Archive for the 'Copyright' Category

Library Copyright Alliance and Others Release "Concerns with April 2010 ACTA Text"

Posted in Copyright, Digital Copyright Wars on May 3rd, 2010

The Library Copyright Alliance and other organizations have released "Concerns with April 2010 ACTA Text."

Here's an excerpt:

The proposed statutory damages language in Article 2.2.2 differs from section 504(c) [of the U.S. Copyright Act] in several critical respects. First, section 504(c)(2) directs the court to reduce statutory damages in cases of innocent infringement. If the court finds that the infringer was not aware and had no reason to believe that its acts constituted infringement, the court can reduce the award to $200. And the court can remit statutory damages altogether if a library, archives, or educational institution believed that its copying was a fair use. In contrast, Article 2.2.2 make no provision whatsoever for innocent infringement. By mandating statutory damages without relief for innocent infringement, ACTA could subject U.S. entities to significantly greater damages overseas than in the U.S., thereby discouraging international expansion.

Official ACTA Draft Text to Be Made Public on April 21st

Posted in Copyright, Digital Copyright Wars on April 18th, 2010

The Office of the United States Trade Representative has announced that the draft text of the Anti-Counterfeiting Trade Agreement (ACTA) will be made public on 4/21/10.

Here's an excerpt from the press release:

The 8th round of negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) was held in Wellington, New Zealand from 12-16 April 2010, hosted by New Zealand. Participants were welcomed by New Zealand's Minister of Trade Hon Tim Groser at a function attended by a wide range of stakeholders with an interest in the ACTA negotiations.

Participants in the negotiations included Australia, Canada, the European Union, represented by the European Commission, the EU Presidency (Spain) and EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America. . . .

Overall, therefore, there was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement. For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round.

It is intended to release this on Wednesday 21 April.

In agreeing to release publicly this draft text in the particular circumstances of this negotiation, participants reaffirmed the importance of maintaining the confidentiality of their respective positions in trade negotiations.

ACTA will not interfere with a signatory's ability to respect its citizens' fundamental rights and liberties, and will be consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and will respect the Declaration on TRIPS and Public Health.

There is no proposal to oblige ACTA participants to require border authorities to search travellers' baggage or their personal electronic devices for infringing materials. In addition, ACTA will not address the cross-border transit of legitimate generic medicines.

While the participants recognise the importance of responding effectively to the challenge of Internet piracy, they confirmed that no participant is proposing to require governments to mandate a "graduated response" or "three strikes" approach to copyright infringement on the Internet.

Lawrence Lessig: "Getting Our Values around Copyright Right"

Posted in Copyright, Creative Commons/Open Licenses, Digital Copyright Wars on April 15th, 2010

Lawrence Lessig has published "Getting Our Values around Copyright Right" in the latest issue of EDUCAUSE Review.

Here's an excerpt:

The existing system of copyright cannot work in the digital age. Either we will force our kids to stop creating, or they will force on us a revolution. Both options, in my view, are not acceptable. There is a growing copyright abolitionist movement—people who believe that copyright was a good idea for a time long gone and that we need to eliminate it and move on in a world where there is no copyright. I am against abolitionism. I believe copyright is an essential part of the cultural industries and will be essential in the digital age—even though I also believe it needs to be radically changed in all sorts of important ways and doesn't apply the same in science and in education. Copyright is essential to a diverse and rich (in all senses of that word) culture.

Europeana Publishes Public Domain Charter

Posted in Copyright, Digital Libraries, Mass Digitizaton, Public Domain on April 14th, 2010

The Europeana Foundation, the governing body of the Europeana service, has published its Public Domain Charter. The Europeana beta currently links users to around 6 million digital objects. About 10 million digital objects are expected to be available this year, when version 1.0 becomes operational.

Here's an excerpt from the announcement:

Today Europeana officially publishes the Public Domain Charter. It takes a strong position in support of the Public Domain, saying that:

Europeana belongs to the public and must represent the public interest. The Public Domain is the material from which society creates cultural understanding and knowledge. Having a thriving Public Domain is essential to economic and social well-being. Digitisation of Public Domain content does not create new rights over it. Works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitised. . . .

The Charter is published by the Europeana Foundation, our governing body (now completing its name change from the EDL Foundation). The Charter is a policy statement, not a contract. It doesn't bind any of Europeana's content providers. It recognises the dilemma in which heritage institutions find themselves. Our partners' drive to digitise and make Public Domain content accessible is tempered by a recognition of the costs involved, and the need to arrive at the most appropriate agreements with those who are willing and able to fund digitisation programmes—including the private sector.

We are developing plans to label the rights associated with a digitised item very clearly so that they are understood by Europeana's users, who will be able to exclude content from their results that requires payment or doesn't comply with the Public Domain Charter. Rights labelling will become a requirement when submitting content to Europeana by the end of this year.

While Public-Private Partnerships are an important means of getting content digitised, the Charter recommends that deals are non-exclusive, for very limited time periods, and don't take material out of the Public Domain.

Michael Geist: The Truth about ACTA

Posted in Copyright, Digital Copyright Wars on April 13th, 2010

Michael Geist has uploaded The Truth about ACTA, a digital video of his presentation at the PublicACTA conference, to

E-Reserves and Copyright: "Georgia State and (Un)Fair Use: A Rebuttal to Kenneth Crews"

Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on April 13th, 2010

Sanford G. Thatcher has published "Georgia State and (Un)Fair Use: A Rebuttal to Kenneth Crews" in Against the Grain. This paper examines an expert report by Crews in the important Cambridge University Press et al. v. Patton et al. e-reserves copyright case.

American Society of Media Photographers and Others File Copyright Infringement Suit against Google

Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on April 8th, 2010

The American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, and others have filed a copyright infringement suit against Google in the U.S. District Court for the Southern District of New York.

Here's an excerpt from the press release:

The suit, which was filed by Mishcon de Reya New York LLP, relates to Google’s illegal scanning of millions of books and other publications containing copyrighted images and displaying them to the public without regard to the rights of the visual creators. ASMP and the other trade associations, representing thousands of members, decided to file the class action after the Court denied their request to join the currently pending $125 million class action that had previously been filed primarily on behalf of text authors in connection with the Google Library Project. The new class action goes beyond Google’s Library Project, and includes Google’s other systematic and pervasive infringements of the rights of photographers, illustrators and other visual artists.

This action by ASMP and its sister organizations was taken in order to protect the interests of owners of copyrights in visual works from the massive and organized copying and public display of their images without regard to their contributions and rights to fair compensation. According to ASMP Executive Director Eugene Mopsik, "Through this suit, we are fulfilling the missions of our organizations and standing up for the rights of photographers and other visual artists who have been excluded from the process up to now. We strongly believe that our members and those of other organizations, whose livelihoods are significantly and negatively impacted, deserve to have representation in this landmark issue." ASMP General Counsel Victor Perlman said, "We are seeking justice and fair compensation for visual artists whose work appears in the twelve million books and other publications Google has illegally scanned to date. In doing so, we are giving voice to thousands of disenfranchised creators of visual artworks whose rights we hope to enforce through this class action."

Read more about it at "Artists and Photographers Sue over Google Book Search" and "Google a 'Brazen' Content Thief, Lawsuit Claims."

Clipping Our Own Wings Copyright and Creativity in Communication Research

Posted in Copyright on April 4th, 2010

The Center for Social Media at American University has released Clipping Our Own Wings Copyright and Creativity in Communication Research.

Here's an excerpt from the announcement:

A survey of communication scholars' practices, conducted by the Ad Hoc Committee on Fair Use and Academic Freedom in the International Communication Association (ICA), reveals that copyright ignorance and misunderstanding hamper distribution of finished work, derail work in progress, and most seriously, lead communication researchers simply to avoid certain kinds of research altogether.

Nearly half the respondents express a lack of confidence about their copyright knowledge in relation to their research. Nearly a third avoided research subjects or questions and a full fifth abandoned research already under way because of copyright concerns. In addition, many ICA members have faced resistance from publishers, editors, and university administrators when seeking to include copyrighted works in their research. Scholars are sometimes forced to seek copyright holders' permission to discuss or criticize copyrighted works. Such permission seeking puts copyright holders in a position to exercise veto power over the publication of research, especially research that deals with contemporary or popular media.

"Free Speech Unmoored in Copyright's Safe Harbor: Chilling Effects of the DMCA on the First Amendment"

Posted in Copyright, Digital Copyright Wars on April 1st, 2010

Wendy Seltzer has self-archived "Free Speech Unmoored in Copyright's Safe Harbor: Chilling Effects of the DMCA on the First Amendment" in SSRN.

Here's an excerpt:

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law's shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech. . . .

Part I surveys the legal, economic, and architectural sources of the DMCA's chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright's place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

ACRL, ALA, ARL, and Others Send U.S. Trade Representative Letter about ACTA

Posted in Copyright, Digital Copyright Wars on March 25th, 2010

ACRL, ALA, ARL, and other organizations have sent a letter about the secret ACTA negotiations to U.S. Trade Representative Ambassador Ron Kirk.

Here's an excerpt:

This recent leak of a full [ACTA] text heightens our concern that this negotiation is not primarily about counterfeiting or piracy; nor is at all about trade law. The public rationale that the treaty would not impinge on domestic law has been placed in doubt—particularly when one considers whose domestic law would be endangered. As Google executives have recently experienced, it is not only U.S. domestic law that has consequences for U.S. technologists and service providers. Similarly, domestic interests in other participating countries should consider themselves at risk from provisions that are novel or antithetical to their national law.

The leaked text reveals detailed substantive attention to core principles of any nation’s intellectual property law:

  • Whether copyright plaintiffs may or shall have the option of receiving pre-established damage awards that have little or no relation to any harm that has been suffered.
  • The extent to which principles of inducement, newly introduced by the U.S. Supreme Court in the Grokster case, are to be accepted as supporting a separate basis for copyright liability or are a gloss on existing principles of contributory and vicarious infringement. This is not yet clear even in the United States.
  • The export of secondary liability principles to ACTA countries without simultaneously including the limitations and exceptions contained both in U.S. statutory law (e.g., fair use) and in the significant court decisions limiting secondary liability (e.g., Sony).
  • How technological measure anti-circumvention provisions are to be interpreted and applied, whether they will apply to access to works, whether they are to be limited to circumventions for infringing purposes, and whether account will be taken of the variations in national law, practice, and context, such as U.S. adherence to fair use and the imposition of levies under other national law.
  • The extent to which a "three strikes" approach and express or implied "filtering" mandates are to be imposed on ISPs.

U.S. negotiators have assured the Congress and the public that they cannot and will not agree to any provision that is contrary to domestic law. Other national negotiators have likely given similar assurances at home, publicly or privately. Hence the annotated documents appear rife with linguistic tugs and footnotes. To the extent compromise is achieved through ambiguity, no national of any participant nation will have assurance that domestic law will not be affected.

The time for public discussion as to exactly what this document will and won’t do is now.

ACRL, ALA, ARL, and Others Respond to U.S. Intellectual Property Enforcement Coordinator's Request

Posted in Copyright, Digital Copyright Wars on March 25th, 2010

ACRL, ALA, ARL, and other organizations have responded to the U.S. Intellectual Property Enforcement Coordinator's "Coordination and Strategic Planning of the Federal Effort against Intellectual Property Infringement: Request of the Intellectual Property Enforcement Coordinator for Public Comments Regarding the Joint Strategic Plan."

Here's an excerpt from the ALA, ACRL, and ARL letter:

ARL, ALA, and ACRL believe it is very important that the IPEC has asked that assertions about the costs of intellectual property infringement clearly identify the methodology used and any critical assumptions relied upon to calculate those costs, as well as a copy or citation to the source of any data. As the comments of CCIA and the NetCoalition make clear, industry-commissioned studies rarely, if ever, rise to a level of rigor that justifies emergency intervention along the lines that content industries routinely demand. Rather, they are shot through with fallacies and sleights of hand that have done more to confuse and confound this discussion than to contribute to it. We refer you to the comments of CCIA and the NetCoalition for a detailed discussion of the problems with these studies and the arguments that are made in connection with them.

The fundamental flaw of these studies is that they beg the question of whether a particular private business interest is entitled to government protection for perpetual, stable profits regardless of changing business conditions. The mere fact of declining profits in one business model does not constitute a cognizable harm that government must step in to remedy. Government intervention in any area has costs for taxpayers, and in this area there are added costs to the public when IP policy becomes further slanted in favor of rightsholders and against public access and use.

Here's an excerpt from the American Association of Law Libraries, EFF, Medical Library Association, Public Knowledge, Special Libraries Association, and U.S. PRIG letter:

Thus, when determining enforcement priorities, the government should be guided by three principles. First, it should only seek to prevent private economic harms when the costs of enforcement do not exceed the harm caused. Second, it should pursue harms that meet the standards for criminal conduct. When society marks certain conduct as criminal, it authorizes public enforcement, recognizes that deterrent (as opposed to merely remedial) actions are more appropriate, and allows that in an individual case the cost of punishing the violation may outweigh the economic harm of the violation itself because of the moral wrong committed. Third, publicly funded enforcement resources should be reserved for clear violations of the law, rather than in "gray areas" characterized by uncertain and evolving legal or marketplace norms. The government should spend public funds on enforcement only when all three of these principles are met.

Read more about it at "ALA Calls for Openness in Copyright Negotiations and Enforcement Efforts," "Groups Ask Targeted Enforcement for Intellectual Property," and "Public Interest Groups Call on IP Czar to Get the Priorities Straight."

Consolidated ACTA Draft Leaked

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

A consolidated draft of ACTA (Anti-Counterfeiting Trade Agreement) has been leaked.

Here's an excerpt from "The Consolidated Anti-Counterfeiting Trade Agreement Leaks":

Although this is not the most updated version, when combined with the earlier leaked table on the Internet and civil enforcement chapters (which include changes from the January Mexico meeting), the complete current ACTA text is now publicly available.

Here's a brief description of ACTA from Public Knowledge:

ACTA is the Anti-Counterfeiting Trade Agreement being negotiated by the US, the EU, Japan, South Korea, Canada, Mexico, Australia, and New Zealand. The stated goal of the agreement is the international enforcement of strong intellectual property rights through increased cooperation and coordination among international governmental agencies.

Read more about it at "Complete ACTA Text Finally Leaked" and "Full ACTA Draft Leaked. . . EU Wants Injunctions against the Possibility You Might Infringe."

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