Category: Copyright

Stanford’s Copyright Renewal Database

Researching the copyright status of post-1922 works in the US can be difficult, and this has been a barrier to digitization efforts. The Stanford University Libraries and Academic Information Resources have released a new copyright research tool that promises to make this process easier called the Copyright Renewal Database.

Here’s an excerpt from the press release:

An online database that enables people to search copyright-renewal records for books published in the United States between 1923 and 1963 has been launched by Stanford University Libraries and Academic Information Resources (SULAIR).

SULAIR developed the Copyright Renewal Database, dubbed the "Copyright Determinator," with a grant from the Hewlett Foundation. The effort built on Project Gutenberg’s transcriptions of the Catalog of Copyright Entries, which was published by the U.S. Copyright Office. . . .

Determining the copyright status of books has become a pressing issue as libraries and businesses develop plans to digitize materials and make works in the public domain widely available. In order to appropriately select books for digitization, these organizations need to determine efficiently and with some certainty the copyright status of each work in a large collection. The Determinator supports this process, bringing all 1923-1963 book-renewal records together in a single database and, more significantly, making searchable renewal records that had previously been distributed only in print.

U.S. works published from 1923 to 1963 are the only group of works for which renewal is now a concern. Renewals have expired for works published before 1923, and they are generally in the public domain. The 1976 Copyright Act made renewal automatic for works published after Jan. 1, 1964. Determining the renewal status of works published between 1923 and 1963 has been a challenge; the Copyright Office received renewals as early as 1950, but only records received by that office after 1977 are available in electronic form. Renewals received between 1950 and 1977 were announced and distributed only in a semi-annual print publication. For the Determinator databases, Stanford has converted the print records to machine-readable form and combined them with the electronic renewal records from the Copyright Office.

EMI Offers Its Entire Digital Music Catalog Free of DRM

EMI, which ranks third in worldwide music sales, has announced that it will make it’s entire digital music catalog available without DRM (Digital Rights Management) protection via Apple’s ITunes.

Users will pay a modest premium for DRM-free tracks: $1.29 for new tracks and $.30 to free existing tracks from DRM.

Here’s an excerpt from the press release:

EMI Music today announced that it is launching new premium downloads for retail on a global basis, making all of its digital repertoire available at a much higher sound quality than existing downloads and free of digital rights management (DRM) restrictions.

The new higher quality DRM-free music will complement EMI’s existing range of standard DRM-protected downloads already available. From today, EMI’s retailers will be offered downloads of tracks and albums in the DRM-free audio format of their choice in a variety of bit rates up to CD quality. EMI is releasing the premium downloads in response to consumer demand for high fidelity digital music for use on home music systems, mobile phones and digital music players. EMI’s new DRM-free products will enable full interoperability of digital music across all devices and platforms.

Eric Nicoli, CEO of EMI Group, said, "Our goal is to give consumers the best possible digital music experience. By providing DRM-free downloads, we aim to address the lack of interoperability which is frustrating for many music fans. We believe that offering consumers the opportunity to buy higher quality tracks and listen to them on the device or platform of their choice will boost sales of digital music.". . . .

Apple’s iTunes Store (www.itunes.com) is the first online music store to receive EMI’s new premium downloads. Apple has announced that iTunes will make individual AAC format tracks available from EMI artists at twice the sound quality of existing downloads, with their DRM removed, at a price of $1.29/€1.29/£0.99. iTunes will continue to offer consumers the ability to pay $0.99/€0.99/£0.79 for standard sound quality tracks with DRM still applied. Complete albums from EMI Music artists purchased on the iTunes Store will automatically be sold at the higher sound quality and DRM-free, with no change in the price. Consumers who have already purchased standard tracks or albums with DRM will be able to upgrade their digital music for $0.30/€0.30/£0.20 per track. All EMI music videos will also be available on the iTunes Store DRM-free with no change in price.

EMI is introducing a new wholesale price for premium single track downloads, while maintaining the existing wholesale price for complete albums. EMI expects that consumers will be able to purchase higher quality DRM-free downloads from a variety of digital music stores within the coming weeks, with each retailer choosing whether to sell downloads in AAC, WMA, MP3 or other unprotected formats of their choice. Music fans will be able to purchase higher quality DRM-free digital music for personal use, and listen to it on a wide range of digital music players and music-enabled phones. . . .

EMI Music will continue to employ DRM as appropriate to enable innovative digital models such as subscription services (where users pay a monthly fee for unlimited access to music), super-distribution (allowing fans to share music with their friends) and time-limited downloads (such as those offered by ad-supported services).

Report on Sharing and Re-Use of Geospatial Data in Repositories

The GRADE project has released a report titled Designing a Licensing Strategy for Sharing and Re-Use of Geospatial Data in the Academic Sector.

The JISC-REPOSITORIES announcement indicates that the report presents "a licensing strategy for the sharing and re-use of geospatial data within the UK research and education sector," and that it "puts forward a conceptual framework for resolving those described rights management issues raised in relation to repositories."

Here is an excerpt from the report that describes it further:

Geospatial material created in the education sector can be highly complex, incorporating data created elsewhere either as found, or customised to fit the particular need of the academic or lecturer. The downstream rights can become very complex, as it is necessary to ensure that permissions have been gained to reuse or repurpose the data, and it is usually essential that correct attribution is made. There are currently concerns and confusion over the assertion of IPR and copyright of created geospatial data particularly where third party data are included.

This report considers a licensing strategy for the sharing and re-use of geospatial data within the UK research and education sector.

Digitization Copyright Wars: Microsoft Blasts Google at AAP

Microsoft Associate General Counsel Thomas Rubin took off the gloves at the Association of American Publishers meeting on Tuesday. The target: Google Book Search. The goal: to contrast Google’s approach to copyright issues associated with digitizing books with Microsoft’s more publisher-friendly approach.

Rubin’s comments included the following:

The stated goal of Google’s Book Search project is to make a copy of every book ever published and bring it within Google’s vast database of indexed content. While Google says that it doesn’t currently intend to place ads next to book search results, Google’s broader business model is straightforward—attract as many users as possible to its site by providing what it considers to be "free" content, then monetize that content by selling ads. I think Pat Schroeder put it best when she said Google has "a hell of a business model—they’re going to take everything you create, for free, and sell advertising around it."

To accomplish its book search goals, Google persuaded several libraries to give it unfettered access to their collections, both copyrighted and public domain works. It also entered into agreements with several publishers to acquire rights to certain of their copyrighted books. Despite such deals, in late 2004 Google basically turned its back on its partners. Concocting a novel "fair use" theory, Google bestowed upon itself the unilateral right to make entire copies of copyrighted books not covered by these publisher agreements without first obtaining the copyright holder’s permission.

Google’s chosen path would no doubt allow it to make more books searchable online more quickly and more cheaply than others, and in the short term this will benefit Google and its users. But the question is, at what long-term cost? In my view, Google has chosen the wrong path for the longer term, because it systematically violates copyright and deprives authors and publishers of an important avenue for monetizing their works. In doing so, it undermines critical incentives to create. . . .

Google defends its actions primarily by arguing that its unauthorized copying and future monetization of your books are protected as fair use. . . .

In essence, Google is saying to you and to other copyright owners: "Trust us—you’re protected. We’ll keep the digital copies secure, we’ll only show snippets, we won’t harm you, we’ll promote you." But Google’s track record of protecting copyrights in other parts of its business is weak at best.

Rubin also discussed Microsoft’s Live Search Academic and Live Search Books in some detail.

Here are some of the more interesting articles and postings about the speech:

Meanwhile, the Bavarian State Library has just joined Google’s library partners, adding about one million books to the project.

Haworth Press Requires Copyright Transfer Prior to Peer Review

Haworth Press now has a policy of requiring a copyright transfer prior to peer review.

For example, the "Instructions to Authors" for the Journal of Interlibrary Loan, Document Delivery & Electronic Reserve states: "Copyright ownership of your manuscript must be transferred officially to The Haworth Press, Inc., before we can begin the peer-review process."

This raises the interesting question of what happens when a paper is rejected: Haworth now owns the copyright, so how can the author now submit the rejected paper elsewhere?

Postscript: Haworth has posted a liblicense-l message indicating that it is clarifying its copyright transfer requirements.

Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007

Representatives Rick Boucher and John Doolittle have introduced the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act) in the House.

The EFF embraced the bill; The RIAA said it would "legalize hacking."

The key sections of the bill are below:

SEC. 2. COPYRIGHT INFRINGEMENT.

(a) STATUTORY DAMAGES ADJUSTMENT.—Section 2 54(c)(2) of title 7, United States Code, is amended by adding at the end the following: "The court shall remit statutory damages for secondary infringement, except in a case in which the copyright owner sustains the burden of proving, and the court finds, that the act or acts constituting such secondary infringement were done under circumstances in which no reasonable person could have believed such conduct to be lawful."

(b) CODIFICATION OF SUPREME COURT PRECEDENT APPLICABLE TO HARDWARE DEVICES.—Section 1 of title 7, United States Code, is amended by adding at the end the following: "(g) CERTAIN HARDWARE DEVICES.— No person shall be liable for copyright infringement based on the design, manufacture, or distribution of a hardware device that is capable of substantial, commercially significant noninfringing use."

SEC.. DMCA AMENDMENTS.

(a) CODIFICATION OF DETERMINATION OF LIBRARIAN OF CONGRESS.—Section 21(a)(1) of title 7, United States Code, is amended by adding at the end the following new subparagraph: "(F) The prohibition contained in subparagraph (A) shall not apply to a person by reason of that person’s en gaging in a noninfringing use of any of the classes of copyrighted works set forth in the determination of the Librarian of Congress in Docket No. RM 25-11, as published as a final rule by the Copyright Office, Library of Congress, effective November 27, 26 (71 F. R.8472 (Nov. 27, 26)."

(b) EXTENSION OF DETERMINATIONS OF LIBRARIAN OF CONGRESS.—Section 21(a)(1) of title 7, United States Code, is amended by adding at the end the following new subparagraph: "(G) The prohibition contained in subparagraph (A) shall not apply to—

"(i) an act of circumvention that is carried out solely for the purpose of making a compilation of portions of audiovisual works in the collection of a library or archives for educational use in a classroom by an instructor; "

(ii) an act of circumvention that is carried out solely for the purpose of enabling a person to skip past or to avoid commercial or personally objectionable content in an audiovisual work;

"(iii) an act of circumvention that is carried out solely for the purpose of enabling a person to transmit a work over a home or personal network, except that this exemption does not apply to the circumvention of a technological measure that prevents uploading of a work to the Internet for mass, indiscriminate redistribution;

"(iv) an act of circumvention that is carried out solely for the purpose of gaining access to one or more works in the public domain that are included in a compilation consisting primarily of works in the public domain;

"(v) an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research; or

"(vi) an act of circumvention that is carried out solely for the purpose of enabling a library or archives meeting the requirements of section 18(a)(2), with respect to works included in its collection, to preserve or secure a copy or to replace a copy that is damaged, deteriorating, lost, or stolen."

Creative Commons Version 3.0 Licenses Released

The Creative Commons has released version 3.0 of its popular licenses.

Here’s an excerpt from the press release that explains the changes:

Separating the “generic” from the US license

As part of Version 3.0, we have spun off the “generic” license to be the CC US license and created a new generic license, now known as the “unported” license. For more information about this change, see this more detailed explanation.

Harmonizing the treatment of moral rights & collecting society royalties

In Version 3.0, we are ensuring that all CC jurisdiction licenses and the CC unported license have consistent, express treatment of the issues of moral rights and collecting society royalties (subject to national differences). For more information about these changes, see this explanation of the moral rights harmonization and this explanation of the collecting society harmonization.

No Endorsement Language

That a person may not misuse the attribution requirement of a CC license to improperly assert or imply an association or relationship with the licensor or author, has been implicit in our licenses from the start. We have now decided to make this explicit in both the Legal Code and the Commons Deed to ensure that — as our licenses continue to grow and attract a large number of more prominent artists and companies — there will be no confusion for either the licensor or licensee about this issue. For a more detailed explanation, see here.

BY-SA — Compatibility Structure Now Included

The CC BY-SA 3.0 licenses will now include the ability for derivatives to be relicensed under a “Creative Commons Compatible License,” which will be listed here. . . . More information about this is provided here.

Clarifications Negotiated With Debian & MIT

Finally, Version 3.0 of the licenses include minor clarifications to the language of the licenses to take account of the concerns of Debian (more details here) and MIT (more details here).

CNI-COPYRIGHT List Moves and Changes Its Name

The CNI-COPYRIGHT mailing list is moving and changing its name.

The list is now called PIJIP-COPYRIGHT, and its e-mail address is PIJIP-COPYRIGHT@roster.wcl.american.edu.

The list’s new home page is:

http://roster.wcl.american.edu/archives/pijip-copyright.html

Peter Jaszi, Professor of Law and Faculty Director of the Program on Information Justice and Intellectual Property at the Washington College of Law, American University is now in charge of the list.

Know Your Copy Rights Initiative

The Association of Research Libraries and Peggy Hoon, Scholarly Communication Librarian at the North Carolina State University Libraries, have established the Know Your Copy Rights initiative "for librarians who are developing positive educational programs for academic users of copyrighted materials in US not-for-profit institutions."

A variety of useful documents are available (and more are being developed): "Assessing Campus Copyright Education Needs & Opportunities," "Know Your Copy Rights—What You Can Do" (faculty brochure), and "Using Copyrighted Works in Your Teaching—FAQ: Questions Faculty and Teaching Assistants Need to Ask Themselves Frequently."

New Yorker Google Book Search Article

The New Yorker has published an article about Google Book Search by Jeffrey Toobin in its February 5, 2007 issue ("Google’s Moon Shot: The Quest for the Universal Library").

Here’s a quote from the article:

Google asserts that its use of the copyrighted books is "transformative," that its database turns a book into essentially a new product. "A key part of the line between what’s fair use and what’s not is transformation," Drummond said. "Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself." In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound "fair" to the plaintiff publishers and authors.

Orphan Works Challenge Fails

The U.S. Court of Appeals for the Ninth Circuit has denied an appeal of Kahle v. Gonzales, leaving the legal status of orphan works unchanged. The plaintiffs’ attorneys were Jennifer Stisa Granick, Lawrence Lessig, and Christopher Sprigman.

Eric Auchard’s article "U.S. Court Upholds Copyright Law on ‘Orphan Works’" gives an overview of the Ninth’s decision.

The opinion is also available. Here is an excerpt:

Plaintiffs appeal from the district court’s dismissal of their complaint. They allege that the change from an "opt-in" to an "opt-out" copyright system altered a traditional contour of copyright and therefore requires First Amendment review under Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). They also allege that the current copyright term violates the Copyright Clause’s "limited Times" prescription. . . .

Arguments similar to Plaintiffs’ were presented to the Supreme Court in Eldred, which affirmed the constitutionality of the Copyright Term Extension Act against those attacks. The Supreme Court has already effectively addressed and denied Plaintiffs’ arguments. . . .

In March 2004, Plaintiffs Brewster Kahle, Internet Archive, Richard Prelinger, and Prelinger Associates, Inc. filed an amended complaint seeking declaratory judgment and injunctive relief. Brewster Kahle and Internet Archive have built an "Internet library" that offers free access to digitized audio, books, films, websites, and software. Richard Prelinger and Prelinger Associates make digital versions of "ephemeral" films available for free on the internet. Each Plaintiff provides, or intends to provide, access to works that allegedly have little or no commercial value but remain under copyright protection. The difficulty and expense of obtaining permission to place those works on the Internet is overwhelming; ownership of these "orphan" works is often difficult, and sometimes impossible, to ascertain. . . .

Plaintiffs also argue that they should be allowed to present evidence that the present copyright term violates the Copyright Clause’s "limited Times" prescription as the Framers would have understood it. That claim was not directly at issue in Eldred, though Justice Breyer discussed it extensively in his dissent. See Eldred, 537 U.S. at 243. Plaintiffs assert all existing copyrights are effectively perpetual. . . .

Both of Plaintiffs’ main claims attempt to tangentially relitigate Eldred. However, they provide no compelling reason why we should depart from a recent Supreme Court decision.

Creative Commons India to Launch on 1/26/07

The Creative Commons India will be launched on Friday.

From "Creative Commons Readies for India Launch":

Creative Commons-India’s project head Shishir K Jha, assistant professor at the IIT’s Shailesh J. Mehta School of Management, said the project would focus on three specific areas in India.

These are—centres of higher education like the seven IITs, regional technology institutes and management and other institutions. . . .

Creative Commons-India also plans to focus on non-profit and non-governmental organisations and corporates keen on adopting easier-to-share licences for the dissemination of their documents.

Has Authorama.com "Set Free" 100 Public Domain Books from Google Book Search?

In a posting on Google Blogoscoped, Philipp Lenssen has announced that he has put up 100 public domain books from Google Book Search on Authorama.

Regarding his action, Lenssen says:

In other words, Google imposes restrictions on these books which the public domain does not impose*. I’m no lawyer, and maybe Google can print whatever guidelines they want onto those books. . . and being no lawyer, most people won’t know if the guidelines are a polite request, or legally enforceable terms**. But as a proof of concept—the concept of the public domain—I’ve now ‘set free’ 100 books I downloaded from Google Book Search by republishing them on my public domain books site, Authorama. I’m not doing this out of disrespect for the Google Books program (which I think is cool, and I’ll credit Google on Authorama) but out of respect for the public domain (which I think is even cooler).

Since Lenssen has retained Google’s usage guidelines in the e-books, it’s unclear how they have been "set free," in spite of the following statement on Authorama’s Books from Google Book Search page:

The following books were downloaded from Google Book Search and are made available here as public domain. You can download, republish, mix and mash these books, for private or public, commercial or non-commercial use.

Leaving aside the above statement, Lenssen’s action appears to violate the following Google usage guideline, where Google asks that users:

Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes.

However, in the above guideline, Google uses the word "request," which suggests voluntary, rather than mandatory, compliance. Google also requests attribution and watermark retention.

Maintain attribution The Google ‘watermark’ you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it.

Note the use of the word "please."

It’s not clear how to determine if Google’s watermark remains in the Authorama files, but, given the retention of the usage guidelines, it likely does.

So, do Google’s public domain books really need to be "set free"? In its usage guidelines, Google appears to make compliance requests, not compliance requirements. Are such requests binding or not? If so, the language could be clearer. For example, here’s a possible rewording:

Make non-commercial use of the files Google Book Search is for individual use only, and its files can only be used for personal, non-commercial purposes. All other use is prohibited.

You Better Be Good, You Better Not Copy

The Wall Street Journal reports that Attributor Corp "has begun testing a system to scan the billions of pages on the Web for clients’ audio, video, images and text—potentially making it easier for owners to request that Web sites take content down or provide payment for its use."

The company will use specialized digital fingerprinting technology in its copy detection service, which will become available in the first quarter of 2007. By the end of December, it will have about 10 billion Web pages in its detection index.

An existing competing service, Copyscape, offers both free and paid copy detection.

Source: Delaney, Kevin J. "Copyright Tool Will Scan Web For Violations." The Wall Street Journal, 18 December 2006, B1.

Lessig’s Code: Version 2.0 Is Published

Lawrence Lessig’s Code: Version 2.0 is out. This update of the now classic Code and Other Laws of Cyberspace was written using a Wiki, with Lessig editing and refining that digital text.

The resulting book is under a Creative Commons Attribution-ShareAlike 2.5 License.

It can be freely downloaded in PDF form. Later, the final version of the book will be available on a second Wiki.

Creative Commons Web Site Makeover and CC Labs

The Creative Commons has redone its Web site using WordPress and added a new feature: CC Labs, which features development projects.

Current projects include the DHTML License Chooser, the Freedoms License Generator, and the Metadata Lab. (Consulting the Creative Commons Licenses page before using these tools will give you a preview of your license options.)

The symbols used to represent the CC licenses have changed. For example, here’s the Creative Commons Attribution-NonCommercial 2.5 License symbol.

Creative Commons License

Read more about these changes in Lawrence Lessig’s blog posting.

QuickTime Videos and PowerPoints from the Transforming Scholarly Communication Symposium

When I was chairing the Scholarly Communications Public Relations Task Force at the UH Libraries, the task force initiated a series of projects to increase awareness of key issues on the UH campus under the name "Transforming Scholarly Communication": a Website, a Weblog, and a symposium.

I’m pleased to announce that both the PowerPoint presentations and the QuickTime videos of the symposium speeches are now available. Thanks again to our speaker panel for participating in this event.

Ray English, Director of Libraries at Oberlin College and Chair of the SPARC Steering Committee, kicked things off with a talk on "The Crisis in Scholarly Communication" (PowerPoint, QuickTime Video, and "Sites and Cites for the Struggle: A Selective Scholarly Communication Bibliography").

Next, Corynne McSherry, Staff Attorney at the Electronic Frontier Foundation and author of Who Owns Academic Work?: Battling for Control of Intellectual Property, spoke on "Copyright in Cyberspace: Defending Fair Use" (PowerPoint and QuickTime Video).

Finally, Peter Suber, Research Professor of Philosophy at Earlham College, Senior Researcher at the Scholarly Publishing and Academic Resources Coalition (SPARC), and the Open Access Project Director at Public Knowledge, discussed "What Is Open Access?" (PowerPoint and QuickTime Video).

It’s Time to Support the Creative Commons

The Creative Commons has launched it’s 2006 fund raising campaign, and I’d urge my readers to support it as generously as they can.

Why? The reason is simple: it’s easier to restore balance in copyright by convincing content creators to embrace Creative Commons licenses than it is to influence copyright legislation that rolls back lengthy copyright protection periods that are in danger of becoming virtually perpetual, that constricts the ever-widening scope of copyright, and that permits realistic fair use of DRM-protected digital materials. Moreover, the Creative Commons fosters what Lawrence Lessig calls a "read-write" digital culture that permits digital material to be freely used and remixed vs. a read-only-maybe digital culture where digital materials are often hidden behind access barriers and cannot be remixed without permission, which may be impossible to obtain. If you doubt that this can work, consider this quote from the Creative Commons: "From January 2006 to July 2006 there was a growth from 40,000,000 to 140,000,000 linkbacks to our licenses!"

So, donate. At the $75 level or above you’ll get a t-shirt as well as the button and sticker that are available at lower donation levels. Or, don’t donate, but help out by buying Creative Commons gear at their store.

"Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" Postprint

The "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" postprint is now available.

The abstract is below:

Three critical issues—dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of Digital Rights Management (DRM) systems to lock-down digital content in an unprecedented fashion; and the erosion of Net neutrality, which ensures that all Internet traffic is treated equally—are examined in detail and their potential impact on libraries is assessed. How legislatures, the courts, and the commercial marketplace treat these issues will strongly influence the future of digital information for good or ill.

If you would like a more detailed description, see my posting about the preprint.

More on How Can Scholars Retain Copyright Rights?

Peter Suber has made the following comment on Open Access News about "How Can Scholars Retain Copyright Rights?":

This is a good introduction to the options. I’d only make two additions.

  1. Authors needn’t retain full copyright in order to provide OA to their own work. They only need to retain the right of OA archiving—which, BTW, about 70% of journals already give to authors in the copyright transfer agreement.
  2. Charles mentions the author addenda from SPARC and Science Commons, but there’s also one from MIT.

Peter is right on both points; however, my document has a broader rights retention focus than providing OA to scholars’ work, although that is an important aspect of it.

For example, there is a difference between simply making an article available on the Internet and making it available under a Creative Commons Attribution-NonCommercial 2.5 License. The former allows the user to freely read, download, and print the article for personal use. The latter allows user to make any noncommercial use of the article without permission as long as proper attribution is made, including creating derivative works. So professor X could print professor Y’s article and distribute in class without permission and without worrying about fair use considerations. (Peter, of course, understands these distinctions, and he is just trying to make sure that authors understand that they don’t have to do anything but sign agreements that grant them appropriate self-archiving rights in order to provide OA access to their articles.)

I considered the MIT addenda, but thought it might be too institution-specific. On closer reading, it could be used without alteration.

How Can Scholars Retain Copyright Rights?

Scholars are often exhorted to retain the copyright rights to their journal articles to ensure that they can freely use their own work and to permit others to freely read and use it as well. The question for scholars who are convinced to do so is: "How do I do that?"

The first thing to understand is that copyright is not one right. Rather, it is a bundle of rights that can be individually granted or withheld. The second thing to understand is that rights can either be granted exclusively to one party or nonexclusively to multiple parties.

What are these rights? Here’s what the U.S. Copyright Office says:

  • To reproduce the work in copies or phonorecords;

  • To prepare derivative works based upon the work;

  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

  • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual
    images of a motion picture or other audiovisual work; and

  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

A legal document, typically called a copyright transfer agreement, governs the copyright arrangements between you and the publisher and determines what rights you retain and what rights you transfer or grant to the publisher. The publisher may offer a single standard agreement or may have more than one agreement.

Whereas the publisher has had its agreement(s) written by copyright lawyers, you are not likely to be a copyright lawyer. This puts you at a disadvantage in terms or understanding, modifying, or replacing the publisher’s agreement. Therefore, it is very helpful to have documents written by copyright lawyers that you can use to modify or replace the publisher’s agreement with, even if the organization providing such documents does so under a disclaimer that it is not providing "legal advice."

Ordered by increasing level of difficulty in getting publisher acceptance, here are the basic strategies for dealing with copyright transfer agreements:

  • If the publisher has multiple agreements, choose the one that has the author assigning and/or granting specific rights to the publisher (e.g., ALA Copyright License Agreement). Don’t choose the agreement where the author assigns, conveys, grants, or transfers all rights, copyright interest, copyright ownership, and/or title exclusively to the publisher (e.g., ALA Copyright Assignment Agreement).
  • If the publisher has a single agreement that assigns, conveys, grants, or transfers all rights, copyright interest, copyright ownership, and/or title exclusively to the publisher:

Of course, other strategies are possible. For example, you could use another type of open content license instead of the Science Commons Publication Agreement and Copyright License. However, you might want to keep it simple to start.

For more information on copyright transfer agreements, see Copyright Resources for Authors and Scholars Have Lost Control of the Process.

For a directory of publisher copyright and self-archiving policies, see Publisher Copyright Policies & Self-Archiving.

By the way, DigitalKoans doesn’t provide legal advice and the author is not a lawyer.

Top Five Technology Trends

As usual, the LITA top 10 technology trends session at ALA produced some thought-provoking results. And, as usual, I have a somewhat different take on this question.

I’ll whittle my list down to five.

  • Digital Copyright Wars: Big media and publishers are far from finished changing copyright laws to broaden, strengthen, and lengthen the rights of copyright holders. And they are not yet done protecting their digital turf with punitive lawsuits either. One big copyright impact on libraries is digitization: you can only safely digitize what’s in the public domain or what you have permission for (and the permission process can be difficult or impossible). There’s always fair use of course, if you have the deep pockets and institutional backing needed to defend yourself (like Google does) or if your efforts are tolerated (like e-reserves has been so far, except for a few sub rosa publisher objections). In opposition to this trend is a movement by the Creative Commons and others to persuade authors, musicians, and other copyright holders to license their works in ways that permit liberal use and reuse of them.
  • DRM: The Sony BMG rootkit fiasco was a blow, but think again if you believe that this will stop DRM from controlling your digital content in the future. The trick is to get DRM embedded in your operating system, and to have every piece of computer hardware and every consumer digital device that can access and/or manipulate content to support it (or to refuse access to material protected by unsupported DRM schemes). That’s a tall order, but incremental progress is likely to continue to be made towards this goal. Big media will continue to try to pass laws that mandate certain types of DRM and, like the DMCA, protect its use.
  • Internet Privacy: If you believe this still exists on the Internet, you are either using anonymous surfing services or you haven’t been paying attention. Net monitoring will become far more effective if ISPs can be persuaded or required to retain user-specific Internet activity logs. Would you be upset if every licensed e-document that your library users read could be traced back to them? Unless you still offer unauthenticated Internet access in your library, that may depend upon your retention of login records and whether you are legally compelled to reveal them.
  • Net Neutrality: If ISPs can create Internet speed lanes, you don’t want your library or digital content provider to be in the slow one. Hope you (or they) can pay for the fast one. But Net neutrality issues don’t end there: there are issues of content/service blockage and differential service based on fees as well.
  • Open Access: If there is a glimmer of hope on the horizon for the scholarly communication crisis, it’s open access. Efforts to produce alternative low-cost journals are important and deserve full support, but the open access movement’s impact is far greater, and it offers global access to scholars whose institutions may not be able to pay even modest subscription fees and to unaffiliated individuals.

"Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" Preprint

A preprint of my "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper is now available.

It will appear in Information Technology and Libraries 25, no. 3 (2006).

This quote from the paper’s conclusion sums it up:

What this paper has said is simply this: three issues—a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality—bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-touted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past.

For those who want a longer preview of the paper, here’s the introduction:

Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers.

Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology.

It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," and there are many other visions of possible future Internet advances.

When did this metamorphosis begin? It depends on who you ask. Let’s say the late 1980’s, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred.

In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital.

Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary.

High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn’t, they hold the copyrights to a significant chunk of our cultural heritage.

Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper—and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so.

The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works.

This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works.

A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or object-access levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it.

The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn’t. One type of content was not blocked (at least by the network) while another wasn’t. In recent years, "network neutrality" has come under attack.

The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it’s outcome will determine what the future of digital culture looks like.

Free, Legal Digital Audio Downloads (Courtesy of the Creative Commons)

In Darknet: Hollywood’s War Against the Digital Generation, J. D. Lasica tells the story of Tarnation, a documentary film that nominated for a Camera d’Or award (pg. 84). The film was made for $218.31 using a video camera and iMovie. One catch: Lasica says that getting permission to use brief commercial music and video segments in the movie cost around $400,000. Creating derivative works that use the entertainment industry’s copyrighted works is clearly not cheap, assuming that you can obtain permission to use them at all.

Imagine instead a world where you could download, play, and use digital media works for free without paying license fees. It may sound impossible, but that world is starting to be built using Creative Commons licenses.

The most liberal license of the six main Creative Commons licences is Attribution: "This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation."

The most restrictive license is Attribution Non-Commercial No Derivatives: "This license is often called the ‘free advertising’ license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially."

Here’s a brief guide to selected resources that will help you get started finding digital audio works licensed under Creative Commons licenses.

  • Creative Commons Audio Page: An excellent place to start. It has a search engine, featured audio Web sites, brief information about the Creative Commons Licenses, a list of sites where you can contribute audio works, and featured artists, tools, and works. See also: the Creative Commons Find page, where you can search for CC-licensed works using Google and Yahoo!.
  • ccMixter: "This is a community music site featuring remixes licensed under Creative Commons, where you can listen to, sample, mash-up, or interact with music in whatever way you want." Site tabs provide access to picks, remixes, samples, a cappellas, people, and extras.
  • Common Content: "Common Content is a catalog of works licensed in the Creative Commons, available to anyone for copying or creative re-use. The catalog includes over 3,848 records, many of which are collections which include hundreds or thousands of other works." Audio categories include ambient, music, samples, and speech.
  • The Freesound Project: "The Freesound Project is a collaborative database of Creative Commons licensed sounds. Freesound focuses only on sound, not songs." Sound clips are described, tagged (there’s a tag cloud for popular tags), geotagged, and rated (example: tibetan chant 4 colargol 2.aif). Site includes a "Remix! tree," sample packs, and user forum.
  • Indieish: Your Free Music Daily: Blog with CC-licensed music reviews.
  • jamendo: "On jamendo, the artists distribute their music under Creative Commons licenses. . . .jamendo users can discover and share albums, but also review them or start a discussion on the forums. Albums are democratically rated based on the visitors’ reviews. If they fancy an artist they can support him by making a donation." Site distributes albums using BitTorrent and the M3U playlist file format.
  • PodSafeAudio: "This site aims to provide a location where musicians can upload music under the Creative Commons License for use in Podcasts, Mashups, Shoutcasts, Webcasts and every other kind of ‘casting’ that exists on the ‘net." A complex site with many features, including track reviews,categorization of music by genre and rating, categorization of artists by genre and region, collaboration project listing, user forums, and a blog.