Intellectual Property Working Group
IP Update for Archivists
Greenberg II
Here is an excellent summary of the legal history and issues in the Greenberg II case by R. Robin McDonald at Daily Report Online. (Focus on Copyright)(30 Oct. 2007). This case involves the rights of independent contractors when a publication digitizes its backfile.
On June 30, 2008, a full panel of the 11th Circuit affirmed last year's 3-judge ruling which lets National Geographic off the hook for a $400,000 infringement damage award. SAA had signed on to an amicus brief in support of National Geographic. This court’s 2001 decision had found that NGS had infringed a freelance photographer’s copyright when it included 1962, 1968, 1971, and 1990 issues of the magazine in a 30-CD set of the Complete National Geographic (CNG). In the 2007 decision, the Court looked to the Tasini v. New York Times case (2001) to determine that since the CNG had presented Greenberg’s images in their original context, as if they were on microfilm, this was an allowable § 201(c) revision of the original work.
IMPACT: The Eleventh Circuit decision would fix a conflict that had existed with a 2005 decision of the 2nd Circuit (with the same parties and the same issues), and it would remove a potential barrier to projects that would digitize full page images of publications that contain contributions by multiple free-lance writers, such as student newspapers.
Orphaned Works
The copyright owners of orphan works are impossible to find. Legislation would remove most damages if a reasonable effort to locate a copyright owner has been undertaken. Bills have been introduded in the House (HR 5889) and the Senate (S.2913). (July 1, 2008)
Revised Copyright Duration Chart available
A new version of the copyright duration chart by Peter Hirtle that first appeared in Archival Outlook in 1999 is now available. "Copyright Term and the Public Domain in the United States" has been updated and two new sections have been added. The first is on unpublished and published sound recordings, and the second is on architectural works. In order to facilitate printing, a PDF version of the file is available as well. The new chart is available at: http://www.copyright.cornell.edu/public_domain/.
Hebrew Academy v. Goldman (Defamation)
On October 3, 2007, attorney Jeremy Rosen participated in the oral arguments before the California Supreme Court in Hebrew Academy v. Goldman, on behalf of SAA and several other organizations.
The plaintiff in the case claims that he was defamed in an oral history of which there were fewer than 20 copies made. The dispute revolves around whether the plaintiffs were barred by the statute of limitations one year after the date of publication, or whether a special rule applies for publications of limited distribution. A decision is expected about the end of the 2007.
Earlier, SAA joined in an amicus brief, which argued that the placement of copies of an oral history on the shelves of a few libraries meets the requirements of the "single publication rule" for statute of limitations purposes in a defamation case.
First Amendment and Copyright Law
How Much Can the Government Revise Copyright, Without Running Afoul of the First Amendment and the Copyright Clause? by Julie Hilden.
In this two-part series of columns, Hilden discusses how Kahle v. Gonzales and Golan v. Gonzales decisions raise related issues regarding copyright and the First Amendment. (5 Oct. 2007)
Right of Publicity
“Unauthorized commercial use of a person’s name, likeness, or other personal attribute” violates a celebrity's right of publicity, and is defined by state law. Publicity law can impede use of materials even if copyright is not a factor. An analysis depends on state law, the individual in question, and the use of the materials.
Illinois Courts are struggling to define the relationship between Federal Copyright law and the state-defined Right of Publicity in Brown v. ACMI. In this case Corbis was using photographs of James Brown (to which it owned the copyrights) on its own website. Brown objected that this use violated his Right of Publicity. (2 Aug. 2007)
New York and California courts held this year that Marilyn Monroe's Right of Publicity died when she did. Since the Right of Publicity after death was not recognized in either state at the time of her death, the property right could not pass to her heirs. In cases that pitted the owners of the copyrights of iconic Monroe photographs against the actress's estate, both courts held that the photographers had the right to sell access to the images without violating Monroe's Right of Publicity.
See, "Death Pays: The Fight Over Marilyn Monroe’s Publicity Rights" by Sarah Edelman, in The Metropolitan Corporate Counsel, July, 2007.
Both states immediately responded with bills to codify the Right to Publicity. California's was signed into law 10 Oct. 2007, and provides that the Right of Publicity may pass by contract or inheritance for 70 years after the death of the personality. The right is expressly made retroactive. New York's had not yet been enacted as of 25 Nov. 2007.
Perfect 10 v. Google (Fair Use)
In this case, the plaintiff, Perfect 10, sued Google for reproducing thumbnails of its images. The 9th Circuit handed down its decision on May 16, 2007.
From the decision, it appears that the use of thumbnails in an index likely to be a fair use. It has interesting implications for the Google Books suit and web archiving. The latest on the Authors Guild v. Google case is that summary judgment motions are not due until 15 Dec. 2008.
WIPO Traditional Knowledge and Access to Knowledge (A2K) initiatives
Tradional Knowledge
According to the World Intellectual Property Organization (WIPO), “traditional knowledge” refers to tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields. “Tradition-based” refers to knowledge systems, creations, innovations and cultural expressions which: have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and, are constantly evolving in response to a changing environment. Categories of traditional knowledge could include: agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; biodiversity-related knowledge; “expressions of folklore” in the form of music, dance, song, handicrafts, designs, stories and artwork; elements of languages, such as names, geographical indications and symbols; and, movable cultural properties.
Intellectual Property Needs and Expectations of Traditional Knowledge Holders WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) (Geneva: April 2001), p. 25 )
Why Does it Matter?
Since 2000, the WIPO Intergovenmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (GRTKF) has been meeting to determine if a treaty could be written to provide intellectual property protections to traditional knowledge. To some observers, the greatest accomplishments of the Committee has been to establish that developed and lesser or least developed countries have competing interests, and that they should continue to have their mandate renewed (multiple times). The kinds of “products” of most interest to a regime for protection of traditional knowledge are likely to be in the area of patents rather than copyright, but as in all areas of intellectual property law, it is easy for well-meaning provisions to be written such that they have the effect of sweeping limits on access and use.
Access to Knowledge
An emerging movement/policy agenda that recognizes the essential need for knowledge for political power, and economic, social and personal development. In regard to intellectual property, the A2K movement seeks “new paradigms for the creation and management of knowledge resources” in the recognition that “knowledge goods are also fundamentally different from physical goods and services. They can be copied. They can be shared. They do not have to be scarce.”
Why Does it Matter?
The policy initiative underscores the concern that archivists have been articulating since the mid-1990s, if not earlier, that the vast information and knowledge resources over which we preside need to be made available as widely as possible.
Key sources: Public Citizen’s CPTech site and the Yale Access to Knowledge (A2K) Initiative
DMCA exemptions/Boucher’s 1201 bill
Digital Millennium Copyright Act (DMCA): Prohibits circumvention of technological measures employed to protect copyrighted work. Exemptions: Allows circumvention for specific circumstances of non-infringing uses of “particular classes of works.” Three year exemption term.
H.R. 1201: FAIR USE Act – Amongst other positive outcomes would legislate DMCA exceptions for access to public domain works and archival preservation purposes. Last action as of 25 Nov. 2007: referred to the Subcommittee on Courts, the Internet, and Intellectual Property on 19 Mar. 2007. More info: Library Copyright Alliance and
Librarian of Congress--Anticircumvention Rulemaking.
IP working group pages maintained by Aprille McKay
Last updated: 13 Dec. 2007
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