0.4 Managing rights  (Page 11/11)

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Nadia and Angela have identified works that Angela wishes to use that are copyrighted and not in the public domain. They need to get permission from the rightsholders for uses that are not covered by exceptions and limitations.

First, they have to identify the copyright holders. Original authors may have licensed or transferred rights to a publisher or a collecting society, or the creation may be a work-for-hire. For the reasons explored in  Module 3 , other persons' rights may also be involved, such as music performers, or persons depicted in photographs (who are protected by the right of publicity against certain uses of their image), in addition to the photographer or entity who owns the copyright. When the contact information for the copyright holder is not available on the work, it might be possible to locate the holder though national copyright offices or collective rights organizations.

Once they have identified and located the rightsholders, Nadia and Angela will request permission to use the works. While a first contact by email or phone can be useful to explain the use they are considering, they will likely be required to follow up with a request in writing that describes accurately the copyrighted work (title, author, copyright holder, URL), the purpose of the use (a description of the use in the course pack), and the conditions of the permission that have been discussed (for a small fee, for free, etc.). If the decide to seek a broad license to a database containing the works at issue, they should carefully review the guidelines for the negotiation of such licenses set forth in this module.

Finally, if they are unable to identify the owners of the copyrights in some of the materials, they should consult their country's copyright law to ascertain whether it contains a provision dealing with "orphan works."

Additional resources

A brief overview of collective licensing systems by WIPO can be found in  “Collective Management of Copyrights and Related Rights” .

A much more in-depth analysis of voluntary collective rights organizations may be found in Robert Merges,  "Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organizations ," 84 Calif. L. Rev.1293 (1996).

A thorough examination of collective licensing organizations in Europe is  KEA Study- Collective Management of Rights in Europe: A Quest for Efficiency  (2006).

Favorable discussions of compulsory collective licensing, particularly as a solution to the problem of peer-to-peer filesharing of copyrighted works, may be found in Neil Netanel,  "Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing,"  17 Harvard Journal of Law&Technology 1 (2003), and William Fisher,  Promises to Keep: Technology, Law, and the Future of Entertainment  (2004). Much more skeptical views are expressed in Robert Merges,  "Compulsory Licensing vs. the Three "Golden Oldies" Property Rights, Contracts, and Markets"  (Cato Policy Analysis No. 508, Jan. 15, 2004).

A thoughtful analysis of the advantages and disadvantages of collective licensing systems in Japan is Salil K. Mehra,  "The iPod Tax: Why the Digital Copyright System of American Law Professors' Dreams Failed in Japan,"  79 U. Colo. L. Rev. 421 (2008).

A crucial guide for librarians seeking to navigate these waters is  Emanuella Giavarra, "Licensing Digital Resources: How to Avoid the Legal Pitfalls.

Cases

The following judicial opinions explore and apply some of the principles discussed in this module:

UK: Grisbrook v. MGN Limited, High Court Chancery Division (High Court Chancery Division)  (Implied licenses)

Case C-169/05, Uradex SCRL v. Union Professionnelle de la Radio and de la Télédistribution (RTD) and Société Intercommunale pour la Diffusion de la Télévision (BRUTELE)  (Collecting Societies – Neighboring Rights)

France: Decision of the French Constitutional Council no. 2006-540 DC of 27 July 2006  (Digital Rights Management)

Davidson v. Jung, 422 F.3d 630 (8th Cir. 2005)  (Technological Protection Measures)

UK: Gilham v. R, Court of Appeal of England and Wales (Court of Appeal of England and Wales), 2009  (Technological Protection Measures)

Case C-275/06, Productores de Música de España (Promusicae) v. Telefónica de España SAU  (obligations of service providers)

Assignment and discussion questions

Assignment

1. Understand a license

Select a license governing access to electronic resources in your library or find the standard terms of a publisher online. Read the use rights described in the license, and explain whether, to what extent, and under which conditions it covers the following actions:

• reproduction by the patrons;
• reproduction by the librarians;
• downloading by the patrons;
• interlibrary loan of a printed copy;
• interlibrary loan of a digital version;
• publication in an electronic reserve or a course pack;
• rights when reusing resources: translation, compilation, indexing, abstract, data-mining, etc.; and
• other uses that you may define.

2. Collecting societies

What collecting societies, copyright clearing houses, copyright offices, or other entities collectively managing rights are operating in your country? For each of them, provide the name of the society, the website if any, and the type of media or works covered. Read the applicable statutes or bylaws. Explain what rights are managed, if members must transfer all of their rights to the organization or may only license some of them, and if it is a voluntary or a compulsory system.

3. Orphan works

Which of the systems currently used by a few countries to facilitate use of orphan works is best? What system would be even better?

Discussion question(s)

Comment on the answers of your colleagues to question 1, and select the most favorable terms and licenses among those which have been analyzed.

Contributors

This module was created by  David Scott  and  Emily Cox . It was then edited by a team including  Sebastian Diaz ,  William Fisher ,  Urs Gasser ,  Adam Holland ,  Kimberley Isbell ,  Peter Jaszi ,  Colin Maclay ,  Andrew Moshirnia , and  Chris Peterson .