites to explore some amazing new materials that are free for anyone to use beginning in 2022 and share your own remixes with the world.

QUESTION: An academic researcher asks, “How can I get access to the written judicial opinions of cases I read about in the news?”

ANSWER: Access to the law is a fundamental component of the U.S. legal system and a critical predicate for the rule of law more generally. After all, how can anyone be expected to follow the law — much less work to make it better through the democratic process — if they cannot even read the law? Last year in this column we covered the case of Georgia v. Public.Resource.Org, Inc. where the Supreme Court considered the copyright status of the Official Code of Georgia Annotated (OCGA). In that case, the Supreme Court held that the laws of the state of Georgia, as well as annotations created by a Georgia state entity called the Code Revision Commission, “fall within the government edicts doctrine and are not copyrightable.”

This was wonderful news for access to statutory materials, but access to judicial opinions remains a challenge in large part because many opinions are made available to the public primarily through the Public Access to Court Electronic Records (PACER) system. While PACER provides an important service in making judicial opinions available online, it is costly and can be challenging to use. As a result, advocates have worked for years to remove the socalled “PACER Paywall.” Media outlets as diverse as the New York Times and Reason have documented the challenges of the system and advocates have filed class-action lawsuits alleging that PACER overcharges users for access. A team from Princeton University’s Center for Information Technology Policy and Harvard University’s Berkman Center have also created a tool called RECAP (available at https://free.law/recap) that allows users to automatically search for free copies of documents during a search in PACER.

Advocates for access to legal information have also lobbied for federal action to update PACER and remove the paywall. In December of 2021, they had cause to celebrate as the House of Representatives passed the Open Courts Act, marking the first time that a chamber of Congress has voted to eliminate the federal judicial system’s court records paywall. A companion bill has been proposed in the Senate with some critical differences, particularly focused on potential fees for “power users” that accrue many thousands of dollars in fees under the current system. In 2022, Congress will take up this legislation and hopefully pass it into law. Doing so would help assure that everyone — from academic researchers and journalists to pro se litigants and curious library patrons, have more complete and equitable access to the law.

QUESTION: A copyright librarian asks, “Are there any tools to help me understand how well people at my institution understand copyright?”

ANSWER: Copyright law is central to so much of the work done in higher education, but it often feels like one of the most misunderstood areas as well. In a given day you may speak to an

educator who thinks that any use in the classroom is permitted (not true), a student who fears that copying a single page from a book for private study can land them in jail (certainly not the case), and an administrator who wonders if the library has ever considered offering any workshops on copyright issues despite years of sustained outreach from your office on a host of copyright topics.

Given the fact that copyright knowledge can run such a wide gamut, it can be helpful to have some resources to understand where members of your community are in their own understanding and practices. One exciting new resource in this area is the Copyright Anxiety Scale. Created by Amanda Wakaruk and Céline Gareau-Brennan, two Canadian copyright librarians working at the University of Alberta, the Scale is designed to identify and measure copyright anxiety and, potentially, copyright chill: the phenomenon “when legitimate actions are discouraged or inhibited by the threat of legal action, real or perceived.”

Wakaruk and Gareau-Brennan developed the Scale in response to conflicting reports about the behavior of educators working in higher education. While on the ground they generally saw careful and often overcautious behavior based on what was permitted under the law, they report that Canadian Copyright Act review of 2018 featured many submissions that complained about mass infringement by educators. So, they wondered, which was correct? Was confusion about copyright law and its exceptions really encouraging mass infringement or was copyright misunderstanding actually discouraging legitimate uses? Was copyright, in their words, “charming or chilling?” To answer that question, they developed the Scale, a set of 18 questions that asked respondents about their confidence, comfort, concerns, and worries about various copyright concepts and scenarios. Using this Scale they surveyed individuals living in the U.S. and Canada and found that, for those individuals, copyright anxiety and chill is a real and pervasive phenomenon. You can read more about their results and find the Scale itself (both openly-licensed) in their recent article published in the Journal of Copyright Education and Librarianship: https://doi. org/10.17161/jcel.v5i1.15212. The report offers a fascinating overview of copyright chill in one community as well as a method for understanding the issue in other communities. It may also be worth your time to see whether copyright is charming or chilling members of your own community.

QUESTION: A library director asks, “What do you expect the major copyright issues will be in 2022?”

ANSWER: The end of one year and beginning of another is a good time to take stock. While 2022 appears to be a lighter year for copyright cases at the Supreme Court — at least compared to the recent spate of major decisions we have seen — there are plenty of significant copyright issues on the horizon.

In a previous column, we covered state and federal action around eBook pricing, including SB432, passed in Maryland that requires any publisher offering to license “an electronic literary product” to consumers in the state to also offer to license the content to public libraries “on reasonable terms” that would enable library users to have access. Since that column, the Association of American Publishers (AAP) has sued to challenge the law, arguing that the federal copyright law preempts Maryland’s ability to require reasonable terms for library access. While this case is in early stages and may end out focused primarily on business regulation law, it is a sign that questions about library access to eBooks — which have also been raised by the Senate Finance Committee in questions to the Big Five publishers — are likely to drive many of the copyright conversations this year. The Maryland eBook case and questions from the Senate Finance Committee are also early returns on investment by the new Library Futures advocacy group, which was named one of the Top Ten Library Stories of 2021 by Publisher’s Weekly. Library Futures has already made a significant impact on several issues in copyright law and has been a major proponent of a second major copyright issue in 2022: controlled digital lending. CDL has been used for many years, but in the wake of the ongoing pandemic applications of the practice have expanded significantly. Whether centered on individual libraries relying on CDL to expand access to rare, out-of-print works or the practices of the Internet Archive at issue in the ongoing lawsuit that grew out of the National Emergency Library, CDL will be at the heart of many copyright innovations and disputes in 2022 and beyond.

A third major copyright issue to follow in 2022 is the implementation of the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act). Debated with much fanfare and then passed quietly as part of the omnibus spending bill in the heart of the pandemic and final months of the Trump presidency, CASE has been in the process of implementation by the Copyright Office for the past year. In 2022 the Copyright Office is expected to roll out the Copyright Claims Board (CCB) which will act as an alternate tribunal to hear small claims copyright cases. Libraries and publishers have already responded to a series of Notices of Proposed Rulemaking (NPRM) and will likely continue to do so in the spring. Institutions will also be preparing to respond with local policies and training. Throw in a potential constitutional challenge to the law, and CASE should be a major driver for copyright law, policy, and practice.

Finally, the Supreme Court is hearing at least one major case this term, Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. In this case the Court is considering a relatively technical issue related to copyright registration raised by a lawsuit filed by a fashion design company. Oral arguments were heard in November of 2021 and an opinion is expected in the spring. The Andy Warhol Foundation has also applied for Supreme Court review in light of a decision from the previous term dealing with the standard for transformative fair use, so there may be more from the Supreme Court as well. Check back in this column for coverage of those cases as they proceed.

Legally speaking continued from page 33

U.S. Copyright Office (2021). Proceedings by Copyright Royalty Judges. Retrieved from https://www.copyright.gov/ title17/92chap8.html. Victor, J. (2020). Reconceptualizing compulsory copyright licenses. Stanford Law Review, 72(4), 915-994.