Category: Copyright

Register of Copyrights Announces Priorities and Special Projects through October 2013

Maria A. Pallante, Register of Copyrights, has announced the U.S. Copyright Office's priorities and special projects through October 2013.

Here's an excerpt from the press release:

The paper articulates 17 priorities in the areas of copyright policy and administrative practice, as well as 10 new projects designed to improve the quality and efficiency of the U.S. Copyright Office's services in the 21st century. . . .

Rogue websites, illegal streaming, small claims, orphan works and library preservation are among the issues the Copyright Office will focus on through research and legislative support for Congress. The document also summarizes the work of the office in global policy, including U.S. trade negotiations, anti-piracy efforts and international discussions of exceptions and limitations.

The administrative practice of the Copyright Office will be particularly active during the next two years. The office has launched the fifth triennial rulemaking involving the anti-circumvention provisions of the Digital Millennium Copyright Act and will spend significant time considering and resolving regulatory issues affecting the copyrightability and registration of websites and other forms of digital authorship.

Maximizing the technical operation of the registration system is one of 10 new projects Pallante announced to help steer the office's future path. Other projects include a study of the office's costs and fees for public services, a major revision of the "Compendium of Copyright Office Practices," increased accessibility to historic copyright records, dialogues and roundtables with members of the copyright marketplace, and research partnerships with the academic community. In addition, the office will bolster its role in educational undertakings, focusing on core principles of copyright law and finding innovative ways to address the growing copyright education needs of the public.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

Digital Scholarship |

Copy(write): Intellectual Property in the Writing Classroom

The WAC Clearinghouse has released Copy(write): Intellectual Property in the Writing Classroom as an open access book under a under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.

Here's an excerpt:

The book is divided into three topic areas: Part I focuses on the law and legal landscape; Part II focuses on the tools and resources available to researchers and teachers; and Part III focuses on pedagogical practices and approaches for addressing intellectual property in the writing classroom. Each part concludes with a response by a notable scholar who helps highlight connections among the chapters and identifies enduring questions and future directions for scholarship and action.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Important Public Domain Case: Supreme Court Hears Golan v. Holder

The Supreme Court is now considering the Golan v. Holder case, which has significant implications for public domain works.

Here's an excerpt from the Supreme Court's Granted and Noted List entry that describes the case:

Section 514 of the Uruguay Round Agreements Act of 1994 (Section 514) did something unique in the history of American intellectual property law: It "restored" copyright protection in thousands of works that the Copyright Act had placed in the Public Domain, where they remained for years as the common property of all Americans. The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction. The enactment of Section 514 therefore had a dramatic effect on Petitioners' free speech and expression rights, as well as their economic interests. Section 514 eliminated Petitioners' right to perform, share and build upon works they had once been able to use freely. The questions presented are:

  1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
  2. Does Section 514 violate the First Amendment of the United States Constitution?

Transcripts of the oral arguments are available. The first one has been made public.

Read more about it at "Supreme Court Weighs Legality of Putting Public Domain Works Back under Copyright."

| New: Institutional Repository and ETD Bibliography 2011 | Digital Scholarship |

Analysis of the Authors Guild et al. v. HathiTrust et al. Case

Below are a selection of posts and other documents analyzing the Authors Guild et al. v. HathiTrust et al. case.

Read more about it at "Authors Guild v. HathiTrust et al. Resources."

| New: Institutional Repository and ETD Bibliography 2011 | Digital Scholarship |

Conference of European National Librarians Will Use Open Licensing for Data

The Conference of European National Librarians members will use open licensing for their data.

Here's an excerpt from the press release:

Meeting at the Royal Library of Denmark, the Conference of European National Librarians (CENL), has voted overwhelmingly to support the open licensing of their data. CENL represents Europe's national libraries, and is responsible for the massive collection of publications that represent the accumulated knowledge of Europe. . . .

It means that the datasets describing all the millions of books and texts ever published in Europe—the title, author, date, imprint, place of publication and so on, which exists in the vast library catalogues of Europe—will become increasingly accessible for anybody to re-use for whatever purpose they want.

It will mean that Wikipedia can use the metadata, linking it to all sorts of articles; it will mean that apps developers can embed it in new mobile tools for tourism or teaching. Crucially, for information scientists, it will mean that vast quantities of trustworthy data are available for Linked Open Data developments, creating relationships between elements of information that's never been possible before. . . .

The first outcome of the open licence agreement is that the metadata provided by national libraries to Europeana.eu, Europe's digital library, museum and archive, via the CENL service The European Library, will have a Creative Commons Universal Public Domain Dedication, or CC0 licence.

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

"Copyfraud and Classroom Performance Rights: Two Common Bogus Copyright Claims"

Brandon Butler has published "Copyfraud and Classroom Performance Rights: Two Common Bogus Copyright Claims" in the latest issue of Research Library Issues.

Here's an excerpt:

Negotiating copyright law can be challenging even when basic facts are not in doubt. It becomes unnecessarily difficult when publishers, distributors, and even some libraries misrepresent basic facts: which works are under copyright, and which rights a library must purchase to support teaching and learning. Unfortunately such misrepresentations are widespread. This article will describe two common misrepresentations about copyright law: "copyfraud" and "public performance rights" for classroom uses.

| New: Institutional Repository and ETD Bibliography 2011 | Digital Scholarship |

Four Universities and UC Libraries Join Orphan Works Project

Cornell University, Duke University, Emory University, and Johns Hopkins University have joined the Orphan Works Project.

Here's an excerpt from the press release:

Leaders at Cornell, Duke, Emory and Johns Hopkins universities jointly announced today that they would begin making the full text of thousands of "orphan works" in their library collections digitally accessible to students, faculty and researchers at their own institutions. . . .

With the announcement, the four institutions formally join the University of Michigan, the University of Wisconsin, and the University of Florida in a collaborative Orphan Works Project, which aims to identify orphan works that have been scanned and archived in the HathiTrust Digital Library. HathiTrust is a partnership of more than 50 major research institutions working to share, archive and preserve their combined collections of digitized books and journals.

Currently, more than 9 million digitized volumes are held by the HathiTrust. No one knows exactly how many of those are orphans, but HathiTrust executive director John Wilkin has estimated that it could be as many as half. Of those, most are unlikely to have any surviving person or entity who can claim them. . . .

Only books that are identified as orphans through a careful process and also held in print format by the individual institutions will be accessible through the HathiTrust website, and they will only be accessible to members of their respective communities. Just as most academic libraries only allow authorized patrons to check out books from their print collections, so will online access be restricted to users who can authenticate with their university ID and password. However, if a university library is open to the public, visitors will have access through library computers.

The University of California Libraries have also joined the project.

| Digital Scholarship |

"Access to the Agreement between Google Books and the British Library"

In "Access to the Agreement between Google Books and the British Library," Javier Ruiz of the Open Rights Group analyzes the Google Books contract between Google and the British Library (includes a link to contract).

Here's an excerpt:

The British Library recently announced to much fanfare a deal with Google to make available online a quarter of a million books no longer restricted by copyright, thus in the public domain.

The deal is presented as a win-win situation, where Google pays for the costs of scanning the books, which will be available on both Google and BL's websites. This sounds very philanthropic from Google, however the catch is in the detail:

"Once digitised, these unique items will be available for full text search, download and reading through Google Books, as well as being searchable through the Library's website and stored in perpetuity within the Library's digital archive."

In order to find out what this really means we asked the British Library for a copy of the agreement with Google, which was not uploaded to their transparency website with other similar contracts, as it didn't involve monetary exchange.

| Digital Scholarship |

Is the Google Book Settlement Still Possible?

In "Google Books Settlement, 2008-2011," James Grimmelmann analyzes the impact of recent rulings and case resolutions on the Google Book Settlement. The rulings and resolutions are the In re: Literary Works in Electronic Databases Copyright Litigation ruling, the National Music Publishers' Association's resolution of The Football Association Premier League Limited, et al. v. You Tube, Inc. lawsuit (consolidated into Viacom v. YouTube), and the Wal-Mart Stores, Inc. v. Dukes et al. ruling.

Here's an excerpt:

The road to class-wide settlement—even to a much more modest settlement that covers only scanning and searching—now appears to be barred. What is more, in light of the freelancers' case and the Supreme Court's recent Wal-Mart case, the road to class-wide litigation also looks to be extraordinarily difficult. Google will raise many of the same adequacy of representation arguments in its opposition to class certification. It might still be more feasible for a few copyright owners holding large number of copyrights to litigate on an individual basis—but the major publishers, who best fit that bill, have all more or less made their peace with Google through its Partner Program. The odds of the authors being able to see this one through to the end have just dropped precipitously. Google is holding all the cards now, and they're all full houses.

| New: Google Books Bibliography, Version 7 | Digital Scholarship |

ILL Impact: Second Circuit Ruling Limits First Sale Doctrine to Works Made in the US

The United States Court of Appeals for the Second Circuit has ruled in John Wiley & Sons, Inc. v. Supap Kirtsaeng that the first sale doctrine is limited to works manufactured in the US.

Here's an excerpt from the ruling:

Appeal from a judgment of the United States District Court for the Southern District of New York (Donald C. Pogue, Judge of the United States Court of International Trade, sitting by designation), following a jury trial, awarding statutory damages to plaintiff publisher for copyright infringement. Defendant claims on appeal that the District Court denied him a defense under the "first sale doctrine," 17 U.S.C. § 109(a), and erred in evidentiary rulings which, he alleges, led to the award of unduly high damages. In a case of first impression in our Court, we hold (1) that the first sale doctrine, which allows a person who buys a legally produced copyrighted work to sell or otherwise dispose of the work as he sees fit, does not apply to works manufactured outside of the United States, and (2) that the District Court did not err in its evidentiary rulings.

Commenting on this ruling in ARL Policy Notes, Jonathan Band said:

Accordingly, a library in the Second Circuit that wants to lend foreign manufactured copies must rely on fair use or the ambiguous exception in 17 USC 602(a)(2)(C) that allows a library to import 5 copies (except audiovisual works) for lending purposes, but doesn't specifically allow the library to actually lend those copies.

| New: Google Books Bibliography, Version 7 | Digital Scholarship |

Carl Malamud Issues Complaint about Smithsonian Institution’s Terms of Use and Licensing Policy

Carl Malamud has put up a website, What Would Luther Burbank Do?, that contains a complaint about the Smithsonian Institution's Terms of Use and Licensing Policy. The complaint concerns a take down notice that Mindy Sommers received from the Smithsonian Institution regarding her Vintage Seed Catalog Digital Collage Sheet Five.

Here's an excerpt:

1.1 The Smithsonian Institution's Terms of Use and Licensing Policy are in violation of 17 U.S.C. § 105 (the "works of government" clause of the Copyright Act) and 20 U.S.C. § 41 (the "increase and diffusion of knowledge among men" clause of the Smithsonian Charter). . . . .

6.1 Injunction. That the Smithsonian Institution be instructed to cease and desist all further "take down" notices until this matter has been thoroughly investigated.

6.2 Investigation. That the Board of Regents investigate and analyze the intellectual property policies of the Smithsonian Institution to determine if such policies are in violation of the Copyright Act or the Smithsonian Charter.

6.3 Restitution. That the Smithsonian Institution work with the community to create high-resolution scans of the Seed Displays source material that is not under copyright by external, non-governmental entities and that such high-resolution scans be released on the Internet with no restrictions on use.

| Digital Scholarship |

Google Books Bibliography, Version 7

Digital Scholarship has released version 7 of the Google Books Bibliography, which presents over 325 selected English-language articles and other works that are useful in understanding Google Books. It primarily focuses on the evolution of Google Books and the legal, library, and social issues associated with it, especially the Google Book Settlement. To better show the development Google Books, it is now organized by year of publication. It primarily includes journal articles, e-prints, magazine articles, and newspaper articles. This version expands coverage of law review articles and legal e-prints. Where possible, links are provided to works that are freely available on the Internet.

The following recent Digital Scholarship publications may also be of interest:

| Digital Scholarship | Digital Scholarship Publications Overview |

"Talking about the Public Domain"

Walt Crawford has published "Talking about the Public Domain" in the latest issue of Cites & Insights: Crawford at Large.

Here's an excerpt:

Ah, the public domain: Where creative work is supposed to wind up after a limited period during which the creator has exclusive control over distribution and copying. An ever-growing pool of literature, music, photography, video and art that we can use not only as inspiration but also as the direct basis for new works, annotating, deriving or just plain redistributing.

What a wonderful thing.

Too bad it's basically been frozen for quite a few years now, with almost nothing new entering the pool (except government publications—which start in the public domain) and things tagged with the Creative Commons CC0 license. Oh, and probably a few cases where a creator's been dead more than 70 years and has works produced since 1923.

Not only has it been frozen in the U.S., there are laws and treaties that would appear to shrink the public domain pool—which should, by any rational reading of the Constitution, be flatly unconstitutional.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

Opt-In Settlement for Google Books Case?

James Grimmelmann reports that Michael Boni told US District Court Judge Denny Chin at the 7/19/11 status conference that the parties involved in the Google Books lawsuit "have been aiming for an opt-in settlement." The next status conference will occur on 9/15/11.

Here's an excerpt from Grimmelmann's "GBS Status Conference: Opt-in Settlement in the Works?" post:

What that might mean is not obvious. It could mean an actual opt-in settlement, one that binds only class members who send in claim forms. It could mean a settlement in which Google commits to an open-ended offer to all class members. It could mean a narrower, scanning-and-searching-only settlement, so that copyright owners can "opt in" to book sales by striking their own individual deals with Google.

Read more about it at "Judge Concerned with Lack of Progress in Revised Google Settlement Talks."

| Digital Scholarship Publications Overview |

The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment

The European Parliament has released The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment.

Here's an excerpt:

The ACTA was motivated by a desire to establish equivalent provisions in international trade agreements containing rules on anti-counterfeiting. This is important at a time when free trade agreements are being negotiated by different parties. For the European Union it is also of importance to protect EU intellectual property rights (IPR) as future EU competitiveness depends on its ability to move into higher value added activities such as those for which IPRs are important. At the same time international agreements on IPRs will only be sustainable when they have the support of all parties. Within the EU the ACTA has also been the source of some concerns regarding the non-transparent way it was negotiated and whether it meets to aims agreed by the European Parliament and Commission that it would be compatible with the existing acquis communautaire and the World Trade Organisation's Trade Related Intellectual Property rights (TRIPs) Agreement.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

"After Google Book Search: Rebooting the Digital Library"

Randal C. Picker has self-archived "After Google Book Search: Rebooting the Digital Library" in SSRN.

Here's an excerpt:

The rejection of the Google Book Search settlement means that we are at a point of rebooting how we design our digital library future. There were many criticisms of GBS and the settlement but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries. Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public. As we move forward on the orphan works, we need to do so with two principles in mind. First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders. Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.

| Digital Scholarship Publications OverviewGoogle Books Bibliography |

Fair Use in the U.S. Economy

The Computer & Communications Industry Association has released Fair Use in the U.S. Economy.

Here's an excerpt from the press release:

Using the latest publicly available data (2009), and adapting a methodology developed by the World Intellectual Property Organization (WIPO) this study finds the following about fair use industry growth and activity:

  • Revenue—In 2008 and 2009, fair use industries—those industries that depend upon fair use and related limitations to copyright—generated revenue averaging $4.6 trillion, a 35 percent increase over 2002 revenue of $3.4 billion. . . .
  • Employment—The fair use economy is vast, employing 17 million people—approximately one in eight U.S. workers—and generates a payroll averaging $1.2 trillion in 2008-2009, compared to $895 billion in 2002.

| Digital Scholarship Publications Overview |

Digital Copyright: "How PIPA Would Affect Colleges and Universities"

The EDUCAUSE Policy Analysis and Advocacy Program has released "How PIPA Would Affect Colleges and Universities." (PIPA is the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act.)

Here's an excerpt:

Whereas COICA didn't bother to define "domain name system server," PIPA says, "[T]he term 'domain name system server' means a server or other mechanism used to provide the Internet protocol address associated with a domain name" (emphasis added).

The phrase "or other mechanism" increases the potential scope of the definition, at the risk of unintended consequences. For example, the term defined this way could sweep in operating systems, email clients, web clients, routers, and other technologies that are operated by our campuses, which would adversely affect operations.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

"The Copyright Self-Help Movement: Initiatives in the Library Community"

Gail P. Clement has published "The Copyright Self-Help Movement: Initiatives in the Library Community" in the latest issue of College & Research Libraries News.

Here's an excerpt:

In the library context, the self-help concept refers to collective actions by practitioners to maximize the balancing features in American copyright law. These features include the various limitations to owner's rights and the provision for a public domain. Copyright self-help complements scholarly communication initiatives that help campus authors retain the rights to reuse and share their own publications. In combination, both types of collective community action serve to maximize allowable uses of copyrighted materials (or identify public domain materials) in order to fuel scholarship, innovation, education, and culture.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

"Making Sense of Fair Use"

Neil W. Netanel, Pete Kameron Endowed Chair in Law at the UCLA School of Law, has self-archived "Making Sense of Fair Use" in SSRN.

Here's an excerpt:

Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts' embrace of the transformative use doctrine.

| Digital Scholarship Publications Overview |

Major U.S. ISPs Agree to Copyright Alert Plan

Five U.S ISPs (AT&T, Cablevision Systems Corp., Comcast Corp., Time Warner Cable, and Verizon) have agreed to a copyright alert plan with the A2IM, IFTA, the MPAA (and major members), and the RIAA (and major members).

Here's an excerpt from the press release:

The new Copyright Alert System addresses these problems with a series of early alerts—up to six—in electronic form, notifying the subscriber that his or her account may have been misused for online content theft of film, TV shows or music. It will also put in place a system of "mitigation measures" intended to stop online content theft on those accounts that appear persistently to fail to respond to repeated Copyright Alerts. The system will also provide subscribers the opportunity for an independent review to determine whether a consumer's online activity in question is lawful or if their account was identified in error. There are no new laws or regulations established as a part of this voluntary agreement. Termination of a subscriber's account is not part of this agreement. ISPs will not provide their subscribers' names to rights' holders under this agreement.

For an explanation "mitigation measures," see the "FAQ's on The Center for Copyright Information and Copyright Alert System."

| Digital Scholarship Publications Overview |

Podcast: Pamela Samuelson on Codifying the Google Books Settlement

In this podcast, Pamela Samuelson discusses her 2011 paper "Legislative Alternatives to the Google Book Settlement" with Jerry Brito, Senior Research Fellow at the Mercatus Center at George Mason University.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

"STM Submission on the Open Public Consultation on the European Institute of Innovation and Technology"

STM: International Association of Scientific, Technical & Medical Publishers has released "STM Submission on the Open Public Consultation on the European Institute of Innovation and Technology."

Here's an excerpt:

Because the public interest is not served if access to and dissemination of trusted scientific publications and data is not sustainable, rules governing publication must allow publishers to obtain the exclusive use of copyrighted content in relevant media. . . so that the substantial investments they make in scholarly communication can be recovered.

Read more about it at "STM Submission to European Institute of Innovation & Technology: A Critique."

| Digital Scholarship Publications Overview |

Papers from Kenneth D. Crews’ Art Image Copyright and Licensing Study

Kenneth D. Crews has released a list of papers written in support of the Art Image Copyright and Licensing Study, which was funded by the Samuel H. Kress Foundation.

Read more about it at "Interim Report: Art Image Copyright and Licensing Study."

| Digital Curation and Preservation Bibliography 2010 | Electronic Theses and Dissertations Bibliography | Google Books Bibliography | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship Publications Overview |

Georgia State University Motion for Directed Verdict Granted in Part in Cambridge University Press et al. v. Patton et al. Case

U.S. District Court Judge Orinda D. Evans granted Georgia State University's motion for directed verdict in part in the Cambridge University Press et al. v. Patton et al. case. A directed verdict for the contributory infringement claim was granted.

Here's an excerpt from "Publishers Lose Another Claim as GSU Trial Comes to a Close" by Brandon Butler:

And just like that, Judge Orinda Evans threw out the second of the publishers' three claims. Now indirect infringement is the only remaining claim against GSU. . . .

This claim is the hardest one for GSU to avoid because, in theory, the publishers just have to find one infringement by one professor to prove GSU is an 'indirect infringer.'

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |