Copyright – Page 2 – DigitalKoans

"Copyright, the Right to Research and Open Science: About Time to Connect the Dots"

In this contribution, we highlight the necessity to design a research-enabling copyright framework that provides researchers with access to the necessary knowledge, information and data, and to tackle the challenges of the future.

For that purpose, we examine copyright through the prism of the Open Science movement and in the light of a "right to research " and connect both to a larger, constitutional argument which suggests that enabling research through copyright law is a pressing constitutional imperative. Based on this theoretical framework, we suggest substantive and institutional modifications to copyright law, through legislative interventions and judicial interpretations that would remove significant barriers towards open science as envisaged by European and international institutions. The conflict between the proprietary interests of rightholders and the societal interests in unhindered, purpose-bound research should, in case of doubt, be decided in favour of research and open science as crucial enablers for innovation and progress. For authors, remuneration is most of the time not the primary motivation or incentive to produce research; they can often rely on other revenues (e.g. through institutional employment) and other interest prevail, such as the broadest possible dissemination of their works that will secure them reputation and career advancement. The incentive mechanisms therefore are entirely different in the research field compared to other creative sectors, an aspect that must be taken into account when designing a research-friendly copyright system.

https://ssrn.com/abstract=4857765

"Contracts in Publishing: A Toolkit for Authors and Publishers"

A toolkit for authors and publishers provides information on copyright-related aspects and contractual options in the publishing sector. With a balanced approach considering the interests of both authors and publishers, the publication offers guidance to building basic knowledge and skills for successful publishing, co-publishing and licensing deals, targeting an audience of authors, visual artists, translators and publishers, especially in developing countries.

https://tinyurl.com/bdea9cp8

"On-Demand Circulation of Software Licenses: Checking Out Software on Patron’ Own Devices"

The Miami University Libraries (MUL) developed an open-source Software Checkout system to allow patrons to make use of software licenses owned by the library. The system takes advantage of user-based licensing under the Software as a Service (SaaS) license model and vendor-created APIs to easily and legally assign access to users. The service currently supports Adobe Creative Cloud, Final Cut Pro, and Logic Pro software. MUL has successfully used this software for three years. This article describes the expansion of offerings and the increasing use of the service over that time. Built on a model developed by Pixar for managing employee software licenses, the Software Checkout system is believed to be the first of its kind for circulating licenses to library patrons. Both this lending model and the open-source software developed by MUL are available to other libraries. This paper is intended to prompt libraries to take advantage of the legal and technical environment to expand software license sharing to other libraries.

https://tinyurl.com/yx4fyw98

UC and Authors Alliance: "Outcomes, Questions, and Answers: ‘The Right to Deposit (r2d) Uniform Guidance to Ensure Author Compliance and Public Access’"

The United States Office of Management and Budget uniform guidance for grants and agreements contains the following language in 2 CFR §200.315(b):

To the extent permitted by law, the recipient or subrecipient may copyright any work that is subject to copyright and was developed, or for which ownership was acquired, The Right to Deposit (R2D)under a Federal award. The Federal agency reserves a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes and to authorize others to do so. This includes the right to require recipients and subrecipients to make such works available through agency-designated public access repositories.¹

This provision, the Federal purpose license, has existed in some form since at least 1976. Some federal agencies, including the Department of Energy (DOE), have already been relying on it in the implementation of their public access plans. The Federal purpose license applies upon creation of an article, overriding all subsequent terms and licenses. It provides a highly effective, non-disruptive, elegant and familiar solution for accomplishing the ends of the Nelson memo without having to rely on individual authors and institutions to protect this right or navigate differing institutional approaches. Leveraging the Federal purpose license could also provide consistency for articles and authors subject to policies from multiple granting agencies. . . .

If the Federal purpose license has already existed for a long time, and has new language clarifying that it can be used this way, does that solve the problem for authors?

It depends on the author’s funder. Agencies have rights in federally funded research publications, but they are not uniformly using them. Only some agencies are telling their grantees in agency guidance that the Federal purpose license covers sharing publications in agency-designated repositories. Other agencies aren’t relying on their own rights from the license, and instead advising grantees to work with their publisher and secure the rights to post their publications independently. The Federal purpose license does not help authors if they don’t know about it.

https://tinyurl.com/bdfks8pu

"Supreme Court: There’s No ‘Time Limit’ on Copyright Infringement Claims"

Copyright holders can claim damages for copyright infringements that occurred years or even decades ago, the U.S. Supreme Court has clarified. In a majority decision, the Court rejected the lower court’s argument that there’s a three-year time limit for damages. Older claims are fair game, as long as the lawsuit is filed within three years of ‘discovering’ an infringement.

https://tinyurl.com/55mvn5er

Paywall: "Rethinking Copyright Exceptions in the Era of Generative AI: Balancing Innovation and Intellectual Property Protection"

In response to these identified [copyright and AI] challenges, this paper proposes a hybrid model for TDM exceptions emerges, along with recommended specific mechanisms. The model divides exceptions into noncommercial and commercial uses, providing a nuanced solution to complex copyright issues in AI training. Recommendations incorporate mandatory exceptions for noncommercial uses, an opt-out clause for commercial uses, enhanced transparency measures, and a searchable portal for copyright owners. In conclusion, striking a delicate equilibrium between technological progress and the incentive for creative expression is of paramount importance. These suggested solutions aim to establish a harmonious foundation that nurtures innovation and creativity while honoring creators’ rights, facilitating AI development, promoting transparency, and ensuring fair compensation for creators.

https://doi.org/10.1111/jwip.12301

Digital Scholarship and DigitalKoans Are Now 19 Years Old

Digital Scholarship and DigitalKoans were established on 4/20/2005. Digital Scholarship provides information and commentary about artificial intelligence, digital copyright, digital curation, open access, research data management, scholarly communication, and other digital information issues. Digital Scholarship is an open access noncommercial publisher. All of its publications are currently under a Creative Commons Attribution License.

DigitalKoans has published over 16,200 posts. Since 2008, over 5,600 job ads have been posted, with slightly over 4,000 of them for digital library jobs.

Digital Scholarship has published the following books and book supplements: the Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals (2005; published with the Association of Research Libraries), the Scholarly Electronic Publishing Bibliography: 2008 Annual Edition (2009), Digital Scholarship 2009 (2010), Transforming Scholarly Publishing through Open Access: A Bibliography (2010), the Scholarly Electronic Publishing Bibliography 2010 (2011), the Digital Curation and Preservation Bibliography 2010 (2011), the Institutional Repository and ETD Bibliography 2011 (2011), the Digital Curation Bibliography: Preservation and Stewardship of Scholarly Works (2012), the Digital Curation Bibliography: Preservation and Stewardship of Scholarly Works, 2012 Supplement (2013), and the Research Data Curation and Management Bibliography (2021).

It has also published and updated the following bibliographies, webliographies, and weblogs: the Scholarly Electronic Publishing Bibliography (1996-2011), the Scholarly Electronic Publishing Weblog (2001-2013), the Electronic Theses and Dissertations Bibliography (2005-2021), the Google Books Bibliography (2005-2011), the Institutional Repository Bibliography (2009-2011), the Open Access Journals Bibliography (2010), the Digital Curation and Preservation Bibliography (2010-2011), the E-science and Academic Libraries Bibliography (2011), the Digital Curation Resource Guide (2012), the Research Data Curation Bibliography (2012-2019), the Altmetrics Bibliography (2013), the Transforming Peer Review Bibliography (2014), the Academic Library as Scholarly Publisher Bibliography (2018-2023), the Research Data Sharing and Reuse Bibliography (2021), the Research Data Publication and Citation Bibliography (2022), Digital Curation Certificate and Master’s Degree Programs (2023), the Academic Libraries and Research Data Management Bibliography (2023), and the Artificial Intelligence and Libraries Bibliography (2023).

"Author Granted Copyright over Book with AI-Generated Text—with a Twist"

The USCO’s notice granting Shupe copyright registration of her book does not recognize her as author of the whole text as is conventional for written works. Instead she is considered the author of the "selection, coordination, and arrangement of text generated by artificial intelligence." This means no one can copy the book without permission, but the actual sentences and paragraphs themselves are not copyrighted and could theoretically be rearranged and republished as a different book.

https://tinyurl.com/bd97jbw6

1 Million Images and Counting: "AI-Startup Launches Ever-Expanding Library of Free Stock Photos and Music"

StockCake is a new platform by AI startup Imaginary Machines. The site currently hosts more than a million pre-generated images. These images can be downloaded, used, and shared for free. There are no strings attached as all photos are in the public domain.

https://tinyurl.com/mvjd3683

StockCake

"Towards a Books Data Commons for AI Training"

This white paper describes ways of building a books data commons: a responsibly designed, broadly accessible data set of digitized books to be used in training AI models. This report, written in partnership with Creative Commons and Proteus Strategies, is based on a series of workshops that brought together practitioners building AI models, legal and policy scholars, and experts working with collections of digitized books.

In the paper, we first explain why books matter for AI training and how broader access could be beneficial. We then summarize two tracks that might be considered for developing such a resource, highlighting existing projects that help foreground the potential challenges. One track relies on public domain and permissively licensed books, while the other depends on exceptions to copyright to enable training on in-copyright books. The report also presents several key design choices and next steps that could advance further development of this approach.

https://tinyurl.com/2fu47552

"TDM & AI Rights Reserved? Fair Use & Evolving Publisher Copyright Statements"

Earlier this year, we noticed that some academic publishers have revised the copyright notices on their websites to state they reserve rights to text and data mining (TDM) and AI training (for example, see the website footers for Elsevier and Wiley). . . .SPARC asked Kyle K. Courtney, Director of Copyright and Information Policy for Harvard Library, to address key questions regarding these revised copyright statements and the continuing viability of fair use justifications for TDM.

https://tinyurl.com/4prkfbb3

Paywall: "Starting In-House Copyright Education Programs: Commonalities and Conclusions from Two Southeastern Us Academic Libraries"

This case study introduces two copyright education programs and summarizes the state of copyright education within library and information science (LIS) and academic libraries. . . . The following themes within the two copyright education programs were identified through a case study: the complexity of copyright, the engagement (or lack thereof) across a college or university, the necessity of including copyright in information literacy instruction and the calls for professional development with copyright.

https://doi.org/10.1108/RSR-09-2023-0069

"[AAP] Publishers File Brief Opposing Internet Archive Appeal of Loss"

Controlled digital lending is a frontal assault on the foundational copyright principle that rightsholders exclusively control the terms of sale for every different format of their work — a principle that has spawned the broad diversity in formats of books, movies, television and music that consumers enjoy today.

"[T]here is no resemblance between IA’s conversion of millions of print books into ebooks and the historical practice of lending print books. Nor does IA’s distribution of ebooks without paying authors and their publishers a dime conform with the modern practices of libraries, which acquire licenses to lend ebooks to their local communities and enjoy the benefits of digital distribution lawfully."

The Internet Archive ("IA") operates a mass-digitization enterprise in which it copies millions of complete, in-copyright print books and distributes the resulting bootleg ebooks from its website to anyone in the world for free. Granting summary judgment, the District Court properly held that IA’s infringement is not saved by fair use as each of the four factors weighs against IA under longstanding case law.

https://tinyurl.com/5ah5vx3x

"Fair Use Rights to Conduct Text and Data Mining and Use Artificial Intelligence Tools Are Essential for UC Research and Teaching"

The UC Libraries invest more than $60 million each year licensing systemwide electronic content needed by scholars for these and other studies. (Indeed, the $60 million figure represents license agreements made at the UC systemwide and multi-campus levels. But each individual campus also licenses electronic resources, adding millions more in total expenditures.) Our libraries secure campus access to a broad range of digital resources including books, scientific journals, databases, multimedia resources, and other materials. In doing so, the UC Libraries must negotiate licensing terms that ensure scholars can make both lawful and comprehensive use of the materials the libraries have procured. Increasingly, however, publishers and vendors are presenting libraries with content license agreements that attempt to preclude, or charge additional and unsupportable fees for, fair uses like training AI tools in the course of conducting TDM. . . .

If the UC Libraries are unable to protect these fair uses, UC scholars will be at the mercy of publishers aggregating and controlling what may be done with the scholarly record. Further, UC scholars’ pursuit of knowledge will be disproportionately stymied relative to academic colleagues in other global regions, given that a large proportion of other countries preclude contractual override of research exceptions.

Indeed, in more than forty countries—including all those within the European Union (EU)—publishers are prohibited from using contracts to abrogate exceptions to copyright in non-profit scholarly and educational contexts. Article 3 of the EU’s Directive on Copyright in the Digital Single Market preserves the right for scholars within research organizations and cultural heritage institutions (like those researchers at UC) to conduct TDM for scientific research, and further proscribes publishers from invalidating this exception by license agreements (see Article 7). Moreover, under AI regulations recently adopted by the European Parliament, copyright owners may not opt out of having their works used in conjunction with artificial intelligence tools in TDM research—meaning copyrighted works must remain available for scientific research that is reliant on AI training, and publishers cannot override these AI training rights through contract. Publishers are thus obligated to—and do—preserve fair use-equivalent research exceptions for TDM and AI within the EU, and can do so in the United States, too. . . .

In all events, adaptable licensing language can address publishers’ concerns by reiterating that the licensed products may be used with AI tools only to the extent that doing so would not: i. create a competing or commercial product or service for use by third parties; ii. unreasonably disrupt the functionality of the subscribed products; or iii. reproduce or redistribute the subscribed products for third parties. In addition, license agreements can require commercially reasonable security measures (as also required in the EU) to extinguish the risk of content dissemination beyond permitted uses. In sum, these licensing terms can replicate the research rights that are unequivocally reserved for scholars elsewhere.

https://tinyurl.com/4fvpdz35

U.S. Copyright Office Update on Its Artificial Intelligence Initiatives

In March 2023, the Office announced a broad initiative to examine the copyright implications of the current forms of generative AI. Although we had previously examined the scope of copyright in works created using AI, the increasing sophistication and public adoption of generative AI tools raised new questions about the process of training and the legal status of the outputs. Our goal was to gather information from a full range of knowledgeable and interested parties in order to produce a report to assist Congress, thecourts, and others in formulating policy in this area. In taking this initiative forward, we are monitoring related work being done in other agencies, including the U.S. Patent and Trademark Office (USPTO) and the Federal Trade Commission, and communicating with them on an ongoing basis.

This letter summarizes the Office’s work so far and describes our agenda for the rest of 2024, including the release of the report, updates to the Compendium of U.S. Copyright Office Practices, and the publication of a proposed economic research agenda.

http://tinyurl.com/4tpeyw3t

"The Text File That Runs the Internet"

But robots.txt is not a legal document — and 30 years after its creation, it still relies on the good will of all parties involved. Disallowing a bot on your robots.txt page. . . sends a message, but it’s not going to stand up in court. Any crawler that wants to ignore robots.txt can simply do so, with little fear of repercussions. . . . As the AI companies continue to multiply, and their crawlers grow more unscrupulous, anyone wanting to sit out or wait out the AI takeover has to take on an endless game of whac-a-mole. . . . If AI is in fact the future of search, as Google and others have predicted, blocking AI crawlers could be a short-term win but a long-term disaster.

http://tinyurl.com/5n8s72bz

"Court Dismisses Authors’ Copyright Infringement Claims Against OpenAI"

Several authors, including comedian Sarah Silverman, have suffered an early loss in their copyright battle against OpenAI. The authors accused OpenAI of using pirated copies of their books to train its models. A California federal court dismissed the vicarious copyright infringement and DMCA violation claims. However, the lawsuit isn’t over yet.

http://tinyurl.com/478vm6kw

"Even If You Hate Both AI and Section 230, You Should Be Concerned about the Hawley/Blumenthal Bill to Remove 230 Protections from AI"

Considering that AI is currently being built into basically everything, this "exemption" [from Section 230] will basically eat the entire law, because increasingly all content produced online will involve "the use or provision" of generative AI, even if the content itself has nothing to do with the service provider.

In short, this bill doesn’t just strip 230 protections from AI output, in effect it strips 230 from any company that offers AI in its products. Which is basically a set of internet companies rapidly approaching "all of them."

https://tinyurl.com/ykjx8v4t

"Judge Will Toss Part of Authors’ AI Copyright Lawsuit "

According to Reuters, judge Vince Chhabria said the authors’ allegations that text generated by Llama infringes their copyrights simply doesn’t stand up to scrutiny. "When I make a query of Llama, I’m not asking for a copy of Sarah Silverman’s book—I’m not even asking for an excerpt," Chhabria observed, noting that, under the authors’ theory, a side-by-side comparison of text generated by the AI application and Silverman’s book would have to show they are similar.

However, the judge said he will not dismiss the case with prejudice, meaning the authors will be allowed to amend and refile their claims.

https://tinyurl.com/sd4wbba4

| Research Data Publication and Citation Bibliography | Research Data Sharing and Reuse Bibliography | Research Data Curation and Management Bibliography | Digital Scholarship |

"UC Berkeley Library to Copyright Office: Protect Fair Uses in AI Training for Research and Education"

If the Copyright Office were to enable rightsholders to opt-out of training AI for research and teaching fair uses, then academic institutions and scholars would face even greater hurdles in licensing content for research purposes. It would be operationally difficult for academic publishers and content aggregators to amass and license the "leftover" body of copyrighted works that remain eligible for AI training. Costs associated with publishers’ efforts in compiling "AI-training-eligible" content would be passed along as additional fees charged to academic libraries, who are already financially constrained to preserve TDM and other fair uses for scholars. In addition, rightsholders might opt out of allowing their work to be used for AI training fair uses, and then turn around and charge AI usage fees to scholars (or libraries)—essentially licensing back fair uses for research. These scenarios would impede scholarship by or for research teams who lack grant or institutional funds to cover these additional expenses; penalize research in or about underfunded disciplines or geographical regions; and result in bias as to the topics and regions studied.

https://tinyurl.com/5cd2vc85

$2,500 Fee: "COAR’s response to the American Chemical Society’s New Fee or Repository Deposit"

COAR strongly objects to this charge for the following reasons:

Authors own their manuscripts and should retain their rights. Authors typically hold the copyright to their research, but too often transfer those rights to publishers when publishing their manuscript. When authors retain the copyright to their manuscript, they have the right to disseminate and use their own manuscript as they choose. If authors’ rights are retained, publishers do not own an article accepted manuscript (AAM) and researchers should not be duped into paying a fee to exercise a right they already have.

This fee is in direct contravention with the ethos of open science and scholarship and equity. . .

ACS is charging $2,500 while providing no added value. There is not a fee for an extra service offered. It requires no extra work on the side of the publisher, but rather is an attempt to develop a new revenue stream, while at the same time they will be receiving funds from subscriptions and pay-to-access for this same article.

ACS is creating a false impression about compliance with funder policies. . . . A fee is only required if you want to publish in an ACS journal and sign over your rights.

See ACS’ "Open Access Pricing for Authors: The Power of Choice" for more fee details.

https://tinyurl.com/4u4dfxsk

"On the Culture of Open Access: The Sci-Hub Paradox"

Based on a large randomized sample, this study first shows that OA publications, including those in fully OA journals, receive more citations than their subscription-based counterparts. However, the OACA has slightly decreased over the seven last years. The introduction of a distinction between those accessible or not via the Sci-hub platform among subscription-based suggest that the generalization of its use cancels the positive effect of OA publishing. The results show that publications in fully OA journals are victims of the success of Sci-hub. Thus, paradoxically, although Sci-hub may seem to facilitate access to scientific knowledge, it negatively affects the OA movement as a whole, by reducing the comparative advantage of OA publications in terms of visibility for researchers

https://doi.org/10.1007/s11192-023-04792-5

Paywall: "Digital Ownership: The Case of E-books"

This paper presents the results of an empirical research study that used an online survey to examine e-book consumers’ perspectives on digital ownership and digital rights. The study revealed that while most participants value and desire ownership rights, certain conventional ownership rights, such as reselling, gifting, and lending, are deemed less significant and can be relinquished by consumers due to cost-related factors. Furthermore, contrary to prevailing assumptions, the study found no discernible generational gap concerning people’s perceptions of digital ownership rights.

https://doi.org/10.1002/pra2.807

"Supporting Open Access for 20 Years: Five Issues That Have Slowed the Transition to Full and Immediate OA"

Current estimates suggest that more than 50% of the world’s research articles are published open access and that there are around 20,000 fully OA journals. Data also indicates that publishing OA is, on average, cheaper than publishing in subscription journals. For example, an analysis by Delta Think shows that around 45% of all scholarly articles were published as paid-for open access in 2021, but this accounted for just under 15% of the total journal publishing revenue.

However, after two decades of discussions, advocacy, policy development and strategy, can this level of OA be considered a success, particularly when half of all research articles published today is hidden behind a paywall? I think not.

https://tinyurl.com/2s396wh7

"ACS, Elsevier, and Researchgate Resolve Litigation, with Solution to Support Researchers"

ACS and Elsevier, members of the Coalition for Responsible Sharing, have agreed to a legal settlement with ResearchGate that ensures copyright-compliant sharing of research articles published with ACS or Elsevier on the ResearchGate site. The lawsuits pending against ResearchGate in Germany and the United States are now resolved. The specific terms of the parties’ settlement are confidential.

Background: "Munich Court Ruling Sides with Elsevier, ACS over ResearchGate."

https://tinyurl.com/mrr9xywj