The European Film Gateway project has released Final Guidelines on Copyright Clearance and IPR Management.
Here's an excerpt from the announcement:
The report includes:
- an overview of legal frameworks in EU countries for the film sector
- guidelines how to successfully clear rights related to film works
- copyright basics (moral rights vs. exploitation rights, orphan works etc)
- diligent search guidelines for rights holders
| Digital Scholarship | Digital Scholarship Publications Overview |
Eric E. Johnson has self-archived "Intellectual Property’s Great Fallacy" in SSRN.
Here's an excerpt:
Intellectual property law has long been justified on the belief that external incentives are necessary to get people to produce artistic works and technological innovations that are easily copied. This Essay argues that this foundational premise of the economic theory of intellectual property is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents.
| Digital Scholarship | Digital Scholarship Publications Overview |
Kenneth D. Crews has self-archived "Comments Submitted to the U.S. Copyright Office Regarding Pre-1972 Sound Recordings" in SSRN.
Here's an excerpt:
The U.S. Copyright Office solicited comments regarding the possibility of extending federal copyright protection to sound recordings fixed before February 15, 1972. Such recordings may have some state or common law copyright protection, but most are in the public domain. These comments outline some of the complications in lawmaking that often result from extending protection to works that were previously available to the public without copyright protection. Lessons are derived from such examples as the creation of new protection for architectural works and the restoration of foreign works.
| Digital Scholarship | Digital Scholarship Publications Overview |
The Council on Library and Information Resources has released "Bibliographic Indeterminacy and the Scale of Problems and Opportunities of 'Rights' in Digital Collection Building" as the first paper in its new "Ruminations" series.
Here's an excerpt from the announcement:
CLIR has launched a new publication series, "Ruminations." The series will feature short research papers and essays that bring new perspective to issues related to planning for and managing organizational and institutional change in the evolving digital environment for scholarship and teaching.
We inaugurate the new series with a report by John P. Wilkin that posits the scope of works in the public domain and probable extent of orphan works in our research library collections, based on an analysis of the HathiTrust book corpus. The question of rights status is critical since it governs how works can be used or reused, especially in the digital environment.
Recent research shows that HathiTrust's collection—which currently holds more than 5 million digitized books—is highly representative of research library collections. On this premise, Wilkin has analyzed HathiTrust's holdings and drawn preliminary conclusions about the proportion of works that are in-copyright, in the public domain, or are orphans—that is, works whose holders cannot be located.
| Digital Scholarship | Digital Scholarship Publications Overview |
The Triangle Research Libraries Network has released The Triangle Research Libraries Network's Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Record Groups.
Here's an excerpt from the OCLC press release:
This is the first formally published strategy for providing access to unpublished materials online based on an approach created by OCLC Research and the RLG Partnership.
This approach is described in a document titled, "Well-intentioned practice for putting digitized collections of unpublished materials online" and is the output of an "Undue Diligence" invitational seminar held in the spring of 2010. During this event, OCLC Research convened a group of RLG Partner experts from archives, special collections and the law to develop and define streamlined, community-accepted procedures for managing copyright in the digital age that would cut costs and boost confidence in libraries' and archives' ability to increase visibility of and access to unpublished materials online. The group acknowledged that, although there is risk in digitizing materials that may be in copyright, this risk should be balanced with the harm to scholarship and society inherent in not making collections fully accessible. Based on this premise, they identified a practical approach to selecting collections, making decisions, seeking permissions, recording outcomes, establishing policy and working with future donors, which OCLC Research staff outlined in the "Well-intentioned practice" document and posted online.
Since then, a community of practice has formed around these procedures and many professional organizations have publicly endorsed them, including the Rare Book and Manuscript Section (RBMS) of the American Library Association (ALA), and leading academic library professionals and scholarly communications officers.
Based on this ever-growing agreement within the profession, the Triangle Research Libraries Network (TRLN) member libraries created a Network's Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Record Groups to specify the well-reasoned risk management practices to support their large-scale digitization project called "Content, Context, and Capacity: A Collaborative Digitization Project on the Long Civil Rights Movement in North Carolina." This project will present free and open online access to a total of forty digitized manuscript collections or archival record groups, accompanied by the broad summary descriptions and contents lists found in the finding aids created when the collections were processed. For the first time, these resources will cross the boundaries of the four libraries' reading rooms—bringing together a vast quantity of research material for the era between the 1930s and 1980s. This free and open online availability of full collections will facilitate new scholarly collaborations across institutions, and even nations, and will support the development of educational tools for students and the use of primary sources in classrooms.
Read more about it at "Well-Intentioned Practice for Putting Digitized Collections of Unpublished Materials Online."
| Digital Scholarship | Digital Scholarship Publications Overview |
The Digital Curation Centre has released How to License Research Data.
Here's an excerpt:
This guide will help you decide how to apply a licence to your research data, and which licence would be most suitable. It should provide you with an awareness of why licensing data is important, the impact licences have on future research, and the potential pitfalls to avoid. It concentrates on the UK context, though some aspects apply internationally; it does not, however, provide legal advice. The guide should interest both the principal investigators and researchers responsible for the data, and those who provide access to them through a data centre, repository or archive.
| Digital Scholarship | Digital Scholarship Publications Overview |
The European Public Sector Information (PSI) Platform has released Creative Commons and Public Sector Information: Flexible Tools to Support PSI Creators and Re-Users.
Here's an excerpt:
Public sector information (PSI) is meant for wide re-use, but this information will only achieve maximum possible impact if users understand how they may use it. Creative Commons tools, which signify availability for re-use to users and require attribution to the releasing authority, are ideal tools for the sharing of public sector information. There is also increasing interest in open licenses and other tools to share publicly funded information, data, and content, including various kinds of cultural resources, educational materials, and research findings; Creative Commons tools are applicable here and recommended for these purposes too.
| Digital Scholarship | Digital Scholarship Publications Overview |
The National Research Foundation has released Managing Digital Collections: A Collaborative Initiative on the South African Framework.
Here's an excerpt:
The objective of this Framework is to provide high-level principles for planning and managing the full digital collection life cycle. It aims to
- provide an overview of some of the major components and activities involved in creating good digital collections
- provide a sense of the landscape of digital collections management
- identify existing resources that support the development of sound local practices
- encourage community participation in the ongoing development of best practices for digital collection building
- contribute to the benefits of sound data management practices, as well as the goals of data sharing and long term access
- introduce data management and curation issues
- assist cultural heritage organisations to create and manage complex digital collections
- assist funding organisations who wish to encourage and support the development of good digital collections
- advocate the use of internationally-created appropriate open community standards to ensure quality and to increase global interoperability for better exchange and re-use of data and digital content.
| Digital Scholarship | Digital Scholarship Publications Overview |
Victoria A. Espinel, U.S. Intellectual Property Enforcement Coordinator, has released the 2010 U.S. Intellectual Property Enforcement Coordinator Annual Report on Intellectual Property Enforcement.
Read more about it at "IP Czar Report Hits on All the Lobbyist Talking Points; Warns of More Draconian Copyright Laws to Come" and "White House Will Propose New Digital Copyright Laws."
| Digital Scholarship | Digital Scholarship Publications Overview |
PLATFORM: Journal of Media and Communication has published a special issue about the Creative Commons.
Here's an excerpt from the issue's editorial by Elliott Bledsoe and Jessica Coates:
We are privileged to be able to begin this issue with an interview with one of the leading thinkers in the field, Esther Wojcicki, the Vice-Chair of the Creative Commons Board of Directors. Esther is an award winning journalist and educator, who has taught at Palo Alto High School in California for 25 years and blogs regularly for The Huffington Post and Hotchalk. She is an articulate and experienced advocate of open, using it in her professional and personal life. In Wojcicki’s interview she introduces us to the background philosophy of Creative Commons through the lens of her experience, giving her take on why rights literacy is necessary to teach a generation that will work and play primarily on the net.
Providing a broader overview of where things are at, the issue commences with Rachel Cobcroft’s piece chronicling the development of the international Creative Commons Case Studies initiative. The 2-year-old qualitative research project uses real world examples to gauge the impact of the Creative Commons licensing scheme's legal, technological, social, media and policy initiatives. As well as providing the fundamentals of the Creative Commons model, Cobcroft's piece examines the progress of open content licensing; identifies models of implementation and licensing trends across industry sectors as diverse as music, government, wikis and fashion; and, perhaps most importantly, explores individual motivations for the adoption of open philosophies.
A similar focus on motivations is central to our second piece by Cheryl Foong. However, in contrast to the broad picture provided by Cobcroft, Foong takes a narrow focus for her analysis, asking the question can open philosophies go hand in hand with commercial gain? Drawing on examples of adoption of Creative Commons licensing by content creators and intermediaries, Foong concludes that, if used wisely, the open licensing scheme can be a useful tool for those creators who wish to circumvent traditional distribution channels dominated by content intermediaries, while maintaining a level of control over their copyright works. However, Foong identifies a need for caution – giving your work away is not a business model in itself, and only those who can successfully adapt the tools provided by the open movement to, as Techdirt CEO Mike Masnick puts it, connect with fans and give them a reason to buy,. . . will achieve success in this space.
The message that open is valuable, but does not solve all problems is taken up in our third paper, a collaborative piece by Alexandra Crosby and Ferdiansyah Thajib. Viewed through the lens of video activism in Indonesia, Crosby and Thajib seek to explore the experience of individual creators attempting to tackle the behemoth of copyright in the liberated, but confusing, internet age. In doing so, they argue that while open licensing is an improvement on the models of the past, there is not yet a solution for the problems of copyright management that fits the Indonesian context. Of particular concern are issues of collaboration and credit in a world where attribution is the new currency, and the increasing gap between the global rhetoric of copyright enforcement and the diversity of practices on the ground. In the end Crosby and Thajib conclude that if the commons movement is to be successful in Indonesia, it must address cultural issues, images of imperialism and practical barriers to clear and open licensing in a society where no strong copyright tradition exists.
The final paper by Peter Jakobsson also focuses on the principle of collaboration that underpins the current commons movement, but with a more critical, theoretical eye. Relying primarily on the analytical model provided by Rene Girard's theory of mimetic desire, Jakobsson examines the relationship between the growing trend, and rhetoric, of cooperation on the ‘social web' and the often undervalued importance of competition in the same field. In doing so, he argues that both competition and collaboration are not only valuable but central to the new forms and platforms of cultural production. Most interestingly, to demonstrate his argument he draws on the real world example of YouTube's Partnership program, demonstrating that even in a limitless world, scarcity still exists in resources such as viewer attention.
| Digital Scholarship | Digital Scholarship Publications Overview |
The Library Copyright Alliance has released "The Impact of the Supreme Court's Decision in Costco v. Omega on Libraries."
Here's an excerpt:
On December 13, 2010, the U.S. Supreme Court decided Costco v. Omega in a manner that eliminated none of the uncertainty caused by the lower court's ruling in that case. The U.S. Court of Appeals for the Ninth Circuit had ruled that the copyright law's "first sale doctrine" did not apply to copies manufactured abroad. This ruling cast doubt on a library's ability to circulate books and other materials manufactured outside of the United States. In a 4 to 4 vote, the Supreme Court affirmed the lower court's judgment "by an equally divided Court." This means that the Ninth Circuit's ruling stands within the Ninth Circuit, but is not a binding precedent on courts in the rest of the country. Libraries must now decide whether to change their purchasing and lending practices in light of the Supreme Court's decision. This memorandum suggests that a combination of defenses, including section 602(a)(3)(C) of the Copyright Act, the Ninth Circuit's Drug Emporium exception, implied license, and fair use, allow libraries throughout the country to continue their existing purchasing and circulation practices with a fair degree of confidence that they will not infringe copyright by doing so.
| Digital Scholarship | Digital Scholarship Publications Overview |
Zohar Efroni has self-archived three chapters from Access-Right: The Future of Digital Copyright Law in SSRN.
This chapter scrutinizes the notion of "access to information" and attempts to translate it into a vocabulary property law can process and analyze. It turns out that very little about "access to information" as a property concept is self-explanatory.
It shall be posited that and explained why the reproduction right belongs to past chapters in copyright law's evolution; it has grown evidently unsuitable to lead the copyright system into the digital future.
This chapter provides a broad overview and analysis on anticircumvention laws in the U.S. and Europe. . . . The statutory anticircumvention texts reviewed in this chapter do not provide straightforward answers to the nexus problem, that is, the relationship between anticircumvention bans and conventional copyright infringement.
| Digital Scholarship | Digital Scholarship Publications Overview |
The OER IPR Support Project has released the Risk Management Calculator.
Here's an excerpt from the press release :
As more and more open content finds its way online, licensing and rights have become a key issue on a global level.
Licensing is complex and the more open you make content under an end user licence the greater the risk if you haven't sought the necessary permissions. In partnership with the Higher Education Academy, JISC is funding a support project on IPR and licensing issues for Open Educational Resources. The latest addition to their suite of support resources is a new tool—the Risk Management Calculator—designed to help understand levels of risk associated with publishing open educational materials. Typical examples of this might include materials which are still in copyright, but for which the rights holders cannot be traced or are unknown (so called "Orphan Works"). The calculator helps those relatively new to licensing to make the right decisions when creating open content. . . .
More and more organisations are realising the benefits of releasing their content under Creative Commons Licences, or similar open content licences such as the Open Government Licence, which explicitly grant the end-user permission to use materials, modify or redistribute them. Institutions like the British Library are releasing their bibliographic records to be reused without attribution and Creative Commons Licences are increasingly used by developing countries to open up content.
The European Commission's Comité des Sages has released The New Renaissance.
Here's an excerpt from the press release:
The report, called "The New Renaissance," key conclusions and recommendations are:
- The Europeana portal should become the central reference point for Europe's online cultural heritage. Member States must ensure that all material digitised with public funding is available on the site, and bring all their public domain masterpieces into Europeana by 2016. Cultural
- Works that are covered by copyright, but are no longer distributed commercially, need to be brought online. It is primarily the role of rights-holders to digitise these works and exploit them. But, if rights holders do not do so, cultural institutions must have a window of opportunity to digitise material and make it available to the public, for which right holders should be remunerated.
- EU rules for orphan works (whose rights holders cannot be identified) need to be adopted as soon as possible. The Report defines eight fundamental conditions for any solution.
- Member States need to considerably increase their funding for digitisation in order to generate jobs and growth in the future. The funds needed to build 100 km of roads would pay for the digitisation of 16% of all available books in EU libraries, or the digitisation of every piece of audio content in EU Member States' cultural institutions.
- Public-private partnerships for digitisation must be encouraged. They must be transparent, non-exclusive and equitable for all partners, and must result in cross-border access to the digitised material for all. Preferential use of the digitised material granted to the private partner should not exceed seven years.
- To guarantee the preservation of collections in their digital format, a second copy of this cultural material should be archived at Europeana. In addition, a system should be developed so that any cultural material that currently needs to be deposited in several countries would only be deposited once.
Public Knowledge has released A Copyright Office for the 21st Century: Recommendations to the New Register of Copyrights .
Here's an excerpt:
First and foremost, the next Register of Copyrights should prioritize updating the copyright registration system so that it can meet the demands of modern copyright. There is no reason why, in an era of interconnected computers and sophisticated digital imaging, the registry should have long processing delays, be incomplete, not include visual works, and not be searchable from any Internet-accessible device. A complete copyright registry that takes full advantage of digital technology will reduce costs for copyright holders, those engaging in searches, and taxpayers. Importantly, a complete and widely accessibly registry will help to ensure that those seeking to make use of copyrighted works can more easily find and compensate their owners.
Second, the next Register of Copyrights must recognize that copyright policymaking is no longer a sleepy backwater followed by a handful of copyright holders and their lawyers. Thanks largely to the clash of an overwhelmingly pre-VCR copyright law with digital technology, the length and terms of copyright law have become a matter of public debate. Moreover, ubiquitous computers and Internet access have made just about everyone a creator with a stake in copyright policymaking. Thus, the Copyright Office should take its cue from other government agencies and reach out affirmatively to various stakeholder groups and the public at large – not only to inform them of what the Copyright Office is doing, but also to seek their participation in policymaking.
The increased interest, and the public’s stake, in copyright policymaking also make it essential that the Copyright Office follow the Obama Administration’s goal of a more open and transparent government. At a minimum, this means that the Copyright Office must reveal who is meeting with their staff and why.
Finally, this paper recommends that Congress limit the term of the Register of Copyrights to no more than 10 years. Term limits make political appointees more accountable and reduce the possibility of capture by one or more existing stakeholder groups.
The New York Law School Law Review has published a special issue containing papers from the NYU Law School's October 2009 D Is for Digitize conference on the Google Books lawsuit and settlement.
Here are the papers:
ARL has released Proceedings of the 157th ARL Membership Meeting.
Here's a brief selection of presentations:
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.]
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.
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."
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.
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.
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."
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.
Aaron Perzanowski and Jason Schultz have self-archived "Digital Exhaustion" in SSRN.
Here's an excerpt:
As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. The limitations first sale places on the exclusive right of distribution are of little importance when the alienation and use of copies entails their reproduction. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital first sale rights.
Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped today to limit copyright exclusivity in order to enable copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the Supreme Court’s foundational decision in Bobbs-Merrill v. Strauss. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that includes not only alienation, but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace.
