Copyright – Page 50 – DigitalKoans

Controversial Provision in the PRO-IP Act Dropped

The House Judiciary Subcommittee on the Courts, the Internet and Intellectual Property dropped a controversial provision of the Pro-IP Act (HR 4279, the Prioritizing Resources and Organization for Intellectual Property Act of 2007) that would have made infringers liable for damages for each part of a compilation work (e.g., each song on an album). The Subcommittee then approved the bill.

Acta Crystallographica Section E Adopts Author-Pays OA Model and Creative Commons License

The International Union of Crystallography has adopted a very modest publication fee ($150) to support open access to Acta Crystallographica Section E: Structure Reports Online. It has also put the journal under a Creative Commons Attribution License.

Read more about it at "Acta Crystallographica E is Open Access."

EDUCAUSE Urgent Call to Action about the College Opportunity and Affordability Act of 2007

EDUCAUSE has issued an urgent call for action by March 7 about the College Opportunity and Affordability Act of 2007, which contains a provision about illegal file sharing.

Here is the provision:

Section 494: Campus Based Digital Theft Prevention

(a) IN GENERAL—Each eligible institution participating in any program under this title shall to the extent practicable—

(2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity

See EDUCAUSE's talking points, action call template, and file-sharing resources. For further background, see "In a Win for the MPAA and RIAA, the College Opportunity and Affordability Act of 2007 Is Approved by the House Education and Labor Committee."

You can use Congress Merge to find contact information for your Congressional representatives.

Creative Commons License Option for ETDs at the University of Auckland

The University of Auckland now gives students submitting an electronic theses or dissertation the option of putting it under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 New Zealand License.

Are Publishers Ready for the JISC/SURF Licence to Publish Author Agreement and Its Principles?

The SURFfoundation has published Acceptance of the JISC/SURF Licence to Publish & accompanying Principles by Traditional Publishers of Journals.

Here's an excerpt from the "Management Survey" section (I have added the link to the Licence to Publish):

In 2006, JISC and SURF drafted several Principles and a model Licence to Publish in order to persuade traditional publishers of journals to move in the direction of Open Access objectives. According to these Principles:

the author merely issues a licence to publish instead of transferring his/her copyright.

the author may freely deposit the publisher-generated PDF files of his/her article in an institutional repository, with an embargo of no longer than 6 months.

To set an example, a model Licence to Publish (hereafter: LtP) was drawn up as well. Yet, using the LtP is not a necessary requirement for meeting the—more important—Open Access objectives of the Principles.

This report presents the results of an enquiry by e-mail among 47 traditional publishers of journals. They were asked whether they would support the Principles and/or the LtP, which had first been explained to them. Two Open Access publishers were also asked for a reaction merely out of interest, since they do not belong to the target group. . .

The results showed that a substantial group of one-third of the contacted publishers conforms to the first aspect of the Principles; they make use of a licence to publish instead of a copyright transfer. Furthermore, the same number of publishers (16) already has a repository policy in place which is compatible with the Principles. Moreover, 7 publishers conform to both aspects and thus they endorse all the Principles. The support for the model LtP developed by SURF and JISC, however was low; no publisher did as yet endorse it.

Intellectual Property? OK, Let's Tax It as Property

Scientist Dallas Weaver has suggested that if copyright holders want "property" rights then they should be subject to a significant fixed annual tax in order to continue to hold the copyright. This tax would encourage copyright holders to put their works in the public domain.

Why Digital Copyright and Net Neutrality Should Matter to Open Access Advocates

It is highly unlikely that open access would have emerged if the Internet did not exist. The Internet makes the low-cost worldwide distribution of e-prints and other digital documents through institutional and disciplinary repositories possible, and it significantly lowers the cost of publishing, which makes open access journals possible. Open access in a print-only or proprietary network environment would require significant subsidies. The relative cost of providing open access on the Internet is trivial.

It would be a mistake to assume that the Internet will remain as we know it. With the rise of digital media, powerful interests in the music and film/television industries have become alarmed about file sharing of their content, and they have lobbied legislatures across the globe to stop it through restrictive copyright legislation and technological measures.

Since open access doesn't deal with popular music, film, or television, why should open access advocates care? The answer is simple: restrictive measures are unlikely to make fine-grained distinctions about content. New copyright measures won't exempt scholarly material, and new Internet traffic shaping or filtering technologies won't either.

Open access materials won't be limited to simple text documents forever: digital media and data sets will become increasingly important. These files can be large and increase network load. Digital media files may include excerpts from third-party copyrighted material, which are utilized under fair use provisions. Will filtering and traffic shaping technologies exclude them or will they be the inadvertent victims of systems designed for an entirely different purpose?

Even simple text documents will be governed by restrictive copyright laws and subject to potential copyright filtering mechanisms.

For example, the Tennessee State Senate is considering a bill (SB 3974) that would require every higher education institution to "thoroughly analyze its computer network, including its local area and internal networks, to determine whether it is being used to transmit copyrighted works" and to "take affirmative steps, including the implementation of effective technology-based deterrents, to prevent the infringement of copyrighted works over the school's computer and network resources, including over local area and internal networks."

You'll note that the bill says "transmit copyrighted works" not "transmit digital music and video works." Does this mean that every digital work, including e-prints and e-books, must be scanned and cleared for copyright compliance? That is unlikely to be the real intent of the bill, but, if passed, it will be the letter of the law. Why couldn't academic publishers insist that digital articles and books be vetted as well?

Net neutrality and digital copyright legislation are issues that should be of concern to open access advocates. To ignore them is to potentially win the battle, but lose the war, blind-sided by developments that will ensnare open access materials in legal and technological traps.

Tennessee State Senate Bill Would Force Universities to Stop Copyright Infringement

The Tennessee State Senate is considering a bill (SB 3974) that would require every higher education institution to "thoroughly analyze its computer network, including its local area and internal networks, to determine whether it is being used to transmit copyrighted works" and to "take affirmative steps, including the implementation of effective technology-based deterrents, to prevent the infringement of copyrighted works over the school's computer and network resources, including over local area and internal networks."

Lessig’s Final Free Culture Speech

Lawrence Lessig delivered his last speech on free culture on January 31, 2008 at Stanford University. A digital video is available on blip.tv.

You can follow Lessig's new Change Congress activities, including a possible run for Congress, on his Lessig08 Weblog.

A Legal Issues Primer for Open Source and Free Software Projects, Version 1.5

The Software Freedom Law Center has published version 1.5 of A Legal Issues Primer for Open Source and Free Software Projects.

Here's an excerpt from the press release:

The guide, written by members of SFLC's staff, covers a variety of legal topics and their practical application to free software development. These topics include copyrights and licensing, organizational structure, patents, and trademarks.

ARL Publishes NIH Public Access Policy Guide

The Association of Research Libraries has published "The NIH Public Access Policy: Guide for Research Universities."

Here's an excerpt from the press release:

The new NIH Public Access Policy, which becomes effective April 7, 2008, calls for mandatory deposit in PubMed Central of peer-reviewed electronic manuscripts stemming from NIH funding. The change from a voluntary to mandatory policy creates new expectations, not just of funded investigators, but also of the grantee institutions that support those investigators.

The ARL guide, "The NIH Public Access Policy: Guide for Research Universities," includes the following sections:

Policy Overview

Institutional Responses

Retaining Rights

How to Deposit

Resources

The guide focuses on the implications of the NIH policy for institutions as grantees, although some information for individual investigators is included and links to further details are provided. The guide is helpful to a range of campus constituencies that may be involved in implementing the new policy, including research administrators, legal counsel, and librarians.

In addition to compliance concerns, the guide also considers the benefits of the new policy and institutions' opportunities to build on the policy requirements by seeking additional rights for using funded research to address local needs.

Reflecting the dynamic nature of campus implementation activities, the guide will be updated as more campuses release plans, resources, and tools that can serve as models for their peers.

Three-Strikes Copyright Policy: France, the UK, and Now Australia

The Sydney Morning Herald reports that the Australian government is evaluating the UK's "three-strikes and you're out" copyright policy, which leaped the English Channel from France. The UK version of the policy involves a warning on the first illegal download offense, a suspension of ISP privileges on the second, and a revocation of ISP access on the third.

Read more about it at "War on Music Piracy."

Presentations from the Open Access Collections Workshop

Presentations from the Open Access Collections workshop are now available.

Here are selected presentations:

France's Three-Strikes Copyright Proposal Crosses the English Channel

A draft of a forthcoming Green Paper from the Department for Culture, Media and Sport ("The World’s Creative Hub") promises that the UK will "move to legislate to require internet service providers to take action on illegal file-sharing." It appears that the UK version of France's controversial "three-strikes and you're out" digital copyright proposal will involve a warning on the first illegal download offense, a suspension of ISP privileges on the second, and a revocation of ISP access on the third.

EU Commissioner Wants 95-Year Copyright Term for Musicians

Charlie McCreevy, the European Union's Internal Market and Services Commissioner has said that he would like to extend musicians copyright protection to a 95-year term. Unlike composers and lyricists, who get a lifetime plus 70-year term, performers currently have a 50-year term. McCreevy plans to introduce legislation to support his 95-year term plan.

Commons-Research Mailing List Launched

Giorgos Cheliotis has launched the Commons-Research mailing list.

Here's an excerpt from the list's home page that describes it:

Discussion among researchers studying the commons, for example the use and impact of peer production methods and communities and open licensing. We welcome researchers studying the commons in a wide range of disciplines, including anthropology, economics, law, media studies, sociology. . .

House Passes College Opportunity and Affordability Act with File-Sharing Provision Intact

Despite lobbying by EDUCAUSE and others, the U.S. House of Representatives has passed, 354 to 58, the College Opportunity and Affordability Act with its Sec. 494 illegal file sharing provision intact.

Here's the provision:

SEC. 494. CAMPUS-BASED DIGITAL THEFT PREVENTION.

(a) In General— Each eligible institution participating in any program under this title shall to the extent practicable—

(1) make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and

(2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.

(b) Grants—

(1) PROGRAM AUTHORITY— The Secretary may make grants to institutions of higher education, or consortia of such institutions, and enter into contracts with such institutions, consortia, and other organizations, to develop, implement, operate, improve, and disseminate programs of prevention, education, and cost-effective technological solutions, to reduce and eliminate the illegal downloading and distribution of intellectual property. Such grants or contracts may also be used for the support of a higher education centers that will provide training, technical assistance, evaluation, dissemination, and associated services and assistance to the higher education community as determined by the Secretary and institutions of higher education.

(2) AWARDS— Grants and contracts shall be awarded under paragraph (1) on a competitive basis.

(3) APPLICATIONS— An institution of higher education or a consortium of such institutions that desires to receive a grant or contract under paragraph (1) shall submit an application to the Secretary at such time, in such manner, and containing or accompanied by such information as the Secretary may reasonably require by regulation.

(4) AUTHORIZATION OF APPROPRIATIONS— There are authorized to be appropriated to carry out this subsection such sums as may be necessary for fiscal year 2009 and for each of the 4 succeeding fiscal years.

Are Photographs Derivative Works?

Is a photograph of a vodka bottle a derivative work? How about a photograph of a toy? A sculpture? Noted copyright expert William Patry examines cases dealing with these questions in "Photographs and Derivative Works," finding that the court's interpretation isn't always correct.

Here's an excerpt:

Photographs of other objects are not derivative works of those objects. First, a photograph of an object is not "based on" that object: It is a mere depiction of it. Second, even if one were to find that a photograph of an object is based on that "preexisting work" within the meaning of the definition of "derivative work" in Section 101, such a photograph must still "recast, transform, or adapt" the authorship in the preexisting work to be considered a derivative work.

Danish Court Orders Nordic ISP to Block Access to Torrent Search Engine Pirate Bay

Tele2, a major Nordic ISP, must block its customers access to torrent search engine The Pirate Bay due to a Danish court order. Recently, four persons associated with The Pirate Bay were charged with assisting copyright infringement.

Library Copyright Alliance and 7 Other Organizations Argue against the PRO-IP Act in White Paper

Eight organizations have submitted a white paper to the U.S. Copyright Office that critiques the PRO IP Act. The organizations are Library Copyright Alliance, Computer & Communications Industry Association, NetCoalition, Consumer Electronics Association, Public Knowledge, Center for Democracy & Technology, Association of Public Television Stations, and Printing Industries of America.

Here's an excerpt from the "Executive Summary":

Not only is there a complete lack of evidence for the need to modify existing law, the proposed change would cause significant collateral damage across the economy, including, for instance, technology and Internet companies, software developers, telecommunications companies, graphics and printed materials industries, libraries, and consumers. Allowing plaintiffs to disaggregate components of existing works would—

Incentivize “copyright trolls” by providing plaintiffs with the leverage to assert significantly larger damage claims and obtain unjustified “nuisance settlements” from innovators not able to tolerate the risk of a ruinous judgment.

Stifle innovation by discouraging technologists from using or deploying any new technology or service that could be used to engage in infringing activities by third parties.

Create unprecedented risk for licensees of technologies powered by software. Because licensees may be unable or unwilling to obtain meaningful indemnifications from every upstream contributor to a particular product, the proposed change will decrease companies’ willingness to outsource software solutions or use open source software.

Chill lawful uses, suppress the development of fair use case law, and exacerbate the orphan works problem.

Just Say No: Verizon Won't Filter the Internet

At the recent State of the Net conference, Tom Tauke, Verizon's Executive Vice President, told participants that Verizon did not intend to filter the Internet to enforce copyright compliance.

Here's an excerpt from "Verizon: No Thank You on Copyright Filtering":

He [Tauke] said that it would be 1) a bad business decision "to assume the role of being police on the Internet;" 2) a likely invasion of privacy; and 3) would open the door to requests from others to filter out other objectionable material, like indecency and online gambling.

EU Court Says EU Countries Do Not Have to Reveal the Identity of Internet Users in Civil Copyright Cases

The European Court of Justice has ruled that EU countries do not have to force ISPs to reveal the names of users associated with IP addresses in civil copyright cases. The court said: "Community law does not require the member states, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings."

How Big Should Statutory Damages Be for Copyright Violations?: Report on a Roundtable about Section 104 of the PRO IP Act

In "Roundtable on Copyright Damages: 'What Are We Doing Here?'," Sherwin Siy reports on an important roundtable discussion about Section 104 of the PRO IP Act.

Here's an excerpt:

My problem with the provision then was that no one present at the hearing was particularly keen on it—neither the Department of Justice nor the Chamber of Commerce were pushing it particularly hard. Nor was it really clear that this provision did much good to improve the state of copyright law. It has been fairly clear that this is something that the RIAA wants—it would allow them to recover a much larger sum in statutory damages. For instance, if a 10-song album were infringed, the statutory damages would not range from $750 to $150,000, as they do today, but could be as high as $7500 to $1.5 million.

Three Strikes and You're Out: A Kinder, Gentler Internet Disconnection Policy Emerges in France

Last November, it was reported that France intended to cut off Internet access to illegal downloaders after one warning from their ISP and a second offense. Now, it appears that violators will receive two warnings from the government, with a service cut-off after the third offense. Action on the bill is expected this summer.

Copyright Troubles for SeeqPod and The Pirate Bay Search Engines

It is anticipated that the Swedish government will soon charge The Pirate Bay, a torrent search engine, with copyright violations. The Pirate Bay has received over 4,000 pages of evidence related to possible violations from the government. It has been reported that The Pirate Bay serves as many as 10 million peer computers, providing access to about one million torrents.

This news comes hard on the heels of Warner Music Group's suit against SeeqPod, a digital music search engine. The SeeqPod case will likely be determined by the court's interpretation of the Digital Millennium Copyright Act's "safe harbor" provision, with SeeqPod claiming immunity and Warner claiming that it does not apply.