Archive for the 'Copyright' Category

Proceedings of the 157th ARL Membership Meeting

Posted in ARL Libraries, Copyright on November 30th, 2010

ARL has released Proceedings of the 157th ARL Membership Meeting.

Here's a brief selection of presentations:

| Digital Scholarship |

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    Emerald Group Publishing Limited’s Use of the Attributor Anti-Piracy Service

    Posted in Copyright, Digital Copyright Wars, Open Access, Publishing, Scholarly Journals, Self-Archiving on November 4th, 2010

    In "Thanks but No Thanks Emerald," Kristin Eschenfelder reproduces and discusses a letter that she received from the Emerald Group Publishing Limited. In short, this letter says that Emerald is expanding it's use of Attributor to detect copyright violations from "cyberlockers" to "the full breadth of the internet," and it requests the URLs for her personal, institutional, and corporate websites so that they can be excluded from Attributor searches and its "legally-binding takedown notices."

    Will this expanded use of Attributor affect self-archiving of articles from Emerald journals?

    Emerald's publication policies are detailed in its Authors' Charter and its Review Copyright Assignment Form. Emerald requires that authors assign their article copyrights to Emerald as a condition of publication.

    The Authors' Charter states that (I have added italics in certain places in the below quotes):

    Authors are not required to seek Emerald's permission to re-use their own work. As an author with Emerald you can use your paper in part or in full, including figures and tables if you want to do so in a book, in another article written for us or another publisher, on your website, or any other use, without asking us first.

    It further states that:

    It does NOT, in any way, restrict your right or academic freedom to contribute to the wider distribution and readership of your work. This includes the right to: . . . .

    2. Reproduce your own version of your article, including peer review/editorial changes, in another journal, as content in a book of which you are the author, in a thesis, dissertation or in any other record of study, in print or electronic format as required by your university or for your own career development.

    3. Deposit an electronic copy of your own final version of your article, pre- or post-print, on your own or institutional website. The electronic copy cannot be deposited at the stage of acceptance by the Editor.

    Authors are requested to cite the original publication source of their work and link to the published version — but are NOT required to seek Emerald's permission with regard to the personal re-use of their work as described above. Emerald never charges its authors for re-use of any of their own published works. Emerald does not allow systematic archiving of works by third parties into an institutional or subject repository.

    The Review Copyright Assignment Form says:

    This assignment of copyright to Emerald Group Publishing Limited is done so on the understanding that permission from Emerald Group Publishing Limited is not required for me/us to reproduce, republish or distribute copies of the Work in whole or in part.

    Given the above, it would appear that the author can: (1) self-archive an article on his or her personal website, (2) self-archive an article in his or her institutional repository, and (3) self-archive an article in a subject archive (the restriction is for “systematic archiving of works by third parties,” not self-archiving). Institutional repository staff or subject repository staff cannot archive articles for authors.

    If this is not correct, it would be helpful to hear from Emerald what its interpretation of these documents is.

    Unlike the RIAA and the MPAA, scholarly journal publishers have a limited primary customer base—academic libraries. Moreover, academic librarians are authors as well as customers, and, for some publishers, they are a significant subset of their authors. The endless serials crisis has already seriously strained relations between academic librarians and publishers. Hopefully, scholarly journal publishers will be sensible and sensitive to customer concerns in their attempts to cope with difficult digital copyright issues.

    [See Emerald's reply in the comments.]

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      In Praise of Copying

      Posted in Copyright, Digital Copyright Wars on October 24th, 2010

      In Praise of Copying by Marcus Boon has been published by the Harvard University Press. The book is under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported license, and it is available as a hardcover as well as a freely available PDF file.

      Here's an excerpt:

      My goal in this book is to account for our fear of and fascination with copying. I argue that copying is a fundamental part of being human, that we could not be human without copying, and that we can and should celebrate this aspect of ourselves, in full awareness of our situation. Copying is not just something human—it is a part of how the universe functions and manifests. The issue of regulating copying, of setting up laws restricting or encouraging copying, is secondary to that of recognizing the omnipresence and nature of copies and copying in human societies—and beyond.

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        "The Size of the EU Public Domain"

        Posted in Copyright, Public Domain on October 17th, 2010

        Rufus Pollock and Paul Stepan have self-archived "The Size of the EU Public Domain."

        Here's an excerpt:

        This paper reports results from a large recent study of the public domain in the European Union. Based on a combination of catalogue and survey data our figures for the number of items (and works) in the public domain extend across a variety of media and provide one of the first quantitative estimates of the 'size' of the public domain in any jurisdiction.

        See also their related eprint "The Value of the EU Public Domain."

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          Anti-Counterfeiting Trade Agreement (ACTA) Released

          Posted in Copyright, Digital Copyright Wars on October 7th, 2010

          The Office of the United States Trade Representative has released the text of the Anti-Counterfeiting Trade Agreement (ACTA).

          Here's an excerpt from the press release:

          After three years, and ten rounds of negotiations, the ACTA parties decided the time was right to conclude their discussions. The United States helped lay the foundation for the progress in Tokyo. It chaired an extra round of negotiations in Washington during August, supported the work of the Government of Japan to organize the final round at the Vice-Ministerial level, and worked hard to establish consensus on the outstanding issues.

          Consistent with the Administration's strategy for intellectual property enforcement, the ACTA negotiations aim to establish a state-of-the-art international framework that provides a model for effectively combating global proliferation of commercial-scale counterfeiting and piracy in the 21st century. The agreement will include innovative provisions to deepen international cooperation and to promote strong enforcement practices. These will ultimately help sustain American jobs in innovative and creative industries.

          The participants agreed in Tokyo to work expeditiously to resolve the small number of outstanding issues that require further examination in their own countries with a view to finalizing the text of the agreement as promptly as possible. The draft Agreement will undergo final legal review and relevant domestic processes before signature.

          The ACTA participants include: Australia, Canada, the European Union (EU) represented by the European Commission and the EU Presidency (Belgium) and the EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America.

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            The Copyright Principles Project: Directions for Reform

            Posted in Copyright, Digital Copyright Wars, Reports and White Papers on October 3rd, 2010

            Pamela Samuelson and members of the Copyright Principles Project have released The Copyright Principles Project: Directions for Reform.

            Here's an excerpt from the press release:

            A group of leading experts on copyright law and policy released a report today that explores ideas for meaningful reforms to the U.S. copyright system. Crafted over three years by a group of legal academics, private practitioners, and corporate attorneys, the report examines several ways to improve and update the law in an era of rapid technological change.

            The Copyright Principles Project: Directions for Reform (CPP) report attempts to ignite an informed debate about how to best balance the interests of copyright owners and users. The group reached consensus on a number of significant ideas, as well as guiding principles for copyright reform. The project was led by Berkeley Law distinguished professor Pamela Samuelson.

            "The report intelligently informs the copyright debate, and the identification and discussion of issues is well done and important," said Marybeth Peters, the head of the U.S. Copyright Office. "The recommendations are thoughtful, and in many cases, I support them. This entire project significantly reinvigorates efforts to bring the copyright law up-to-date, either incrementally or as a major revision." . . .

            One of the project's ideas would provide non-commercial uses of copyrighted works better shelter from liability, particularly as users lift parts of existing works to create new ones. The report also suggests a more efficient and technologically-driven approach to copyright registration, so that works can be freely reused if their authors agree.

            Copyright law reform has been a challenging issue for stakeholders, many of whom have starkly different ideas about how to balance public and private interests. To its credit, the project team explored controversial subjects openly and with vigorous debate. In cases where the participants could not settle on a specific reform proposal, they were able to draft guiding principles for future reform efforts. . . .

            One common problem the report addresses is peer-to-peer file-sharing of commercial movies and music. Although some file-sharing services have been shut down, the illegal practice has not abated. The report suggests the creation of a "safe harbor" to protect online service providers from excessive damage claims if they take reasonable, voluntary, measures to limit file-sharing—or other unlawful distributions of commercial works. Companies that comply would be shielded from liability for user infringements.

            The report also suggests development of reasonable and consistent statutory guidelines for damage awards. Current law allows courts to award between $750 and $30,000 in damages per infringed work—and up to $150,000 per work if the infringement is willful. This has led to awards that seem arbitrary and capricious, inconsistent with awards in similar cases, and grossly excessive or disproportionate.

            Other ideas include:

            Modernize the Copyright Office: Instead of one registry for all copyrighted works, the office could certify third-party registries for different types of works, such as photos, films, and computer programs. The model is akin to the domain name registration system. Other suggestions include adopting a small claims procedure for small-scale disputes.

            Reinvigorate copyright registration: Encourage copyright owners to register so that it's simple to find out who owns what. The idea is to make registration easy and worthwhile for copyright owners so that the public can have better information about protected works and their owners.

            Refine exclusive rights for authors: Weigh commercial value and risk of harm to copyright markets when determining whether someone's exclusive right has been infringed; this shields non-harmful activity from the threat of highly punitive copyright claims.

            Revise the common practice of automatic injunctions: Courts could consider whether a preliminary or permanent injunction is needed to prevent irreparable harm, as well as whether having access to the work is in the public’s best interest.

            Limit Orphan Works liability: Enable libraries and others to preserve a part of our cultural heritage by using copyrighted materials whose owners cannot readily be found.

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              New Ruling in Georgia State University E-Reserves Copyright Case

              Posted in Copyright, Digital Copyright Wars, E-Reserves on October 3rd, 2010

              U.S. District Judge Orinda Evans has issued a ruling about the defendants' and plaintiffs' motions for summary judgment in the Cambridge University Press et al. v. Patton et al. case.

              Here's an excerpt:

              Overall, the evidence presented does not indicate that Defendants "profited directly from" or "had a direct financial interest in" the infringement alleged by Plaintiffs. There is absolutely no evidence in the record showing that Georgia State benefitted financially from the alleged infringements. At most, if the Court takes the inferential steps suggested by Plaintiffs, any benefit the infringement provides to students constitutes "just an added benefit" rather than a clear "draw" to Georgia State. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to the third claim, vicarious copyright infringement and DENIES Plaintiffs' Motion for Summary Judgment as to the third claim. . . .

              The record before the Court on the motions for summary judgment does not speak to the question of whether in practice the Current Policy is encouraging improper application of the fair use defense. The Court therefore DENIES both Defendants' and Plaintiffs' motions for summary judgment as to the contributory infringement claim. . . .

              Going forward, in order to show that Defendants are responsible for the copyright infringements alleged in this case, Plaintiffs must show that the 2009 Copyright Policy resulted in ongoing and continuous misuse of the fair use defense. To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs' copyrights to show such ongoing and continuous misuse. Defendants will have the burden of showing that each specified instance of 2009 Copyright Policy infringement was a fair use. Both sides will be limited to the list of claimed infringements produced in response to the Court's August 11, 2010 and August 12, 2010 orders. The parties are DIRECTED to confer and determine whether further discovery is needed before resolving the remaining contributory infringement claim. Within twenty (20) days, the parties shall present a proposed scheduling order.

              Read more about it at "Going Forward with Georgia State Lawsuit."

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                "The Google Book Settlement as Copyright Reform"

                Posted in Copyright, Digital Copyright Wars, E-Books, Mass Digitizaton, Publishing on September 29th, 2010

                Pamela Samuelson has self-archived "The Google Book Settlement as Copyright Reform" in SSRN.

                Here's an excerpt:

                This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

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