Copyright – DigitalKoans

"In a Swift Decision, Judge Eviscerates Internet Archive’s Scanning and Lending Program"

"At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book," Koeltl wrote in a March 24 opinion granting the publisher plaintiffs’ motion for summary judgment and denying the Internet Archive’s cross-motion. "But no case or legal principle supports that notion. Every authority points in the other direction."

https://cutt.ly/54AdZfY

Millions of Digitized Books May Be Destroyed: "Press Conference Statement: Brewster Kahle, Internet Archive"

Here’s what’s at stake in this case: hundreds of libraries contributed millions of books to the Internet Archive for preservation in addition to those books we have purchased. Thousands of donors provided the funds to digitize them.

The publishers are now demanding that those millions of digitized books, not only be made inaccessible, but be destroyed.

This is horrendous. Let me say it again—the publishers are demanding that millions of digitized books be destroyed.

And if they succeed in destroying our books or even making many of them inaccessible, there will be a chilling effect on the hundreds of other libraries that lend digitized books as we do.

This could be the burning of the Library of Alexandria moment—millions of books from our community’s libraries mdash;gone.

http://bit.ly/3JHMjli

"At Hearing, Judge Appears Skeptical of Internet Archive’s Scanning and Lending Program"

Over the course of a 90-minute hearing on the parties’ cross motions for summary judgment, Koeltl appeared skeptical that there was sufficient basis in law to support the Internet Archive’s scanning and lending of print library books under a legally untested protocol known as controlled digital lending, and unconvinced that the case is fundamentally about the future of library lending, as Internet Archive attorneys have argued.

http://bit.ly/3FFjVyS

"AI and Copyright: Human Artistry Campaign Launches to Support Musicians"

The fast rise of AI technology has opened up a world of brain-busting questions about copyright and creators’ rights. . . . A new coalition to meet those challenges called the Human Artistry Campaign was announced at the South by Southwest conference on Thursday, with support from more than 40 organizations, including the Recording Academy, the National Music Publishers Association, the Recording Industry of America and many others.

bit.ly/402Nt1G

U.S. Copyright Office: "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence"

As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking "whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine." [23] In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of "mechanical reproduction" or instead of an author’s "own original mental conception, to which [the author] gave visible form." [24] The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.[25] This is necessarily a case-by-case inquiry.

If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.[26] For example, when an AI technology receives solely a prompt [27] from a human and produces complex written, visual, or musical works in response, the "traditional elements of authorship" are determined and executed by the technology—not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.[28] For example, if a user instructs a text-generating technology to "write a poem about copyright law in the style of William Shakespeare," she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style.[29] But the technology will decide the rhyming pattern, the words in each line, and the structure of the text.[30] When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.[31] As a result, that material is not protected by copyright and must be disclaimed in a registration application.[32]

In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that "the resulting work as a whole constitutes an original work of authorship." [33] Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[34] In these cases, copyright will only protect the human-authored aspects of the work, which are "independent of" and do "not affect" the copyright status of the AI-generated material itself.[35]

bit.ly/40oOkJA

"Book Publishers with Surging Profits Struggle to Prove Internet Archive Hurt Sales"

Today, the Internet Archive (IA) defended its practice of digitizing books and lending those e-books for free to users of its Open Library. In 2020, four of the wealthiest book publishers sued IA, alleging this kind of digital lending was actually "willful digital piracy" causing them "massive harm." But IA’s lawyer, Joseph Gratz, argued that the Open Library’s digitization of physical books is fair use, and publishers have yet to show they’ve been harmed by IA’s digital lending.

bit.ly/3JTMDP2

"Coalition Forms to Battle Library E-book Bills"

In a release this week, an alliance of author, publisher, and copyright industry advocacy groups launched Protect the Creative Economy Coalition, a coalition designed to combat a growing number of new library e-book bills surfacing in state legislatures in the opening weeks of 2023. . . .The initial members of the Protect the Creative Economy Coalition include the American Booksellers Association, Authors Guild, Association of American Publishers, National Music Publishers Association, News Media Alliance, and the Independent Book Publishers Association, as well as the Copyright Alliance.

bit.ly/42m0FQT

"Some Thoughts on Five Pending AI Litigations – Avoiding Squirrels and Other AI Distractions"

Regardless, as of this writing there are now five cases that may provide some clarity on this less frequently discussed but foundational issue of the unauthorized use of copyrighted materials as training data for AI (I use "AI" here as a shorthand which also includes text and data mining and machine learning). Each of these cases is unique, fact dependent, and likely, if fully litigated on the merits, to shed light on different aspects of copyright law.

bit.ly/41Qrrk3

"With New Model Language, Library E-book Bills Are Back"

The revised language, developed with support from nascent library advocacy group Library Futures, takes a "regulate " rather than "mandate " approach. In other words, unlike Maryland’s law, which would have required publishers to offer license agreements to libraries "on reasonable terms " for digital books that were available to consumers, the new legislative language instead focuses regulating the terms of agreements. Key to the revised bill’s effectiveness is language that would render unenforceable any license term that "precludes, limits, or restricts" libraries from performing their traditional, core mission.

bit.ly/3y42wfh

Congressional Research Service: Generative Artificial Intelligence and Copyright Law

The question of whether or not copyright protection may be afforded to AI outputs—such as images created by DALL-E or texts created by ChatGPT—is likely to hinge partly on the concept of "authorship." The Copyright Act generally affords copyright protection to "original works of authorship." Although the Copyright Act does not define who (or what) may be an "author," the U.S Copyright Office recognizes copyright only in works "created by a human being." Courts have likewise refused to afford copyright protection to non-human authors—for example, a monkey who took a series of photos. A recent lawsuit has challenged the human-authorship requirement in the context of works purportedly "authored" by AI. In June 2022, Stephen Thaler sued the Copyright Office for denying an application to register a visual artwork that he claims was authored by an AI program called the Creativity Machine.

https://www.everycrsreport.com/reports/LSB10922.html

"The Importance of Copyright and Shared Norms for Credit in Open Educational Resources"

Open Educational Resources (OER) are reducing barriers to education while allowing creators the opportunity to share their work with the world and continue owning copyright of their work. To support new authors and adaptors in the OER space, we provide an overview of common considerations that creators and adaptors of OER should make with respect to issues related to copyright in the context of OER. Further, and importantly, a challenge in the OER space is ensuring that original creators receive appropriate credit for their work, while also respecting the credit of those who have adapted work. Thus, in addition to providing important considerations when it comes to the creation of open access works, we propose shared norms for ensuring appropriate attribution and credit for creators and adaptors of OER.

https://doi.org/10.3389/feduc.2022.1069388

"Library Futures Releases Policy Paper: Digital Ownership for Libraries and the Public"

In response, Library Futures recommends policymakers adopt an approach of digital ownership that extends the current paradigm for print works and allow libraries to both maintain the benefits of print collections and innovate even further toward providing new methods of access, preservation, and education by creating new lending models, equitizing access for underserved communities, and contributing to a more democratic balance. To that end, we have outlined some approaches to solving this issue through structural, community-based, and technical means:

Legal reform: This can include judicial remedies through the courts, legislative action on the part of Congress, or regulatory intervention by an authority such as the Federal Trade Commission.

Collective action: Community intervention can be a powerful way to act concertedly to stand against entities that are prohibiting libraries from exercising their rights, such as boycotts and grassroots action, state legislative initiatives, and the collective use of incentives and accountability measures for publishers.

Library-owned infrastructure: The library community can build its own infrastructure to ensure that it is oriented towards the needs of their users and provides libraries with the choice to own their digital content. This is not without its challenges (practical and resource-wise), but sustainable infrastructure can put control of digital content back into the hands of libraries and users.

Policy Paper

https://www.libraryfutures.net/post/digital-ownership-for-libraries-and-the-public

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"Licensing Challenges Associated With Text and Data Mining: How Do We Get Our Patrons What They Need?"

Today’s researchers expect to be able to complete text and data mining (TDM) work on many types of textual data. But they are often blocked more by contractual limitations on what data they can use, and how they can use it, than they are by what data may be available to them. This article lays out the different types of TDM processes currently in use, the issues that may block researchers from being able to do the work they would like, and some possible solutions.

https://doi.org/10.31274/jlsc.15530

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"Will 2023 Be the Year of the AI Lawsuit?"

It’s also odd to some lawyers that generative AI firms are being sued and not those that compiled the dataset. In the case of Midjourney, that would be the large-scale Artificial Intelligence Open Network (LAION), based in Germany. "If LAION created the dataset, then the alleged infringement occurred at that point, not once the dataset was used to train the models," Eliana Torres, an intellectual property lawyer with the law firm Nixon Peabody, told Tech Crunch last month. It’s also important to note, says Dr Andres Guadamuz, a reader in intellectual property law at the University of Sussex, that LAION doesn’t actually keep copyrighted images on file but only links to their original locations on the internet—which, he adds, is perfectly acceptable to mine under European and German law.

bit.ly/40qUOZh

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"Open Educational Resources through the European Lens: Pedagogical Opportunities and Copyright Constraints"

The article examines the potential and constraints of OERs from both a pedagogical and legal perspective. It demonstrates how this type of resources are fit for purpose to achieve diversity, knowledge co-creation, and students’ agency in the educational ecosystems. It also flags points of weakness of the EU copyright legal framework, such as the lack of harmonization of rules on co-authorship and adaptation, that need to be tackled to fully enable OER-enabled pedagogies across the Union.

https://dx.doi.org/10.2139/ssrn.4343475

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Copyright Flexibilities: Mapping and Comparative Assessment of EU and National Sources

This report illustrates and analyses the results of the research activities conducted in the framework of reCreating Europe’s Task 2.1. From January 2020 to June 2022, the task performed an unprecedented, two-layer, comparative, EU and cross-national mapping and assessment of sources impacting on copyright flexibilities and access to culture, focusing on (a) statutes, court decisions, governmental policies, practices and schemes in the field of copyright law, DSM, and broader cultural policies, and (b) private ordering sources, such as standardized license agreements (EULAs) and terms of use from online platforms, selected to represent a wide array of cultural and creative goods and services.

https://dx.doi.org/10.2139/ssrn.4325376

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"Jumping over the Paywall: Strategies and Motivations for Scholarly Piracy and Other Alternatives"

Despite the advance of the Open Access (OA) movement, most scholarly production can only be accessed through a paywall. We conduct an international survey among researchers (N=3,304) to measure the willingness and motivations to use (or not use) scholarly piracy sites, and other alternatives to overcome a paywall such as paying with their own money, institutional loans, just reading the abstract, asking the corresponding author for a copy of the document, asking a colleague to get the document for them, or searching for an OA version of the paper. We also explore differences in terms of age, professional position, country income level, discipline, and commitment to OA. The results show that researchers most frequently look for OA versions of the documents. However, more than 50% of the participants have used a scholarly piracy site at least once. This is less common in high-income countries, and among older and better-established scholars. Regarding disciplines, such services were less used in Life & Health Sciences and Social Sciences. Those who have never used a pirate library highlighted ethical and legal objections or pointed out that they were not aware of the existence of such libraries.

https://arxiv.org/abs/2212.05965

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A Preservationist’s Guide to the DMCA Exemption for Software Preservation, 2nd Edition

In late 2021, the Library of Congress adopted several exemptions to the Digital Millennium Copyright Act (DMCA) provision prohibiting circumvention of technological measures that control access to copyrighted works. In other words, they created a set of exceptions to the general legal rule against cracking digital locks on things like DVDs, software, and video games. The exemptions are set out in regulations published by the Copyright Office. They went into effect on October 28, 2021 and last until October 28th, 2024. This guide is intended to help preservationists determine whether their activities are protected by the new exemptions. It includes important updates to the first edition to reflect changes in the rule to allow offsite access to non-game software, along with a few other technical changes.

https://doi.org/10.5281/zenodo.7328908

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John Willinsky: Copyright’s Broken Promise: How to Restore the Law’s Ability to Promote the Progress of Science

In Copyright’s Broken Promise, John Willinsky presents the case for reforming copyright law so that it supports, rather than impedes, public access to research and scholarship. He draws on the legal strategy of statutory licensing to set out the terms and structures by which the Copyright Act could ensure that publishers are fairly compensated for providing immediate open access.

https://cutt.ly/E15zPXH

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"Access to Research Data and EU Copyright"

The article seeks to contribute to this aim by exploring the legal framework in which research data can be accessed and used in EU copyright law. First, it delineates the authors’ understanding of research data. It then examines the protection research data currently receives under EU and Member State law via copyright and related rights, as well as the ownership of these rights by different stakeholders in the scientific community. After clarifying relevant conflict-of-laws issues that surround research data, it maps ways to legally access and use them, including statutory exceptions, the open science movement and current developments in law and practice.

bit.ly/3VVx7pg

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"Texas Universities Reach Historic Deal with Elsevier: TLCUA Saves Texas Universities Millions Collectively"

All TLCUA members will receive a discount on journal subscriptions—some as high as 30%—while still maintaining significant amounts of access to journals and combined, will realize a savings of over $4.75M annually. Beyond initial cost savings, Elsevier agreed to a maximum annual increase of 2% over the course of the license agreement, with some years as low as 0%, which is significantly lower than industry standard. . . . TLCUA and Elsevier have agreed to partner on a pilot project to revert ownership of journal articles back to original authors—and not just those at TLCUA-member institutions. Currently, authors transfer copyright of their work in exchange for that work being published. This pilot will provide for rights to go back to authors after a period of time that will be collaboratively determined with Elsevier. . . . Further, all TLCUA-member authors who choose to publish their work under an open access license will have access to discounted author publication charges (APCs). TLCUA also negotiated a license template that removed non-disclosure terms, restrictions on sharing usage data, and 44-year-old limitations on interlibrary loans (i.e., CONTU Guidelines) to expand library collaboration and improve how libraries can share information on journal usage.

https://cutt.ly/G1Yu8IU

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"The Scary Truth about AI Copyright Is Nobody Knows What Will Happen Next"

First, can you copyright the output of a generative AI model, and if so, who owns it? Second, if you own the copyright to the input used to train an AI, does that give you any legal claim over the model or the content it creates? Once these questions are answered, an even larger one emerges: how do you deal with the fallout of this technology? What kind of legal restraints could—or should—be put in place on data collection? And can there be peace between the people building these systems and those whose data is needed to create them?

https://cutt.ly/UM9vOJK

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"The Copyright Claims Board: Worrying Implications for Scholarship"

CCB proceedings may also pose a threat to freedom of expression for scholars and others who build on original works. There is, of course, the danger that the resolution of CCB infringement claims could result in required payment or an agreement to cease certain activity. Yet if a claimant files a takedown notice under the Digital Millennium Copyright Act (DMCA) in addition to a CCB claim, the allegedly infringing work could remain off-line as long as it sits on the CCB docket awaiting resolution. This potential timescale is in contrast to the current DMCA notice-and-takedown regime, which requires an internet platform to repost an allegedly infringing work online within fourteen days in response to a counternotice that the work is not infringing. The new, extended takedown period thus constitutes a form of censorship.

https://cutt.ly/HM9TYzA

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"‘Anna’s Archive ’ Opens the Door to Z-Library and Other Pirate Libraries"

Anna’s Archive is basically a meta-search engine that can find content from third-party ‘pirate’ sources. . . . The Z-Library links rely on the Tor version of the site, which remains online. However, the goal is to ultimately make all content available through IPFS [InterPlanetary File System] as well. This would make it pretty much impossible to take down, similar to the Library Genesis forks, which also use IPFS.

https://cutt.ly/pMZYb6Y

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"Authors Guild Applauds Arrest, Indictment of Major E-Book Pirates"

"While we are heartened by the takedown and the resulting reduction in harm to authors, we are not unsympathetic to the plight of those college and other students who have perhaps felt forced to resort to such illegal pirate websites and other free sources of textbooks to help them manage the extremely high cost of higher education," Rasenberger [Authors Guild CEO] said. "However, these students’ anger is misdirected. The exorbitant cost of education should not be borne by authors and publishers but by the universities, and it should not be used to justify reliance on foreign criminals for textbooks or to trivialize the immense personal and economic harm Z-Library was causing authors who are trying to make a living under increasingly difficult and hostile economic circumstances."

https://cutt.ly/hMPgka5

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