D.R. Jones, University of Memphis
Meg Kribble, Harvard University Law
Kevin Miles, Fulbright and Jaworski
This seems to have been an extraordinarily busy year for copyright legislation, news, and court cases. The goal of this session was to catch attendees up on the most recent development and how these various changes will impact law libraries.
After introductions from D.R., Meg reviewed some noteworthy happenings in the courtroom and in the publisher's office. First, Aspen attempted to introduce a 'connected casebook' that students could not sell or give away, which challenged the Right of First Sale. After a good amount of uproar from law faculty, students and librarians, Aspen backed off to an extent, now offering traditional books and the "Connected" ones...though the introduction suggests that libraries may have to be more vigilant when it comes to education and advocacy about open casebooks and the protection of first sale.
Two court cases with decisions that strongly favored Fair Use (and therefore libraries) were the Google Books and Hathi Trust cases. Both cases leaned on transformative use to help defend the digitization of the content, with the opinion from the Google Books case being especially pro-library. However, Google controlling patron and information privacy certainly sits uneasily with many librarians.
D.R. then discussed the pretty well-known E-reserves copyright case involving Georgia State. The key to this decision coming down pro-fair use was in part due to written policies that ensure libraries are using proprietary works in an educational and limited way, and limiting access to students, not laying out content freely on the web.
Fair Use also found some unlikely advocates in the form of Westlaw and Lexis when lawyers sued the databases due to the inclusion of patent filings...but once again there was no commercial impact and transformative use played a large role in the judge's decision to rule in favor of Fair Use. One important distinction was made by the judge in that copying is most certainly not a substitute for subscriptions, something I think librarians with even the most liberal view of Fair Use can agree with.
Finally, Kevin presented a brief rundown of the various legislative efforts involving copyright, as well as roundtables and hearings. To me, the most interesting proposed legislation involved offering royalties to senior copyright owners, meaning royalties for any works produced before 1972. This bill is not a law, and is only one of a number of roundtables, hearing and legislation that has come up in the past two years.
Most importantly, the presenters provided plenty of sources for current awareness of copyright. With many of the court cases up for appeal, the ground can still shift under librarians, perhaps weakening Fair Use and it's currently surprisingly strong position. These sources can be found on AALL2 go under topic G2. You can also watch the session (it was live-casted). With so much change and so much potentially at stake, I hope you check out these great resources.