Category: Copyright

"Last Sale? Libraries’ Rights in the Digital Age"

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

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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"Setting the Record Straight about Elsevier"

Kevin Smith has published "Setting the Record Straight about Elsevier" in Scholarly Communications @ Duke.

Here's an excerpt:

Each [article] version is a revision of the original, and the copyright is the same for all these derivatives. When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer. Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself. In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author. One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways.

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"’Safe Harbor’ for the Innocent Infringer in the Digital Age"

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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"E-Book Monopolies and the Law"

Angela Daly has self-archived "E-Book Monopolies and the Law" in SSRN

Here's an excerpt:

This article will examine the legality of the digital rights management ("DRM") measures used by the major e-book publishers and device manufacturers in the United States, European Union and Australia not only to enforce their intellectual property rights but also to create monopolistic content silos, restrict interoperability and affect the ability for users to use the content they have bought in the way they wish. The analysis will then proceed to the recent competition investigations in the US and EU over price-fixing in e-book markets, and the current litigation against Amazon in the US for an alleged abuse of its dominant position. A final point will be made on possible responses in Australia to these issues taking into account the jurisprudence on DRM in other scenarios.

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Safe to Be Open: Study on the Protection of Research Data and Recommendation for Access And Usage

OpenAIRE has released Safe to Be Open: Study on the Protection of Research Data and Recommendation for Access And Usage.

Here's an excerpt from the announcement:

This study addresses the most important legal issues when implementing an open access e-infrastructure for research data. It examines the legal requirements for different kinds of usage of research data in an open access infrastructure, such as OpenAIREplus, which links them to publications. The existing legal framework regarding potentially relevant intellectual property (IP) rights is analysed from the general European perspective as well as from that of selected EU Member States. Various examples and usage scenarios are used to explain the scope of protection of the potentially relevant IP rights. In addition different licence models are analysed in order to identify the licence that is best suited to the aim of open access, especially in the context of the infrastructure of OpenAIREplus. Based on the outcomes of these analyses, some recommendations to the European legislator as well as data- and e-infrastructure providers are given on improving the rights situation in relation to research data.

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Creative Commons 4.0 Licenses Released

The Creative Commons has released version 4.0 of its licenses.

Here's an excerpt from the announcement:

We proudly introduce our 4.0 licenses, now available for adoption worldwide. The 4.0 licenses—more than two years in the making—are the most global, legally robust licenses produced by CC to date. We have incorporated dozens of improvements that make sharing and reusing CC-licensed materials easier and more dependable than ever before.

We had ambitious goals in mind when we embarked on the versioning process coming out of the 2011 CC Global Summit in Warsaw. The new licenses achieve all of these goals, and more. The 4.0 licenses are extremely well-suited for use by governments and publishers of public sector information and other data, especially for those in the European Union. This is due to the expansion in license scope, which now covers sui generis database rights that exist there and in a handful of other countries.

Among other exciting new features are improved readability and organization, common-sense attribution, and a new mechanism that allows those who violate the license inadvertently to regain their rights automatically if the violation is corrected in a timely manner.

You can find highlights of the most significant improvements on our website, track the course of the public discussion and evolution of the license drafts on the 4.0 wiki page, and view a recap of the central policy decisions made over the course of the versioning process.

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"Knowledge Level of Library Deans and Directors in Copyright Law"

John Eye has published "Knowledge Level of Library Deans and Directors in Copyright Law" in the latest issue of the Journal of Librarianship and Scholarly Communication.

Here's an excerpt:

A random sample of academic library deans and directors was asked to complete a web-based survey articulating their level of copyright knowledge and perceptions associated with how they are able to apply it toward their work with policies. . . .

Deans and directors of academic libraries have a working knowledge of copyright law but more training is needed to provide library professionals with the tools necessary to carry out the work of effectively managing collections and services, especially in this new and emerging digital environment

.

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

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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Open Access Clauses in Publishers’ Licenses: Current State and Lessons Learned

COAR has released Open Access Clauses in Publishers' Licenses: Current State and Lessons Learned.

Here's an excerpt from the announcement:

As Open Access (OA) policies and laws are being adopted world-wide, the scholarly community is shifting its efforts from advocacy towards practical implementation and support. One of the major routes for making articles open access is through OA repositories. However the variety and lack of clarity of publishers' policies regarding article deposit can be a significant barrier to author compliance of OA policies.

In order to overcome this barrier, some organizations have successfully negotiated authors' or deposit rights with publishers in the context of purchasing content licenses. This report documents the existing OA licensing language that has been implemented by organizations around the world and presents some suggestions for their successful adoption. The report concludes that OA clauses offer a feasible option for institutions to address some of the obstacles to article deposit into repositories.

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"Copyright in the Digital Age"

Kyle K. Courtney has self-archived "Copyright in the Digital Age" in SSRN.

Here's an excerpt:

The goal of this chapter is to provide the fundamental instruction for some of the most popular topics facing law libraries in the digital age. Whether it is scanning chapters for e-reserves or accessing databases online, knowledge of copyright law can help mitigate risk, and enhance our patron's services. As librarians, we want to provide whatever our patron's desire. But, we also must balance the law versus the patrons needs. Fortunately, copyright law does not always restrict a patron's uses. In many cases a solid understanding of copyright can help ease a patron's fears, or provide legal alternatives to a patron's request, or help educate the community at large.

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New Roles for New Times: Transforming Liaison Roles in Research Libraries

ARL has released New Roles for New Times: Transforming Liaison Roles in Research Libraries.

Here's an excerpt:

The liaison role in research libraries is rapidly evolving. An engagement model in which library liaisons and functional specialists collaborate to understand and address the wide range of processes in instruction and scholarship is replacing the traditional tripartite model of collections, reference, and instruction. New roles in research services, digital humanities, teaching and learning, digital scholarship, user experience, and copyright and scholarly communication are being developed at research libraries across the country, requiring professional development and re-skilling of current staff, creative approaches to increase staff capacity, the development of new spaces and infrastructure, and collaborative partnerships within libraries, across campus units, and among research institutions.

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Draft Policy on Open Access for Data and Information

The EU e-infrastructure coordination pro-iBiosphere project has released the Draft Policy on Open Access for Data and Information.

Here's an excerpt from the announcement:

The document addresses legal issues that hamper an integrative system for managing biodiversity knowledge in Europe. It describes the importance for scientists to have access to documents and data in order to synthesize disparate information and to facilitate data mining (or similar research techniques). It explores some aspects of copyright and database protection that influence access to and re-use of biodiversity data and information and refers to exceptions and limitations of copyright or database protection provided for within the relevant EU Directives.

The scientists also suggest that publicly funded institutions should refrain from claiming intellectual property rights for biodiversity data and information published or made accessible by them. Re-use of biodiversity data and information for research purposes should be allowed without any form of authorization. The only claims that publicly funded institutions should make are to ensure users fully acknowledge the sources of information that they rely on.

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

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"

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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Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate

The Berkman Center for Internet & Society has released Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate.

Here's an excerpt from the announcement:

In this paper, we use a new set of online research tools to develop a detailed study of the public debate over proposed legislation in the United States that was designed to give prosecutors and copyright holders new tools to pursue suspected online copyright violations. Our study applies a mixed-methods approach by combining text and link analysis with human coding and informal interviews to map the evolution of the controversy over time and to analyze the mobilization, roles, and interactions of various actors.

This novel, data-driven perspective on the dynamics of the networked public sphere supports an optimistic view of the potential for networked democratic participation, and offers a view of a vibrant, diverse, and decentralized networked public sphere that exhibited broad participation, leveraged topical expertise, and focused public sentiment to shape national public policy.

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"First Amendment Constraints on Copyright after Golan v. Holder"

Neil Weinstock Netanel has self-archived "First Amendment Constraints on Copyright after Golan v. Holder" in SSRN.

Here's an excerpt:

Commentators have depicted the Supreme Court's January 2012 ruling in Golan v. Holder as a far-reaching repudiation of First Amendment limits on Congress's power to expand copyright and diminish the public domain. However, Golan imposes potentially significant First Amendment constraints on copyright protection even while granting fairly broad First Amendment immunity to Copyright Act amendments. It does so by effectively adopting Melville Nimmer's "definitional balancing" approach to resolving the tension between copyright and the First Amendment. . . As Golan applies that approach, neither Congress nor courts may "disturb" copyright law's idea/expression dichotomy or fair use privilege without running afoul of the First Amendment. Accordingly, following Golan, Copyright Act provisions and proposed legislation that would diminish one or both of those free speech safeguards remain vulnerable to First Amendment challenge.

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"Creative Commons: Challenges and Solutions for Researchers; A Publisher’s Perspective of Copyright in an Open Access Environment"

Nicola Gulley has published "Creative Commons: Challenges and Solutions for Researchers; A Publisher's Perspective of Copyright in an Open Access Environment" in the latest issue of Insights: The UKSG Journal.

Here's an excerpt:

Copyright in the digital environment is evolving at an unprecedented rate. Copyright exists to protect the rights of an owner of an original piece of work by imposing restrictions on re-use but it does not always fit well with how we use and share information in the digital sphere.

The growth of open access (OA) publishing has also added to the challenge as the right to reuse as well as read content has been emphasized.

Creative Commons (CC) licences were introduced to try and bridge the gaps between the barriers imposed by traditional copyright and the realities of the digital environment but, as they are general licences, it is not always clear how they apply to specific situations.

This article addresses some of the key questions around how the various licences can be applied in academic publishing, what some of the consequences are, and how they affect different research areas.

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"How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)"

Paul J. Heald has self-archived "How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)" in SSRN.

Here's an excerpt:

A random sample of new books for sale on Amazon.com shows three times more books initially published in the 1850's are for sale than new books from the 1950's. Why? This paper presents new data on how copyright seems to make works disappear. First, a random sample of 2300 new books for sale on Amazon.com is analyzed along with a random sample of 2000 songs available on new DVD's. Copyright status correlates highly with absence from the Amazon shelf. Together with publishing business models, copyright law seems to stifle distribution and access. . . . Second, the availability on YouTube of songs that reached number one on the U.S., French, and Brazilian pop charts from 1930-60 is analyzed in terms of the identity of the uploader, type of upload, number of views, date of upload, and monetization status. An analysis of the data demonstrates that the DMCA safe harbor system as applied to YouTube helps maintain some level of access to old songs by allowing those possessing copies (primarily infringers) to communicate relatively costlessly with copyright owners to satisfy the market of potential listeners.

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The European Orphan Works Directive: An EIFL Guide

EIFL has released The European Orphan Works Directive: An EIFL Guide.

Here's an excerpt from the announcement:

This Guide sets out the background and key provisions of the Directive. It makes recommendations for libraries for implementation in EIFL partner countries that are members of the EU, and advises libraries in EIFL partner countries with EU bilateral agreements on crafting solutions that best meet their local circumstances and capacity.

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"The HathiTrust Case and Appeal: A Policy Brief"

The EDUCAUSE Policy Office has released "The HathiTrust Case and Appeal: A Policy Brief."

Here's an excerpt:

On October 10, 2012, Judge Harold Baer of the U.S. District Court in New York ruled in favor of the HathiTrust Digital Library (HDL) and its university partners in a copyright infringement suit brought by the Authors Guild (AG) and other groups. This policy brief outlines why this decision was important for higher education, what impact the February 2013 appeal might have, and next steps.

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"British Invasion: How the United Kingdom’s Approach to International Harmonization of Copyright Law Can Inform United States Orphan Works Legislation"

Abigail Bunce has self-archived "British Invasion: How the United Kingdom's Approach to International Harmonization of Copyright Law Can Inform United States Orphan Works Legislation" in SSRN.

Here's an excerpt:

This Note argues that the United States should propose and adopt legislation to resolve the orphan works issue based on the licensing system recently enacted in the United Kingdom. Part I discusses the common economic principles underlying the American and British copyright systems and traces their different approaches to international harmonization. Part II introduces orphan works and the various issues they present, from their first identification through their present controversy within the mass digitization context. Part III discusses the past and current approaches on the American, British, and European Union stages to solve the orphan works issue. Finally, Part IV evaluates and compares the approaches, arguing that while the U.S. should primarily adopt the system advocated by the U.K., the U.K. system could equally benefit from ideas inherent in the U.S. system.

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"Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust"

Matthew Jockers, Matthew Sag, and Jason Schultz have self-archived "Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust" in SSRN.

Here's an excerpt:

This Amicus Brief was filed in the United States Court of Appeal for the Second Circuit in the case of Authors Guild v. Hathitrust on June 4, 2013. The case is on Appeal from the United States District Court for the Southern District of New York, No. 11 CV 6351 (Baer, J.)

Amici are over 100 professors and scholars who teach, write, and research in computer science, the digital humanities, linguistics or law, and two associations that represent Digital Humanities scholars generally. . . .

The Court's ruling in this case on the legality of mass digitization could dramatically affect the future of work in the Digital Humanities. The Amici argue that the Court should affirm the decision of the district court below that library digitization for the purpose of text mining and similar non-expressive uses present no legally cognizable conflict with the statutory rights or interests of the copyright holders.

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The Future of Creative Commons

The Creative Commons have released The Future of Creative Commons.

Here's an excerpt from the announcement:

During our review, we spent a lot of time asking questions and listening to our Affiliate Network members around the world. We hired some consultants to help run a process and to talk to people outside of the organization about how they viewed the role of Creative Commons. As navel-gazing goes, we gave it a solid effort. We also realized how important it is to declare our mission, vision, and priorities for action. The resulting publication, The Future of Creative Commons (2.7 MB PDF), lays out priorities for each area in which we work. These overall priorities are already guiding staff in how they use their time and set targets for each program area. They also give us a good base to measure how well we are doing.

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"Educational Fair Use Brief in Support of Georgia State University on Behalf of Amici Curiae Academic Authors and Legal Scholars"

David R. Hansen et al. have self-archived "Educational Fair Use Brief in Support of Georgia State University on Behalf of Amici Curiae Academic Authors and Legal Scholars" in SSRN.

Here's an excerpt:

In this case, Plaintiff Publishers accuse GSU and its faculty of violating their copyrights through this practice. But, as the district court correctly found, such uses are fair, especially because they primarily use factual information to promote the purposes of education and teaching, the amount taken was reasonable in light of its purpose, and because Plaintiffs' evidence of a cognizable copyright market harm was speculative at best. However, the district court erred when it incorrectly concluded that these uses are not transformative. Using an unduly narrow definition of the concept, it failed to consider how educators repurpose scholarly works in productive ways that bring new meaning to and understanding of the works used.

As scholars and educators who produce and repurpose such works, amici urge this Court to affirm that these uses constitute a transformative use under the first fair use factor, and to reaffirm the findings under the other factors that these uses are fair. A finding of fair use in this case not only furthers the underlying goals of scholarship and education – access to knowledge – but also the very purposes of the Copyright Act itself.

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