0.6 Enforcement

The dominant view seems to be that courts should apply the law of the place where the infringement actually occurred. This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic. It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.

In short, it is currently uncertain which laws govern which aspects of copyright disputes that involve more than one country. Such disputes are becoming increasingly common. Greater attention to this matter is inevitable. One hopes that such attention will lead to greater clarity.

The complex responsibilities of librarians

Libraries are major purchasers of copyrighted works and make these works available to the public. Although librarians typically seek to prevent copyright infringement of library materials, the ultimate responsibility of librarians is to provide access to materials and information services, not to enforce copyright law. Several library organizations have attempted to provide guidance as to the appropriate balance between protecting the rights of authors and serving the needs of library patrons.

For example, the American Library Association Code of Ethics notes that recognition and respect for intellectual property rights is one of the principles that should guide librarians’ ethical decision-making. However, the Code also emphasizes that the ALA is committed to upholding the principles of intellectual freedom and resisting efforts to censor library resources.

The United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP) supports similar values in its Code of Professional Practice. Its code requires members to “defend the legitimate needs and interests of information users, while upholding the moral and legal rights of the creators and distributors of intellectual property.”

Finally, the International Federation of Library Associations and Institutions (IFLA) has released a statement setting forth its position on copyright. The IFLA has acknowledged that librarians have a long-standing role in informing and educating users about the importance of copyright law and compliance with it. However, it also emphasizes that overprotection of copyright leads to unreasonable restrictions to access and knowledge. It has suggested that copyright law should establish clear limitations on liability of third parties, such as librarians, in instances where compliance cannot practically or reasonably be enforced.

Back to the case study

Nadia and Angela should first ascertain whether there is any merit to the publisher's complaint. For example, they should check to determine whether the copyright on the work has expired or whether the inclusion of a copy of the work in the packet of course materials is protected by any of the exceptions and limitations in their nation's copyright laws. If they have any doubts on this score, they should consult a lawyer. The lawyer will provide them advice not just concerning the permissibility of their behavior, but also concerning the sanctions they might face if they are unable to resolve the dispute with the publisher amicably. With the lawyer's aid, they should then decide whether to remove the material at issue from the course materials.

Additional resources

In  "Secondary Liability for Copyright Infringement in the US"  (2006), Professor Jane Ginsburg provides a good review of the law governing contributory and vicarious copyright infringement.

The Stanford Technology Law Review examines the same subject in  "Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement"  (2006).

Another good treatment of the same subject is Jay Dratler,  "A Theory of Secondary Liability for Copyright Infringement"  (2005).

A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach,  "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"  40 Vanderbilt Journal of Transnational Law 87 (2007).

A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found  Here .

Cases

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

Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)  (secondary liability)

CBS Songs Limited&Others v. Amstrad Consumer Electronics Plc and Anor., House of Lords, 12 May 1988  (secondary liability)

Assignment and discussion questions

Assignment

1. Does your country have a safe harbor limiting service providers’ liability? If yes, please describe the mechanism.

2. Select one activity of your library, describe it and elaborate best practices to avoid copyright infringement. For example, you might draft a set of guidelines for professors who prepare course packs or a notice to be displayed next to the printing machine or the computers available to patrons.

Discussion question(s)

1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?

2. Please comment on a few notices of your colleagues. These should be clear and inclusive, but not overbroad.

Contributors

This module was created by  Dmitriy Tishyevich . 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 .