Category: Copyright

"Digital Copyright, ‘Fair Access’ and the Problem of DRM Misuse"

Nicolo Zingales has published "Digital Copyright, 'Fair Access' and the Problem of DRM Misuse" in the Intellectual Property & Technology Forum & Journal at Boston College Law School.

Here's an excerpt:

This article points out one of the ways the development of these new technologies has altered the boundaries of copyright, specifically by enabling copyright holders to strategically expand the scope of protection through the strategic use of Digital Rights Management (hereinafter, DRM). After a brief overview of these technologies and their contribution to the development of online markets for copyrighted works, the article discusses the risks of using DRM as a means of stretching the legal protection conferred by Intellectual Property law.

As a potential solution to such problem, the article looks at the role of the courts and the approach embraced vis a vis specific cases of abuse of DRM in the copyright context. . . . The article then concludes recommending a two-fold approach to the assessment of the legality of such practices, where antitrust analysis and IP principles are intermingled, proposing a legal test to facilitate this complex assessment.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

Copyright and the Digital Economy

The Australian Law Reform Commission has released Copyright and the Digital Economy.

Here's an excerpt from the announcement:

This Issues Paper is the first formal publication of the Inquiry, intended to help frame discussion and encourage public consultation at an early stage. It provides background information about copyright in the digital environment, highlights the issues so far identified in preliminary research and consultations, and outlines the principles that will shape the ALRC's proposals for reform. It asks more than 50 questions about how the current copyright framework is affecting both commercial and creative enterprise and how current exceptions and statutory licences are working in the digital environment.

| Digital Scholarship Overview | Digital Scholarship |

"Modern Technology, Leaky Copyrights and Claims of Harm: Insights from the Curious History of Photocopying"

Diane Leenheer Zimmerman has self-archived "Modern Technology, Leaky Copyrights and Claims of Harm: Insights from the Curious History of Photocopying" in SSRN.

Here's an excerpt:

The core problem this paper attempts to address what should count as "economic harm" in determining whether particular kinds of copying are appropriately treated as copyright infringement. . . . The argument that copying without permission, especially on the internet, is per se harmful has led to a variety of increasingly stringent self-help and legislative measures designed to prevent and to punish the activity, although often without evidence of success. But researchers who study such things continue to find evidence of the damage, at least from noncommercial activity, elusive. The reasons this might be so, and the inferences to be drawn from it are an interesting subject for copyright theorists to consider, but so far, very little serious attention has been paid to examining the phenomenon. This paper is an effort to begin filling in that blank by setting out a case study of a rampant form of copying technology that long pre-dates the internet: photocopying. In many ways, the photocopying story is a microcosm of what happens when a new technology bursts onto the copyright scene, and as such, it is a possible source of learning about how copyright should treat the issue of noncommercial copying generally, whether it happens compliments of Xerox, or compliments of your regional ISP.

| Digital Scholarship |

Copyright: "Adverse Possession of Orphan Works"

Katherine M. Meeks, has self-archived "Adverse Possession of Orphan Works" in SelectedWorks.

Here's an excerpt:

This paper proposes that Congress could adapt the real property doctrine of adverse possession to clear the muddy rights to these orphan works. Adverse possession is a mechanism for resolving competing claims to land that arise where an owner has failed to assert his rights for many years, allowing a hostile trespasser to assume control of the land as if it were his own. . . Although Congress would need to modify the black letter test before it could be applied to intangible property, the policy rationale behind adverse possession applies with equal or greater force in the orphan works context. Where the holder of a copyright has failed both to exploit his product and to register his whereabouts with the Copyright Office, such that others might seek permission to use his creative expression, his intellectual property rights should not shackle libraries, museums, or other institutions that perceive a scholarly or commercial demand for the work.

| Google Books Bibliography | Digital Scholarship |

"Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension"

Christopher J. Buccafusco and Paul J. Heald have self-archived "Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension" in SSRN.

Here's an excerpt:

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Publisher Plaintiffs Issue Statement on Order in Georgia State University E-Reserves Copyright Case

The publisher plaintiffs have issued a statement on Judge Orinda Evans' order in the Georgia State University e-reserves copyright case.

Here's an excerpt:

The District Court's decision is marred by a number of serious legal errors. The fair use exception cannot be stretched beyond recognition simply because course materials are delivered in a digital format by an educational institution. The ruling excuses copyright violations by GSU and endorses unauthorized copying and distribution of academic works well beyond what the law allows and what universities across the country consider reasonable. The decision devalues academic scholarship by treating such work as 'factual' compilations. . . .

As with the initial decision to bring suit, the decision regarding an appeal will be based on a considered assessment that takes into account the extent to which this ruling, which we believe to be legally vulnerable on multiple grounds, endangers the creation and dissemination of high-quality academic work

Georgia State University has also issued a statement about the order.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

Wiley Open Access Program Adopts Creative Commons Attribution Licence

Effective immediately, journals in the Wiley Open Access program will use the Creative Commons Attribution Licence for articles.

Here's an excerpt from the press release:

Rachel Burley, Vice President and Director, Open Access, commented, "Wiley is committed to meeting the evolving needs of the authors who wish to provide open access to the published articles that convey the results of their research."

Burley continued, "Our announcement today concerns Wiley’s fully open access journals. We are also reviewing the licensing arrangements for our hybrid program OnlineOpen, our open access option for individual articles published in subscription journals. In consultation with our publishing partners, we aim to continue to develop and deliver sustainable open access products providing author choice and high levels of service."

In the first instance, the journals moving to the CC-BY licence are Brain and Behavior, Ecology and Evolution, MicrobiologyOpen, Cancer Medicine, Food Science & Nutrition, Evolutionary Applications, Geoscience Data Journal and EMBO Molecular Medicine.

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

Judge Issues Order in Georgia State University E-Reserves Copyright Case: GSU’s Defense Costs to Be Paid by Plaintiffs

Judge Orinda Evans has issued an order in the Georgia State University e-reserves copyright case that says, in part, that the defendants's attorney's fees and other defense costs will be paid by plaintiffs.

Here's an excerpt from the order:

In this litigation, the Court limited Plaintiffs to claims arising in three semesters in 2009 but did not require Plaintiffs to pursue all claims. When the trial began, Plaintiffs chose to pursue 99 claims out of 126. They then dropped 25 claims (and added one) during the trial. As to the remaining 75 claims, no prima facie case was proven in 26 instances. Digital permissions were unavailable in 33 instances. Neither digital nor hard copy permissions were available in 18 cases. Although the Court does not doubt Plaintiffs' good faith in bringing this suit, and there was no controlling authority governing fair use in a nonprofit educational setting, Plaintiffs' failure to narrow their individual infringement claims significantly increased the cost of defending the suit.

For these reasons, the Court exercises its discretion to award to Defendants their reasonable attorneys' fees. Other costs will also be taxed in favor of Defendants and against Plaintiffs to the extent permitted by statute.

Read more about it at "Judge Denies Publishers' Request for Relief in Georgia State U. E-Reserves Case" and "The Prevailing Party."

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

"It Was Never a Universal Library: Three Years of the Google Book Settlement"

Walt Crawford has published "It Was Never a Universal Library: Three Years of the Google Book Settlement" in Cites & Insights: Crawford at Large.

Here's an excerpt:

Remember the Google Books settlement? It was going to settle a four-year-old pair of lawsuits (four years old then, eight years old now) against Google (by the Association of American Publishers, AAP, and the Authors Guild, AG) asserting that Google was infringing on copyright through its two-line snippets from in-copyright books scanned in the Google Library Project—and by the scanning itself. Later, a third group representing media photographers also sued Google for the same actions. . . .

This is a long set of notes and comments (cites & insights). It strikes me that the topic and complexity deserve that length—but note that I'm offering much briefer excerpts and comments on most items than I normally would in this sort of roundup.

After two sets of general notes and overviews (one before the settlement was rejected, one after) I'm breaking the discussion down by topics rather than chronologically.

| Google Books Bibliography | Digital Scholarship |

"Taking Stock of the Creative Commons Experiment: Monitoring the Use of Creative Commons Licenses and Evaluating Its Implications for the Future of Creative Commons and for Copyright Law"

Giorgos Cheliotis, Warren Chik, Ankit Guglani, and Giri Kumar Tayi have self-archived "Taking Stock of the Creative Commons Experiment: Monitoring the Use of Creative Commons Licenses and Evaluating Its Implications for the Future of Creative Commons and for Copyright Law" in SSRN.

Here's an excerpt:

We provide data demonstrating the popularity of CC, examine which specific license types within the CC framework are most popular, and then identify contributing factors for the relative popularity of some of the license types. This includes individual author incentives, the consistency and aims of the online communities which adopt CC as a licensing model, the underlying medium (text, photography, audio, video or interactive
content), the intended use of the work, as well as the sociopolitical, legal and economic background of the jurisdictions where the works are being produced. We show that the spread of the licenses is global and encompasses both developed and developing nations with varied cultural and historical backgrounds, which we claim is indicative of a general social shift towards more open collaboration and the rise of a new global consciousness of sharing and participation across national borders. . . . In conclusion we examine to what extent copyright law and policy should be informed by the needs and choices of this new generation of authors adopting CC licenses, also taking into consideration the changing interests of society in the digital age.

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

"Copyright Law in the Digital Environment: Private Ordering and the Regulation of Digital Works"

Primavera De Filippi has self-archived "Copyright Law in the Digital Environment: Private Ordering and the Regulation of Digital Works" in HAL.

Here's an excerpt:

The book begins with an analysis of copyright law as it applies to the physical and the digital world. The challenges that the law has to face in the digital environment are specifically addressed by illustrating how the self-regulating features of the copyright regime have been jeopardized with the advent of Internet and digital technologies. The book subsequently analyses the role of private ordering in the regulation of information and presents the various mechanisms of self-help that have been developed so far to address the challenges of the digital world. The contrast is between the use of end-user licensing agreements and technological measures of protection (e.g. DRM) intended to restrict the consumption of digital works beyond the scope of the copyright regime, and the use of Open Content licenses (e.g. Creative Commons) intended to support a greater dissemination and broader availability of works, amidst other goals. The book finally investigates the corresponding advantages and drawbacks of these two divergent approaches, and concludes by addressing the justifications for governmental intervention in regulating the operations of private ordering.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

"The New Prohibition: A Look at the Copyright Wars through the Lens of Alcohol Prohibition"

Donald P. Harris has self-archived "The New Prohibition: A Look at the Copyright Wars through the Lens of Alcohol Prohibition" in SSRN.

Here's an excerpt:

This Article argues that legislators, commentators, and the copyright industry must entertain laws that embrace filesharing, and seek other ways to incentivize artists and other creators. The Article traces Alcohol Prohibition of the 1920s and 1930s as an historical example of laws that were inconsistent with the vast majority of society's morals and norms. Looking back, one can see many similarities between the Alcohol and Filesharing Prohibitions. The Article suggests, then, that lessons learned from the failed "noble experiment" of Alcohol Prohibition should be applied to the current filesharing controversy. Doing so, the Article advocates legalizing certain noncommercial filesharing. A scheme along these lines will comport with societal norms and will force new business models to replace outdated and ineffective business models.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

"How Fair Use Can Help Solve the Orphan Works Problem"

Jennifer M. Urban has self-archived "How Fair Use Can Help Solve the Orphan Works Problem" in SSRN.

Here's an excerpt:

This Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, the fair use doctrine in United States copyright law provides a partial solution. The Article addresses three basic questions: first, does fair use provide a viable basis on which libraries might digitize orphans? Second, does fair use provide a viable basis on which to make these orphans available to patrons or the public? Third, more generally, can or should fair use do any additional work in infringement analysis where the copyrighted work in question is an orphan?

| Google Books Bibliography | Digital Scholarship |

"What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law"

Michael D. Murray has self-archived "What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law."

Here's an excerpt:

The lessons of the transformative test for those engaged in creative, artistic, or literary pursuits may be summed up in the following: if you copy an original work, use it for a different purpose than the purpose for which the original work was created. Modify the contents, function, and meaning of the original work through alteration of the original expression or the addition of significant new expression.

| Digital Scholarship |

"Copyright Risk Management: Principles and Strategies for Large-Scale Digitization Projects in Special Collections"

The Association of Research Libraries has released a pre-publication version of "Copyright Risk Management: Principles and Strategies for Large-Scale Digitization Projects in Special Collections."

Here's an excerpt:

Copyright law often seems unmanageably complex, leading librarians to focus too much on a single aspect of a project and, when that aspect proves inapplicable, to give up the proposed digitization. But the multifaceted nature of the law, especially its variety of limitations and exceptions, should really be seen as an invitation to a holistic evaluation that focuses on risk and considers how each facet can contribute to a risk reduction strategy. If this is done consistently as digitization projects are undertaken, the risk of infringement litigation will usually be seen to be much more manageable, and a great deal of unnecessary self-censorship will be avoided.

See also the pre-publication version of "Digitization of Special Collections and Archives: Legal and Contractual Issues."

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

The Digital Public Domain: Foundations for an Open Culture

Open Book Publishers has released The Digital Public Domain: Foundations for an Open Culture.

Here's an excerpt:

The public domain is the sovereign space of all citizens of the world. Like the air we breathe, it is free for all people to use, without restriction, no rights reserved. Our public ownership of this domain of knowledge should be understood as a fundamental human right to access our shared knowledge, the use of which is not the result of a grant by any specific government.

In this book, the members of Communia not only articulates this positive conception of our public domain, but also seek to make the European public domain actionable. The book defines the public domain of the European nations and studies the environment in which it operates. Most importantly, it recommends a set of actions to build and make use of that domain as an environment of shared intellectual property and multifaceted cultural heritage.

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

Free a Book: Unglue.it Launches

Unglue.it has launched.

Here's an excerpt from the Frequently Asked Questions:

Unglue.it is a place for individuals and institutions to join together to give their favorite ebooks to the world. We work with rights holders to decide on fair compensation for releasing a free, legal edition of their already-published books, under Creative Commons licensing. Then everyone pledges toward that sum. When the threshold is reached (and not before), we collect the pledged funds and we pay the rights holders. They issue an unglued digital edition; you're free to read and share it, with everyone, on the device of your choice, worldwide.

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

Association of American Publishers Issues Statement on Georgia State University E-Reserves Copyright Case Ruling

The Association of American Publishers has issued a statement on the Georgia State University e-reserves copyright case ruling.

Here's an excerpt from the press release:

At the same time, we are disappointed with aspects of the Court's decision. Most importantly, the Court failed to examine the copying activities at GSU in their full context. Many faculty members have provided students with electronic anthologies of copyrighted course materials which are not different in kind from copyrighted print materials. In addition, the Court's analysis of fair use principles was legally incorrect in some places and its application of those principles mistaken. As a result, instances of infringing activity were incorrectly held to constitute fair use. . . .

The Court's ruling has important implications for the ongoing vitality of academic publishing as well as the educational mission of colleges and universities. Contrary to the findings of the Court, if institutions such as GSU are allowed to offer substantial amounts of copyrighted content for free, publishers cannot sustain the creation of works of scholarship. The resources available to educators will be fundamentally impaired.

| E-science and Academic Libraries Bibliography | Digital Scholarship |

"Issue Brief: GSU Fair Use Decision Recap and Implications"

ARL has released "Issue Brief: GSU Fair Use Decision Recap and Implications."

Here's an excerpt:

Although the decision is certainly not perfect (the use of bright line rules for appropriate amount under factor 3 is particularly troubling), Judge Evans has written a thorough and thoughtful analysis of the issues, and her opinion represents an overwhelming victory for Georgia State individually, a major defeat for the plaintiff publishers and for the AAP and CCC, and overall a positive development for libraries generally. The substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for fair use of books on e-reserve, and libraries remain free to take more progressive steps.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

Georgia State University E-Reserves Copyright Case Ruling (Cambridge University Press et al. v. Patton et al.)

The ruling is in for the Cambridge University Press et al. v. Patton et al. case.

Here's an excerpt from the ruling:

Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed Plaintiffs' copyrights. The question now is whether Georgia State's 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book. Also, the fair use policy did not provide sufficient guidance in determining the "actual or potential effect on the market or the value of the copyrighted work," a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).

Read more about it at "The GSU Decision—Not an Easy Road for Anyone" and “Inside the Georgia State Opinion.”

| Scholarly Electronic Publishing Bibliography 2010: "SEP [Scholarly Electronic Publishing Bibliography] is compiled with utter professionalism. It reminds me of the work of the best artisans who know not only every item that leaves their workshops, but each component used to create them—providing the ideal quality control." — Péter Jacsó ONLINE 27, no. 3 (2003): 73-76. | Digital Scholarship |

Public Domain: Communia Final Report

The Communia has released the Communia Final Report.

Here's an excerpt:

This Public[3] Report is the outcome of the work of the COMMUNIA Network on the Digital Public Domain (hereinafter "COMMUNIA"). This Report was undertaken to (i) review the activities of COMMUNIA; (ii) investigate the state of the digital public domain in Europe; and (iii) recommend policy strategies for enhancing a healthy public domain and making digital content in Europe more accessible and usable.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

"Orphan Works as Grist for the Data Mill"

Matthew Sag has self-archived "Orphan Works as Grist for the Data Mill" in SSRN.

Here's an excerpt:

The phenomenon of library digitization in general, and the digitization of so-called "orphan works" in particular, raises many important copyright law questions. However, as this article explains, correctly understood, there is no orphan works problem for certain kinds of library digitization. . . .

The nonexpressive use of copyrighted works has tremendous potential social value: it makes search engines possible, it provides an important data source for research in computational linguistics, automated translation and natural language processing. And increasingly, the macro-analysis of text is being used in fields such as the study of literature itself. So long as digitization is confined to data processing applications that do not result in infringing expressive or consumptive uses of individual works, there is no orphan works problem because the exclusive rights of the copyright owner are limited to the expressive elements of their works and the expressive uses of their works.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Copyright: "IP Watchlist 2011"

Consumers International has released the "IP Watchlist 2011" .

Here's an excerpt:

The Consumers International (CI) IP Watchlist, now in its third year, assesses the fairness of the world's intellectual property (IP) laws and enforcement practices from an important yet under-represented perspective: that of the ordinary consumer. Using a detailed checklist of over 50 criteria, applied to over 20 countries, the Watchlist provides a snapshot of how a number of the world's major IP regimes support, or fail to support, consumers' access to educational, cultural and scientific knowledge.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

"Abandoning the Orphans: An Open Access Approach to Hostage Works"

Lydia Pallas Loren has self-archived "Abandoning the Orphans: An Open Access Approach to Hostage Works" in SSRN.

Here's an excerpt:

Metaphors shape how we approach challenging legal issues. Reorienting the metaphor from "orphans" to "hostages" illuminates the real problem with copyright owners that cannot be located: lock-up of expressive works. Solving the hostage work problem requires creating protections for those who act as "special forces" and free the hostages. If an entity is not negligent in gathering and disclosing information that identifies a work as a "hostage work" and that entity provides an open access copy of the work together with the hostage freeing information, then that entity should be immune from monetary liability for infringement. Copyright owners should retain the ability to obtain injunctive relief to either correct inaccurate status or owner information, or obtain removal of the digital copy of the work from an open access database. This injunctive power would translate into an enforceable obligation of open access providers to update inaccurate information and remove works inappropriately designated as hostage works. For derivative work creators, courts should freely apply equitable doctrines to prevent inappropriate injunctive relief and limit the ability of later re-surfacing copyright owners to sue derivative work creators.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

"How Institutionalized Are Model License Use Terms: An Analysis of E-journal License Use Rights Clauses from 2000-2009"

College & Research Libraries has released "How Institutionalized Are Model License Use Terms: An Analysis of E-journal License Use Rights Clauses from 2000-2009," a preprint by Kristin R. Eschenfelder et al.

Here's an excerpt:

This paper explored the degree to [which] use terms proposed by model licenses have become institutionalized across different publishers' licenses. It examined model license use terms in four areas: downloading, scholarly sharing, interlibrary loan and electronic reserves. Data collection and analysis involved content analysis of 224 electronic journal licenses spanning 2000-2009. Analysis examined how use terms changed over time, differences between consortia and site license use terms and differences between commercial and non-commercial publisher license use terms. Results suggest that some model license use terms have become institutionalized while others have not.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |