Category: Copyright

"STM Submission on the Open Public Consultation on the European Institute of Innovation and Technology"

STM: International Association of Scientific, Technical & Medical Publishers has released "STM Submission on the Open Public Consultation on the European Institute of Innovation and Technology."

Here's an excerpt:

Because the public interest is not served if access to and dissemination of trusted scientific publications and data is not sustainable, rules governing publication must allow publishers to obtain the exclusive use of copyrighted content in relevant media. . . so that the substantial investments they make in scholarly communication can be recovered.

Read more about it at "STM Submission to European Institute of Innovation & Technology: A Critique."

| Digital Scholarship Publications Overview |

Papers from Kenneth D. Crews’ Art Image Copyright and Licensing Study

Kenneth D. Crews has released a list of papers written in support of the Art Image Copyright and Licensing Study, which was funded by the Samuel H. Kress Foundation.

Read more about it at "Interim Report: Art Image Copyright and Licensing Study."

| Digital Curation and Preservation Bibliography 2010 | Electronic Theses and Dissertations Bibliography | Google Books Bibliography | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship Publications Overview |

Georgia State University Motion for Directed Verdict Granted in Part in Cambridge University Press et al. v. Patton et al. Case

U.S. District Court Judge Orinda D. Evans granted Georgia State University's motion for directed verdict in part in the Cambridge University Press et al. v. Patton et al. case. A directed verdict for the contributory infringement claim was granted.

Here's an excerpt from "Publishers Lose Another Claim as GSU Trial Comes to a Close" by Brandon Butler:

And just like that, Judge Orinda Evans threw out the second of the publishers' three claims. Now indirect infringement is the only remaining claim against GSU. . . .

This claim is the hardest one for GSU to avoid because, in theory, the publishers just have to find one infringement by one professor to prove GSU is an 'indirect infringer.'

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Recent Commentary about the Georgia State E-Reserves Copyright Case (Cambridge University Press et al. v. Patton et al.)

Below is some recent commentary about the Cambridge University Press et al. v. Patton et al. case.

"A Nightmare Scenario for Higher Education" by Kevin Smith. Here's an excerpt:

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU. It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future. It would make GSU responsible for every conceivable act of copying that took place on their campus. In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page. . . .

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

"The Georgia State Filing—A Declaration of War on the Faculty?" by Paul Courant. Here's an excerpt:

Call me gullible, but even now I am not fully persuaded that academic publishers are the enemies of faculty and the university. However, I do think that something has gone horribly wrong when entities that were created to serve scholarship employ legal procedures that would hamstring scholars and students who engage in customary and effective behaviors in their teaching and learning. I hope that Judge Evans will recognize that the publishers’ proposal is a plain violation of copyright and would be destructive of vital public purposes.

"What's at Stake in the Georgia State Copyright Case." The Chronicle of Higher Education published comments from prominent experts in this article. Here's an excerpt from Dorothea Salo's contribution:

Should a ruling come down that adds so much complication, cost, or risk to provisions about electronic reserves that institutions and their libraries no longer feel safe offering them, faculty and librarians will unite at last in shared outrage on the far shore of the Rubicon.

"Georgia State, Copyright and the Future of Higher Education" by Tracy Mitrano. Here's an excerpt:

We need senior leadership in our institutions, guided by national associations, to pull that campus radical of the 1960's out of the suits and high heels we now don and get serious about a direction of change that preserves us.

"The Georgia State University Lawsuit Injunction: Back to the Future" by Peggy Hoon. Here's an excerpt:

However, this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century, that simply widely publicizing the existence of and contents of the proposed injunction may well achieve what the library community has been trying to do for the last twenty years.

**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**

This injunction is your fuel—now LIGHT that fire!

| Digital Scholarship | Digital Scholarship Publications Overview |

Maria Pallante Named Register of Copyrights

Maria Pallante has been named Register of Copyrights.

Here's an excerpt from the press release:

Librarian of Congress James H. Billington has appointed Maria A. Pallante as the 12th Register of Copyrights and director of the United States Copyright Office, effective today. Pallante served as the Acting Register for the past five months, following the retirement of Marybeth Peters on December 31, 2010. . . .

Pallante has had wide-ranging experience in copyright transactions, policy and litigation, in both the government and private sectors. In addition to Acting Register, she has held several key positions within the Copyright Office: Associate Register for Policy and International Affairs (2008-2010), Deputy General Counsel (2007-2008), and Policy Advisor (1996-1997). She spent much of her career in New York, working there from 1999-2007 as intellectual property counsel and director of the licensing group for the worldwide Guggenheim Museums, where she advised on programmatic and business initiatives related to publishing, product development and branding. She has led two national author organizations, working as Executive Director of the National Writers Union (1993-1995) and as Assistant Director of the Authors Guild (1991-1993), and was associate counsel at the Washington-based law firm and literary agency, Lichtman, Trister, Singer and Ross.

Pallante is a 1990 graduate of the George Washington University Law School. She earned her bachelor’s degree in history from Misericordia University, where she was also awarded an honorary doctorate of humane letters. She completed a clerkship in administrative law under the Hon. G. Marvin Bober, appellate division, U.S. Department of Labor. During her career, Pallante has been a frequent speaker on copyright law at events in the United States and abroad, and has testified before Congress several times, including on the Copyright Reform Act (1993); Orphan Works (2006) and Online Enforcement of Rogue Websites (2011). She was a member of the Librarian’s 1993 Advisory Committee on Copyright Registration and Deposit and is currently serving on the Department of Education's Advisory Commission on Accessible Instructional Materials in Post-Secondary Education for Students with Disabilities.

Read more about it at "Public Knowledge Statement on Maria Pallante's Appointment as Register of Copyrights."

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

"Owning the Right to Open Up Access to Scientific Publications"

Lucie Guibault has self-archived "Owning the Right to Open Up Access to Scientific Publications" in SSRN.

Here's an excerpt:

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. In France, a similar presumption applies to works created by employees of the State. Even if researchers are in a position to exercise the rights on their works, they may, nevertheless, be required to transfer these to a publisher in order to get their article or book published. This paper, therefore, analyses the legal position of researchers, research institutions and publishers respectively, and considers what the consequences are for the promotion of OA publishing in light of the principles laid down in the Berlin Declaration and the use of Creative Commons licenses.

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

S.978 Would Make Unauthorized Streaming a Felony with 5 Year Maximum Sentence

Senator Amy Klobuchar and two cosponsors have introduced S.978, which would make unauthorized streaming of copyrighted works a felony.

Here's an excerpt:

‘(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if–

‘(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and

‘(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or

‘(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;’

Read more about it at "New Bill Upgrades Unauthorized Internet Streaming to a Felony" and “U.S. Bill To Criminalize Illicit Movie/Music Streaming.”

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Library Copyright Alliance Statement on Copyright Reform

The Library Copyright Alliance has issued a statement on copyright reform.

Here's an excerpt:

Because of the favorable treatment such activities likely would receive in the courts under sections 107 and 504(c)(2), libraries would support an effort to amend the Copyright Act to benefit libraries only if it offered significant benefits over the status quo. To do so, a proposal must contain at least the following features:

  • The non-commercial use (i.e., reproduction, distribution, public performance, public display, or preparation of a derivative work) by a nonprofit library or archives of a work when it possesses a copy of that work in its collection:
    • would not be subject to statutory damages;
    • would not be subject to actual damages if the use ceases when the library or archives receives an objection from the copyright owner of the work; and
    • would be subject to injunctive relief only to the extent that the use continues after the library or archives receives an objection from the copyright owner of the work.
  • This limitation on remedies would apply to the employees of the library or archives, as well as to a consortium that includes the library or archives.
  • Copyright owner objections would have no effect on a library’s rights under fair use.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

PROTECT IP Act Introduced in Senate

Senators Patrick Leahy (D-Vt.), Orrin Hatch (R-Utah), and Chuck Grassley (R-Iowa) have introduced the PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act) in the Senate.

Here's an excerpt from the press release:

The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, follows bipartisan legislation introduced in 2010, which won the unanimous support of Senate Judiciary Committee members. The PROTECT IP Act narrows the definition of a rogue website, while ensuring that law enforcement can get at the "worst-of-the-worst" websites dedicated to selling infringing goods. Copyright infringement and the sale of counterfeit goods reported cost the U.S. economy billions of dollars and hundreds of thousands of jobs, as well as billions of dollars in lost tax revenue for federal, state and local governments. . . .

The PROTECT IP Act will provide law enforcement with important tools to stop websites dedicated to online piracy and the sale of counterfeit goods, which range from new movie and music releases, to pharmaceuticals and consumer products. Key updates to the PROTECT IP Act include:

  • A narrower definition of an Internet site "dedicated to infringing activities";
  • Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;
  • Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is "dedicated to infringing activities," but with remedies limited to eliminating the financial viability of the site, not blocking access;
  • Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site "dedicated to infringing activities" before bringing an action against the domain name itself;
  • Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site "dedicated to infringing activities," where that site also "endangers the public health," by offering controlled or non-controlled prescription medication.

Read more about it at "Leahy's Protect IP Bill Even Worse Than COICA," "The 'PROTECT IP' Act: COICA Redux," and "Senate Bill Amounts to Death Penalty for Web Sites."

| Digital Scholarship | Digital Scholarship Publications Overview | Reviews of Digital Scholarship Publications | Scholarly Electronic Publishing Bibliography |

E-Reserves and Copyright: Proposed Injunction in Cambridge University Press et al. v. Patton et al. Case

Cambridge University Press and other plaintiffs have submitted a proposed injunction in the Cambridge University Press et al. v. Patton et al. case. The trial starts on 5/16/11.

Here's an excerpt:

II. Subject only to the provisions of Paragraph III hereof, GSU shall be and is permanently enjoined and restrained from creating, reproducing, transmitting, selling, or in any manner distributing, or assisting, participating in, soliciting, encouraging, or facilitating the creation, reproduction, download, display, sale, or distribution in any manner of, copies, whether in hard copy format, digital or electronic computer files, or any other format, of any and all Works without permission.

Read more about it at "A Nightmare Scenario for Higher Education" and "The Missing Preface or, How Publishers Are Misusing 20th Century Guidelines to End Fair Use at GSU."

| Digital Scholarship | Digital Scholarship Publications Overview | Reviews of Digital Scholarship Publications | Scholarly Electronic Publishing Weblog |

A Canadian Museum’s Guide to Developing a Digital Licensing Agreement Strategy

The Canadian Heritage Information Network has released A Canadian Museum's Guide to Developing a Digital Licensing Agreement Strategy.

Here's an excerpt:

This book was written to provide information, from the unique perspective of Canadian museums, on how to develop a digital licensing agreement strategy. This second edition continues along this stream to provide a unique Canadian perspective as museums dive into the global scene of licensing their content. I hope to inform you about legal rights and obligations in licence agreements, creating your licensing agreement strategy, negotiating the best licences to meet your needs, lowering your legal liability when licensing and sharing content, and the variety of licensing arrangements which may be used.

| Digital Scholarship | Digital Scholarship Publications Overview | Digital Curation and Preservation Bibliography 2010 |

Digitisation Audiovisual Materials Heritage Institutions: Models for Licenses and Compensations

Images for the Future has released Digitisation Audiovisual Materials Heritage Institutions: Models for Licenses and Compensations (English summary).

Here's an excerpt from the announcement:

While digitising for preservation purposes has been permitted since 2004 under strict conditions in accordance with Art. 16n of the Dutch Copyright Act, for the reutilisation of digitized material (e.g. on websites or by means of retransmission by radio or television) permission must be sought and obtained from large numbers of rights holders. For large digitisation projects, such as Beelden voor de Toekomst (Images for the Future), this means a rights clearance operation of dizzying proportions. In addition, digitisation projects face great uncertainty with regard to the level of the copyright license fees due. Given this background the Images for the Future consortium has commissioned the Institute for Information Law (hereinafter IViR) to investigate models for licenses and fees for mass digitisation projects.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

"Just Google It!—The Google Book Search Settlement: A Law and Economics Analysis"

Frank Müller-Langer and Marc Scheufen have self-archived "Just Google It!—The Google Book Search Settlement: A Law and Economics Analysis" in SSRN.

Here's an excerpt:

Our law and economics analysis of the Book Search Project suggests that—from a copyright perspective—the proposed settlement may be beneficial to right holders, consumers, and Google. For instance, it may provide a solution to the still unsolved dilemma of orphan works. From a competition policy perspective, we stress the important aspect that Google’s pricing algorithm for orphan and unclaimed works effectively replicates a competitive Nash-Bertrand market outcome under post-settlement, third-party oversight.

| Digital Scholarship | Digital Scholarship Publications Overview | Reviews of Digital Scholarship Publications |Google Books Bibliography |

"Tragedy of the Data Commons"

Jane Yakowitz has self-archived "Tragedy of the Data Commons" in SSRN.

Here's an excerpt:

Accurate data is vital to enlightened research and policymaking, particularly publicly available data that are redacted to protect the identity of individuals. Legal academics, however, are campaigning against data anonymization as a means to protect privacy, contending that wealth of information available on the Internet enables malfeasors to reverse-engineer the data and identify individuals within them. Privacy scholars advocate for new legal restrictions on the collection and dissemination of research data. This Article challenges the dominant wisdom, arguing that properly de-identified data is not only safe, but of extraordinary social utility. It makes three core claims. First, legal scholars have misinterpreted the relevant literature from computer science and statistics, and thus have significantly overstated the futility of anonymizing data. Second, the available evidence demonstrates that the risks from anonymized data are theoretical – they rarely, if ever, materialize. Finally, anonymized data is crucial to beneficial social research, and constitutes a public resource – a commons – under threat of depletion. The Article concludes with a radical proposal: since current privacy policies overtax valuable research without reducing any realistic risks, law should provide a safe harbor for the dissemination of research data.

| Digital Scholarship | Digital Scholarship Publications Overview | Digital Curation and Preservation Bibliography 2010 |

Pamela Samuelson: "Legislative Alternatives to the Google Book Settlement"

Pamela Samuelson has self-archived "Legislative Alternatives to the Google Book Settlement" in SSRN.

Here's an excerpt:

In the aftermath of Judge Chin's rejection of the proposed Google Book settlement, it is time to consider legislative alternatives. This article explores a number of component parts of a legislative package that might accomplish many of the good things that the proposed settlement promised without the downsides that would have attended judicial approval of it. It gives particular attention to the idea of an extended collective licensing regime as a way to make out-of-print but in-copyright books more widely available to the public. But it also considers several other measures, such as one aimed at allowing orphan works to be made available and some new privileges that would allow digitization for preservation purposes and nonconsumptive research uses of a digital library of books from the collections of major research libraries.

| Digital Scholarship | Digital Scholarship Publications Overview | Google Books Bibliography |

Lawrence Lessig Video: The Architecture of Access to Scientific Knowledge: Just How Badly We Have Messed This Up

CERN has released The Architecture of Access to Scientific Knowledge: Just How Badly We Have Messed This Up.

Here's an excerpt from the announcement:

In this talk, Professor Lessig will review the evolution of access to scientific scholarship, and evaluate the success of this system of access against a background norm of universal access.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

"STM Statement on Negotiating Rights for Institutional Repository Postings and Author Rights"

STM has released the "STM Statement on Negotiating Rights for Institutional Repository Postings and Author Rights."

Here's an excerpt:

Recently some advocates for institutional repositories have noted that, in connection with the responsibilities that academic and research libraries may have for coordinating the scholarly output of author-researchers at their institutions, there are efficiencies to be gained in negotiating at an institutional level with journal publishers. . . .

STM publishers are of the view that content license negotiations deal appropriately with questions about the scope of content that will be accessible for each institutional subscriber as well as the scope of usage rights and relative costs for such accessibility and rights. These negotiations are often complex, especially given that in recent years efforts have been made to manage negotiations through procurement processes of different kinds. We hold the view that conflating author rights issues and institutional content licenses serves only to add greater complexity and possible legal uncertainty to such licenses without adding meaningful benefits for authors.

SPARC, SPARC Europe and COAR have issued a "Public Response on Behalf of SPARC, SPARC Europe and COAR Regarding Publishers Self-Deposit Policies."

Here's an excerpt:

We have recently noted that some journal publishers have sought to negotiate individually with universities and research institutes, seeking to increase embargo periods for authors depositing pre-prints of their articles into repositories, and requesting embargo periods that go beyond what is already stated in the publishers' own policies.

We strongly urge institutions not to enter into individual agreements with publishers that supersede the existing policies of the publisher or any previous licensing agreements.

We also call on the publishers not to further hinder the deposit—and accessibility—of pre-prints with additional restrictions, regulations and policies. Proliferation of this practice will result in an environment that is confusing to navigate for end users, and increasingly difficult for individual institutions to effectively maintain.

Read more about it at "Double Talk."

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

"Google Book Search in the Gridlock Economy"

Douglas Lichtman has self-archived "Google Book Search in the Gridlock Economy" in SSRN.

Here's an excerpt:

Michael Heller's The Gridlock Economy popularizes a concept that Heller has developed over nearly two decades of influential academic writing: the notion that, when it comes to property rights, too many rights-endowed cooks really can spoil the broth. I was asked in this conference to apply Heller's insight to the Google Book Search project, and the request at first seemed natural. Heller himself suggested that Google Book Search might be an apt poster child for the gridlock phenomenon; Google likewise can often be heard to complain, in Heller-esque tones, that the only way to build a comprehensive search engine for books is to take the books without asking. This Essay, however, questions the example and offers a refinement on Heller's theory. Gridlock, I argue, is not simply a catch-all for situations where a large number of permissions are in play. It is more narrowly a reference to situations where a large number of permissions are in play, and those permissions intertwine.

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

Peter Suber Wins 2011 L. Ray Patterson Copyright Award

Peter Suber has been named as the winner of the 2011 L. Ray Patterson Copyright Award by ALA's Office for Information Technology Policy's Copyright Advisory Subcommittee.

Here's an excerpt from the press release:

The annual award recognizes contributions of an individual or group that pursues and supports the Constitutional purpose of the U.S. Copyright Law, fair use and the public domain. The award is named after L. Ray Patterson, a key legal figure who explained and justified the importance of the public domain and fair use. Fair use is a key exception of the copyright law that allows for the use of a copyright without prior authorization and helps to promote learning, new creativity, scholarship and criticism.

Professor Suber is being recognized for his work in the open access movement that began in academia in response to increasing costs of scholarly journals. His goal is to provide free, public access to scientific information for the public good as well as provide an alternative venue for scientific publishing, one outside of the price-inflated research journal marketplace. Suber is a professor of philosophy at Earlham College, a senior researcher at Scholarly Publishing and Academic Resources Coalition (SPARC), and a Fellow at Harvard University Library’s Office for Scholarly Communication. He also is member of the Board of Enabling Open Scholarshipand serves as Open Access Project Director at Public Knowledge.

Among his colleagues in our nation's capital, Suber is regarded as a leader in the quest to protect open access.

"There is no greater champion for open access than Peter Suber," Gigi B. Sohn, president and co-founder of Public Knowledge, said."The open access concept — that the public should have access to research that is paid for with tax dollars — may seem to be common sense, but it is not widely accepted in Washington. Peter has led a multi-year crusade to implement the idea, often in the face of determined corporate opposition. The American Library Association chose well in selecting Peter for this splendid award."

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement

The Library Copyright Alliance has released A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement.

Here's an excerpt from the press release:

This guide is the latest in a series prepared by LCA legal counsel Jonathan Band to help inform the library community about this landmark legal dispute.

In the Guide Part IV, Band explains why the Court rejected the proposed class action settlement, which would have allowed Google to engage in a wide variety of activities using scanned books.

As stated in the Guide, "The court concluded that the settlement was unfair because a substantial number of class members [i.e., authors and publishers] voiced significant concerns with the settlement.… However, the validity of the objections seemed less important to the court than the fact that many class members raised them."

As for the impact of the decision on libraries, Band writes that while it is too early to say what the parties will do next, "it appears that both the challenges and the opportunities presented to libraries by the settlement when it was announced in the fall of 2008 are growing narrower and more distant."

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

E-Reserves and Copyright: Cambridge University Press et al. v. Patton et al. Trial Set for 5/16/2011

The Cambridge University Press et al. v. Patton et al. trial date has been set for 5/16/2011.

Here's an excerpt from ruling:

At trial, the parties will need to present evidence and argument that will allow the Court to rule on the question whether Plaintiffs may proceed under Ex Parte Younp or whether the case must be dismissed for lack of subject matter jurisdiction. Based on the pleadings alone, the Court cannot say that it lacks subject matter jurisdiction to hear the case. Dismissal under Rules 12(b) (1) and 12(c), Federal Rules of Civil Procedure, would be improper.

Accordingly, Defendants' Motion to Dismiss (Doc. 2393) is DENIED WITHOUT PREJUDICE. The parties are DIRECTED to file a proposed consolidated pretrial order no later than April 29, 2011. The trial is set for May 16, 2011 at 10:00 a.m.

Read more about it at "Judge Sets Trial Date in Georgia State University E-Reserves Lawsuit ."

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Jessica Litman: "Readers’ Copyright"

Jessica Litman, John F. Nickoll Professor of Law at the University of Michigan Law School, has self-archived "Readers' Copyright" in SSRN.

Here's an excerpt:

This essay is part of a project intended to help reclaim copyright for readers, listeners, and viewers. A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. I argue that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public support for copyright law. In response to growing criticism of copyright, some of copyright law's most ardent supporters have insisted that users have no rights, should have no rights, and have never had rights in the copyright scheme. That approach, I suggest, is making the problem worse, not better. Copyright seems out of whack because it has forgotten its most important constituents. In this essay, I take a series of very small baby steps in the direction of recognizing rights and liberties within the copyright system for readers, listeners, viewers and other members of the copyright audience.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Four Reports and One Hearing on the Orphan Works Problem

In the wake of the recent Google Books Amended Settlement Agreement ruling, the orphan works problem has once again come front and center. Below are four reports and one Congressional hearing on the issue that may be worth revisiting.

Korn, Naomi. In from the Cold: An Assessment of the Scope of "Orphan Works" and Its Impact on the Delivery of Services to the Public. London: JISC, 2009.

Ricolfi, Marco et al. Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works. Luxembourg: European Commission, Information Society and Media DG, Access to Information Unit, 2008.

United States Copyright Office. Report on Orphan Works. Washington, DC: United States Copyright Office, 2006.

U.S. Congress, House. Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users, Hearing before the Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary, 110 Congress, 2008.

Vuopala, Anna Assessment of the Orphan Works Issue and Costs for Rights Clearance. Luxembourg: European Commission, Information Society and Media DG, Access to Information Unit, 2010.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Author’s Guild et al. v. Google Inc. Ruling: Amended Settlement Agreement Denied

Judge Denny Chin of the U.S. District Court Southern District of New York has denied the Amended Settlement Agreement for the Author's Guild et al. v. Google Inc. case.

Here's an excerpt from the ruling:

Before the Court is plaintiffs' motion pursuant to Rule 23 of the Federal Rules of Civil Procedure for final approval of the proposed settlement of this class action on the terms set forth in the Amended Settlement Agreement (the "ASA"). The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action—which was brought against defendant Google Inc. ("Google") to challenge its scanning of books and display of "snippets" for on-line searching—to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied. The accompanying motion for attorneys' fees and costs is denied, without prejudice.

Read more about it at "After Rejection, a Rocky Road for Google Settlement"; "GBS March Madness: Paths Forward for the Google Books Settlement"; "Google Books Settlement: Copyright, Congress, and Information Monopolies"; "Google Settlement Is Rejected"; "Inside Judge Chin's Opinion"; "Please Refine Your Search Terms"; and "Publishers Remain Committed to Expanding Online Access to Books and Upholding Copyright Despite Court Decision."

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Cornell University Library Will Not Sign E-Resources Licenses with Nondisclosure Clauses

The Cornell University Library has adopted a policy of not signing e-resources licenses with nondisclosure clauses.

Here's an excerpt from the policy:

To promote openness and fairness among libraries licensing scholarly resources, Cornell University Library will not enter into vendor contracts that require nondisclosure of pricing information or other information that does not constitute a trade secret. All new and renewed licenses submitted with nondisclosure clauses will not be signed but henceforth will be referred to the Associate University Librarian for Scholarly Resources and Special Collections for further negotiation. . . .

It has become apparent to the library community that the anticompetitive conduct engaged in by some publishing firms is in part a result of the inclusion of nondisclosure agreements in contracts.1 As Robert Darnton recently noted, by "keeping the terms secret, … one library cannot negotiate for cheaper rates by citing an advantage obtained by another library."2 For this reason, the International Coalition of Library Consortia's "Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information" states that "Non-disclosure language should not be required for any licensing agreement, particularly language that would preclude library consortia from sharing pricing and other significant terms and conditions with other consortia."3 The more that libraries are able to communicate with one another about vendor offers, the better they are able to weigh the costs and benefits of any individual offer. An open market will result in better licensing terms.

Read more about it at "Cornell U. Library Takes a Stand with Journal Vendors: Prices Will Be Made Public."

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |