Category: Copyright

Fair Copyright in Research Works Act: Bill Opposing Open Access Reintroduced in House

Rep. John Conyers has reintroduced the Fair Copyright in Research Works Act (H.R. 801) in the House.

Here's an excerpt from Peter Suber's posting:

The Fair Copyright Act is to fair copyright what the Patriot Act was to patriotism.  It would repeal the OA policy at the NIH and prevent similar OA policies at any federal agency.  The bill has been referred to the House Judiciary Committee, where Conyers is Chairman, and where he has consolidated his power since last year by abolishing the Subcommittee on Courts, the Internet, and Intellectual Property.  The Judiciary Committee does not specialize in science, science policy, or science funding, but copyright. 

The premise of the bill, urged by the publishing lobby, is that the NIH policy somehow violates copyright law.  The premise is false and cynical.  If the NIH policy violated copyrights, or permitted the violation of copyrights, publishers wouldn't have to back this bill to amend US copyright law.  Instead, they'd be in court where they'd already have a remedy.  For a detailed analysis of the bill and point by point rebuttal to the publishing lobby's rhetoric, see my article from October 2008.

I'll have more soon on ways to mobilize in opposition to the bill and support the NIH and the principle of public access to publicly-funded research.  Meantime, if you're a US citizen and your representative is a member of the Judiciary Committee, it's not to early to fire off an email/fax/letter/phone call to your representative opposing the bill and defending the NIH policy.  You can find ammo here:

Also see: "Bill Banning NIH-Like Public Access is Reintroduced in Congress."

“How to Improve the Google Book Search Settlement”

James Grimmelmann, Associate Professor at New York Law School, has made available "How to Improve the Google Book Search Settlement" in the Berkeley Electronic Press' Selected Works.

Here's the abstract:

The proposed settlement in the Google Book Search case should be approved with strings attached. The project will be immensely good for society, and the proposed deal is a fair one for Google, for authors, and for publishers. The public interest demands, however, that the settlement be modified first. It creates two new entities—the Books Rights Registry Leviathan and the Google Book Search Behemoth—with dangerously concentrated power over the publishing industry. Left unchecked, they could trample on consumers in any number of ways. We the public have a right to demand that those entities be subject to healthy, pro-competitive oversight, and so we should.

"Reciprocal Share-Alike Exemptions in Copyright Law"

Guy Pessach has made "Reciprocal Share-Alike Exemptions in Copyright Law" available in SSRN.

Here's an excerpt from the abstract:

This article introduces a novel element to copyright law's exemptions' scheme, and particularly the fair use doctrine-a reciprocal share-alike requirement. I argue that beneficiaries of a copyright exemption should comply with a complementary set of ex-post reciprocal share-alike obligations that come on top of the exemption that they benefit from. Among other aspects, reciprocal share-alike obligations may trump contractual limitations and technological protection measures that are imposed by parties who relied on a copyright exemption in the course of their own use of copyrighted materials. Thus, fair use beneficiaries should be obliged to treat alike subsequent third parties who wish to access and use copyrighted materials—now located in their new "hosting institution"—for additional legitimate uses.

For example, if Google argues that its Book Project's scanning of entire copyrighted works are fair use, a similar exemption should apply to the benefit of future third parties who wish to use, for similar socially valuable purposes and under similar limitations, digital copies of books from Google's databases and applications. Google should also be prohibited from imposing technological protection measures and contractual obligations that revoke its reciprocal share-alike obligations.

Dutch Cultural Institutions and Rights Holders Reach Landmark Digitization Agreement

FOBID (Netherlands Library Forum) and VOI©E (Netherlands Association of Organisations for the Collective Management of Intellectual Property Rights) have reached a digitization agreement.

Here's an excerpt from the press release:

Dutch libraries, archives, and museums recently reached agreement with right holders on the digitisation and accessibility of their heritage collections. The organisations representing the libraries (FOBID) and the right holders (VOI©E) reached agreement within the Digiti©E Committee (Digitisation of Cultural Heritage) that was set up when a Declaration of Intent was signed at the opening of Amsterdam World Book Capital in April 2008. The agreement is a major breakthrough in the discussion regarding the copyright aspects of digitising collections held by libraries and archives.

As far as is known, this is the first agreement of this type anywhere in the world between libraries and right holders. There is concern in many other countries too regarding how to deal with the rights of right holders who cannot be traced, i.e. the holders of rights in “orphan works”. If the arrangement that has now been accepted in the Netherlands is imitated in other European countries, it will have an enormous effect on the availability of recent works in the “Europeana” digital library. . . .

The essence of the agreement is that the libraries that are represented receive permission, on certain conditions, from virtually all right holders to digitise their collections and make them publically available on their own premises for teaching or research purposes. The works concerned must be part of the Dutch cultural heritage and no longer commercially available. The libraries do not need to pay the right holders as long as the works are only made available on their own premises.

Separate consent is required, however, if the digitised works are made more widely available, for example by means of remote access or via the Internet. In that case, an agreed payment must be made; agreements in principle can be made regarding payment by the Digiti©E committee. Even then, the library will not need to go in search of the right holders because this will be done by collecting societies such as Lira and Pictoright.

The organisations representing right holders will shortly be setting up a Registration Centre for digitisation where libraries and archives can register proposed projects and get in touch with right holders regarding how they should be implemented. . . .

Kees Holierhoek, the chairman of the Lira copyright holders’ organisation and of the digital right holders working party, has this to say about the new agreement: “I’m very pleased about this agreement. It’s important for us that copyright should be respected, and that has been done in this case. At the same time, the agreement has done away with a major obstacle to making texts and photos accessible. Authors, freelance journalists, photographers, and publishers will all have a veto right if they do not wish to participate. If they do wish to participate, they can claim payment if their material is made accessible outside the institution’s own premises.”

Martin Bossenbroek, the acting General Director of the National Library of the Netherlands, says: “This agreement is a real breakthrough. It’s extremely good news for libraries like the National Library of the Netherlands whose core task is to manage nationally important heritage collections and make them available. The agreement regulates digitisation and the availability of digitised collections on our own premises. But that is only the first step, because we naturally want to also make the digitised collections available online. I think the real benefit of this agreement is that it shows how all the various interested parties understand one another’s positions and arguments. That constructive attitude will also make it possible to arrive at good follow-up arrangements for provision of material on the Internet.”

Podcast: "The Law and Policy of Web 2.0: Much Old, Some New, Lots Borrowed, So Don’t Be Blue"

EDUCAUSE has released a podcast of a presentation by Beth Cate, Associate General Counsel for Indiana University System, called "The Law and Policy of Web 2.0: Much Old, Some New, Lots Borrowed, So Don’t Be Blue."

Here's an excerpt from the abstract:

Social networking sites and other Web 2.0 technologies offer rich tools for creation, collaboration, and community building. As such they have generated great excitement among faculty, staff, and students as they explore incorporating these technologies into their teaching and learning. Some of the most compelling features of these technologies—how quickly and easily materials can be shared and repurposed, how large and fluid Internet communities tend to be, how many cheap third-party services are available—are the same ones that raise questions about whether and how law and policy affect how we use these technologies in support of learning.

In this session, Beth Cate reviews and answers questions commonly asked by faculty, staff, and university attorneys. She also talks about why, although technologies are continually evolving, the relevant legal and policy principles are generally quite familiar and not scary. She highlights a few new wrinkles and some unknowns and offers practical strategies for maintaining good communications with your campus counsel as you and your institution navigate these promising new technologies and look ahead to Web 3.0.

Max Planck Institute Releases Best Practices for Access to Images: Recommendations for Scholarly Use and Publishing

The Max Planck Institute for the History of Science has released Best Practices for Access to Images: Recommendations for Scholarly Use and Publishing.

Here's an excerpt from the press release:

The recommendations were prompted by the barriers encountered by those who wish to use and publish images of cultural heritage objects. High licence fees and complicated access regulations make it increasingly difficult for scholars in the humanities to work with digital images. It is true that the digitization of image collections has acted as a catalyst for scholarly research. However, archives, collections and libraries differ greatly with respect to the question of how, where and on what basis images may be used for scholarly purposes. Moreover, their policies in this regard are becoming increasingly restrictive, especially when it comes to new forms of e-publishing.

The MPIWG drew up its recommendations for facilitating the scholarly use of digital images following consultations with international experts which took place in January 2008. The recommendations call on curators and scholars to develop a mutually binding network of trust. The aim of the initiative is to encourage stakeholders jointly to address the current and future challenges raised by the digital age. The document urges curators to refrain from restricting the public domain arbitrarily and calls on them to accommodate the needs of scholars for reasonably-priced or freely-accessible high-resolution digital images—both for print publications and new Web-based forms of scholarly publishing. It exhorts scholars to recognise museums, libraries and collections as owners and custodians of physical objects of cultural heritage and to acknowledge their efforts in making digital images available. Moreover, it urges them to take their role as guarantors of authenticity and accurate attribution extremely seriously.

"Google & the Future of Books"

Robert Darnton, Carl H. Pforzheimer University Professor at Harvard University, has published "Google & the Future of Books" in the The New York Review of Books.

Here's an excerpt:

As an unintended consequence [of the Google Book Settlement], Google will enjoy what can only be called a monopoly—a monopoly of a new kind, not of railroads or steel but of access to information. Google has no serious competitors. Microsoft dropped its major program to digitize books several months ago, and other enterprises like the Open Knowledge Commons (formerly the Open Content Alliance) and the Internet Archive are minute and ineffective in comparison with Google. Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. If the settlement is upheld by the court, only Google will be protected from copyright liability.

“Editorial: Google Deal or Rip-Off?”

In "Editorial: Google Deal or Rip-Off?," Francine Fialkoff, Library Journal Editor-in-Chief, takes a hard look at the Google-Association of American Publishers/Authors Guild copyright settlement.

Here's an excerpt:

Clearly, the public had little standing in the negotiations that led to the recent agreement in the class-action lawsuit against Google for scanning books from library shelves. . . . Well, the suit was never about the public interest but about corporate interests, and librarians did not have much power at the bargaining table, no matter how hard those consulted pushed. While there are many provisions in the document that specify what libraries can and can't do and portend greater access, ultimately, it is the restrictions that scream out at us from the miasma of details.

Other perspectives can be found in my recently updated Google Book Search Bibliography, Version 3.

Lessig Moves to Harvard Law

Noted copyright expert Lawrence Lessig has joined the faculty of Harvard Law School and become the faculty director of Harvard’s Edmond J. Safra Foundation Center for Ethics.

Here's an excerpt from the press release:

Lessig—a widely acclaimed expert in constitutional law, cyberlaw, and intellectual property—comes to Harvard from the faculty of Stanford Law School. Prior to joining the Stanford faculty in 2000, he was on the faculty of the University of Chicago Law School and Harvard Law School. . . .

As faculty director of the Center, Lessig will expand on the center’s work to encourage teaching and research about ethical issues in public and professional life. He will also launch a major five-year project examining what happens when public institutions depend on money from sources that may be affected by the work of those institutions—for example, medical research programs that receive funding from pharmaceutical companies whose drugs they review, or academics whose policy analyses are underwritten by special interest groups.

“I am very excited to be returning to Harvard to work on a project of enormous importance to our democracy,” said Lessig. “The chance to extend the work of the Center to focus on the problems of institutional independence is timely and essential. I am eager to work with friends and old colleagues from the Law School and across the University to make this project a success.”

A prolific writer, Lessig is the author of five books: “Remix” (2008), “Code v2” (2007), “Free Culture” (2004), “The Future of Ideas” (2001), and “Code, and Other Laws of Cyberspace” (1999). He has published more than 60 scholarly articles in leading law and technology journals. His work also appears regularly in the popular press, and he was a monthly columnist for Wired Magazine.

New Press to Publish Viral Spiral: How the Commoners Built a Digital Republic of Their Own

The New Press will publish David Bollier's Viral Spiral: How the Commoners Built a Digital Republic of Their Own.

Here's an excerpt from the announcement:

Reporting from the heart of this "free culture" movement, journalist and activist David Bollier provides the first comprehensive history of the attempt by a global brigade of techies, lawyers, artists, musicians, scientists, businesspeople, innovators, and geeks of all stripes to create a digital republic committed to freedom and innovation. Viral Spiral —the term Bollier coins to describe the almost-magical process by which Internet users can come together to build online commons and tools—brilliantly interweaves the disparate strands of this eclectic movement. The story describes major technological developments and pivotal legal struggles, as well as fascinating profiles of hacker Richard Stallman, copyright scholar Lawrence Lessig, and other colorful figures.

Stanford Intellectual Property Litigation Clearinghouse Launched

The Law, Science & Technology Program at Stanford Law School has launched the Stanford Intellectual Property Litigation Clearinghouse.

Here's an excerpt from the press release:

This publicly available, online research tool will enable scholars, policymakers, lawyers, judges, and journalists to review real-time data about IP legal disputes that have been filed across the country, and ultimately to analyze the efficacy of the system that regulates patents, copyrights, trademarks, antitrust, and trade secrets.

The Intellectual Property Litigation Clearinghouse database includes real-time data summaries, industry indices, and trend analysis together with a full-text search engine, providing detailed and timely information that cannot be found elsewhere in the public domain. Stanford Law School, along with its partner organizations that funded the development and provided industry insight, are releasing the IPLC in phased modules, and today’s release, the Patent Litigation Module, includes more than 23,000 cases filed in U.S. district courts since 2000—raw data for every district court patent case and all results (outcomes and opinions).

Intellectual property (IP) is a key driver of the American economy, and IP litigation is big business. By one estimate, the nation’s copyright and patent industries alone contributed almost 20 percent of private industry’s share of the U.S. gross domestic product and were responsible for close to 40 percent of all private industry growth.

Google Book Search Bibliography, Version 3

The Google Book Search Bibliography, Version 3 is now available.

This bibliography presents selected English-language articles and other works that are useful in understanding Google Book Search. It primarily focuses on the evolution of Google Book Search and the legal, library, and social issues associated with it. Where possible, links are provided to works that are freely available on the Internet, including e-prints in disciplinary archives and institutional repositories. Note that e-prints and published articles may not be identical.

New from Boyle: The Public Domain: Enclosing the Commons of the Mind

Noted intellectual property expert James Boyle has published a new book, The Public Domain: Enclosing the Commons of the Mind.

It is under a Creative Commons Attribution-Noncommercial-Share Alike License, and the PDF can be freely downloaded. It is available in print form from the Yale University Press.

Here's an excerpt from the book's home page:

Our music, our culture, our science, and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In The Public Domain: Enclosing the Commons of the Mind (Yale University Press) James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, why jazz might be illegal if it were invented today, why most of 20th century culture is legally unavailable to us, and why today’s policies would probably have smothered the World Wide Web at its inception. . . .

With a clear analysis of issues ranging from Thomas Jefferson’s philosophy of innovation to musical sampling, from Internet file sharing and genetic engineering to patented peanut butter sandwiches, this articulate and charming book brings a positive new perspective to important cultural and legal debates, including what Boyle calls the "range wars of the information age": today’s heated battles over intellectual property. Intellectual property rights have been viewed as geeky, technical and inaccessible. Boyle shows that, as a culture, we can no longer afford the luxury of this kind of willed ignorance.

"Comments on the Commission's Green Paper on Copyright in the Knowledge Economy"

Søren Sandfeld Jakobsen et al. have deposited "Comments on the Commission's Green Paper on Copyright in the Knowledge Economy" in SSRN.

Here's the abstract:

This paper is a reaction to the [European] Commission's Green Paper on Copyright in the Knowledge Economy. It discusses issues concerning the three step test model licenses, digitization and orphan works, disability discrimination and access to digital content, dissemination for teaching and research, dissemination through libraries and user created content.

Draft Creative Commons Licences—Briefing Paper Available

Naomi Korn and Professor Charles Oppenheim have written a draft Creative Commons Licences—Briefing Paper for inclusion in the upcoming Strategic Content Alliance IPR Toolkit, a collection of documents about intellectual property rights (JISC funds the SCA). The document explains Creative Commons Licenses, and it examines their pros and cons.

The document, as well as other IPR Toolkit drafts, are now available.

Tennessee's Higher Education Filtering Law to Cost State Institutions Over $9.5 Million to Start

The Tennessee Fiscal Review Committee estimates that SB 3974, a recently passed state law aimed at stopping copyright infringement in higher education institutions, will initially cost state institutions over $9.5 million, with ongoing annual costs topping $1.6 million in FY 08-09 and $1.9 million in succeeding years.

Read more about it at "RIAA Gets Tennessee Law to Force Universities to Filter Networks for Copyrighted Content"; "RIAA Wins, Campuses Lose as Tennessee Governor Signs Campus Network Filtering Law"; and "Tennessee Anti-P2P Law to Cost Colleges over $13 Million."

Copyright Clearance Center Launches Ozmo, a Commercial License Service, as Beta

The Copyright Clearance Center has launched Ozmo, a web-based commercial license service that supports the Creative Commons CC+ protocol, in beta mode.

Here's an excerpt from the press release:

Ozmo puts artists and writers in control. They select their license terms and set the price for the use of their content. Then, CCC puts its three decades of licensing expertise to work. CCC handles the entire licensing process and all payments go through Amazon’s Flexible Payment Service when a license is purchased. With Ozmo, buyers know instantly that they have the right to use the content and sellers know how their content is being used.

There are no set-up fees with Ozmo and content creators can license as much content as they want. Payment is collected from the buyer when the rights are purchased. Ozmo even helps sellers track and manage sales and buying trends. Ozmo supports the Creative Commons CC+ protocol for bridging the gap between commercial and non-commercial licensing. Content creators can apply the Creative Commons link for non-commercial use, and the Ozmo link for commercial use. . . .

How Ozmo works

To get started, users need only create a free Ozmo profile. Then, the content creator selects his or her license terms and pricing, and registers the work with Ozmo. Sellers can add an image, banner or bio that will be displayed with their work. Profile information can even be pulled over directly from Facebook. Using Ozmo is easy because it works with content where ever it resides online. Content creators never have to re-enter their work; Ozmo simply links back to the original host location.

Buyers, such as design firms, publishers, bloggers and other journalists, who want to tap in to the fresh content available through Ozmo, can do so by searching the Ozmo website or clicking on the Ozmo link wherever they find it online. CCC handles the billing, the buyer receives the license by email and the content creator gets paid. It’s that simple.

Read more about it at "Ozmo Launches with CC+ Protocol Support."

A Guide for the Perplexed: Libraries & the Google Library Project Settlement

ARL and ALA have released A Guide for the Perplexed: Libraries & the Google Library Project Settlement.

Here's an excerpt from the press release:

The guide is designed to help the library community better understand the terms and conditions of the recent settlement agreement between Google, the Authors Guild, and the Association of American Publishers concerning Google’s scanning of copyrighted works. Band notes that the settlement is extremely complex and presents significant challenges and opportunities to libraries. The guide outlines and simplifies the settlement’s provisions, with special emphasis on the provisions that apply directly to libraries.

The Code of Best Practices in Fair Use for Media Literacy Education

The Center for Social Media at American University has released The Code of Best Practices in Fair Use for Media Literacy Education.

Here's an excerpt:

This document is a code of best practices that helps educators using media literacy concepts and techniques to interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law provides no specific authorization for the use in question—as it does for certain narrowly defined classroom activities.

This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K–12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education.

New GNU Free Document License Will Allow Wikipedia to Use Creative Commons License

At the request of the Wikimedia Foundation, the Free Software Foundation has modified the GNU Free Document License so that, in the newly released version 1.3 of that license, the Wikipedia, which uses the GNU FDL License, can use the Creative Commons Attribution-ShareAlike 3.0 license.

In "Enormously Important News from the Free Software Foundation," Lawrence Lessig discusses the significance of this change.

Here's an excerpt:

It would be hard to overstate the importance of this change to the Free Culture community. A fundamental flaw in the Free Culture Movement to date is that its most important element—Wikipedia—is licensed in a way that makes it incompatible with an enormous range of other content in the Free Culture Movement. One solution to this, of course, would be for everything to move to the FDL. But that license was crafted initially for manuals, and there were a number of technical reasons why it would not work well (and in some cases, at all) for certain important kinds of culture.

This change would now permit interoperability among Free Culture projects, just as the dominance of the GNU GPL enables interoperability among Free Software projects. It thus eliminates an unnecessary and unproductive hinderance to the spread and growth of Free Culture.

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