This document summarizes a presentation about international copyright law and its implications for libraries. It discusses how international treaties have shaped domestic US copyright law and notes that many library collections and transactions are international in nature. It outlines fundamental principles like applying the law of the country where an activity takes place. Exceptions and limitations like fair use may apply differently to foreign works. Recent court cases have addressed issues like whether the first sale doctrine applies to works made abroad. The presentation advises libraries to focus on applying copyright law responsibly at the local level while staying engaged on policy issues.

1. Libraries, Copyright, and the
World:
The Internationalization of Collections and
Services
Presented by:
ALA Editions Workshop
December 4, 2012
Kenneth D. Crews
Director, Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu

2. Main Objectives of this
Webcast
 Answer practical and important
questions.
 Survey the operation of U.S. and
international law for libraries.
 Introduce major developments on
the horizon in the U.S. Supreme
Court, in Geneva, Switzerland,
and more.

3. Why International Copyright?
 First: International Treaties and
Legal Developments are shaping
Domestic U.S. Law.
 Second: Many of our collections
are international.
 Third: Many of our service
transactions are international.

4. Familiar Questions
 Are books, movies, and other
works from other countries
protected under U.S. copyright
law? Are the rules the same
about ownership and copyright
duration?
 Does fair use apply to copyrighted
works from other countries?

5. Familiar Questions
 The copyright on a work has
expired under U.S. law. Can I put
it on the web and share it with the
world?
 My library is in the U.S., but we
have branches in research
centers and other locations
overseas. What rules do I apply
in my branch libraries in other

6. Familiar Questions
 We get requests for copies from
researchers and libraries outside
the U.S. Are we OK sending
copies across borders? Are the
rules for mailing copies the same
rules for email attachments?

7. Start with Fundamentals
 Rule One:
◦ When in the U.S. apply U.S. law.
◦ Call it a “90% Rule.”
 Recall this question:
◦ “Does fair use apply to copyrighted works
from other countries?”
◦ Basic Answer: Yes
◦ But: We will see some Key Differences

8. Start with Fundamentals
 Rule Two:
◦ When in another country, apply that
country’s law.
 What about that branch library in
Beijing?
◦ Your library staff in China may have to
learn a bit of Chinese copyright law.
◦ The copy you make in the U.S. is under
U.S. law, but the copy made in China….

9. Outline of Copyright Law
 Broad Scope of Protectible Works
 Automatic Copyright Protection
 Creator of Work as Initial Owner
 Rights of Copyright Owners
 Duration of Copyright Protection
 Exceptions to Rights of Owners
 Technological Protection Measures
 Infringement and Remedies

10. Sources:
International Copyright Law
 Berne Convention
◦ Originated in 1886
◦ Today has 166 Member Countries
 Trade Related Aspects of
Intellectual Property (TRIPs)
◦ World Trade Organization
◦ Established in 1994
◦ Today has 157 Member Countries
◦ Incorporates key provisions of the Berne
Convention

11. Sources:
International Copyright Law
 WIPO Copyright Treaty
◦ Adopted in 1996
◦ Today has 90 Member Countries
 WIPO Phonograms and
Performances Treaty
◦ Adopted in 1996
◦ Today has 91 Member Countries
 Beijing Treaty on AV Performances

12. Sources:
International Copyright Law
 European Union Directives
◦ Information Society Directive (2001)
◦ Copyright Term Directive (1993)
 Free Trade Agreements
◦ ACTA, Anticounterfeiting Trade Agreement
◦ NAFTA
◦ Australia, Colombia, South Korea, and More
 Future WIPO Treaties
◦ Limitations and Exceptions for Visually Impaired
Persons
◦ For Libraries? For Education?

13. What Do Treaties Do?
 “Harmonize” Copyright Law
◦ Quest for predictability and assurance of
protection
 Require countries to change their laws
◦ Set minimum standards
 Require Protection for Foreign Works
◦ Concept of “National Treatment”
 Mechanisms for review and
enforcement

14. Example:
Scope of Protectible Works
 Berne Convention
◦ Protection for “literary and scientific” works
◦ No defined standard of “originality”
◦ No requirement of “fixed”
◦ Prohibition against “formalities”
 U.S. joined Berne in 1989
◦ Previously changed rule to “original works”
that are “fixed in any tangible medium of
expression”
◦ Dropped the notice formality
◦ Later dropped the renewal formality

15. Excerpt from Dead Sea Scrolls. Source: commons.wikimedia.o
Example:
Duration of
Copyright Protection
 Berne Convention
◦ General Rule: Life of the Author plus 50
Years
◦ Cinematographic Works: 50 years
◦ Photographs
◦ Anonymous and Pseudonymous Works
◦ Sound Recordings
 However: Countries may provide longer
terms of protection.
 Result: Duration for Life plus 70 Years!

16. Practical Meaning for
Libraries
 Recall this question about public
domain: “Can I put it on the web and share
it with the world?”
 Some Possible Answers:
◦ Yes: Old enough to be public domain
everywhere.
◦ Maybe: Public domain in the U.S., but not
everywhere.
◦ No: Public domain in the U.S., but clearly
protected where needed.
 Let’s get Practical:
◦ What do libraries actually do?

17. Example:
Duration & Formalities Together
 Consider these Basics of U.S. Law:
 Works created in and after 1978:
◦ Duration is Life + 70 Years
 Works created before 1978:
◦ Duration is Maximum of 95 Years
◦ But Shorter if no Copyright Notice or
Renewal
 Why the Change of Rules?
◦ The Berne Convention!

18. Mind Games:
Copyright Restoration
 Recall this Question: “Are the rules for
foreign works the same as for U.S.
works?”
 Answer: Usually, but not always.
 Works Published before 1978
◦ May be public domain due to lack of
formalities
 Requirement of TRIPs:
◦ Restoration of Foreign Copyrights
◦ Restoration upheld in Golan v. Holder (2012)

19. Questions?
So Far….
Rules about Protection & Duration
Coming up Next…
Fair Use & Other Exceptions

20. Copyright Exceptions &
Limitations
 Most Countries have Multiple
Exceptions
 Library Research & Preservation
 Copies for Education
 Needs of the Visually Impaired
 Private or Personal Copies
 Architecture or “Panorama” Right
 Industry Exceptions

21. Fair Use
 Balancing of Four Factors
◦ Purpose, Nature, Amount, Effect
 Distinctive American Doctrine
◦ Few other countries have
adopted it
 Many countries have sought
flexibility
◦ But Exceptions are Local Law

22. Marcel Duchamp, L.H.O.O.Q. Source: wikipedia.org
Exceptions as
Local Law
Question:
 “Does fair use apply to a work from France?”
 Answer: Yes.
Question:
 “Does fair use apply to the U.S. work
when it is used in India?”
 Answer: Check the law of India.

23. More Mind Games:
Exceptions about the Exceptions
 Basic Premise: When in U.S. apply
U.S. law.
◦ 90% Principle: Apply U.S. law equally to
foreign works.
◦ Therefore: The law is 10% unequal.
 Case Study:
◦ Kirtsaeng v. John Wiley & Sons
 The Exception at Issue:
◦ The First Sale Doctrine

24. What is “First Sale”?
 Concept: Once a copyrighted work
has been sold (the “first sale”), that
copy may be further sold, given away,
loaned, etc.
 The Language of Section 109(a): The
concept applies to works “lawfully
made under this title.”
 “This Title”: Title 17 of the United
States Code; i.e., the U.S. Copyright
Act

25. Kirtsaeng v. John Wiley &
Sons
 Kirtsaeng purchased and imported
from Thailand low-priced editions of
major textbooks.
 Question: Because the books were
made outside the U.S., were they
made “under this title”?
 If Yes: Kirtsaeng and others may sell
the books.

26. Kirtsaeng v. John Wiley &
Sons
 If no…..
◦ No sales of foreign-made books and
more.
◦ No lending
◦ No renting
◦ No public display of works
 What should libraries do?

27. Mind Games, continued:
More Exceptions about
Exceptions
 Case Study: Section 108, Copies for
Researchers and ILL
 Section 108 Allows: Libraries may
make copies of selected works,
generally for research and study, and
to send copies through ILL
arrangements that do not have as
their “purpose or effect” to substitute
for a “subscription to or purchase of”
the work.

28. Section 108 and The World
 When in the U.S. apply U.S. law.
 Library in the U.S. may apply Section
108.
 Nothing in Section 108 bars Internat’l
ILL.
 Receiving library is subject to
conditions:
◦ Subscription and Purchase Clause
◦ Local Domestic Copyright Law

29. Confused? Perplexed??
 Remember the 90% Rule:
◦ When in the U.S. apply U.S. law.
 Remember the 90% Principle:
◦ Copyright applies to foreign works in the
same way that it applies to domestic
works.

30. Taking Action
 Public Domain
◦ Copyright law varies around the world
◦ Learn and apply fundamentals
◦ Most expectations can be met locally
 Fair Use
◦ Apply fair use responsibly and vigorously
◦ Apply it to foreign works

31. Taking Action
 Library Lending
◦ Kirtsaeng case is a problem
◦ Could raise serious legal & ethical
concerns
◦ Could libraries even comply?
 Copies for ILL
◦ Watch for legal developments
◦ Adhere to standards of Section 108
◦ Does requestor comply with Local Law?

32. Taking Action
 Don’t Panic!
 Don’t trash your foreign materials
 Get Involved:
◦ Section 108 upcoming review in
Washington
◦ NOI regarding Orphan Works
◦ WIPO meetings on Copyright Treaties
 Develop Policy for Your Library
 Consult with Legal Advisors

33. Thank You!
Kenneth D. Crews
Copyright Advisory Office
Columbia University Libraries
www.copyright.columbia.edu
www.twitter.com/kcrews
Next Workshop?
Let Me Know Your
Suggestions!