Archive for the 'Copyright' Category

"Guest Post: Charles Oppenheim on Who Owns the Rights to Scholarly Articles"

Posted in Copyright, Digital Copyright Wars, Open Access, Publishing, Scholarly Journals on February 5th, 2014

Charles Oppenheim has published "Guest Post: Charles Oppenheim on Who Owns the Rights to Scholarly Articles" in Open and Shut.

Here's an excerpt:

Posting D [draft article] on an OA repository is the so-called "Harnad-Oppenheim" solution, first proposed by Stevan Harnad and me more than 10 years ago.

When the solution was first enunciated, publishers dismissed it for two reasons: firstly, why would anyone want to read a draft when the final perfect version can be obtained via the publisher? And secondly, it would be difficult to track down a copy of D anyway. Their comments remain valid today, though the second one is not as strong because of services such as Google Scholar. But no publisher suggested that the solution was illegal because publishers owned the copyright to D, and they were right not to do so. The law is clear that I own the copyright in D. That is why I am so puzzled that some recent non-publisher commentators seem to think publishers own the copyright in D.

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    "Last Sale? Libraries’ Rights in the Digital Age"

    Posted in Copyright, Digital Copyright Wars, Licenses on February 4th, 2014

    Jennifer Jenkins has published "Last Sale? Libraries' Rights in the Digital Age" in College & Research Libraries News.

    Here's an excerpt:

    What's the difference between a sale and license? Normally, the law is skeptical of limitations on transfers of property. Can Snickers say you merely "licensed" that candy bar because there was fine print on the label? A court would be unlikely to agree. Can libraries argue that though e-books come with "a license," the library is nevertheless an "owner" with first sale rights? The answer at the moment is "probably not."

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      Subcommittee on Courts, Intellectual Property, and the Internet Scope of Fair Use Hearing

      Posted in Copyright, Digital Copyright Wars, Mass Digitizaton on February 3rd, 2014

      The House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the scope of fair use on 1/28/14 (video).

      Here's an excerpt from "Fair Use Takes Center Stage at Judiciary Committee Hearing": :

      One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use. Not only is it fair, but as Professor Peter Jaszi noted during the hearing it is also tremendously beneficial, enabling the indexing and searching of huge sets of works.

      Several panelists, however, pointed to the legal status of mass digitization as evidence of "fair use creep," stressing its supposed lack of "transformative" quality over the other fair use considerations. That's a mistake. Mass digitization is absolutely the sort of thing fair use is supposed to enable. Fair use is a flexible doctrine, not a rigid list of exceptions, so that it can accommodate changes in practices or technology.

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        "Setting the Record Straight about Elsevier"

        Posted in Copyright, Publishing, Scholarly Journals, Self-Archiving on January 29th, 2014

        Kevin Smith has published "Setting the Record Straight about Elsevier" in Scholarly Communications @ Duke.

        Here's an excerpt:

        Each [article] version is a revision of the original, and the copyright is the same for all these derivatives. When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer. Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

        Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself. In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author. One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways.

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          "’Safe Harbor’ for the Innocent Infringer in the Digital Age"

          Posted in Copyright, Digital Copyright Wars on January 27th, 2014

          Tonya M. Evans has self-archived "'Safe Harbor' for the Innocent Infringer in the Digital Age" in SSRN.

          Here's an excerpt:

          The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. Such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, cognizable market harm.

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            "E-Book Monopolies and the Law"

            Posted in Copyright, Digital Rights Management, E-Books, Publishing on January 22nd, 2014

            Angela Daly has self-archived "E-Book Monopolies and the Law" in SSRN

            Here's an excerpt:

            This article will examine the legality of the digital rights management ("DRM") measures used by the major e-book publishers and device manufacturers in the United States, European Union and Australia not only to enforce their intellectual property rights but also to create monopolistic content silos, restrict interoperability and affect the ability for users to use the content they have bought in the way they wish. The analysis will then proceed to the recent competition investigations in the US and EU over price-fixing in e-book markets, and the current litigation against Amazon in the US for an alleged abuse of its dominant position. A final point will be made on possible responses in Australia to these issues taking into account the jurisprudence on DRM in other scenarios.

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              Safe to Be Open: Study on the Protection of Research Data and Recommendation for Access And Usage

              Posted in Copyright, Data Curation, Open Data, and Research Data Management, Digital Curation & Digital Preservation, Open Access on January 20th, 2014

              OpenAIRE has released Safe to Be Open: Study on the Protection of Research Data and Recommendation for Access And Usage.

              Here's an excerpt from the announcement:

              This study addresses the most important legal issues when implementing an open access e-infrastructure for research data. It examines the legal requirements for different kinds of usage of research data in an open access infrastructure, such as OpenAIREplus, which links them to publications. The existing legal framework regarding potentially relevant intellectual property (IP) rights is analysed from the general European perspective as well as from that of selected EU Member States. Various examples and usage scenarios are used to explain the scope of protection of the potentially relevant IP rights. In addition different licence models are analysed in order to identify the licence that is best suited to the aim of open access, especially in the context of the infrastructure of OpenAIREplus. Based on the outcomes of these analyses, some recommendations to the European legislator as well as data- and e-infrastructure providers are given on improving the rights situation in relation to research data.

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                Creative Commons 4.0 Licenses Released

                Posted in Copyright, Creative Commons/Open Licenses on December 4th, 2013

                The Creative Commons has released version 4.0 of its licenses.

                Here's an excerpt from the announcement:

                We proudly introduce our 4.0 licenses, now available for adoption worldwide. The 4.0 licenses—more than two years in the making—are the most global, legally robust licenses produced by CC to date. We have incorporated dozens of improvements that make sharing and reusing CC-licensed materials easier and more dependable than ever before.

                We had ambitious goals in mind when we embarked on the versioning process coming out of the 2011 CC Global Summit in Warsaw. The new licenses achieve all of these goals, and more. The 4.0 licenses are extremely well-suited for use by governments and publishers of public sector information and other data, especially for those in the European Union. This is due to the expansion in license scope, which now covers sui generis database rights that exist there and in a handful of other countries.

                Among other exciting new features are improved readability and organization, common-sense attribution, and a new mechanism that allows those who violate the license inadvertently to regain their rights automatically if the violation is corrected in a timely manner.

                You can find highlights of the most significant improvements on our website, track the course of the public discussion and evolution of the license drafts on the 4.0 wiki page, and view a recap of the central policy decisions made over the course of the versioning process.

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