Archive for the 'Digital Copyright Wars' Category

"Can Formalities Save the Public Domain? Reconsidering Formalities for the 2010s"

Posted in Copyright, Digital Copyright Wars, Public Domain on March 18th, 2014

Niva Elkin-Koren has published "Can Formalities Save the Public Domain? Reconsidering Formalities for the 2010s" in The Berkeley Technology Law Journal.

Here's an excerpt:

In essence, formalities advocates argue that current copyright law protects too many works, and shifting back to an opt-in regime would help restore the balance in copyright law between incentives and access. Restoring formalities would arguably expand the public domain by increasing the number of works in which copyright is not affirmatively claimed. It has been further suggested that works of unknown authorship are underused. 8 This is due to uncertainty about whether they are protected by copyright or not, which creates a chilling effect. A notice requirement would signal to potential users which works are protected by copyright. A notice would also generate the information necessary for licensing, thereby facilitating the clearance of rights and reducing the problem of orphan works.

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    "Orphans in Turmoil: How a Legislative Solution Can Help Put the Orphan Works Dilemma to Rest"

    Posted in Copyright, Digital Copyright Wars on February 24th, 2014

    Vicenç Feliú has self-archived "Orphans in Turmoil: How a Legislative Solution Can Help Put the Orphan Works Dilemma to Rest" in SSRN.

    Here's an excerpt:

    The orphan works issue has continued to grow in the U.S. despite strong efforts to find a workable solution. Stake holders on both sides of the issue have proposed and opposed solutions and compromises that could have alleviated the problem, and we are still no closer to an agreement. This paper posits that the solutions offered in the proposed legislation of 2006 and 2008 provide a strong working foundation for a legislative answer to the issue. To make that answer workable, a new legislative effort would have to take into account the questions raised by stakeholders to the previous legislative attempts and provide workable answers. This paper also proposes those answers can be found in the working models used by other jurisdictions attempting to solve the orphan works dilemma.

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      Copyright Office Seeks Comments on Orphan Works and Mass Digitization

      Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation, Mass Digitizaton on February 21st, 2014

      The US Copyright Office is seeking comments on orphan works and mass digitization and it will hold public roundtable discussions on these topics.

      Here's an excerpt from the announcement:

      The United States Copyright Office will host public roundtable discussions on potential legislative solutions for orphan works and mass digitization under U.S. copyright law on March 10-11, 2014, in Washington, D.C. Requests to participate should be submitted by February 24, 2014. For a participation request form, go to http://www.copyright.gov/orphan/participation-request-form.html.

      The Office is also seeking public comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. A comment form will be posted on the Copyright Office website at http://www.copyright.gov/orphan/ no later than March 12, 2014. Comments are due by April 14, 2014, and will be posted on the Copyright Office website.

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        E-print Copyright Debate Continues: "Its the Content, Not the Version!"

        Posted in Copyright, Digital Copyright Wars, Open Access, Publishing, Scholarly Journals on February 7th, 2014

        Kevin Smith has published "Its the Content, Not the Version!" in Scholarly Communications @ Duke.

        Here's an excerpt:

        Throughout this discussion, the proponents of the position that copyright is transferred only in a final version really do not make any legal arguments as such, just an assertion of what they wish were the situation (I wish it were too). But here is a legal point—the U.S. copyright law makes the difficulty with this position pretty clearly in section 202 when it states the obvious principle that copyright is distinct from any particular material object that embodies the copyrighted work. So it is simply not true to say that version A has a copyright and version B has a different copyright.

        See also: "Where Copyrights Come from (Part I)—Copyediting Does–Not–Create a New Copyright" by Nancy Sims.

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          "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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                "’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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