By Kevin Smith

The final foible I wanted to write about in this series of posts involves a distressingly common situation – a copyright holder who does not understand what the rights they hold actually are.

This is not the first blog post to point out that Human Synergistics International is pretty clueless about copyright.  Almost five years ago, the TechDirt blog made an effort to school Human Synergistics about fair use.  Apparently it did not work; they seem to continue to misunderstand the copyright law.

Human Synergistics is a leadership and organizational development company that offers, among other things, simulations to help people experience real management situations.  At some point, at least, it was possible to purchase materials from Human Synergistics, and there are libraries out there that own materials they marketed.  One such library got in touch with me recently because they were having a contentious exchange with Human Syergistics and wanted to inquire what I thought.

According to the librarian I spoke to, a representative of Human Synergistics was contending that the library could not lend, nor even display on public shelving, a DVD that they held rights to.  The representative of the company repeatedly sited section 113 of the copyright law.  The librarian later sent me a copy of an “Agreement to Comply with Copyright Regulations” that she had been given by Human Synergistics and that confirmed to me their fundamental misunderstanding of copyright law.  As she had told me, it would have bound the library not to do anything “in violation of section 113 of the U.S. Copyright Act, Title 17 of the United States Code.”

I told the librarian that this agreement was fundamentally meaningless.  But the library decided that they would not sign it and would, instead, withdraw the DVD from their collection, not because they have to, but in order to avoid a conflict.

The problems with this exchange are numerous, so let me try to enumerate them.

First, section 113 is about the “scope of exclusive rights in pictorial, graphic or sculptural works.”  A quick look at the definitions in section 101 of Title 17 will tell one that a film falls into the category of motion picture, so section 113 actually has nothing to do with the DVD that the library owns.  That is why I told the librarian that the agreement was meaningless.  And if one reads section 113, it is very obvious that it is unrelated to motion pictures, since it deals with copyrighted works incorporated into useful articles and buildings.  It is almost unbelievable that an organization claiming authority over copyright would so badly misread the law.

Second, section 113 does not actually confer any rights on a copyright holder, although it does make mention of some of the rights conferred in section 106.  In fact, section 113 is a limitation; it prescribes limits on the scope of exclusive rights in a particular category of copyrighted subject matter.  So the demand in that copyright compliance agreement not to “violate” section 113 is gobbledygook.

Finally, and most obviously, nothing in section 113 could possibly prevent a lawful owner of a DVD from displaying it or lending it.  Those rights are conferred on owners of particular copies of copyrighted material by section 109, the doctrine of first sale.  The company representative who demanded that the DVD be removed from the shelves, and who believed that the presented agreement would enforce that prohibition, was seriously misinformed.

I profoundly hope that Human Synergistics is not getting these interpretations from a lawyer; as unfortunate as it would be, I have to assume that some company official with no training, but who thinks he or she understands the law, is behind their policies.  It is true that many lawyers graduate from law school without knowing much about copyright.  This issue, however, is more fundamental.  Someone is reading the law both selectively and flat-out wrongly.  Words do have specific meanings, and while there is lots of room for varying interpretations of the law, there is also outright ignorance.

This foible could be comic, since its major impact is to defeat the company’s own desire to have their materials used.  But it is indicative of a very unfortunate situation, since Human Synergistics is not the only rights holder who does not understand what they own and makes absurd demands in the name of copyright.

 

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

Comments (1)

  1. I’d love to see more commentary and analysis of copyright law with regard to DVD format; perhaps that’s already been done and I haven’t seen it. One of the situations we often see is companies charging 10 times the price for a DVD when selling to academic libraries over what they charge to a public library. Then a faculty member will purchase the DVD and donate it to the library. Under right of first sale, can we lend this DVD? I would assume we don’t have public performance rights since we didn’t purchase them, but could it not be used for classroom education or individual viewing? That is one situation; there are many others. Sometimes a motion picture company – usually a small one – will contact us and demand more money for a DVD already on our shelf, that we purchased through some third party vendor like Amazon. Must we pay? We too have removed films from our shelves, because of these threats. We never pay, so the companies gain nothing except ill will and lack of awareness of their offerings; we don’t buy their resources again. And what is the right by which companies can charge one library one price and another a different price for the same resource? Of course, that happens all the time with online databases. But for a book, the price is the same; for a DVD it is often different. Thanks for your work; it’s very helpful.

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