Digital Video: Know Your Rights: Who Really Owns Your Scholarly Works?

The Scholarly Communication Program at Columbia University Libraries/Information Services has released Know Your Rights: Who Really Owns Your Scholarly Works? (Thanks to Digital & Scholarly.)

Here's the announcement:

In this panel discussion, experts on copyright law and scholarly publishing discuss how scholars and researchers can take full advantage of opportunities afforded by digital technology in today's legal environment, and suggest ways to advocate for positive change. The panelists are Heather Joseph, who has been Executive Director of the Scholarly Publishing and Academic Resources Coalition (SPARC); Michael Carroll, Visiting Professor of Law at American University's Washington College of Law and a founding member of the Board of Directors of Creative Commons; and Director of the Columbia University Copyright Advisory Office Kenneth Crews, whose research focuses on copyright issues, particularly as they relate to the needs of scholarship at the university.

DigitalKoans

Canada Put on U.S. Copyright Blacklist

Canada has joined countries such as China, Russia, and Pakistan on a U.S. copyright blacklist.

Here's an excerpt from 2009 Special 301 Report:

Canada will be added to the Priority Watch List in 2009. The United States appreciates the high level of cooperation between our two governments in many important bilateral and multilateral IPR initiatives. The United States also welcomed the Government of Canada's reaffirmation earlier this year of its 2007 and 2008 commitments to improve IPR protection and enforcement. However, the Government of Canada has not delivered on these commitments by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada's failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. The United States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada's weak border measures continue to be a serious concern for IP owners.

Read more about it at "Canada Placed on Copyright Blacklist."

Controlling Access to and Use of Online Cultural Collections: A Survey of U.S. Archives, Libraries and Museums for IMLS

Kristin Eschenfelder has self-archived a draft of Controlling Access to and Use of Online Cultural Collections: A Survey of U.S. Archives, Libraries and Museums for IMLS in dLIST.

Here's an excerpt:

This report describes the results of an Institute of Museum and Library Services (IMLS) funded study to investigate the use of technological or policy tools to control patron access to or use of digital collections of cultural materials created by U.S. archives, libraries and museums. The technological and policy tools serve primarily to control copying or other reuses of digital materials. The study had the following goals: 1. Assess what technical and policy tools cultural institutions are employing to control access to and use of online digital collections. 2. Investigate motivations for controlling access to or use of collections (e.g., copyright, privacy, protecting traditional restrictions, income generation etc.). 3. Investigate discouragers to the implementation of access and use control systems (e.g., preference for open collections, lack of resources, institutional mission, etc.). 4. Gauge interest in implementing technical systems to control access to and use of collections. 5. Determine what types of assistance IMLS could provide. 6. Identify institutions with innovative controlled online collections for follow up case studies on policy, technical and managerial details.

Justice Department Launches Antitrust Investigation into Google Book Search Settlement

The Justice Department has launched an antitrust investigation into the Google Book Search Copyright Class Action Settlement.

Read more about it at "Justice Department Looking into Google Book Settlement" and "Justice Dept. Opens Antitrust Inquiry Into Google Books Deal."

Foreign Opposition to the Google Book Search Settlement

Foreign opposition to the Google Book Search Settlement Agreement appears to be growing as the rights holder opt-out deadline nears.

Read more about it at "174 Writers, Poets Reject Google Book Search Offer"; "BA Warns Rights Holders over Google"; "Europeans Seem to Know Little About Google Settlement, But Enough Not to Like It"; and "German Authors Outraged at Google Book Search."

Google Asks Permission to Extend Author Opt-Out Deadline by 60 Days

Google has requested permission from the presiding court to extend the deadline for authors to opt out of the Google Book Search Settlement Agreement by 60 days.

Here's an excerpt from "Extending Notice on the Google Book Search Settlement":

It's pretty easy for credit card companies to contact their cardholders—they send bills to them all the time. The world's authors, publishers and their heirs are much more difficult to find. So, as the New York Times recently reported, the plaintiffs hired notice campaign specialists Kinsella Media Group to tell them about this exciting settlement, and Google has devoted millions of dollars to fund this notice campaign. . . .

The settlement is highly detailed, and we want to make sure rightsholders everywhere have enough time to think about it and make sure it's right for them. That's why we've asked the court for permission to extend the opt-out deadline for an extra 60 days.

Read more about it at "Delay Looming For Google Settlement Deadline?" and "Google Seeks More Time in Book Search Case."

A Win for Musicians, a Loss for the Public Domain: EU Parliament Extends Copyright Term for Music Recordings

By a vote of 377 to 178 (with 37 abstentions), the European Parliament has extended the copyright term for music recordings to 70 years from the first publication or performance of the work.

Here's an excerpt from the press release:

The European Commission had previously proposed an extension of the copyright protection up to 95 years. According to Mr Crowley, the compromise reached by the Parliament on 70 years takes into account Council's resistance and would facilitate an agreement with national governments. . . .

A dedicated fund for session musicians was also supported by the Parliament. This fund would be financed by contributions from producers, who would be obliged to set aside for this purpose, at least once a year, at least 20% of the revenues gained from the proposed extension of copyright term. This fund will reward those session musicians who gave up their rights when signing the contract for their performance. . . .

The Parliament also asks the Commission to launch an impact assessment of the situation in the European audiovisual sector by January 2010, with a view to deciding whether a similar copyright extension would benefit the audiovisual world.

Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement

In "ALA Participates in ITIF Google Book Settlement Panel at Library of Congress," District Dispatch describes an ITIF meeting on "Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement" at the Library of Congress.

Here's an excerpt:

Yesterday, Dr. Alan Inouye, Director of the American Library Association’s Office for Information Technology Policy, participated in a panel called Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement. The talk was sponsored by the Information Technology and Innovation Foundation (ITIF), and held at the Library of Congress in Washington, D.C. Dr. Inouye offered remarks on the proposed Google Book Settlement from the library and public interest perspective. Also contributing to the panel were Dr. Daniel Clancy, Engineering Director for Google Book Search, Allan Adler, VP of Government Affairs for the Association of American Publishers, and Peter Brantley, Director of Access for the Internet Archive. Daniel Castro, Senior Analyst at ITIF, moderated the panel discussion.

A digital video of the debate is available at the meeting web site.

Peter Hirtle on the Impact of the Google Book Settlement on Foreign Copyright Holders

In "Google Book Settlement, Orphan Works, and Foreign Works," Peter Hirtle discusses the impact of the Google Book Settlement on foreign copyright holders.

Here's an excerpt:

The scope of the foreign land grab could be considerable. Some initial estimates suggest that 7 million books could be included in the settlement. Of these it is estimated that 1 million are in the public domain. That would leave 6 million in-copyright but out-of-print books. Early efforts to try to understand the nature of the library collections that were being used to build the Google books database suggested that 50% of the works in the libraries were not in English, so it would be safe to say that at least 3 million of the books in the settlement will be foreign works. (Since Google added many European partners after this study was done, the number is likely to be much higher.) Some of these are going to be orphan works—but many more are going to have easily locatable rights holders that have chosen not to be active participants in the settlement. Their royalties are destined for the pockets of the Registry. I am willing to bet that a goodly percentage of the operating expenses of the Registry will come not from orphan works, but rather from foreign authors who do not understand the need to participate in the settlement.

Letters Fly over Anticipated Appointment of PRO-IP Act’s “Copyright Czar”

Copyright reform groups, such as Public Knowledge, and information industry groups, such as the Copyright Alliance, are staking out their positions with letters to the White House regarding the anticipated appointment of the Coordinator for International Intellectual Property Enforcement, a position which was mandated by the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act. Copyright reformers have been unhappy about the recent appointment of former RIAA lawyers to key Justice Department posts.

Read more about it at "Copyright Debate Heats Up over Obama Appointments."

“The Google Book Search Settlement: Ends, Means, and the Future of Books”

James Grimmelmann of the New York Law School has self-archived "The Google Book Search Settlement: Ends, Means, and the Future of Books" in SSRN.

Here's an excerpt:

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.

Pamela Samuelson: “Legally Speaking: The Dead Souls of the Google Booksearch Settlement”

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, has posted an eprint of "Legally Speaking: The Dead Souls of the Google Booksearch Settlement" on O'Reilly Radar.

Here's an excerpt:

This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the "dead souls" to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

(Note: See the Wikipedia entry on Nikolai Gogol's Dead Souls.)

“The Google Book Search Settlement: A New Orphan-Works Monopoly?”

Randal C. Picker of the University of Chicago Law School has self-archived "The Google Book Search Settlement: A New Orphan-Works Monopoly?" in SSRN.

Here's an excerpt:

The settlement agreement is exceeding complex but I have focused on three issues that raise antitrust and competition policy concerns. First, the agreement calls for Google to act as agent for rights holders in setting the price of online access to consumers. Google is tasked with developing a pricing algorithm that will maximize revenues for each of those works. Direct competition among rights holders would push prices towards some measure of costs and would not be designed to maximize revenues. As I think that level of direct coordination of prices is unlikely to mimic what would result in competition, I have real doubts about whether the consumer access pricing provision would survive a challenge under Section 1 of the Sherman Act.

Second, and much more centrally to the settlement agreement, the opt out class action will make it possible for Google to include orphan works in its book search service. Orphan works are works as to which the rightsholder can't be identified or found. That means that a firm like Google can't contract with an orphan holder directly to include his or her work in the service and that would result in large numbers of missing works. The opt out mechanism—which shifts the default from copyright's usual out to the class action's in—brings these works into the settlement. . . .

Third, there is a risk that approval by the court of the settlement could cause antitrust immunities to attach to the arrangements created by the settlement agreement. As it is highly unlikely that the fairness hearing will undertake a meaningful antitrust analysis of those arrangements, if the district court approves the settlement, the court should include a clause—call this a no Noerr clause—in the order approving the settlement providing that no antitrust immunities attach from the court's approval.

Harvard Office for Scholarly Communication and the American Physical Society Agree on Open Access Arrangements

The Harvard Office for Scholarly Communication and the American Physical Society have come to an agreement about how to implement Harvard's open access policies for articles published by Harvard authors.

Here's an excerpt from the press release:

As a result of the new agreement, APS recognizes Harvard's open access license and will not require copyright agreement addenda or waivers, in exchange for Harvard's clarification of its intended use of the license. In general terms, in exercising its license under the open access policies, Harvard will not use a facsimile of the published version without permission of the publisher, will not charge for the display or distribution of those articles, and will provide an online link to the publisher's definitive version of the articles where possible. The agreement does not restrict fair use of the articles in any way.

According to Professor Bertrand I. Halperin, Hollis Professor of Mathematics and Natural Philosophy in the Harvard Physics Department and Chair of the 2008 Publications Oversight Committee of the American Physical Society, "Harvard’s open access legislation was always consistent in spirit with the aims of the APS publication policies, but there were differences in detail that would have required faculty members to request a waiver for every article published in an APS journal. It is a credit both to Harvard and to APS that these differences have been worked out. Since APS journals include, arguably, the most important journals in the field of physics, the fact that faculty will now be able to continue publishing in APS journals without seeking a waiver from Harvard’s policies will strengthen both Harvard and the goal of promoting open access to scholarly publications worldwide."

“Self-Archiving Journal Articles: A Case Study of Faculty Practice and Missed Opportunity”

Denise Troll Covey has published "Self-Archiving Journal Articles: A Case Study of Faculty Practice and Missed Opportunity" in the latest issue of portal: Libraries and the Academy (restricted access journal).

Here's the abstract:

Carnegie Mellon faculty Web pages and publisher policies were examined to understand self-archiving practice. The breadth of adoption and depth of commitment are not directly correlated within the disciplines. Determining when self-archiving has become a habit is difficult. The opportunity to self-archive far exceeds the practice, and much of what is self-archived is not aligned with publisher policy. Policy appears to influence neither the decision to self-archive nor the article version that is self-archived. Because of the potential legal ramifications, faculty must be convinced that copyright law and publisher policy are important and persuaded to act on that conviction.

Covey previously self-archived "Faculty Self-Archiving Practices: A Case Study" in Carnegie Mellon's Research Showcase.

Here's the abstract:

Faculty web pages were examined to learn about self-archiving practice at Carnegie Mellon. More faculty are self-archiving their work and more work is being self-archived than expected. However, the distribution of self-archiving activity across the disciplines is not as expected. More faculty self-archive journal articles than other publications, but more conference papers are self-archived than journal articles. Many faculty who self-archive have self-archived fewer than ten publications. A small number of faculty has self-archived most of the work that is available open access from faculty web pages. Significant differences in faculty behavior within departments cannot be explained by disciplinary culture.

“Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright”

Deven R. Desai of the Thomas Jefferson School of Law has made "Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright" available on SSRN.

Here's an excerpt:

Copyright operates under a hidden, erroneous assumption: heirs matter in copyright. This Article examines the possible historical and theoretical bases for the heirs assumption and finds that neither supports it. In short, the assumption is a myth that harms copyright policy and ignores a less obvious, but quite important, heir: society in general. An examination of the historical debates shows that the idea of providing for heirs through copyright has played a minor role in U.S. copyright history. Instead, heirs have been props to advance an agenda of furthering term extensions, advancing rent-seeking opportunities, and allowing authors to exert power against publishers. In addition, although copyright policy makers point to Europe and the Berne Convention as a key source for the heirs assumption, European debates that serve as the basis for the Berne Convention offer surprising and almost prescient sensitivity to ideas that are found today in the access to knowledge movement. One figure in particular, Victor Hugo, made an impassioned speech arguing that literary property protection must be operate as a way to found the public domain and asserting that when choosing between authors' rights and the public domain, the public domain must win.

“Statutory Damages in Copyright Law: A Remedy in Need of Reform”

Pamela Samuelson and Tara Wheatland, both of the University of California at Berkeley School of Law, have made "Statutory Damages in Copyright Law: A Remedy in Need of Reform" available on SSRN.

Here's an excerpt:

U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.

This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

France’s “Three-Strikes” Copyright Bill Strikes Out

The French National Assembly has rejected a copyright bill aimed at curbing illegal file sharing on the Internet. Violators would have received two warning letters, then be subject to Internet disconnection for up to a year. The fight is not over: a revised bill is anticipated in a few weeks.

Read more about it at: "France Rejects 3 Strikes Anti-Piracy Law," "France Rejects Plan to Curb Internet Piracy," and "French Lawmakers Reject Internet Piracy Bill."

Forthcoming: Moral Panics and the Copyright Wars by William Patry

Oxford University Press will publish Moral Panics and the Copyright Wars by William Patry, a noted copyright expert and Senior Copyright Counsel at Google.

Here's an excerpt from the ad:

The way we have come to talk about copyright—metaphoric language demonizing everyone involved—has led to bad business and bad policy decisions. Unless we recognize that the debates over copyright are debates over business models, we will never be able to make the correct business and policy decisions