Archive for the 'Copyright' Category

A Guide for the Perplexed Part III: The Amended Settlement Agreement

Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 29th, 2009

The American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries have released A Guide for the Perplexed Part III: The Amended Settlement Agreement.

Here's an excerpt from the press release:

The guide describes the major changes in the amended settlement agreement (ASA), submitted to the Court by Google, the Authors Guild, and the Association of American Publishers on November 13, 2009, with emphasis on those changes relevant to libraries.

While many of the amendments will have little direct impact on libraries, the ASA significantly reduces the scope of the settlement because it excludes most books published outside of the United States. In addition, the ASA provides the Book Rights Registry the authority to increase the number of free public access terminals in public libraries that had initially been set at one per library building, among other changes.

Looking ahead, the Court has accepted the parties’ recommended schedule and set January 28, 2010, as the deadline for class members to opt out of the ASA or to file objections, and February 4, 2010, as the deadline for the Department of Justice to file its comments. The Court will hold the fairness hearing on February 18, 2010.

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    Digital Video: The Google Books Settlement: Issues and Options

    Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 22nd, 2009

    The UCLA Library has made The Google Books Settlement: Issues and Options, a digital video featuring copyright expert Jonathan Band, available on YouTube.

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      Preliminary Approval Granted for Amended Google Book Search Settlement

      Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 20th, 2009

      US District Court Judge Denny Chin has granted preliminary approval of the amended Google Book Search Settlement.

      Here's the order.

      Read more about it at "Judge Gives Preliminary Approval to Google Deal, Sets Feb. 18 for Final Hearing" and "Judge Sets February Hearing for New Google Books Deal."

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        "Examining Law Journal Publication Agreements for Copyright Transfers and Self-Archiving Rights"

        Posted in Author Rights, Copyright, Scholarly Journals on November 19th, 2009

        Benjamin J. Keele has self-archived "Examining Law Journal Publication Agreements for Copyright Transfers and Self-Archiving Rights" in SSRN.

        Here's an excerpt:

        This study examines 78 law journal publication agreements and finds that a minority of journals ask authors to transfer copyright. Most journals also permit author to self-archive articles with some conditions. The study recommends journals make their agreements publicly available and use licenses instead of copyright transfers.

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          International Copyright: Why It Matters to Libraries

          Posted in Copyright on November 16th, 2009

          The Library Copyright Alliance has released International Copyright: Why It Matters to Libraries.

          Here's an excerpt:

          One of the most important issues for libraries at the present time is the need to reinforce copyright limitations and exceptions. Limitations and exceptions that enable uses of works without prior consent of or payment to the copyright holder or payment, for purposes such as research, scholarship and teaching, library preservation, and interlibrary loan, are a fundamental part of the copyright system, but they have not expanded at an equal pace with enhanced rights and protections in recent years. Internationally higher standards of protection and enforcement have been mandated by TRIPS, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. In many nations including the U.S., extension of copyright terms, anticircumvention legislation, and a steadily increasing culture of enforcement have created additional restrictions to use of information. There has been no expansion of limitations and exceptions.

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            Copyright Watch Launched

            Posted in Copyright on November 15th, 2009

            An international group of copyright experts have launched Copyright Watch, which is hosted by the Electronic Frontier Foundation.

            Here's an excerpt from the announcement:

            A single country's copyright law can be truly byzantine (the United States' seems to be the longest at around 130,000 words, although we're pretty sure Afghanistan has the shortest, lacking as it does any copyright regulations at all). And right now, every one of the 184 countries in Copyright Watch's database is struggling to reform their regulations to fit the difficulties and opportunities of the digital age.

            It's a real challenge to map all of these laws, and all of these changes. But it's vital that we do so. Every shift in any of those countries might spread: whether it's for good or ill, maximalist or reforming. Lawmakers eagerly look for track records in other nations, or are obliged to adopt another's bad laws through treaty or trade agreement. Japan decides to model their new law's exceptions on the United State's broad fair use principles; politicians see France's three strikes laws, and decide to import them wholesale. We're hoping Copyright Watch will give the public as powerful a tool for monitoring the global copyright outlook as any private interest.

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              Google Book Search Settlement Amended

              Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 15th, 2009

              An amended version of the Google Book Search Settlement has been filed by the AAP, the Authors Guild, and Google with the U.S. District Court for the Southern District of New York.

              The complete amended agreement is available from Google as a Zip file.

              Exhibit 1 provides the primary text of the amended settlement agreement.

              An overview of the amended settlement agreement is available, as is an FAQ.

              Read more about it at "Google Books Settlement Sets Geographic, Business Limits"; "Is the Google Books Settlement Worth the Wait?"; and "Terms of Digital Book Deal with Google Revised."

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                "Economies of Desire: Fair Use and Marketplace Assumptions"

                Posted in Copyright on November 5th, 2009

                Rebecca Tushnet has self-archived the "Economies of Desire: Fair Use and Marketplace Assumptions" in SSRN.

                Here's the abstract:

                At the moment that "incentives" for creation meet "preferences" for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creative activity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance—even overabundance—in creativity can help define the proper scope of copyright law, especially in fair use. I explore these ideas by examining how creators think about what they do. As it turns out, commercially and critically successful creators resemble creators who avoid the general marketplace and create unauthorized derivative works (fanworks). The role of love, desire, and other passions in creation has lessons for the proper aims of copyright, the meaning of fair use, and conceptions of exploitation in markets.

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                  UK Intellectual Property Office: © The Way Ahead: A Strategy for Copyright in the Digital Age

                  Posted in Copyright, Digital Copyright Wars on November 2nd, 2009

                  The UK Intellectual Property Office has released © The Way Ahead: A Strategy for Copyright in the Digital Age.

                  Here's an excerpt:

                  Based on the findings, the Government's reported intentions are:

                  • for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;
                  • for rights holders; to help secure a viable future by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights;
                  • for consumers; to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to 'orphan works' such as out-of-print books;
                  • for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and
                  • for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.

                  This means:

                  • UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P file-sharing; and
                  • A willingness on the Government's part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.
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                    "Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases"

                    Posted in Copyright on November 1st, 2009

                    Pamela Samuelson and Krzysztof Bebenek have self-archived "Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases" in SSRN.

                    Here's an excerpt:

                    It has become lamentably common for courts to issue preliminary injunctions in copyright cases once rights holders have shown a reasonable likelihood of success on the merits without going on to require them to prove that they will suffer irreparable harm unless the injunction issues. Harm is too often presumed to be irreparable if plaintiffs have made out a prima facie case of infringement. This presumption cannot be squared with traditional principles of equity, as interpreted in numerous Supreme Court decisions, particularly eBay, Inc. v. MercExchange LLC, 547 U.S. 388 (2006).

                    While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants' free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.

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                      "Removing All Restrictions: Cornell's New Policy on Use of Public Domain Reproductions"

                      Posted in Copyright, Digitization, Public Domain on November 1st, 2009

                      Peter Hirtle, Cornell University Library's Senior Policy Advisor, is interviewed in "Removing All Restrictions: Cornell's New Policy on Use of Public Domain Reproductions," which has been published in the latest issue of Research Library Issues.

                      Here's an excerpt:

                      Restrictions on the use of public domain work, sometimes labeled "copyfraud," are generating increasing criticism from the scholarly community. With significant collections of public domain materials in their collections, research libraries are faced with the question of what restrictions, if any, to place on those who seek to scan or otherwise reproduce these resources with the intention of publication.

                      Cornell University Library has responded by adopting new permissions guidelines that open access by no longer requiring users to seek permission to publish public domain items duplicated from its collections. Users planning to scan and publish public domain material are still expected to determine that works are in the public domain where they live (since public domain determinations can vary internationally). Users must also respect noncopyright rights, such as the rights of privacy, publicity, and trademark. The Library will continue to charge service fees associated with the reproduction of analog material or the provision of versions of files different than what is freely available on the Web. The new guidelines are found at

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                        "A Defense of the Public Domain: A Scholarly Essay"

                        Posted in Copyright, Public Domain on October 29th, 2009

                        Laura N. Gasaway, Associate Dean for Academic Affairs and Professor of Law at the University of North Carolina School of Law, has self-archived "A Defense of the Public Domain: A Scholarly Essay" in SelectedWorks.

                        Here's the abstract:

                        Much has been written for librarians about copyright law. Despite the importance of the public domain, it has attracted much less scholarly attention than has copyright law generally, and yet a healthy and robust public domain is crucial to our society. It provides the building blocks for authors, composers, artists and movie makers who can borrow from public domain works without seeking permission of copyright owners. Unfortunately, the public domain is under attack from expanding the term of copyright, to making it more difficult for works to enter the public domain to the restoration of some foreign copyrights that had entered the public domain in the United States. Some librarians have asked whether vigorous application of fair use could not substitute for the shrinking public domain. It cannot. Fair use is a defense to copyright infringement and is very fact determinate. A court's finding of fair use applies only to the two parties to the litigation while the public domain is available to everyone from individual users of works, to artists and authors and to publishers and producers. It is crucial that the public domain be energetically defended. Today, it is not clear whether an author can even place his or her work in the public domain since copyright attaches automatically. A statutory method must be developed so that authors who wish to do so can easily place their works in the public domain.

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