Category: Copyright

EC Proposes 95-Year Copyright Term for Recorded Performances, Issues Copyright Green Paper

The European Commission has proposed a 95-year copyright term for recorded performances. It has also issued Green Paper: Copyright in the Knowledge Economy.

Here's an excerpt from the press release:

Term of protection. . . .

The extended term would benefit performers who could continue earning money over an additional period. A 95-year term would bridge the income gap that performers face when they turn 70, just as their early performances recorded in their 20s would lose protection. They will continue to be eligible for broadcast remuneration, remuneration for performances in public places, such as bars and discotheques, and compensation payments for private copying of their performances.

The extended term would also benefit the record producers. It would generate additional revenue from the sale of records in shops and on the Internet. This should allow producers to adapt to the rapidly changing business environment which is characterised by a fast decline in physical sales (- 30% over the past five yeas) and the comparatively slow growth of online sales revenue.

In addition, when it concerns a musical composition, which contains the contributions of several authors, the Commission proposes a uniform way of calculating the term of protection. . . .

Green Paper on Copyright in the Knowledge Economy. . . .

With this Green Paper, the Commission plans to have a structured debate on the long-term future of copyright policy in the knowledge intensive areas. In particular, the Green Paper is an attempt to structure the copyright debate as it relates to scientific publishing, the digital preservation of Europe's cultural heritage, orphan works, consumer access to protected works and the special needs for the disabled to participate in the information society. The Green Paper points to future challenges in the fields of scientific and scholarly publishing, search engines and special derogations for libraries, researchers and disabled people.

The Green paper focuses not only on the dissemination of knowledge for research, science and education but also on the current legal framework in the area of copyright and the possibilities it can currently offer to a variety of users (social institutions, museums, search engines, disabled people, teaching establishments).

SPARC and ARL Refute AAP Assertions about NIH Public Access Policy

SPARC and ARL have released a white paper, NIH Public Access Policy Does Not Affect U.S. Copyright Law, that refutes assertions made by the Association of American Publishers about the NIH Public Access Policy.

Here's an excerpt from the Summary:

Contrary to the AAP assertions, the NIH Public Access Policy does not affect U.S. copyright law in any way. NIH has added a condition to pre-existing licensing terms in its grant agreements that affirms it can legally provide public access to publicly funded research. This change in the terms of NIH grant agreements is fully consistent with copyright law. Copyright is an author’s right. Researchers are the authors of the articles they write with NIH support. In exchange for substantial federal funding, these researchers voluntarily agree to grant the federal government a license to provide public access to the results of publicly funded research. NIH receives a non-exclusive license from federally funded researchers, who retain their copyrights and are free to enter into traditional publication agreements with biomedical journals or assign these anywhere they so choose, subject to the license to NIH.

This change in the terms of the Public Access Policy has no relation to United States compliance with international intellectual property treaties. The Berne Convention on Copyright and the TRIPS Agreement concern the substance of copyright law, not the terms of licenses granted to the United States in exchange for federal funding. It is longstanding federal policy that in all federal contracts that pay for the creation of copyrighted works, the funding agency must receive a copyright license in exchange for federal funding. It is well recognized that these licenses given by authors have no effect on the robust set of protections given to authors in the United States Copyright Act and similarly raise no issues with respect to international copyright law.

International Study on the Impact of Copyright Law on Digital Preservation Released

The Library of Congress has released the International Study on the Impact of Copyright Law on Digital Preservation. The report was a collaborative effort by the Library of Congress National Digital Information Infrastructure and Preservation Program, JISC, the OAK Law Project, and the SURF Foundation.

Here's an excerpt from "Purpose and Background of the Report":

This Report was undertaken:

  1. to review the current state of copyright and related laws and their impact on digital preservation;
  2. to make recommendations for legislative reform and other solutions to ensure that libraries, archives and other preservation institutions can effectively preserve digital works and information in a manner consistent with international laws and norms of copyright and related rights; and
  3. to make recommendations for further study or activities to advance the recommendations in the Report.

A Look at the British Library's Digitization Program's Copyright Challenges

Tracey Caldwell's recent "Scan and Deliver" article examines the copyright challenges that the British Library faces in its digitization program (e.g., copyright issues have to be considered for works going as far back as the 1860s). It also mentions the impact of the shutdown of Microsoft's book digitization program on the British Library (digitization costs were shared 50-50 with Microsoft).

Metadata Image Library Exploitation's Orphan Works Database

The EC-funded Metadata Image Library Exploitation project has established an Orphan Database for images.

An advanced search capability allows users to use a variety of criteria, such as creator of original work, location of original work, and photographer.

Here's a description from the database's home page:

MILE has set up an 'Orphan Database' which acts as a repository for all Orphan Works and invites you to offer information about these works. This database also serves to collate all search efforts for associated works of art so that Europe is provided with a centralised source for Orphan Works discussions, search history and potential repatriation.

Code of Best Practices in Fair Use for Online Video Released

American University's Program on Information Justice and Intellectual Property has released the Code of Best Practices in Fair Use for Online Video.

Here's an excerpt from the "Introduction."

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video. . . and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses. . .

OAK Law Project Publishes Understanding Open Access in the Academic Environment: A Guide for Authors

The Open Access to Knowledge Law Project has published Understanding Open Access in the Academic Environment: A Guide for Authors.

Here's an excerpt:

This guide aims to provide practical guidance for academic authors interested in making their work more openly accessible to readers and other researchers.

The guide explains, in detail, the principles and features of the open access movement and outlines the benefits of open access, particularly those relating to dissemination, citation impact and academic reputation. It examines institutional repositories and open access journals as tools for implementing open access, and explains how they operate and how they can be best utilised by academic authors. The guide further considers how moves by funding bodies and academic institutions to mandate the deposit of research output into institutional repositories affects authors in today's publishing environment.

The underlying law of copyright is also explained, with a practical emphasis on how authors can best deal with their legal rights to enable open access to their academic work. The guide outlines authors' options for providing open access to their work, including the use of copyright licences and open content models such as Creative Commons licences. A Copyright Toolkit is provided to further assist authors in managing their copyright.

Importantly, the guide addresses how open access goals can affect an author's relationship with their commercial publisher. It provides guidance on how to negotiate a proper allocation of copyright interests between an author and publisher in order to allow an author to deposit their work into an institutional repository and reuse their work. The guide addresses both legal and non-legal issues related to maintaining a positive relationship with publishers while still ensuring that open access can be obtained.

Text of Georgia State University Filing in E-Reserves Copyright Case

Georgia State University's filing in copyright infringement suit the e-reserves copyright infringement suit brought against key GSU officials by three publishers is now available. It presents eighteen defenses, including sovereign immunity and fair use.

Read more about it at "Georgia State University Strongly Answers Publishers’ E-Reserve Lawsuit."

Anti-Counterfeiting Trade Agreement: ISP Filtering and Three-Strikes?

KEI has leaked the RIAA's suggestions for regulations to be included in the Anti-Counterfeiting Trade Agreement, such as the use of Internet filtering to stop infringement and the termination of ISP service to repeat infringers. (ACTA is being negotiated in secret.)

Read more about it at "Proposed Secret Copyright Deal Takes Aim at iPods, Providers," "Secret Super-Copyright Treaty MEMO Leaked," and "RIAA's ACTA Wishlist Includes Gutted DMCA, Mandatory Filters."

Georgia State Claims Fair Use in E-Reserves Lawsuit

In a filing in the Cambridge University Press, Oxford University Press, and SAGE Publications copyright infringement suit against Georgia State, Georgia State University has claimed that is use of materials from those publishers in its e-reserves system is permitted under fair use provisions.

Read more about it "In Lawsuit, University Asserts That Downloading Copyrighted Texts Is Fair Use."

U.S. Copyright Office to Implement Online Registration System

On July 1, 2008, the U.S. Copyright Office will implement an online registration system called the electronic Copyright Office (eCO).

Here's an excerpt from the announcement:

Filing an eService claim via eCO offers several advantages:

  • lower filing fee of $35 for a basic claim;
  • fastest processing time;
  • earlier effective date of registration;
  • online status tracking;
  • secure payment by credit or debit card, electronic check or Copyright Office deposit account;
  • and ability to upload certain categories of deposits directly into eCO as electronic files.

Even users who intend to submit a hard copy of the work being registered may file an application and payment online and print out an eCO-generated shipping slip to be attached to the hardcopy deposit. Beginning July 1 eCO may be used to register basic claims to copyright for literary works, visual arts works, performing arts works including motion pictures, sound recordings and single serials. Basic claims include (1) a single work, (2) multiple unpublished works if they are by the same author(s) and owned by the same claimant, and (3) multiple published works if they are all first published together in the same publication on the same date and owned by the same claimant.

New ACRL Publications Agreements FAQ

ALA's Association College & Research Libraries has made available a new ACRL Publications Agreements FAQ, which covers serials, book chapters, book editors, and podcasts.

The FAQ's statement about Creative Commons licenses and serials is of special interest:

We didn’t want to require our authors to publish their works using a Creative Commons license, but you are welcome to attach the CC license of your choosing to your work after it is published by ACRL. Visit the Creative Commons website (http://creativecommons.org/) to learn more about their licensing options.

This is welcome news, and ACRL is to be applauded for supporting the use of Creative Commons licenses.

It is very helpful to have a concise and clear explanation of ACRL's copyright and other publication policies regarding serials, and the information about book chapters, book editors, and podcasts is very helpful as well. It would be highly desirable for other ALA divisions to follow ACRL's lead in this matter.

Note that ACRL's copyright forms are on the ACRL Forms page.

Associated Press Charges By the Word for Quotes

The Associated Press has established a fee schedule for the use of excerpts from its articles by bloggers and others. There are different fees for standard, educational, and nonprofit use, but all fees are based on word counts. For example, the free for nonprofit use of 5-25 words is $7.50.

In "Associated Press Declares War on Bloggers, Fair Use," Public Knowledge blogger Mehan Jayasuriya says:

That’s right, if you want to quote an AP article in your blog post, you’ll be paying by the word for the privilege. What’s more, in order to purchase a license to quote AP content, you’ll have to agree to a Terms of Use agreement, which states, among other things, that you may not criticize either the AP or the author of the article in your post or article. If you do, the AP reserves the right to revoke the license granted.

The problem with the AP’s licensing structure is that it ignores existing fair use rights, which clearly state that a short quotation from any news story is fair game. . . .

Blogger Michelle Malkin decided to calculate, using the AP’s licensing structure, how much the AP owes her for quotations it has used from her blog posts in recent months (it’s also worth noting that the AP did not link to her blog in the articles where these quotes were used). By Malkin’s count, the AP owes her somewhere in the neighborhood of $132,125.

Code4Lib Journal Adopts Creative Commons Attribution License

Starting with its just released third issue, the Code4Lib Journal is using the Creative Commons Attribution License for its articles, making this freely available journal an open access journal under the strictest definition of that term (sometimes called "full open access").

Here's an excerpt from the editorial that discusses this change:

In order to facilitate the ability of our readers to build upon the ideas presented in the Journal, beginning with Issue 3 all articles are licensed under the Creative Commons Attribution (CC-BY) license. The CC-BY license lets you reuse, share, and build upon the work presented in the article, as long as you credit the author for the original creation. This licensing is required for inclusion in the Directory of Open Access Journals (DOAJ) and to receive a SPARC Europe Seal. Code snippets included in the text are included under the CC-BY license. For other code included with an article, we recommend, but don’t require, an open source license. We are contacting all authors with articles published in previous issues to request they license their previously published Code4Lib Journal articles under the CC-BY license.

Associated Press vs. Drudge Retort: "Both Parties Consider the Matter Closed"

After a firestorm of criticism, the Associated Press has issued a press release saying that its dispute with the Drudge Retort over that blog's use of short quotes from AP stories is over: "Both parties consider the matter closed."

Read more about the controversy at "AP Battles Blogs"; "AP, Bloggers Clash over Wire Content Use"; "AP Exaggerates the 'Conversation' It's Having with Bloggers; Caught Copying Text from Bloggers as Well"; "The A.P. Has Violated My Copyright, and I Demand Justice"; "The Associated Press Plays Role of Metallica in Napster-esque War with Bloggers"; and "Biting the Hand that Feeds (Traffic to) Them."

Short Quotes Not Fair Use? Associated Press Sends Take-Down Letter to Drudge Retort

The Associated Press has sent the Drudge Retort a DMCA take-down letter demanding that 6 posts and one comment with short quotes from AP articles be removed from the site.

Negative reaction from bloggers and others against what was viewed as an assault on fair use was swift, resulting in a TechCrunch ban on AP story use, a broader AP ban by bloggers, and a wave of criticism.

As a result, AP decided to halt further action against other Weblogs until new guidelines could be established, but it has not withdrawn its letter the Drudge Retort.

Read more about it at: "Associated Press Digs Its Own Grave Deeper; Wants to Create Its Own Fair Use Rules," "The Associated Press to Set Guidelines for Using Its Articles in Blogs," "AP Rethinking Policy After Drudge Retort DMCA Takedowns," "AP Takes Action against Community News Website over Copyright Violation," "AP Wants Change in Blog Excerpting, Just Not Sure What," "DMCA Takedown Tiff Not a Battle the AP Should Be Fighting," "Netroots' Bloggers Boycott of Associated Press Is Working," and "Welcome to the Web Refactory, AP."

Reactions to the "Canadian DMCA" (Bill C-61)

There have been strong reactions to the "Canadian DMCA" (Bill C-61) by both advocates and opponents. Copyright for Canadians has put up a "Tell MPs What's Wrong with the Prentice Bill" page that helps opponents contact their Members of Parliament.

Here's a selection of articles and posts: "Appropriation Art Condemns Bill C-61," "Bill C-61: First Reactions," "Canadian Creator and Music Industry Groups Applaud Introduction of Copyright Bill," "The Canadian DMCA: A Betrayal," "Canadian Library Association Disappointed with New Copyright Legislation," "CIPPIC Disappointed with New Copyright Bill," "CMCC: Copyright Reform Bill Doesn’t Help Canadian Artists," "Conservatives Deliver Rehearsed Responses on Bill C-61," "Copyright Law Could Result in Police State: Critics," "Copyright Reform a Good First Step," "Industry Group Applauds Bill," "Software Industry Praises Federal Government Plans to Modernize Canadian Copyright Act," and "TPM and Bill C-61."

Copyright Legislation: Canadian "DMCA" Bill Introduced

The Canadian Industry Minister Jim Prentice has introduced Bill-C61, often called the Canadian "DMCA" by its critics, into the House.

Read more about it at "A Breakdown of the New Digital Dos and Don'ts," "Canadian DRM Bill Creates Partisan Uproar," "'Canadian DMCA' Brings 'Balanced' Copyright to Canada," "The Canadian DMCA: Check the Fine Print," "Copyright Bill: All Ours, or a DMCA Copy?," "David Fewer Of CIPPIC On Canadian DMCA Bombshell" (includes video), "Industry Minister Jim Prentice Introduces The Canadian DMCA" (includes video), "New Copyright Act Targets Online Piracy," and "Ottawa Tables Copyright Bill."

More about ALA, CLA, and Open Access

Peter Suber has commented on my "On ALA, CLA, and Open Access" posting:

PS: For background, see Charles' previous report on OA for ALA publications (July 2006). In my comment at the time, I pointed out some of the ALA's public statements in support of OA: "(1) the ALA Washington office has a page on OA, (2) the ALA Council adopted a resolution in support of FRPAA at its June 2006 annual meeting, and (3) the ALA has signed on to several public statements in support of OA, most recently a July 12 letter in support of FRPAA and a May 31 letter in support of the EC report on OA."

Of course, I had reviewed Peter's prior comment before writing the new post. Here's a further analysis:

A good summary of other ALA joint statements, along with those of ACRL, can be found at "ACRL Taking Action."

Here's more information on ALA's "green" and "gold" policies.

Let's assume that both ALA copyright agreements are in effect for all journals. The Copyright Assignment Agreement explicitly supports limited self-archiving ("The right to use and distribute the Work on the Author’s Web site"). The Copyright Assignment Agreement further says that the author has: "The right to use and distribute the Work internally at the Author’s place of employment, and for promotional and any other non-commercial purposes." While "any other non-commercial purposes" seems to permit broad self-archiving, the specification of the "distribute the Work internally at the Author's place of employment" right seems to imply that the right to distribute the work outside of the author's place of employment is in question, which would mean that self-archiving in digital repositories could be done only in the author's institutional repository and only if access to the work was limited to institutional users. Moreover, if broad self-archiving is permitted, why single out the right to self-archive on the author's Web site? I find the wording ambiguous, and I would not recommend that anyone who wants to self-archive use this license. If its intent is to allow broad self-archiving, this should be spelled out. The Copyright License Agreement supports all types of self archiving ("Copyright of the Work remains in Author’s name, and the Author reserves all other rights"). Consequently, we can say that ALA supports "green" self-archiving, but this may be very weak under the Copyright Assignment Agreement.

Without further information, it is not possible to say that any of ALA's major journals are "gold," although Public Libraries and School Library Media Research might be. If this were true, ALA's Public Library Association and its American Association of School Librarians divisions would be ALA's gold journal publishers, with the Association of College & Research Libraries division nearly being one.

Canadian Copyright Law: A Consumer White Paper Released

A coalition of consumer advocate organizations has released Canadian Copyright Law: A Consumer White Paper.

Here's an excerpt from the Executive Summary:

Copyright law is designed to balance the interests of creators with the interests of the public. Copyright grants creators exclusive rights in their works as a reward for creativity that also serves as an incentive for the creation of new works. These rights are not absolute, but limited in nature, scope and time. These limits are essential to copyright’s greater design, for it is at the limits of copyright owners’ rights that important consumer interests come into play.

From a consumer’s perspective, copyright’s current balance is far from perfect. In fact, many consumer dealings with copyrighted content – ordinary dealings, like copying digital music onto a portable device, or using the digital video recorders sold by cable companies – technically infringe copyright. In these and many other cases, the law is simply out of step with reality. Simple, uncontroversial amendments to the Copyright Act can fix many of these failings.

Unfortunately, copyright policy makers are not focusing on consumer interests. Instead, recent proposals to amend the Copyright Act focus on expanding rights holder’s interests at Canadian consumer’s expense. We call on Canada’s law-makers to accommodate consumer interests in any revision to the Copyright Act currently under consideration. Additionally, we call on lawmakers to revise the Copyright Act to address important consumer concerns that are not yet under consideration at all.

On ALA, CLA, and Open Access

The Canadian Library Association recently issued a new, strongly worded open access statement ("Position Statement on Open Access for Canadian Libraries"). Peter Suber commented on this statement, saying "Many organizations have called on their governments to mandate OA for publicly-funded research, but the CLA is first I've seen to regard embargo periods as a temporary compromise, justified only to help publishers adapt during a transition period."

The American Library Association is a member of the Alliance for Taxpayer Access and the Open Access Working Group, and. as such, has signed a variety of targeted statements about free access to government-funded research. The most active ALA Division in terms of open access support is the Association of College and Research Libraries, which has a number of activities geared towards promoting it.

Such statements and activities are praiseworthy, but the question remains: What kind of open access to these associations provide to their own journals?

CLA appears to embargo the current issue of Feliciter. If so, CLA cannot be said to be providing full free access to the journal; however, as embargoes go, it is a generous one.

Since it publishes more journals, the situation for ALA is more complex, and it is summarized below in a discussion of its major journals.

ALA Journal Free Access?
Children and Libraries: The Journal of the Association for Library Service to Children No
College & Research Libraries Embargo (current volume?), with e-prints that are removed on issue publication leaving a free access gap
Information Technology and Libraries Six month embargo
Library Administration and Management No
Library Resources & Technical Services Embargo? (last complete issue listed on site is from 2006 and last free volume is from 2006)
Public Libraries Embargo? (last listed issue on site is from 2007)
RBM: A Journal of Rare Books, Manuscripts, and Cultural Heritage Embargo? (last listed issue on site is from 2006)
School Library Media Research Embargo? (last listed issue on site is from 2007)
Reference & User Services Quarterly No (there are no issues listed on site)
Young Adult Library Services No

Given that several journals are far behind in listing back issues, some have no listed 2008 issues, and one has no back issues whatsoever, it is difficult to make definitive statements about their open access policies. It is possible that this confusion arises from difficulties in the timely maintenance of ALA journal Websites. What can be said is that, as of today, those missing digital issues are not accessible to anyone from the ALA site.

One thing is clear: it would be very helpful if ALA journals would clearly and prominently state their open access policies. Although it will not be discussed here in any detail, several journals have conflicting or unclear copyright agreement policies. It is assumed that ALA offers its two copyright agreements (Copyright Assignment Agreement and Copyright License Agreement.) for all journals, but this cannot be verified from all journal Websites.

While it is not uniform, ALA is making progress towards providing more free journal content; however, it cannot be said that ALA fully supports free access to all of its major journals. Moreover, to my knowledge, ALA itself has never made an open access position statement that is similar to CLA's and those of other library organizations, such as IFLA's (this excludes any statements by ALA divisions or joint statements). As the open access movement nears the decade point, it would seem desirable for it to unambiguously do so.

ALA is a major voice in the library community, and, if its open access efforts are to be taken seriously by publishers and scholars, it should state whether it supports green access (self-archiving), gold access (open access journals), or both. If it wants to support gold access, it should first reform its own journal publishing business model. If not, it would be helpful for it to clarify and make consistent the terms of its embargo access at an organizational vs. a divisional level.