Copyright – Page 28 – DigitalKoans

EFF and Public Knowlege’s Comments on Copyright Office’s Orphan Works Inquiry

The Electronic Frontier Foundation and Public Knowledge have released their comments on the Notice of Inquiry by the Copyright Office for comments regarding orphan works, Docket No. 2012-12.

Here's an excerpt:

A range of options, none of them exclusive, can alleviate the problems created by the prevalence of orphan works. Even in the absence of more systemic change that can stem the growing number of works whose copyright information disappears into obscurity, the application of fair use and legislative work on damages reduction (both for orphan works specifically and for good faith fair uses generally) can allow a variety of users to bring a variety of works to the public. Mass digitization projects promise to be a part of that process, and should be able to proceed in many cases under current law. However, more ambitious plans for broader, publicly available MDPs could be incentivized to serve the public interest with additional damages limitations, attended by public interest conditions. We

| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

"Orphan Works and the Search for Rightsholders: Who Participates in a ‘Diligent Search’ under Present and Proposed Regimes?"

David R. Hansen, Gwen Hinze, and Jennifer Urban have self-archived "Orphan Works and the Search for Rightsholders: Who Participates in a 'Diligent Search' under Present and Proposed Regimes?" in SSRN.

Here's an excerpt:

Regardless of the specific formulation, the search for rightsholders (or conversely, the confirmation that no rightsholder can be located) is an integral component of almost every orphan works proposal. This paper examines in detail the core schemes for identifying rightsholders among the leading orphan works regimes and proposals. Although these schemes differ across many variables, three factors predominate: (1) who is expected to participate in the search process, (2) the nature and extent of the required search generally; and (3) specifically what types of resources, tools, registries or other information-sharing mechanisms are required or allowed.

This paper compares existing proposals' approaches with respect to the first factor: who participates in a search? A subsequent paper will focus on the second and third factors.

| Digital Scholarship Overview | Digital Scholarship |

Surprise Brief by Justice Department in Georgia State University E-Reserves Case

The Justice Department has filed a brief in the Cambridge University Press et al. v. Patton et al. case by for a 21-day extension in which to "to file any amicus brief in support of appellants or in support of neither party."

Here's an excerpt from "Obama Administration Considers Joining Publishers in Fight to Stamp out Fair Use at Universities":

In digging into this, we've heard from a few sources that it's actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public universities and students.

| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

What’s the Deal with Copyright and 3D Printing?

Public Knowledge has released What's the Deal with Copyright and 3D Printing?

Here's an excerpt from the announcement:

Today Public Knowledge is happy to announce a new whitepaper: What's the Deal with Copyright and 3D Printing? This paper is something of a follow up to our previous 3D printing whitepaper It Will Be Awesome if They Don't Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology. Unlike It Will Be Awesome, which focused on the broad connection between intellectual property law and 3D printing, What's the Deal? takes a deeper dive into the relationship between copyright and 3D printing. . . .

Of course, the first step in understanding what is not protected by copyright is recognizing what is protected by copyright. What's the Deal? is designed to help mark those boundaries and draw focus to the hard — and easy — questions that the boundaries raise.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

"The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries"

James Aaron has self-archived "The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries" in SSRN.

Here's an excerpt:

This Comment begins by describing the HathiTrust Orphan Works Project and what it renames the neglected works problem. Next, it examines the legality of the project under current copyright law, focusing mainly on fair use under section 107, and concludes that it is unclear whether the project violates copyright law. Finally it analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.

| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

"Open-Sourcing the Global Academy: Aaron Swartz’s Legacy"

Rebecca Gould has self-archived "Open-Sourcing the Global Academy: Aaron Swartz's Legacy" in SSRN.

Here's an excerpt:

This essay examines Swartz's Open Access vision, and traces the challenges he faced in carrying out his dream. Arguing that Open Access is the future of scholarship in the digital age, I outline concrete strategies for bringing Swartz's dream to fruition.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

"Money from Music: Survey Evidence on Musicians’ Revenue and Lessons About Copyright Incentives"

Peter C. DiCola has self-archived "Money from Music: Survey Evidence on Musicians' Revenue and Lessons About Copyright Incentives" in SSRN.

Here's an excerpt:

For most musicians, copyright does not provide much of a direct financial reward for what they are producing currently. The survey findings are instead consistent with a winner-take-all or superstar model in which copyright motivates musicians through the promise of large rewards in the future in the rare event of wide popularity. This conclusion is not unfamiliar, but this article is the first to support it with empirical evidence on musicians' revenue.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

"SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements"

Michael A. Carrier has published "SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements" in the Northwestern Journal of Technology and Intellectual Property.

Here's an excerpt:

In this article, I discuss the effects of four copyright proposals on innovation: the Stop Online Piracy Act (SOPA), PROTECT IP Act (PIPA), Anti-Counterfeiting Trade Agreement (ACTA), and Trans-Pacific Partnership Agreement (TPP). These proposals contain provisions that would impose copyright liability in a vague and far-reaching manner that would harm innovators, dissuade venture capitalists, and ultimately stifle innovation.

| Digital Scholarship's Digital/Print Books | Digital Scholarship |

Organization of Scholarly Communication Services, SPEC Kit 332

ARL has released the Organization of Scholarly Communication Services, SPEC Kit 332.

Here's an excerpt from the press release:

The Association of Research Libraries (ARL) has published Organization of Scholarly Communication Services, SPEC Kit 332, which explores how research institutions are currently organizing staff to support scholarly communication services, and whether their organizational structures have changed since 2007, when member libraries were surveyed about their scholarly communication education initiatives. This SPEC Kit covers who leads scholarly communication efforts inside and outside the library, the scholarly communication related services that are offered to researchers, and which staff support those services. The publication also looks at how the library measures the success of its scholarly communication services, including demonstrable outcomes of these services.

| Digital Scholarship's 2012 Publications | Digital Scholarship |

"The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement"

Sean M. Flynn et al. have self-archived "The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement" in SSRN.

Here's an excerpt:

Our ultimate conclusion is that the U.S. proposal, if adopted, would upset the current international framework balancing the interests of rights holders and the public. It would heighten standards of protection for rights holders well beyond that which the best available evidence or inclusive democratic processes support. It contains insufficient balancing provisions for users, consumers, and the public interest.

| Digital Scholarship's 2012 Publications | Digital Scholarship |

"Contribution to the Definition of a Positive Agenda for the Public Domain: A Policy Paper by COMMUNIA International Association on the Public Domain"

COMMUNIA has released "Contribution to the Definition of a Positive Agenda for the Public Domain: A Policy Paper by COMMUNIA International Association on the Public Domain."

Here's an excerpt:

This policy paper proposes to contribute to defining a positive agenda for the Public Domain. It is grounded on a WIPO study by Professor Sèverine Dusollier, Communia policy recommendations and Communia previous WIPO statements. This work-in-progress document presents policy recommendations and strategies aimed at the trans-national level , namely WIPO CDIP and SCCR. Legal language will be drafted at a later stage.

| Digital Scholarship |

"ARL Member Library Directors on Putting the Code to Work"

The Association of Research Libraries has published "ARL Member Library Directors on Putting the Code to Work."

Here's an excerpt:

The Code of Best Practices in Fair Use for Academic and Research Libraries came out in January 2012, and we have been spreading the good news at events around the country ever since. . . . In the following video interviews, taped in October 2012, five dynamic leaders of ARL libraries describe how they are using the Code to inform new approaches to questions of copyright and fair use.

| Digital Scholarship's Digital/Print Books | Digital Scholarship |

"The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States"

Christina Angelopoulos has self-archived "The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States" in SSRN.

Here's an excerpt:

The term of protection of copyright and related rights is generally considered to be one of the best harmonised areas of European copyright law. However, close examination of the EU Term Directive's intricate provisions reveals a piecemeal and permissive approach to harmonisation which preserves many differences between the national rules. In this report, four main sources of legislative variability are identified and analysed: a) contagion from unharmonised areas of substantive copyright law; b) explicit exceptions to the harmonisation of the term of protection; c) national related rights of unharmonised term; and d) incorrect implementation of the provisions of the Term Directive into national law.

| Digital Scholarship's Digital/Print Books | Digital Scholarship |

Authors Guild et al. v. Google: "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal"

Pamela Samuelson and David R. Hansen have self-archived "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal" in SSRN.

Here's an excerpt:

Summary of argument: Class certification was improperly granted below because the District Court failed to conduct a rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics. . . .

Academic authors desire broad public access to their works such as that which the Google Books project provides. Although the District Court held that the plaintiffs had inadequately represented the interests of academic authors in relation to the proposed settlement, it failed to recognize that pursuit of this litigation would be even more adverse to the interests of academic authors than the proposed settlement was. . . .

In short, a "win" in this case for the class representatives would be a "loss" for academic authors. It is precisely this kind of conflict that courts have long recognized should prevent class certification due to inadequate representation. The District Court failed to adequately address this fundamental conflict in its certification order, though it was well aware of the conflict through submissions and objections received from the settlement fairness hearing through to the hearings on the most recent class certification motions. Because of that failure, the order certifying the class should be reversed

| Google Books Bibliography | Digital Scholarship |

Republican Study Committee Released Progressive Copyright Brief Then Withdrew It

The Republican Study Committee released “Three Myths about Copyright Law and Where to Start to Fix it,” which attracted immediate attention due to its progressive view of copyright. Now, the brief's PDF is blank.

However, in “Republican Report: 3 Myths of Copyright, Quashed by MPAA and RIAA,” Ash McGonigal provides a working link to the full text in addition to a recap of the situation.

| Digital Scholarship |

Digital Copyright: Google Asks Court to Reverse Class Certification Decision in The Authors Guild et al. v. Google Inc.

In a brief, Google has asked the U.S. Second Circuit Court of Appeals to reverse the class certification decision by the United States District Court for the Southern District of New York in The Authors Guild et al. v. Google Inc. case.

Here's the brief.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Copyright: Authors Guild Appeals HathiTrust Ruling

The Authors Guild is appealing the Authors Guild, Inc. et al. v. HathiTrust et al. ruling.

Here's an excerpt from the "LCA Issues Statement on Authors Guild's Appeal of HathiTrust Decision":

We are deeply disappointed by the Authors Guild's decision to appeal Judge Baer's landmark opinion acknowledging the legality, and the extraordinary social value, of the HathiTrust Digital Library. Libraries have a moral and a legal obligation to provide the broadest possible access to knowledge for all of our users, and the HathiTrust and its partners have assembled an invaluable digital resource that will ensure for the first time that library print collections can be made available on equitable terms to our print-disabled users. The database also facilitates preservation and cutting-edge scholarship, all with no harm to authors or publishers. As we predicted, Judge Baer did not look kindly on the Guild's shortsighted and ill-conceived lawsuit, saying, "I cannot imagine a definition of fair use that . . . would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA." If there is an upside to this misguided appeal, it is that the Second Circuit will now have the opportunity to affirm that powerful insight.

| Digital Scholarship's Digital/Print Books | Digital Scholarship |

E-books: Developments and Policy Considerations

The OECD has released E-books: Developments and Policy Considerations.

Here's an excerpt:

The essential distinction between permanent and effective ownership of a physical book, and conditional rights of access to the e-book, has, so far, been somewhat obscured by marketing strategies and use of visual images, which tend to present e-books as a superior, but also substitutable, version of the print book product. Given the virtual reality of "traditional books" presented by e-Book platforms, buyers of e-books are likely to confuse their rights (i.e. after purchase) with the property rights model for print books. Users may be surprised to find that they are prevented from doing certain things7 with their e-book, within their private/ personal sphere.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

"Suing HathiTrust"

C.E. Petit has published "Suing HathiTrust" in Scrivener's Error: Warped Weft.

Here's an excerpt:

This is an initial review only of the third segment of the Google BookScan lawsuits, generally known as the "HathiTrust suit" and formally known as Authors' Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y.) (Baer, J.). The first two segments were the Authors' Guild's lawsuit against Google, and the publishers' lawsuit against Google (which were later consolidated… and at this writing may be severing). As a side note, the HathiTrust matter was referred to Judge Chin for further consolidation with the existing GBS suits, but was rejected as not sufficiently related… and inconsistent with Judge Chin's elevation to the Second Circuit, although the rejection did not emphasize that issue.

| A Look Back at 23 Years as an Open Access Publisher | Digital Scholarship |

No Ripping: Copyright Office Issues "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies"

The U.S. Copyright Office has issued the final rule for the "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies."

Of particular interest is section "IV. Classes Considered But Not Recommended, D. Motion Pictures and Other Works on DVDs and Other Media—Space Shifting," which starts on page 58.

Here's an excerpt:

Proponent Public Knowledge stated a desire to move lawfully acquired motion pictures on DVDs to consumer electronic devices, such as tablet computers and laptop computers, that lack DVD drives. It asserted that consumers' inability to play lawfully acquired DVDs on the newest devices adversely affected noninfringing uses of the works contained on DVDs, and that a reasonable solution was for these consumers to copy the motion pictures into a format that could be viewed on the new devices. . . .

Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (1999), and Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), in support of its contention that space shifting is a noncommercial personal use, and therefore a fair use. . . .

The Register recognized that there is significant consumer interest in the proposed exemption. Proponents, however, had the burden of demonstrating that the requested use was noninfringing. Neither of the two key cases relied upon by proponents, however, addresses or informs the space shifting activities at issue. . . .

The Register further observed that the law does not guarantee access to copyrighted material in a user's preferred format or technique. Indeed, copyright owners typically have the legal authority to decide whether and how to exploit new formats. The Register noted that while the law may someday evolve to accommodate some of proponents' proposed uses, more recent cases touching upon space shifting confirm that the fair use implications of various forms of space shifting are far from settled. . . .

In urging that space shifting is a fair use, Public Knowledge characterized the copying of motion pictures for use on personal devices as a "paradigmatic noncommercial personal use" that could facilitate a transformative use. It further asserted that integrating reproductions of motion pictures from DVDs into a consumer's media management software was analogous to the integration of thumbnail images into internet search engines found to be a transformative use in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).

The Register did not agree with this analysis. In her view, the incorporation of reproductions of motion pictures from DVDs into a consumer's media management software is not equivalent to the provision of public search engine functionality. Rather, it is simply a means for an individual consumer to access content for the same entertainment purpose as the original work. Put another way, it does not "add[] something new, with a further purpose or different character, altering the first with new expression, meaning," or advance criticism, comment, or any other interest enumerated in the preamble of Section 107. The Register therefore concluded that the first fair use factor did not favor a finding of fair use. The Register additionally determined that where creative works were being copied in their entirety, factors two and three also weighed against fair use, and that there was an inadequate basis in the record to conclude that the developing market for the online distribution of motion pictures would not be harmed by the proposed uses.

Finally, the Register concluded that proponents had failed to demonstrate that the use of a reasonably priced peripheral, a different device, or an online subscription service to access and play desired content did not offer a reasonable alternative to circumvention. Accordingly, the Register was not persuaded that the inability to engage in the space shifting activities described by proponents is having a substantial adverse impact on consumers' ability to make noninfringing uses of copyrighted works.

Read more about it at "United States Copyright Office: Ripping Is Illegal."

| Reviews of Digital Scholarship Publications | Digital Scholarship |

ALA Joins Owners’ Rights Initiative

ALA has joined the Owners' Rights Initiative.

Here's an excerpt from the announcement:

Today, the American Library Association announced that it has joined—as a founding member—the Owners' Rights Initiative (ORI)—a coalition of retailers, libraries, educators, Internet companies and associations working to protect ownership rights in the United States.

The coalition was formed to champion "first-sale rights," or ownership rights, as the issue will be taken up by the U.S. Supreme Court in the case of Kirtsaeng vs. Wiley & Sons, Inc. on October 29, 2012. The Supreme Court's decision could have adverse consequences for libraries and call into question libraries' abilities to lend books and materials that were manufactured overseas.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

"Licensing Revisited: Open Access Clauses in Practice"

Birgit Schmidt and Kathleen Shearer have published "Licensing Revisited: Open Access Clauses in Practice" in the Future Issue section of LIBER Quarterly.

Here's an excerpt:

Open access increases the visibility and use of research outputs and promises to maximize the return on our public investment in research. However, only a minority of researchers will "spontaneously" deposit their articles into an open access repository. Even with the growing number of institutional and funding agency mandates requiring the deposit of papers into the university repository, deposit rates have remained stubbornly low. As a result, the responsibility for populating repositories often falls onto the shoulders of library staff and/or repository managers. Populating repositories in this way—which involves obtaining the articles, checking the rights, and depositing articles into the repository—is time consuming and resource intensive work.

The Confederation of Open Access Repositories (COAR), a global association of repository initiatives and networks, is promoting a new strategy for addressing some of the barriers to populating repositories, involving the use of open access archiving clauses in publisher licenses. These types of clauses are being considered by consortia and licensing agencies around the world as a way of ensuring that all the papers published by a given publisher are cleared for deposit into the institutional repository. This paper presents some use cases of open access archiving clauses, discusses the major barriers to implementing archiving language into licenses, and describes some strategies that organizations can adopt in order to include such clauses into publisher licenses.

| Transforming Scholarly Publishing through Open Access: A Bibliography: "This work gives an outstanding overview of scholarship relating to the growing Open Access movement." — George Machovec, The Charleston Advisor 12, no. 2 (2010): 3. | Digital Scholarship |

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

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

Here's an excerpt:

The brief argues that, just as copyright law has long recognized the distinction between protection for an author's original expression (e.g., the narrative prose describing the plot) and the public's right to access the facts and ideas contained within that expression (e.g., a list of characters or the places they visit), the law must also recognize the distinction between copying books for expressive purposes (e.g., reading) and nonexpressive purposes, such as extracting metadata and conducting macroanalyses. We amici urge the court to follow established precedent with respect to Internet search engines, software reverse engineering, and plagiarism detection software and to hold that the digitization of books for text-mining purposes is a form of incidental or intermediate copying to be regarded as fair use as long as the end product is also nonexpressive or otherwise non-infringing.

| Google Books Bibliography | Digital Scholarship |

"Copyright Fee Shifting: A Proposal to Promote Fair Use and Fair Licensing"

Peter S. Menell and Ben Depoorter have self-archived "Copyright Fee Shifting: A Proposal to Promote Fair Use and Fair Licensing" in SSRN.

Here's an excerpt:

In this Article we propose a novel mechanism that would afford a limited, cost-effective process for pre-clearing works, promote fair negotiation over cumulative uses of copyrighted works, and reduce the exposure of cumulative creators from the inherent risks of relying on copyright's de minimis and/or fair use doctrine. Under this mechanism, a cumulative creator has authority to make a formal offer of settlement to use copyrighted material for a project. If the copyright owner does not respond to the offer, the cumulative creator would be permitted to use the work provisionally by paying the settlement amount into escrow. If the copyright owner rejects the proposed license fee and sues for infringement, the copyright owner will bear the cumulative creator's litigation costs (1) if the court determines that the use of the material qualifies as fair use or (2) if the court determines that the fair use doctrine did not excuse the use but where the cumulative creator's offer of settlement (the proposed license fee) exceeded the amount of damages that the court determines to be appropriate. In the former case, the escrow amount is returned to the cumulative creator. In the latter case, the copyright owner receives the infringement award from the escrow account and the remainder returns to the cumulative creator.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Copyright Clearance Center Launches New Service for Publishers: Open Access Solutions

The Copyright Clearance Center has launched a new service for Publishers called Open Access Solutions.

Here's an excerpt from the press release:

CCC helps publishers manage variable Open Access (OA) models through its RightsLink™ platform, which supports unique pricing rules, licenses and messaging for OA journals, encouraging compliance with funding agency requirements. . . .

CCC makes it easier for publishers to charge different Open Access fees pre-publication based on variables such as author affiliation/membership, funding source and journal type; communicates publisher-specified reuse rights post-publication to users seeking permissions for all content including Open Access articles; captures valuable data about user interest in and reuse of publishers' Open Access publications; and provides the ability for publishers to add RightsLink to its content wherever it resides online, even in third-party repositories such as HighWire or PubMed Central.

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