Copyright – Page 47 – DigitalKoans

Copyright Alert: House Passes Higher Education Opportunity Act

The House passed the Higher Education Opportunity Act, which includes provisions that require higher education institutions to take steps to curb illegal file sharing.

On July 30, 2008, EDUCAUSE issued a letter about the revised copyright provisions of the bill.

Here's an excerpt from that letter:

Section 493 (also below) is the result of much tug-and-pull over the last few months. In the end, it will require every college and university to certify that it "(A) has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents; and (B) will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution."

The language of (A) represents a weaker requirement on colleges than had been discussed in some previous proposals. In particular, the Report language makes clear (see below) that technological deterrents "include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices, and a variety of commercial products designed to reduce or block illegal file sharing." Further, the Report states that the bill is to be considered technology neutral. It should be up to the institution to determine its policy and corresponding technology, which can include policies that prohibit the monitoring of content.

The language of (B) is stronger than in the previous version, in that it requires that institutions certify that they "will . . . offer alternatives" instead of simply requiring plans for them. There is considerable flexibility, however, in that the institutions must interpret the "to the extent practicable" qualifier in the context of their own situation. Moreover, access to legal alternative services may be accomplished in a growing number of ways, including institutionally provided on-campus services, providing links to a variety of commercial services, and other procedures, as indicated in the Report language. "The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section."

Enforcement of Intellectual Property Rights Act of 2008

The Enforcement of Intellectual Property Rights Act of 2008 (S.3325) has been introduced in the Senate by Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.).

Here's an excerpt from Public Knowledge's statement about the bill:

The provisions allowing seizure of equipment may be harmful to consumers. Seizing expensive manufacturing equipment used for large-scale infringement from a commercial pirate may be appropriate. Seizing a family's general-purpose computer in a download case, as this bill would allow, is not appropriate. This bill goes even farther, expanding the penalties under the flawed Digital Millennium Copyright Act (DMCA) to create new grounds for allowing a family's computer to be seized if used to circumvent digital rights management, even if for fair uses.

In addition, this bill would turn the Justice Department into an arm of the legal departments of the entertainment companies by authorizing DoJ to file civil lawsuits for infringement, forcing taxpayers to foot the bill.

Six Largest UK ISPs to Crackdown on Illegal File Sharing in Deal with BPI

The UK's six largest ISPs and the British Phonographic Industry (BPI) have signed a Memorandum of Understanding about restraining illegal file sharing.

Here's an excerpt from the BPI press release:

UK record labels' association BPI today reached a groundbreaking agreement with major internet service providers (ISPs) and government on measures to help significantly reduce illegal filesharing.

Following negotiations facilitated by the Department for Business, Enterprise and Regulatory Reform (BERR), BPI on behalf of hundreds of UK record companies big and small has signed a Memorandum of Understanding (MOU), with the UK's six largest internet service providers. The Motion Pictures Association of America and BERR have also signed.

The MOU places joint commitments on the signatories to continue developing consumer education programmes and legal online services. Most importantly, for the first time ISPs will be required to work with music and other rightsholders towards a "significant reduction" in illegal filesharing.

To achieve this, in the first year hundreds of thousands of informative letters will be sent by participating ISPs to customers whose accounts have been identified by BPI as being used illegally. In addition, under the auspices of Ofcom, the signatories will work together to identify effective mechanisms to deal with repeat offenders.

Alongside the MOU, BERR has today published a consultation on proposed new legislation requiring ISPs to deal effectively with illegal filesharing. It is anticipated that the outcome of this consultation will provide a co-regulatory backdrop to the MOU.

RoMEO: Now with 400+ Publisher Self-Archiving Policies

SHERPA's RoMEO service now contains over 400 publisher self-archiving policies.

Here's an excerpt from the announcement:

The RoMEO service, provided by the award winning SHERPA Partnership, uses a simple colour-code to classify policies and inform authors of what can be done with their articles, and offers users the ability to:

View summaries of publishers' copyright policies in relation to self-archiving

View if publisher policies comply with funding regulations, as some publishers are too restrictive and cannot be used to publish funded research

To search journal and publisher information by Journal Title, Publisher Name and ISSN

RoMEO is seen as an essential resource by many in the Open Access community. RoMEO is funded by JISC and the Wellcome Trust. Journal information is kindly provided by the British Library's Zetoc service hosted by MIMAS

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.

Protected by U.S. Copyright? Use the Digital Copyright Slider

The Copyright Advisory Network has released the Digital Copyright Slider, a Web-based tool that helps you determine the copyright status of works under U.S. 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:

to review the current state of copyright and related laws and their impact on digital preservation;

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

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.

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.)

Summary of New Zealand's Copyright (New Technologies) Amendment Bill

"Copyright Developments: New Zealand" provides a brief summary of the key features of New Zealand's Copyright (New Technologies) Amendment Bill, which received Royal assent on 4/11/08.

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.

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."

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.

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."

ARL Summary of U.S. Orphan Works Legislation

The Association of Research Libraries has released a useful 10-page summary of current U.S. orphan works legislation, which includes a discussion of public university and state sovereign immunity issues.

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.