Copyright – Page 29 – DigitalKoans

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 |

Supreme Court to Hear First-Sale Doctrine Case Next Term

The Supreme Court will hear an important first-sale doctrine case (Supap Kirtsaeng v. John Wiley & Sons) in its next term.

Here's an excerpt from the case summary:

The question presented is how these [first-sale doctrine] provisions apply to a copy that was made and legally acquired abroad and then imported into the United States. Can such a foreign-made product never be resold within the United States without the copyright owner's permission, as the Second Circuit held in this case? Can such a foreign-made product sometimes be resold within the United States without permission, but only after the owner approves an earlier sale in this country, as the Ninth Circuit held in Costco? Or can such a product always be resold without permission within the United States, so long as the copyright owner authorized the first sale abroad, as the Third Circuit has indicated?

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Intellectual Property and the U.S. Economy: Industries in Focus

The US Commerce Department has released Intellectual Property and the U.S. Economy: Industries in Focus.

Here's an excerpt from the press release:

While IP is used in virtually every segment of the U.S. economy, the report identifies the 75 industries that use patent, copyright, or trademark protections most extensively. These "IP-intensive industries" are the source—directly or indirectly—of 40 million jobs. That's more than a quarter of all the jobs in this country. Some of the most IP-intensive industries include: Computer and peripheral equipment, audio and video equipment manufacturing, newspaper and book publishers, Pharmaceutical and medicines, Semiconductor and other electronic components, and the Medical equipment space. . . .

The report has several important findings, including:

IP-intensive industries contributed $5.06 trillion to the U.S. economy or 34.8 percent of GDP in 2010.

40 million jobs, or 27.7 percent of all jobs, were directly or indirectly attributable to the most IP-intensive industries in 2010.

Between 2010 and 2011, the economic recovery led to a 1.6 percent increase in direct employment in IP-intensive industries, faster than the 1.0 percent growth in non-IP-intensive industries.

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

New French Law: Digital Exploitation of 20th Century Unavailable Books

France has implemented a new law on the Digital Exploitation of 20th Century Unavailable Books.

Here's an excerpt from the Library of Congress' summary:

This Law adds a new chapter to the French Intellectual Property Code, comprising articles L.134-1 to L.134-9. Article L. 134-1 provides that an unavailable book is "a book published in France before January 1, 2001, which is commercially unavailable and is not currently published in paper or digital format." (Id.) The Law creates a public database specifically dedicated to unavailable books, accessible at no charge, which will list these titles. . . .

After a book has been registered in the database for six months without any opposition, a collective management society approved by the Ministry of Culture will be authorized to grant a publisher a non-exclusive license for digital exploitation of the book for a period of five years, which will be renewable (art. L.134-3). . . .

In addition, the Law provides an exception for libraries. It states that the collective management society must authorize libraries that are accessible to the public to digitally reproduce at no cost and distribute to their patrons unavailable books, where a holder of the right to reproduce the work in its paper format has not been found within ten years of the first authorization to reproduce, provided that the library does not receive any commercial profit. If the collective management society refuses to grant such a right, it has to state the grounds for that refusal (art. L.134-8). The holder of the right to reproduce the work in its paper format may at any time request that the collective management society withdraw the right granted to a library (id).

| Google Books Bibliography | Digital Scholarship |

In AAP Meeting Video, RIAA Chairman Discusses How US ISPs Will Enforce Copyright Restrictions This July

At the Association of American Publishers' 2012 Annual Meeting, Cary Sherman, Chairman and CEO of the Recording Industry Association of America, discussed how US ISPs will begin a copyright enforcement program this July. (See the AAP's USTREAM page, Content Industries and Copyright entry.)

The ISPs will be acting in accordance with a "Memorandum of Understanding" that outlines a graduated response and "mitigation measures."

| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

"Wait for It. . . Commons, Copyright and the Private (Re)Ordering of Scientific Publishing"

Jorge L. Contreras has self-archived "Wait for It. . . Commons, Copyright and the Private (Re)Ordering of Scientific Publishing" in SSRN.

In this paper, Contreras critiques various open access strategies, and he proposes that publishers be granted one-year exclusive licenses as an alternative to these strategies.

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

"Teaching with Google Books: Research, Copyright, and Data Mining"

Nathan Rinne has self-archived "Teaching with Google Books: Research, Copyright, and Data Mining" in E-LIS.

Here's an excerpt:

Google's Google Books site is a rich resource that is probably underutilized by most educators. It has all kinds of potential for a) getting students into the research process in a way that they will enjoy (for example, they can see how a famous quote has been used/quoted, find out which books cite the journal article they are interested in, or check to see if a specific book covers a topic that they want to explore, etc.); b) teaching them about the deeper civic purpose and the evolving state of copyright law; and, c) exploring, with the help of Google Book's Ngram viewer, the promise and ethics surrounding the issue of data-mining and "non-consumptive" research, or research that is accomplished by "mining" books for data, as opposed to reading them.

| Google Books Bibliography | Digital Scholarship |

"Orphan Works: Mapping the Possible Solution Spaces"

David Robert Hansen has self-archived "Orphan Works: Mapping the Possible Solution Spaces" in SSRN.

Here's an excerpt:

This paper surveys a range of proposed orphan works solutions. The goal is to acquaint the reader with the wide variety of solution types, and to identify the positive and negative aspects of each. The paper discusses four general categories of proposed solutions to the orphan works problem: Remedy-limitation approaches, such as the one advocated in the 2006 U.S. Copyright office proposal, that are predicated on a user's good-faith, reasonable search for rights holders; administrative systems, such as the one adopted in Canada, that allow users to petition a centralized copyright board to license specific reuses of orphan works; access and reuse solutions that are tailored to rely upon the existing doctrine of fair use; and extended collective licensing schemes, which permit collective management organizations ('CMOs') to license the use of works that are not necessarily owned by CMO members, but that are representative of the CMO members' works.

| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

Digital Copyright: Authors Guild Files Motion for Partial Judgment on the Pleadings in Authors Guild et al. v. Hathitrust et al.

The Authors Guild has filed a motion for partial judgment on the pleadings in the Authors Guild et al. v. Hathitrust et al. case.

Here's an excerpt from the associated "Memorandum of Law in Support of Plaintiffs' Motion for Partial Judgment on the Pleadings":

Defendants are wildly exceeding the special privileges Congress granted to libraries under Section 108 by systematically digitizing, reproducing, distributing and putting at risk millions of works through their mass book digitization program. Defendants' so-called orphan works program is similarly inimical to the Copyright Act, as it violates Section 108(h)'s explicit limitation of libraries' use of orphan works to the twenty year period preceding the end of their copyright term. Neither fair use under Section 107, nor any other statutory exception under the Copyright Act, can justify Defendants' systematic and concerted digitization, reproduction, distribution and other unauthorized uses of millions of copyright-protected library books. Accordingly, Plaintiffs urge the Court to grant their motion for partial judgment on the pleadings.

| Digital Bibliographies | Digital Scholarship |

Two Videos on the Code of Best Practices in Fair Use for Academic and Research Libraries

The UCLA Library has released two videos on ARL's Code of Best Practices in Fair Use for Academic and Research Libraries. Peter Jaszi and Brandon Butler are the featured speakers.

| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

A New Day for Website Archiving 2.0

The Association of Research Libraries has released A New Day for Website Archiving 2.0.

Here's an excerpt:

A central issue in the fair use analysis is whether the use is "transformative." Campbell v. Acuff-Rose, 510 U.S. 569, 579 (1994). In the website archiving context, the question is whether a library's reproduction and subsequent display of entire websites without material alteration is "transformative." The case law and legal opinions discussed below all indicate that library website archiving for the purpose of preservation and scholarship is transformative as that term is used by courts in the fair use context.

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

Pamela Samuelson et al. Send Letter to US District Court Judge Denny Chin about Authors Guild v. Google Case

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the UC Berkeley School of Law, and other scholars have sent a letter ("Academic Author Objections to Plaintiff's Motion for Class Certification") to US District Court Judge Denny Chin about class certification issues in the Authors Guild v. Google Case.

Here's an excerpt:

We believe that our works of scholarship are more typical of the contents of research library collections than works of the three named plaintiffs in this case. Betty Miles is the author of numerous children's books. Jim Bouton is a former baseball pitcher who has written both fiction and nonfiction books based on his experiences as a baseball player. Joseph Goulden is a professional writer who has written a number of nonfiction books on a variety of subjects, including a book about "superlawyers." None of these three are academic authors. Their books are aimed at a popular, rather than an academic, audience. As professional writers, their motivations and interests in having their books published would understandably be different, and likely more commercial, than those of academic scholars. Hence, our concern is that these three do not share the academic interests that are typical of authors of books in research library collections. As we explain further below, the clearest indication that the named plaintiffs do not share the same priorities typical of academic authors is their insistence on pursuing this litigation.

| Google Books Bibliography | Digital Scholarship |

How to Fix Copyright

William Patry, Senior Copyright Counsel at Google, has published How to Fix Copyright (publisher's description).

Here's an excerpt:

Our current laws are the result of "lobbynomics," the continual use of exaggerated (and often false) claims and crises as an excuse to pass laws that are unnecessary and many times harmful. . . . We will never fix our laws unless we clean house and start all over again, this time on a sound, empirical basis: Simply adding on to a failed structure will no longer work.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

"Golan v. Holder: A Farewell to Constitutional Challenges to Copyright Laws"

The Library Copyright Alliance has released "Golan v. Holder: A Farewell to Constitutional Challenges to Copyright Laws" by Jonathan Band.

Here's an excerpt:

The majority opinion in Golan closes the door on constitutional challenges to copyright statutes unless those statutes contain absolutely no time limits or directly undermine the idea/expression dichotomy or fair use. Justice Breyer failed to convince the Court that under the Constitution Congress had the authority to enact only utilitarian copyright statutes that incentivized the creation of new material. The majority opinion leaves Congress as the sole venue for fighting draconian copyright laws.

| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

Sharing: Culture and the Economy in the Internet Age

The Amsterdam University Press has released Sharing: Culture and the Economy in the Internet Age.

Here's an excerpt:

This book is about file sharing for creative, expressive or informative works in all media. More specifically, it is about file sharing between individuals and without profit motive. File sharing is the act of making a file available to other individuals by putting it on-line, by sending a copy, or by rendering it accessible through a file sharing software. We defend the view that sharing without direct or indirect monetary transaction—or "non-market" sharing—is legitimate. We also claim that sharing is socially and culturally valuable and will play a key role in the future of our culture and the creative economies. Furthermore, this book proposes a means to strengthen and exploit the synergy between file sharing and creativity, for the general benefit of society and the enrichment of the cultural economy.

| Digital Scholarship |

Code of Best Practices in Fair Use for Academic and Research Libraries

The Association of Research Libraries, the Center for Social Media at the School of Communication of American University, and the Program on Information Justice and Intellectual Property at the Washington College of Law of American University have released the Code of Best Practices in Fair Use for Academic and Research Libraries.

Here's an excerpt:

This is a code of best practices in fair use devised specifically by and for the academic and research library community. It enhances the ability of librarians to rely on fair use by documenting the considered views of the library community about best practices in fair use, drawn from the actual practices and experience of the library community itself.

It identifies eight situations that represent the library community's current consensus about acceptable practices for the fair use of copyrighted materials and describes a carefully derived consensus within the library community about how those rights should apply in certain recurrent situations.

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

"Orphan Works: Definitional Issues"

David Robert Hansen has self-archived "Orphan Works: Definitional Issues" in SSRN. This is a white paper from the Berkeley Digital Library Copyright Project.

Here's an excerpt:

When discussing orphan works, two basic definitional questions arise: (1) exactly what is the "orphan works" problem?, and (2) what is the size of this problem? The answers to these two questions are central to understanding how proposed solutions work to remedy the situation. Though both questions have long been posed, the answer to the first (what is the "orphan works"; problem) can vary based on the type of work or the particular user, and the answer to the second (what is the size of the problem) remains difficult to state with precision. This paper explores both and identifies areas where further research is needed.

| Digital Scholarship's Digital Bibliographies | Digital Scholarship |

Public Domain Defeat: US Supreme Court Golan v. Holder Ruling

In a major defeat for public domain advocacy, the US Supreme Court has ruled against Lawrence Golan and others in Golan v. Holder.

Here is an excerpt from a synopsis of the case from the Legal Information Institute:

Congress enacted Section 514 of the Uruguay Round Agreements Act in order to comply with the international copyright standards of the Berne Convention for the Protection of Literary and Artistic Works. Section 514 restores copyright protection to foreign works currently found in the public domain. Lawrence Golan and other performers, educators, and motion picture distributors brought this suit challenging Section 514, arguing that Congress's removal of works from the public domain exceeded its Copyright Clause powers. Golan also argues that Section 514 violates the First Amendment because the law does not serve any important government interests. Attorney General Holder counters that the Copyright Clause does not restrict Congress's authority to remove works from the public domain. He further argues that Section 514 does not violate the First Amendment because the government has a substantial interest in complying with the Berne Convention and protecting American works abroad.

Here's an excerpt from the ruling:

Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judgment of the Court of Appeals for the Tenth Circuit is therefore Affirmed.

In a lengthy dissent, Justice Stephen Breyer said:

The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute.

Justice Samuel Alito also dissented.

| Digital Scholarship |

Three New Documents about Creative Commons Licenses for Data

The Creative Commons has released three new documents about the use of its licenses for data: "Data," "Data and CC Licenses," and "CC0 Use for Data."

Here's an excerpt from the announcement by Sarah Hinchliff Pearson:

We have done a lot of thinking about data in the past year. As a result, we have recently published a set of detailed FAQs designed to help explain how CC licenses work with data and databases.

These FAQs are intended to:

alert CC licensors that some uses of their data and databases may not trigger the license conditions,

reiterate to licensees that CC licenses do not restrict them from doing anything they are otherwise permitted to do under the law, and

clear up confusion about how the version 3.0 CC licenses treat sui generis database rights.

| Digital Scholarship's Weblogs and Tweets | Digital Scholarship |