Archive for the 'Digital Copyright Wars' Category

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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            "This American Copyright Life: Reflections on Re-Equilibrating Copyright for the Internet Age"

            Posted in Copyright, Digital Copyright Wars on November 4th, 2013

            Peter S. Menell has self-archived "This American Copyright Life: Reflections on Re-Equilibrating Copyright for the Internet Age" in SSRN.

            Here's an excerpt:

            This article calls attention to the dismal state of copyright's public approval rating. Drawing on the format and style of Ira Glass's "This American Life" radio broadcast, the presentation unfolds in three parts: Act I—How did we get here?; Act II—Why should society care about copyright's public approval rating?; and Act III—How do we improve copyright's public approval rating (and efficacy)?

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              "Digital Copyright and Public Access: Why the Knowledge Principle Dictates a Fair Access Right for Public Libraries"

              Posted in Copyright, Digital Copyright Wars, Libraries on August 26th, 2013

              Jenny Lynn Sheridan has self-archived "Digital Copyright and Public Access: Why the Knowledge Principle Dictates a Fair Access Right for Public Libraries" in SSRN.

              Here's an excerpt:

              This Article proposes an alternative model to the conventional copyright theories, focusing on the critical role that access to knowledge resources plays in the dynamic processes at work in the production of knowledge and the creation of new works. This Article proposes a non-waivable "fair access" right exercisable by public libraries in order to realign copyright with its Constitutional justification, and more importantly to support the knowledge creation process for the future of our democratic society.

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                "A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement"

                Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on August 19th, 2013

                Pamela Samuelson has published "A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement" in the Harvard Journal of Law & Technology Occasional Paper Series.

                Here's an excerpt:

                This Article responds to critics of the antitrust objections to the ASA [Amended Settlement Agreement] by making three main points. Part II explains that Judge Chin's incomplete and unpersuasive analysis of the antitrust objections to the proposed settlement agreement is best understood as an effort to encourage the settling parties to adopt more competitive terms in any revised settlement agreement. Part III points out that the DOJ did not reach definitive conclusions on antitrust issues posed by the ASA. The DOJ was, however, obliged to submit an interim analysis because Judge Chin wanted the government's input before he ruled on whether the settlement should be approved and the DOJ did a creditable job under the circumstances. Part IV contends that there was more merit to the DOJ's antitrust concerns about the proposed settlement than some commentators have recognized.

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