The copyright law allows libraries to make up to three copies of a work for preservation purposes.
Copies can be made for works that are damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, [17 USCA 108(c)] so long as the library has determined that a replacement cannot be obtained at a fair price. A format is considered obsolete if it is no longer manufactured or is not readily available in the commercial marketplace. Such works can be in any format.
Copies can be digital, provided they are not distributed or made available to the public digitally outside of the physical library
https://guides.cuny.edu/cunyfairuse/librarians
The US Copyright Act Section 109(a), which covers "first-sale" rights, says that the owner of a particular copy (i.e. book) ... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner,
to sell or otherwise dispose of the possession of that copy ...
While the Internet Archive MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTINTERNET ARCHIVE’S MOTION FOR SUMMARY JUDGMENT (Filed 07/07/22) references
"Section 109" Copyright Act six times, it references the words "otherwise dispose of"zero times.
Is there maybe some reason the lawyers for the Internet Archive prefer not to make a case that their
actions properly comply with the text "otherwise dispose of"?
Persons supporting the treaty both before and after its adoption routinely lowball the number of eligible persons under Article 3 of the Treaty which, from the get go, I have said may be because they KNOW that the 'certain special cases clause' has been defined at the WTO as to be "Narrow in both quantity and quality".
I would generally agree with you but then why do the WBU and others continue to publish that there are 300 million persons worldwide with a print disability when the number of visually impaired and persons with dyslecxia etc. is easily in the 1 billion range? I have asked themat WBU and at WIPO why they repeatedly stick with the 300 million number from which I can only infer that they see some problem if the 1 billion number gets out there.
From the above: United States law is already compliant with Marrakesh ...
That is the opinion of many including EFF and ABA (AUG 2014 resolution) but until either both House and Senate Judiciary Committees pass the proposed 'Marrakesh Treaty Implementation Act of 2016'and the Senate Foreign Relations Committee agrees, that is just the opinion of others who have no direct say in the matter.
By signature, the State has not expressed its consent to be bound by the treaty, which does not occur until the State ratifies, accepts or approves the treaty. Signature does mean that a State is obliged, in good faith, to refrain from acts that would defeat the object and purpose of the treaty (articles 18 of the Vienna Convention on the Law of Treaties of 1969).
Again, I do not know of the disposition of US copyrighted materials if the US does not ratify the Marrakesh Treaty. However, as persons in Ecuador are finding out regarding the Snowden affair, if the USA finds that its laws have been intentionally violated, there are sundry means involving other aspects of trade at its disposal.
As to the blind being 'collateral damage', those who sponsored the treaty in 2009 and have taken it to this point were well aware of the opposition that would be deployed.
Now, given the approval of the treaty text, we will soon enough find out if they have adequately prepared themselves for what may be a grueling ratification process at least in those countries from where the bulk of copyrighted materials -- and copyrighted materials already available in accessible format -- will originate.
OK I'll just add this from the version of the Treaty Draft Text as of last night:
Article 1 -- Relation to other Conventions and Treaties
Nothing in this treaty shall derogate from any obligations that Contracting Parties have to each other under any other treaties, nor shall it prejudice any rights that a Contracting Party has under any other treaties.
So the 'affirmative defense' statement above may be questionable.
I am not attorney so I will not take issue with your statement. However, in any Member State which does not ratify the treaty, Authorized Entities / NGOs may be precluded from exporting accessible materials at least under the provisions of the Treaty as national laws will not have been modified -- if necessary -- to conform with the provisions of the Marrakesh Treaty.
As I said I'm not a lawyer but both the legal counsel for the AAP & IPA (as above) seem to feel that non-ratification has some impact. So I'l let THEM worry about it. Thanks for the kind words.
As is noted in item 2. above on ratification (or not) of the Treaty, this is most likely already in the works. From the International Publishers Association (IPA) Newsletter #101 in April 2013:
The ?success? of the Marrakech diplomatic conference in June was inevitable. We will probably have a treaty. However, whether it will then be ratified by member states is another question.
"When mankind communicated privately 30 years ago, our parents sent physical letters in the mail."
True -- but our parents also spoke via telephone 30 years ago and, at least in the USA, such conversation was subject to a wiretap if the Law guys could convince a court to issue the proper search warrant.
To Whomever -- If one can establish and prove genuine harm regardless of what is in current law, you have 2 (I would guess) avenues of recourse: Sue under current law that in someway can be interpreted to redress your harm or find someone in the US House or Senate that would sponsor legislation to redress that harm.
... or just keep posting anonymously c/o Mr. Masnick or elsewhere.
"I, as a member of the public, am harmed by these laws and so are the majority of us."
I am sure some US Federal Court would be delighted to have you or your attorneys explain to them that you are harmed on a daily and ongoing basis and therefore offer an immediate injunction such that you and those in your representative class are in no way further harmed.
Thank you so much Mr./Ms. Anonymous Coward, but this is work I actually do on a daily basis both in the USA, through the copyright law of other countries, and WIPO/Geneva. If you want to come up with hypothetical constructs please go right ahead. I leave it to others to change existing law; I try to use existing law in ways that is outside the norm. Only time will tell how effecticve that may be.
From above: Every day that I, as a member of a public, get denied legal access to a work and have my rights impeded by the government ...
Maybe true but total BS unless you can find a harmed party with legal standing that is denied rights under the law as it exists today -- not under the law as you think-it-should-be.
" ... it means that copyright law that can be shown not to benefit the public or (worse) to hinder the public is, on its face, unconstitutional, since Congress has no power to grant such monopolies if it is not to benefit the promotion of the progress of science."
So the best way to challenge such a contention is find a case where someone is harmed by the current copyright law or an improper implementation of current copyright law.
I am not a lawyer but in my personal work regarding Section 121 of the Copyright Act I believe there may be such situations where organizations or government entities have enacted binding contractual agreements that misrepresent plainly worded statute.
All it may take is one such instance and then you may be able to start peeling away others. So are you, Mr. MM, a lot of smoke but no fire?
The copyright law allows libraries to make up to three copies of a work for preservation purposes. Copies can be made for works that are damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, [17 USCA 108(c)] so long as the library has determined that a replacement cannot be obtained at a fair price. A format is considered obsolete if it is no longer manufactured or is not readily available in the commercial marketplace. Such works can be in any format. Copies can be digital, provided they are not distributed or made available to the public digitally outside of the physical library https://guides.cuny.edu/cunyfairuse/librarians
Hachette v Internet Archive
The US Copyright Act Section 109(a), which covers "first-sale" rights, says that the owner of a particular copy (i.e. book) ... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy ... While the Internet Archive MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTINTERNET ARCHIVE’S MOTION FOR SUMMARY JUDGMENT (Filed 07/07/22) references "Section 109" Copyright Act six times, it references the words "otherwise dispose of"zero times. Is there maybe some reason the lawyers for the Internet Archive prefer not to make a case that their actions properly comply with the text "otherwise dispose of"?
Re: Re: IP Kat on EU
Persons supporting the treaty both before and after its adoption routinely lowball the number of eligible persons under Article 3 of the Treaty which, from the get go, I have said may be because they KNOW that the 'certain special cases clause' has been defined at the WTO as to be "Narrow in both quantity and quality".
Re: Re: IP Kat on EU
I would generally agree with you but then why do the WBU and others continue to publish that there are 300 million persons worldwide with a print disability when the number of visually impaired and persons with dyslecxia etc. is easily in the 1 billion range? I have asked themat WBU and at WIPO why they repeatedly stick with the 300 million number from which I can only infer that they see some problem if the 1 billion number gets out there.
IP Kat on EU
Hi! Glyn -- hope you read my comment on the IP KAT article:
https://tinyurl.com/ycv9xy9t
Marrakesh Treaty Compliant with US existing law?
From the above: United States law is already compliant with Marrakesh ...
That is the opinion of many including EFF and ABA (AUG 2014 resolution) but until either both House and Senate Judiciary Committees pass the proposed 'Marrakesh Treaty Implementation Act of 2016'and the Senate Foreign Relations Committee agrees, that is just the opinion of others who have no direct say in the matter.
Re: Consequences of not signing Take 2
From Treaties.UN.org Website:
By signature, the State has not expressed its consent to be bound by the treaty, which does not occur until the State ratifies, accepts or approves the treaty. Signature does mean that a State is obliged, in good faith, to refrain from acts that would defeat the object and purpose of the treaty (articles 18 of the Vienna Convention on the Law of Treaties of 1969).
Re: Consequences of not signing
None.
Re: post #15
Again, I do not know of the disposition of US copyrighted materials if the US does not ratify the Marrakesh Treaty. However, as persons in Ecuador are finding out regarding the Snowden affair, if the USA finds that its laws have been intentionally violated, there are sundry means involving other aspects of trade at its disposal.
Re: Why?
As to the blind being 'collateral damage', those who sponsored the treaty in 2009 and have taken it to this point were well aware of the opposition that would be deployed.
Now, given the approval of the treaty text, we will soon enough find out if they have adequately prepared themselves for what may be a grueling ratification process at least in those countries from where the bulk of copyrighted materials -- and copyrighted materials already available in accessible format -- will originate.
Re: post #12
OK I'll just add this from the version of the Treaty Draft Text as of last night:
Article 1 -- Relation to other Conventions and Treaties
Nothing in this treaty shall derogate from any obligations that Contracting Parties have to each other under any other treaties, nor shall it prejudice any rights that a Contracting Party has under any other treaties.
So the 'affirmative defense' statement above may be questionable.
Re: post #11
I am not attorney so I will not take issue with your statement. However, in any Member State which does not ratify the treaty, Authorized Entities / NGOs may be precluded from exporting accessible materials at least under the provisions of the Treaty as national laws will not have been modified -- if necessary -- to conform with the provisions of the Marrakesh Treaty.
As I said I'm not a lawyer but both the legal counsel for the AAP & IPA (as above) seem to feel that non-ratification has some impact. So I'l let THEM worry about it. Thanks for the kind words.
'Blind Treaty' Ratification
As is noted in item 2. above on ratification (or not) of the Treaty, this is most likely already in the works. From the International Publishers Association (IPA) Newsletter #101 in April 2013:
The ?success? of the Marrakech diplomatic conference in June was inevitable. We will probably have a treaty. However, whether it will then be ratified by member states is another question.
30 years ago
From original blogpost above :
"When mankind communicated privately 30 years ago, our parents sent physical letters in the mail."
True -- but our parents also spoke via telephone 30 years ago and, at least in the USA, such conversation was subject to a wiretap if the Law guys could convince a court to issue the proper search warrant.
Harm? What Harm?
To Whomever -- If one can establish and prove genuine harm regardless of what is in current law, you have 2 (I would guess) avenues of recourse: Sue under current law that in someway can be interpreted to redress your harm or find someone in the US House or Senate that would sponsor legislation to redress that harm.
... or just keep posting anonymously c/o Mr. Masnick or elsewhere.
In Harms Way
"I, as a member of the public, am harmed by these laws and so are the majority of us."
I am sure some US Federal Court would be delighted to have you or your attorneys explain to them that you are harmed on a daily and ongoing basis and therefore offer an immediate injunction such that you and those in your representative class are in no way further harmed.
Re: Re: Re: Re: Unconstitutionality of copyright Law -- test case?
Thank you so much Mr./Ms. Anonymous Coward, but this is work I actually do on a daily basis both in the USA, through the copyright law of other countries, and WIPO/Geneva. If you want to come up with hypothetical constructs please go right ahead. I leave it to others to change existing law; I try to use existing law in ways that is outside the norm. Only time will tell how effecticve that may be.
Re: Re: Unconstitutionality of copyright Law -- test case?
From above: Every day that I, as a member of a public, get denied legal access to a work and have my rights impeded by the government ...
Maybe true but total BS unless you can find a harmed party with legal standing that is denied rights under the law as it exists today -- not under the law as you think-it-should-be.
Unconstitutionality of copyright Law -- test case?
Mr. Masnick writes above:
" ... it means that copyright law that can be shown not to benefit the public or (worse) to hinder the public is, on its face, unconstitutional, since Congress has no power to grant such monopolies if it is not to benefit the promotion of the progress of science."
So the best way to challenge such a contention is find a case where someone is harmed by the current copyright law or an improper implementation of current copyright law.
I am not a lawyer but in my personal work regarding Section 121 of the Copyright Act I believe there may be such situations where organizations or government entities have enacted binding contractual agreements that misrepresent plainly worded statute.
All it may take is one such instance and then you may be able to start peeling away others. So are you, Mr. MM, a lot of smoke but no fire?