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 |

Katherine M. Meeks, has self-archived "Adverse Possession of Orphan Works" in SelectedWorks.

Here's an excerpt:

This paper proposes that Congress could adapt the real property doctrine of adverse possession to clear the muddy rights to these orphan works. Adverse possession is a mechanism for resolving competing claims to land that arise where an owner has failed to assert his rights for many years, allowing a hostile trespasser to assume control of the land as if it were his own. . . Although Congress would need to modify the black letter test before it could be applied to intangible property, the policy rationale behind adverse possession applies with equal or greater force in the orphan works context. Where the holder of a copyright has failed both to exploit his product and to register his whereabouts with the Copyright Office, such that others might seek permission to use his creative expression, his intellectual property rights should not shackle libraries, museums, or other institutions that perceive a scholarly or commercial demand for the work.

| Google Books Bibliography | Digital Scholarship |

Christopher J. Buccafusco and Paul J. Heald have self-archived "Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension" in SSRN.

Here's an excerpt:

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

The publisher plaintiffs have issued a statement on Judge Orinda Evans' order in the Georgia State University e-reserves copyright case.

Here's an excerpt:

The District Court's decision is marred by a number of serious legal errors. The fair use exception cannot be stretched beyond recognition simply because course materials are delivered in a digital format by an educational institution. The ruling excuses copyright violations by GSU and endorses unauthorized copying and distribution of academic works well beyond what the law allows and what universities across the country consider reasonable. The decision devalues academic scholarship by treating such work as 'factual' compilations. . . .

As with the initial decision to bring suit, the decision regarding an appeal will be based on a considered assessment that takes into account the extent to which this ruling, which we believe to be legally vulnerable on multiple grounds, endangers the creation and dissemination of high-quality academic work

Georgia State University has also issued a statement about the order.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

Effective immediately, journals in the Wiley Open Access program will use the Creative Commons Attribution Licence for articles.

Here's an excerpt from the press release:

Rachel Burley, Vice President and Director, Open Access, commented, "Wiley is committed to meeting the evolving needs of the authors who wish to provide open access to the published articles that convey the results of their research."

Burley continued, "Our announcement today concerns Wiley’s fully open access journals. We are also reviewing the licensing arrangements for our hybrid program OnlineOpen, our open access option for individual articles published in subscription journals. In consultation with our publishing partners, we aim to continue to develop and deliver sustainable open access products providing author choice and high levels of service."

In the first instance, the journals moving to the CC-BY licence are Brain and Behavior, Ecology and Evolution, MicrobiologyOpen, Cancer Medicine, Food Science & Nutrition, Evolutionary Applications, Geoscience Data Journal and EMBO Molecular Medicine.

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

Judge Orinda Evans has issued an order in the Georgia State University e-reserves copyright case that says, in part, that the defendants's attorney's fees and other defense costs will be paid by plaintiffs.

Here's an excerpt from the order:

In this litigation, the Court limited Plaintiffs to claims arising in three semesters in 2009 but did not require Plaintiffs to pursue all claims. When the trial began, Plaintiffs chose to pursue 99 claims out of 126. They then dropped 25 claims (and added one) during the trial. As to the remaining 75 claims, no prima facie case was proven in 26 instances. Digital permissions were unavailable in 33 instances. Neither digital nor hard copy permissions were available in 18 cases. Although the Court does not doubt Plaintiffs' good faith in bringing this suit, and there was no controlling authority governing fair use in a nonprofit educational setting, Plaintiffs' failure to narrow their individual infringement claims significantly increased the cost of defending the suit.

For these reasons, the Court exercises its discretion to award to Defendants their reasonable attorneys' fees. Other costs will also be taxed in favor of Defendants and against Plaintiffs to the extent permitted by statute.

Read more about it at "Judge Denies Publishers' Request for Relief in Georgia State U. E-Reserves Case" and "The Prevailing Party."

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Walt Crawford has published "It Was Never a Universal Library: Three Years of the Google Book Settlement" in Cites & Insights: Crawford at Large.

Here's an excerpt:

Remember the Google Books settlement? It was going to settle a four-year-old pair of lawsuits (four years old then, eight years old now) against Google (by the Association of American Publishers, AAP, and the Authors Guild, AG) asserting that Google was infringing on copyright through its two-line snippets from in-copyright books scanned in the Google Library Project—and by the scanning itself. Later, a third group representing media photographers also sued Google for the same actions. . . .

This is a long set of notes and comments (cites & insights). It strikes me that the topic and complexity deserve that length—but note that I'm offering much briefer excerpts and comments on most items than I normally would in this sort of roundup.

After two sets of general notes and overviews (one before the settlement was rejected, one after) I'm breaking the discussion down by topics rather than chronologically.

| Google Books Bibliography | Digital Scholarship |

Giorgos Cheliotis, Warren Chik, Ankit Guglani, and Giri Kumar Tayi have self-archived "Taking Stock of the Creative Commons Experiment: Monitoring the Use of Creative Commons Licenses and Evaluating Its Implications for the Future of Creative Commons and for Copyright Law" in SSRN.

Here's an excerpt:

We provide data demonstrating the popularity of CC, examine which specific license types within the CC framework are most popular, and then identify contributing factors for the relative popularity of some of the license types. This includes individual author incentives, the consistency and aims of the online communities which adopt CC as a licensing model, the underlying medium (text, photography, audio, video or interactive
content), the intended use of the work, as well as the sociopolitical, legal and economic background of the jurisdictions where the works are being produced. We show that the spread of the licenses is global and encompasses both developed and developing nations with varied cultural and historical backgrounds, which we claim is indicative of a general social shift towards more open collaboration and the rise of a new global consciousness of sharing and participation across national borders. . . . In conclusion we examine to what extent copyright law and policy should be informed by the needs and choices of this new generation of authors adopting CC licenses, also taking into consideration the changing interests of society in the digital age.

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

Primavera De Filippi has self-archived "Copyright Law in the Digital Environment: Private Ordering and the Regulation of Digital Works" in HAL.

Here's an excerpt:

The book begins with an analysis of copyright law as it applies to the physical and the digital world. The challenges that the law has to face in the digital environment are specifically addressed by illustrating how the self-regulating features of the copyright regime have been jeopardized with the advent of Internet and digital technologies. The book subsequently analyses the role of private ordering in the regulation of information and presents the various mechanisms of self-help that have been developed so far to address the challenges of the digital world. The contrast is between the use of end-user licensing agreements and technological measures of protection (e.g. DRM) intended to restrict the consumption of digital works beyond the scope of the copyright regime, and the use of Open Content licenses (e.g. Creative Commons) intended to support a greater dissemination and broader availability of works, amidst other goals. The book finally investigates the corresponding advantages and drawbacks of these two divergent approaches, and concludes by addressing the justifications for governmental intervention in regulating the operations of private ordering.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |