Archive for the 'Copyright' Category

"Contribution to the Definition of a Positive Agenda for the Public Domain: A Policy Paper by COMMUNIA International Association on the Public Domain"

Posted in Copyright, Public Domain, Reports and White Papers on December 6th, 2012

COMMUNIA has released "Contribution to the Definition of a Positive Agenda for the Public Domain: A Policy Paper by COMMUNIA International Association on the Public Domain."

Here's an excerpt:

This policy paper proposes to contribute to defining a positive agenda for the Public Domain. It is grounded on a WIPO study by Professor Sèverine Dusollier, Communia policy recommendations and Communia previous WIPO statements. This work-in-progress document presents policy recommendations and strategies aimed at the trans-national level , namely WIPO CDIP and SCCR. Legal language will be drafted at a later stage.

Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals Cover

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    "ARL Member Library Directors on Putting the Code to Work"

    Posted in Copyright on November 27th, 2012

    The Association of Research Libraries has published "ARL Member Library Directors on Putting the Code to Work."

    Here's an excerpt:

    The Code of Best Practices in Fair Use for Academic and Research Libraries came out in January 2012, and we have been spreading the good news at events around the country ever since. . . . In the following video interviews, taped in October 2012, five dynamic leaders of ARL libraries describe how they are using the Code to inform new approaches to questions of copyright and fair use.

    | Digital Scholarship's Digital/Print Books | Digital Scholarship |

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      "The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States"

      Posted in Copyright on November 22nd, 2012

      Christina Angelopoulos has self-archived "The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States" in SSRN.

      Here's an excerpt:

      The term of protection of copyright and related rights is generally considered to be one of the best harmonised areas of European copyright law. However, close examination of the EU Term Directive's intricate provisions reveals a piecemeal and permissive approach to harmonisation which preserves many differences between the national rules. In this report, four main sources of legislative variability are identified and analysed: a) contagion from unharmonised areas of substantive copyright law; b) explicit exceptions to the harmonisation of the term of protection; c) national related rights of unharmonised term; and d) incorrect implementation of the provisions of the Term Directive into national law.

      | Digital Scholarship's Digital/Print Books | Digital Scholarship |

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        Authors Guild et al. v. Google: "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal"

        Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 20th, 2012

        Pamela Samuelson and David R. Hansen have self-archived "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal" in SSRN.

        Here's an excerpt:

        Summary of argument: Class certification was improperly granted below because the District Court failed to conduct a rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics. . . .

        Academic authors desire broad public access to their works such as that which the Google Books project provides. Although the District Court held that the plaintiffs had inadequately represented the interests of academic authors in relation to the proposed settlement, it failed to recognize that pursuit of this litigation would be even more adverse to the interests of academic authors than the proposed settlement was. . . .

        In short, a "win" in this case for the class representatives would be a "loss" for academic authors. It is precisely this kind of conflict that courts have long recognized should prevent class certification due to inadequate representation. The District Court failed to adequately address this fundamental conflict in its certification order, though it was well aware of the conflict through submissions and objections received from the settlement fairness hearing through to the hearings on the most recent class certification motions. Because of that failure, the order certifying the class should be reversed

        | Google Books Bibliography | Digital Scholarship |

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          Republican Study Committee Released Progressive Copyright Brief Then Withdrew It

          Posted in Copyright, Digital Copyright Wars, Reports and White Papers on November 19th, 2012

          The Republican Study Committee released “Three Myths about Copyright Law and Where to Start to Fix it,” which attracted immediate attention due to its progressive view of copyright. Now, the brief's PDF is blank.

          However, in “Republican Report: 3 Myths of Copyright, Quashed by MPAA and RIAA,” Ash McGonigal provides a working link to the full text in addition to a recap of the situation.

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            Digital Copyright: Google Asks Court to Reverse Class Certification Decision in The Authors Guild et al. v. Google Inc.

            Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 13th, 2012

            In a brief, Google has asked the U.S. Second Circuit Court of Appeals to reverse the class certification decision by the United States District Court for the Southern District of New York in The Authors Guild et al. v. Google Inc. case.

            Here's the brief.

            Read more about it at "Google Asks Court to Ax Book-Scanning Suit from Authors Guild."

            | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

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              Copyright: Authors Guild Appeals HathiTrust Ruling

              Posted in Copyright, Digital Copyright Wars, E-Books, Mass Digitizaton, Publishing on November 12th, 2012

              The Authors Guild is appealing the Authors Guild, Inc. et al. v. HathiTrust et al. ruling.

              Here's an excerpt from the "LCA Issues Statement on Authors Guild's Appeal of HathiTrust Decision":

              We are deeply disappointed by the Authors Guild's decision to appeal Judge Baer's landmark opinion acknowledging the legality, and the extraordinary social value, of the HathiTrust Digital Library. Libraries have a moral and a legal obligation to provide the broadest possible access to knowledge for all of our users, and the HathiTrust and its partners have assembled an invaluable digital resource that will ensure for the first time that library print collections can be made available on equitable terms to our print-disabled users. The database also facilitates preservation and cutting-edge scholarship, all with no harm to authors or publishers. As we predicted, Judge Baer did not look kindly on the Guild's shortsighted and ill-conceived lawsuit, saying, "I cannot imagine a definition of fair use that . . . would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA." If there is an upside to this misguided appeal, it is that the Second Circuit will now have the opportunity to affirm that powerful insight.

              Read more about it at "Google Scanning Is Fair Use Says Judge" and "Unintended Consequences in the HathiTrust Case"

              | Digital Scholarship's Digital/Print Books | Digital Scholarship |

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                E-books: Developments and Policy Considerations

                Posted in Copyright, E-Books, Licenses, Publishing, Reports and White Papers on November 1st, 2012

                The OECD has released E-books: Developments and Policy Considerations.

                Here's an excerpt:

                The essential distinction between permanent and effective ownership of a physical book, and conditional rights of access to the e-book, has, so far, been somewhat obscured by marketing strategies and use of visual images, which tend to present e-books as a superior, but also substitutable, version of the print book product. Given the virtual reality of "traditional books" presented by e-Book platforms, buyers of e-books are likely to confuse their rights (i.e. after purchase) with the property rights model for print books. Users may be surprised to find that they are prevented from doing certain things7 with their e-book, within their private/ personal sphere.

                | Reviews of Digital Scholarship Publications | Digital Scholarship |

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                  "Suing HathiTrust"

                  Posted in Copyright, Digital Copyright Wars, Mass Digitizaton, Publishing on October 29th, 2012

                  C.E. Petit has published "Suing HathiTrust" in Scrivener's Error: Warped Weft.

                  Here's an excerpt:

                  This is an initial review only of the third segment of the Google BookScan lawsuits, generally known as the "HathiTrust suit" and formally known as Authors' Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y.) (Baer, J.). The first two segments were the Authors' Guild's lawsuit against Google, and the publishers' lawsuit against Google (which were later consolidated… and at this writing may be severing). As a side note, the HathiTrust matter was referred to Judge Chin for further consolidation with the existing GBS suits, but was rejected as not sufficiently related… and inconsistent with Judge Chin's elevation to the Second Circuit, although the rejection did not emphasize that issue.

                  | A Look Back at 23 Years as an Open Access Publisher | Digital Scholarship |

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                    No Ripping: Copyright Office Issues "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies"

                    Posted in Copyright, Digital Copyright Wars on October 26th, 2012

                    The U.S. Copyright Office has issued the final rule for the "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies."

                    Of particular interest is section "IV. Classes Considered But Not Recommended, D. Motion Pictures and Other Works on DVDs and Other Media—Space Shifting," which starts on page 58.

                    Here's an excerpt:

                    Proponent Public Knowledge stated a desire to move lawfully acquired motion pictures on DVDs to consumer electronic devices, such as tablet computers and laptop computers, that lack DVD drives. It asserted that consumers' inability to play lawfully acquired DVDs on the newest devices adversely affected noninfringing uses of the works contained on DVDs, and that a reasonable solution was for these consumers to copy the motion pictures into a format that could be viewed on the new devices. . . .

                    Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (1999), and Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), in support of its contention that space shifting is a noncommercial personal use, and therefore a fair use. . . .

                    The Register recognized that there is significant consumer interest in the proposed exemption. Proponents, however, had the burden of demonstrating that the requested use was noninfringing. Neither of the two key cases relied upon by proponents, however, addresses or informs the space shifting activities at issue. . . .

                    The Register further observed that the law does not guarantee access to copyrighted material in a user's preferred format or technique. Indeed, copyright owners typically have the legal authority to decide whether and how to exploit new formats. The Register noted that while the law may someday evolve to accommodate some of proponents' proposed uses, more recent cases touching upon space shifting confirm that the fair use implications of various forms of space shifting are far from settled. . . .

                    In urging that space shifting is a fair use, Public Knowledge characterized the copying of motion pictures for use on personal devices as a "paradigmatic noncommercial personal use" that could facilitate a transformative use. It further asserted that integrating reproductions of motion pictures from DVDs into a consumer's media management software was analogous to the integration of thumbnail images into internet search engines found to be a transformative use in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).

                    The Register did not agree with this analysis. In her view, the incorporation of reproductions of motion pictures from DVDs into a consumer's media management software is not equivalent to the provision of public search engine functionality. Rather, it is simply a means for an individual consumer to access content for the same entertainment purpose as the original work. Put another way, it does not "add[] something new, with a further purpose or different character, altering the first with new expression, meaning," or advance criticism, comment, or any other interest enumerated in the preamble of Section 107. The Register therefore concluded that the first fair use factor did not favor a finding of fair use. The Register additionally determined that where creative works were being copied in their entirety, factors two and three also weighed against fair use, and that there was an inadequate basis in the record to conclude that the developing market for the online distribution of motion pictures would not be harmed by the proposed uses.

                    Finally, the Register concluded that proponents had failed to demonstrate that the use of a reasonably priced peripheral, a different device, or an online subscription service to access and play desired content did not offer a reasonable alternative to circumvention. Accordingly, the Register was not persuaded that the inability to engage in the space shifting activities described by proponents is having a substantial adverse impact on consumers' ability to make noninfringing uses of copyrighted works.

                    Read more about it at "United States Copyright Office: Ripping Is Illegal."

                    | Reviews of Digital Scholarship Publications | Digital Scholarship |

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                      ALA Joins Owners’ Rights Initiative

                      Posted in ALA, Copyright, Digital Copyright Wars, Publishing on October 23rd, 2012

                      ALA has joined the Owners' Rights Initiative.

                      Here's an excerpt from the announcement:

                      Today, the American Library Association announced that it has joined—as a founding member—the Owners' Rights Initiative (ORI)—a coalition of retailers, libraries, educators, Internet companies and associations working to protect ownership rights in the United States.

                      The coalition was formed to champion "first-sale rights," or ownership rights, as the issue will be taken up by the U.S. Supreme Court in the case of Kirtsaeng vs. Wiley & Sons, Inc. on October 29, 2012. The Supreme Court's decision could have adverse consequences for libraries and call into question libraries' abilities to lend books and materials that were manufactured overseas.

                      | Reviews of Digital Scholarship Publications | Digital Scholarship |

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                        "Licensing Revisited: Open Access Clauses in Practice"

                        Posted in Author Rights, Copyright, Creative Commons/Open Licenses, Open Access, Publishing, Scholarly Journals on October 23rd, 2012

                        Birgit Schmidt and Kathleen Shearer have published "Licensing Revisited: Open Access Clauses in Practice" in the Future Issue section of LIBER Quarterly.

                        Here's an excerpt:

                        Open access increases the visibility and use of research outputs and promises to maximize the return on our public investment in research. However, only a minority of researchers will "spontaneously" deposit their articles into an open access repository. Even with the growing number of institutional and funding agency mandates requiring the deposit of papers into the university repository, deposit rates have remained stubbornly low. As a result, the responsibility for populating repositories often falls onto the shoulders of library staff and/or repository managers. Populating repositories in this way—which involves obtaining the articles, checking the rights, and depositing articles into the repository—is time consuming and resource intensive work.

                        The Confederation of Open Access Repositories (COAR), a global association of repository initiatives and networks, is promoting a new strategy for addressing some of the barriers to populating repositories, involving the use of open access archiving clauses in publisher licenses. These types of clauses are being considered by consortia and licensing agencies around the world as a way of ensuring that all the papers published by a given publisher are cleared for deposit into the institutional repository. This paper presents some use cases of open access archiving clauses, discusses the major barriers to implementing archiving language into licenses, and describes some strategies that organizations can adopt in order to include such clauses into publisher licenses.

                        | Transforming Scholarly Publishing through Open Access: A Bibliography: "This work gives an outstanding overview of scholarship relating to the growing Open Access movement." — George Machovec, The Charleston Advisor 12, no. 2 (2010): 3. | Digital Scholarship |

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