Archive for the 'Public Domain' Category

Public Domain Defeat: US Supreme Court Golan v. Holder Ruling

Posted in Copyright, Public Domain on January 19th, 2012

In a major defeat for public domain advocacy, the US Supreme Court has ruled against Lawrence Golan and others in Golan v. Holder.

Here is an excerpt from a synopsis of the case from the Legal Information Institute:

Congress enacted Section 514 of the Uruguay Round Agreements Act in order to comply with the international copyright standards of the Berne Convention for the Protection of Literary and Artistic Works. Section 514 restores copyright protection to foreign works currently found in the public domain. Lawrence Golan and other performers, educators, and motion picture distributors brought this suit challenging Section 514, arguing that Congress's removal of works from the public domain exceeded its Copyright Clause powers. Golan also argues that Section 514 violates the First Amendment because the law does not serve any important government interests. Attorney General Holder counters that the Copyright Clause does not restrict Congress's authority to remove works from the public domain. He further argues that Section 514 does not violate the First Amendment because the government has a substantial interest in complying with the Berne Convention and protecting American works abroad.

Here's an excerpt from the ruling:

Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judgment of the Court of Appeals for the Tenth Circuit is therefore Affirmed.

In a lengthy dissent, Justice Stephen Breyer said:

The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute.

Justice Samuel Alito also dissented.

| Digital Scholarship |

Scoping Study on Copyright and Related Rights and the Public Domain

Posted in Copyright, Public Domain, Reports and White Papers on November 21st, 2011

The World Intellectual Property Organization has released Scoping Study on Copyright and Related Rights and the Public Domain.

Here's an excerpt from the announcement:

The scoping study includes an illustrative comparison of national legislations that directly, or indirectly, define the public domain; and a survey of initiatives and tools, which may affect access, use, identification and location of public domain material.

| Digital Scholarship |

"The Digital Public Domain: Relevance and Regulation"

Posted in Copyright, Public Domain on November 14th, 2011

"The Digital Public Domain: Relevance and Regulation," which Leonhard Dobusch presented at 1st Berlin Symposium on Internet and Society, is now available.

Here's an excerpt:

After clarifying the notion and different areas of the (digital) "public domain" the paper engages in discussing literature on its relevance for society in general and economic innovation in particular. The effectiveness of the utilization of these abstract potentials however depends on the respective public domain regulation. In this context, the paper distinguishes different regulatory modes and arenas in both copyright and patent law, thereby focusing private regulatory initiatives such as Creative Commons or Biological Open Source (BiOS). In the last section, the paper presents open research questions and makes some preliminary suggestions for potential research strategies.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Important Public Domain Case: Supreme Court Hears Golan v. Holder

Posted in Copyright, Public Domain on October 6th, 2011

The Supreme Court is now considering the Golan v. Holder case, which has significant implications for public domain works.

Here's an excerpt from the Supreme Court's Granted and Noted List entry that describes the case:

Section 514 of the Uruguay Round Agreements Act of 1994 (Section 514) did something unique in the history of American intellectual property law: It "restored" copyright protection in thousands of works that the Copyright Act had placed in the Public Domain, where they remained for years as the common property of all Americans. The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction. The enactment of Section 514 therefore had a dramatic effect on Petitioners' free speech and expression rights, as well as their economic interests. Section 514 eliminated Petitioners' right to perform, share and build upon works they had once been able to use freely. The questions presented are:

  1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
  2. Does Section 514 violate the First Amendment of the United States Constitution?

Transcripts of the oral arguments are available. The first one has been made public.

Read more about it at "Supreme Court Weighs Legality of Putting Public Domain Works Back under Copyright."

| New: Institutional Repository and ETD Bibliography 2011 | Digital Scholarship |

Carl Malamud Issues Complaint about Smithsonian Institution’s Terms of Use and Licensing Policy

Posted in Copyright, Digital Copyright Wars, Public Domain on August 14th, 2011

Carl Malamud has put up a website, What Would Luther Burbank Do?, that contains a complaint about the Smithsonian Institution's Terms of Use and Licensing Policy. The complaint concerns a take down notice that Mindy Sommers received from the Smithsonian Institution regarding her Vintage Seed Catalog Digital Collage Sheet Five.

Here's an excerpt:

1.1 The Smithsonian Institution's Terms of Use and Licensing Policy are in violation of 17 U.S.C. § 105 (the "works of government" clause of the Copyright Act) and 20 U.S.C. § 41 (the "increase and diffusion of knowledge among men" clause of the Smithsonian Charter). . . . .

6.1 Injunction. That the Smithsonian Institution be instructed to cease and desist all further "take down" notices until this matter has been thoroughly investigated.

6.2 Investigation. That the Board of Regents investigate and analyze the intellectual property policies of the Smithsonian Institution to determine if such policies are in violation of the Copyright Act or the Smithsonian Charter.

6.3 Restitution. That the Smithsonian Institution work with the community to create high-resolution scans of the Seed Displays source material that is not under copyright by external, non-governmental entities and that such high-resolution scans be released on the Internet with no restrictions on use.

| Digital Scholarship |

"Talking about the Public Domain"

Posted in Copyright, Public Domain on July 20th, 2011

Walt Crawford has published "Talking about the Public Domain" in the latest issue of Cites & Insights: Crawford at Large.

Here's an excerpt:

Ah, the public domain: Where creative work is supposed to wind up after a limited period during which the creator has exclusive control over distribution and copying. An ever-growing pool of literature, music, photography, video and art that we can use not only as inspiration but also as the direct basis for new works, annotating, deriving or just plain redistributing.

What a wonderful thing.

Too bad it's basically been frozen for quite a few years now, with almost nothing new entering the pool (except government publications—which start in the public domain) and things tagged with the Creative Commons CC0 license. Oh, and probably a few cases where a creator's been dead more than 70 years and has works produced since 1923.

Not only has it been frozen in the U.S., there are laws and treaties that would appear to shrink the public domain pool—which should, by any rational reading of the Constitution, be flatly unconstitutional.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

Yale Adopts Open Access Policy for Digitized Images

Posted in Digital Archives and Special Collections, Digitization, Open Access, Public Domain on May 12th, 2011

Yale University has adopted an open access policy for digitized images from its museums, archives, and libraries. Yale has also launched the Discover Yale Digital Commons, which has over 250,000 images.

Here's an excerpt from the announcement:

The goal of the new policy is to make high quality digital images of Yale's vast cultural heritage collections in the public domain openly and freely available.

As works in these collections become digitized, the museums and libraries will make those images that are in the public domain freely accessible. In a departure from established convention, no license will be required for the transmission of the images and no limitations will be imposed on their use. The result is that scholars, artists, students, and citizens the world over will be able to use these collections for study, publication, teaching and inspiration.

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

"Bibliographic Indeterminacy and the Scale of Problems and Opportunities of ‘Rights’ in Digital Collection Building"

Posted in Copyright, Digitization, Public Domain on February 20th, 2011

The Council on Library and Information Resources has released "Bibliographic Indeterminacy and the Scale of Problems and Opportunities of 'Rights' in Digital Collection Building" as the first paper in its new "Ruminations" series.

Here's an excerpt from the announcement:

CLIR has launched a new publication series, "Ruminations." The series will feature short research papers and essays that bring new perspective to issues related to planning for and managing organizational and institutional change in the evolving digital environment for scholarship and teaching.

We inaugurate the new series with a report by John P. Wilkin that posits the scope of works in the public domain and probable extent of orphan works in our research library collections, based on an analysis of the HathiTrust book corpus. The question of rights status is critical since it governs how works can be used or reused, especially in the digital environment.

Recent research shows that HathiTrust's collection—which currently holds more than 5 million digitized books—is highly representative of research library collections. On this premise, Wilkin has analyzed HathiTrust's holdings and drawn preliminary conclusions about the proportion of works that are in-copyright, in the public domain, or are orphans—that is, works whose holders cannot be located.

| Digital Scholarship | Digital Scholarship Publications Overview |

Public.Resource.Org Launches Yes We Scan

Posted in Open Access, Public Domain on December 1st, 2010

Public.Resource.Org, a 501(c)(3) non-profit corporation, has launched its Yes We Scan campaign to digitize and make available 300 volumes of the First Series of the Federal Reporter.

Here's an excerpt:

Now, you too can help, by adopting one of the 300 volumes of the First Series of the Federal Reporter, which are all out of copyright. Your tax-deductible contribution of $1200 will pay to double-key 1,000 pages of Federal Appellate Opinions, and copies will be donated to the National Archives and the Government Printing Office.

Your name—and the link of your choice—will be inscribed on the Public Domain Wall of Fame and each case in your adopted volume will be a separate HTML file with a common footer

This volume of American Law was transcribed for use on the Internet through a contribution from [Your Name Here!!]

| Digital Scholarship |

"The Size of the EU Public Domain"

Posted in Copyright, Public Domain on October 17th, 2010

Rufus Pollock and Paul Stepan have self-archived "The Size of the EU Public Domain."

Here's an excerpt:

This paper reports results from a large recent study of the public domain in the European Union. Based on a combination of catalogue and survey data our figures for the number of items (and works) in the public domain extend across a variety of media and provide one of the first quantitative estimates of the 'size' of the public domain in any jurisdiction.

See also their related eprint "The Value of the EU Public Domain."

H.R. 5704 Would Extend Copyright Protection to Works of Faculty at Department of Defense Service Academies and Schools of Professional Military Education

Posted in Copyright, Legislation and Government Regulation, Public Domain on July 13th, 2010

Rep. Todd Platts has introduced H.R. 5704 in the House, which would "allow faculty members at Department of Defense service academies and schools of professional military education to secure copyrights for certain scholarly works that they produce as part of their official duties in order to submit such works for publication, and for other purposes." Such works are currently in the public domain.

Read more about it at "Bill Would Curb Access to Government Works."

WIPO: Scoping Study on Copyright and Related Rights and the Public Domain

Posted in Copyright, Public Domain, Reports and White Papers on May 23rd, 2010

The World Intellectual Property Organization (WIPO) has released Scoping Study on Copyright and Related Rights and the Public Domain.

Here's an excerpt:

Protection of the public domain comprises two steps, as laid down by the [WIPO] Development Agenda: first, identifying the contours of the public domain, thereby helping to assess its value and realm, and, second, considering and promoting the conservation and accessibility of the public domain.

The present study will follow the same direction as it will first assess the scope of the public domain, as defined by copyright laws, history and philosophy, before turning to the issue of its effectiveness and greater availability to the public and society at large. This will lead to the formulation of some recommendations that, by viewing the public domain as material that should receive some positive status and protection, might help to support a robust public domain, as advocated by the Development Agenda.

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