Jorge L. Contreras has self-archived "Confronting the Crisis in Scientific Publishing: Latency, Licensing and Access" in the American University Washington College of Law Digital Commons.

Here's an excerpt:

In this article, I propose an alternative private ordering solution based on latency values observed in open access stakeholder negotiation settings. Under this proposal, research institutions would collectively develop and adopt publication agreements that do not transfer copyright ownership to publishers, but instead grant publishers a one-year exclusive period in which to publish a work. This limited period of exclusivity should enable the publisher to recoup its costs and a reasonable profit through subscription revenues, while restoring control of the article copyright to the author at the end of the exclusivity period. This balanced approach addresses the needs of both publishers and the scientific community, and would, I believe, avoid many of the challenges faced by existing open access models.

| Digital Scholarship Overview | Digital Scholarship |

James Grimmelmann reports in "HathiTrust Wins" that Hathitrust has won the Authors Guild, Inc. et al. v. Hathitrust et al. case .

Here's an excerpt:

On every substantive copyright issue, HathiTrust won:

• Section 108 on library privileges doesn't limit the scope of fair use.
• A search index and access for the print-disabled are both fair uses.
• Search indexing is a transformative use.
• The libraries aren't making commercial uses, even though they partnered with Google to get the scans.
• The plaintiffs haven't proven that HahiTrust is creating any security risks.
• There is no market for scanning and print-disabled access, nor is one likely to develop.
• UM is required under the ADA to provide equal access to the print-disabled, and is allowed to under Section 121 of the Copyright Act.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

The European Centre for International Political Economy has released ACTA—The Ethical Analysis of a Failure, and Its Lessons.

Here's an excerpt:

In this article, I wish to contribute to the post-ACTA debate by proposing a specific analysis of the ethical reasons why ACTA failed, and what we can learn from them. I argue that five kinds of objections—namely, secret negotiations, lack of consultation, vagueness of formulation, negotiations outside any international body, and the creation of a new governing body outside already existing forums—had only indirect ethical implications. This takes nothing away from their seriousness but it does make them less compelling, because agreements should be evaluated, ethically, for what they are, rather than for the alleged reasons why they are being proposed. I then argue that ACTA would have caused three ethical problems: an excessive and misplaced kind of responsibility, a radical decrease in freedom of expression, and a severe reduction in information privacy. I conclude by indicating three lessons that can help us in shaping ACTA 2.

| Digital Scholarship's Digital/Print Books | Digital Scholarship |

Google and the Association of American Publishers have settled the copyright lawsuit over Google Library Project. The related Authors Guild lawsuit has not been settled.

Here's an excerpt from the Google press release:

The agreement settles a copyright infringement lawsuit filed against Google on October 19, 2005 by five AAP member publishers. As the settlement is between the parties to the litigation, the court is not required to approve its terms.

The settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.

Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works. . . .

Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play. Under the agreement, books scanned by Google in the Library Project can now be included by publishers.

See also the AAP press release.

| Google Books Bibliography | Digital Scholarship |

Libby Greismann has published "The Greatest Book You Will Never Read: Public Access Rights and the Orphan Works Dilemma" in the Duke Law & Technology Review.

Here's an excerpt:

Copyright law aims to promote the dual goals of incentivizing production of literary and artistic works, and promoting public access and free speech. To achieve these goals, Congress has implemented a policy that acknowledges the rights of both the copyright holder and the public, which vest with the fixation of the work. However, as Congressional action has strengthened copyright protection, the rights of the public have been narrowed. Orphan works—works to which the copyright owner cannot be located or identified—present a unique problem, in that achieving free access and use of the works is often impossible. This note argues that the public has a recognizable right in both gaining access to and using orphan works—a right which emanates from, but is tangential to, the First Amendment right to free speech.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

David R. Hansen has published "Understanding and Making Use of Academic Authors' Open Access Rights" in the latest issue of the Journal of Librarianship and Scholarly Communication.

Here's an excerpt:

METHODS To understand the scope of author-retained rights (including the right to purchase hybrid or other open access options) at some sample universities, author-rights data through the SHERPA/RoMEO API was combined with individual article citations (from Thomson Reuters' Web of Science) for works published over a one-year period (2011) and authored by individuals affiliated with five major U.S. research universities. RESULTS Authors retain significant rights in the articles that they create. Of the 29,322 unique articles authored over the one year period at the five universities, 28.83 percent could be archived in final PDF form and 87.95 percent could be archived as the post-print version. Nearly 43.47 percent also provided authors the choice of purchasing a hybrid paid open access option. DISCUSSION A significant percentage of current published output could be archived with little or no author intervention. With prior approval through an open access policy or otherwise, article manuscripts or final PDFs can be obtained and archived by library staff, and hybrid paid-OA options could be negotiated and exploited by library administrators.

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

The European Parliament has passed an orphan works bill.

Here's an excerpt from the press release:

Under the new rules, a work would be deemed to be "orphan" if a "diligent" search made in good faith failed to identify or locate the copyright holder. The legislation lays down criteria for carrying out such searches.

Works granted orphan status would be then be made public, for non-profit purposes only, through digitisation. A work deemed to be "orphan" in any one Member State would then qualify as "orphan" throughout the EU. This would apply to any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.

MEPs agreed that the right holder should be entitled to put an end to the orphan status of a work at any time and claim appropriate compensation for the use made of it.

They nonetheless inserted a provision to protect public institutions from the risk of having to pay large sums to authors who show up later.

| Digital Scholarship's Digital/Print Books | Digital Scholarship |

Cambridge University Press, Oxford University Press, and Sage Publications have filed an appeal in the Cambridge University Press et al. v. Patton et al. case.

Here's an excerpt from the press release announcing the publishers' intent to appeal:

This case had the potential to mark a significant first step toward addressing the need for clarity around issues of copyright in the context of higher education, where current practices around fair use in a digital environment vary widely and could benefit from sound judicial guidance. Our hope was that the District Court would provide that guidance.

Instead, the Court's rulings, culminating in the August injunction decision, shift radically from long-accepted fair use principles and introduce, among other errors, unsustainable policies regarding the proportion of a work not readily available for digital licensing that can be digitally copied without restriction. We have no alternative but to appeal, to protect our authors' copyrights and advocate for a balanced and workable solution.

Read more about it at "Publishers Appeal Ruling in GSU E-Reserves Case."

| Scholarly Electronic Publishing Bibliography 2010: "SEP [Scholarly Electronic Publishing Bibliography] is compiled with utter professionalism. It reminds me of the work of the best artisans who know not only every item that leaves their workshops, but each component used to create them—providing the ideal quality control." — Péter Jacsó ONLINE 27, no. 3 (2003): 73-76. | Digital Scholarship |

Eric Priest has self-archived "Copyright and the Harvard Open Access Mandate" in SSRN.

Here's an excerpt:

This Article argues that permission mandates can create legally enforceable, durable nonexclusive licenses. First, it argues that although there are important justifications, including academic freedom concerns, for recognizing the controversial “teacher exception” to the work for hire rules for scholarly articles, such an exception may be unnecessary because a strong argument also exists that much scholarship is produced outside the scope of employment for work for hire purposes. Second, it argues that permission mandates provide sufficient evidence of the grantor's intent and the rights granted to create effective nonexclusive licenses. Third, permission mandates satisfy the requirements of § 205(e) and establish the license's priority over the subsequent transfer of copyright ownership largely because they fulfill the underlying purposes of § 205(e) by providing sufficient evidence and notice of the license to potential copyright transferees (typically academic publishers).

| Transforming Scholarly Publishing through Open Access: A Bibliography: "This work gives an outstanding overview of scholarship relating to the growing Open Access movement." — George Machovec, The Charleston Advisor 12, no. 2 (2010): 3. | Digital Scholarship |

Nicolo Zingales has published "Digital Copyright, 'Fair Access' and the Problem of DRM Misuse" in the Intellectual Property & Technology Forum & Journal at Boston College Law School.

Here's an excerpt:

This article points out one of the ways the development of these new technologies has altered the boundaries of copyright, specifically by enabling copyright holders to strategically expand the scope of protection through the strategic use of Digital Rights Management (hereinafter, DRM). After a brief overview of these technologies and their contribution to the development of online markets for copyrighted works, the article discusses the risks of using DRM as a means of stretching the legal protection conferred by Intellectual Property law.

As a potential solution to such problem, the article looks at the role of the courts and the approach embraced vis a vis specific cases of abuse of DRM in the copyright context. . . . The article then concludes recommending a two-fold approach to the assessment of the legality of such practices, where antitrust analysis and IP principles are intermingled, proposing a legal test to facilitate this complex assessment.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

The Australian Law Reform Commission has released Copyright and the Digital Economy.

Here's an excerpt from the announcement:

This Issues Paper is the first formal publication of the Inquiry, intended to help frame discussion and encourage public consultation at an early stage. It provides background information about copyright in the digital environment, highlights the issues so far identified in preliminary research and consultations, and outlines the principles that will shape the ALRC's proposals for reform. It asks more than 50 questions about how the current copyright framework is affecting both commercial and creative enterprise and how current exceptions and statutory licences are working in the digital environment.

| Digital Scholarship Overview | Digital Scholarship |

Diane Leenheer Zimmerman has self-archived "Modern Technology, Leaky Copyrights and Claims of Harm: Insights from the Curious History of Photocopying" in SSRN.

Here's an excerpt:

The core problem this paper attempts to address what should count as "economic harm" in determining whether particular kinds of copying are appropriately treated as copyright infringement. . . . The argument that copying without permission, especially on the internet, is per se harmful has led to a variety of increasingly stringent self-help and legislative measures designed to prevent and to punish the activity, although often without evidence of success. But researchers who study such things continue to find evidence of the damage, at least from noncommercial activity, elusive. The reasons this might be so, and the inferences to be drawn from it are an interesting subject for copyright theorists to consider, but so far, very little serious attention has been paid to examining the phenomenon. This paper is an effort to begin filling in that blank by setting out a case study of a rampant form of copying technology that long pre-dates the internet: photocopying. In many ways, the photocopying story is a microcosm of what happens when a new technology bursts onto the copyright scene, and as such, it is a possible source of learning about how copyright should treat the issue of noncommercial copying generally, whether it happens compliments of Xerox, or compliments of your regional ISP.

| Digital Scholarship |