Category: Public Domain

Ithaka S+R has released Finding the Public Domain: The Copyright Review Management System .

Here's an excerpt from the announcement:

The project team documented these lessons in a book called Finding the Public Domain: Copyright Review Management System Toolkit. The Toolkit shares practical insights gained in this effort in the hope of supporting others interested in copyright review. This brief complements the practical toolkit. It explains the history of CRMS and introduces the basics of the CRMS procedure. It then discusses some of the lessons, successes, surprises, and challenges of the work.

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The University of Michigan Library has released Finding the Public Domain: Copyright Review Management System Toolkit.

Here's an excerpt:

This toolkit is divided into three main parts. It is primarily designed for copyright review of books, but it is also useful for a range of copyright review activities. The first part of the toolkit consists of a series of preplanning documents, one or more of which can be used in early-stage project meetings to build your team and plan your approach when faced with key questions. . . .

The second part of the toolkit dives deeper into the practical considerations facing a copyright review project, including project leadership, the legal fundamentals for copyright review, technical elements, and observations related to project personnel. . . .

The third part of the toolkit includes reports on pilot projects and a series of appendices. Together these form valuable documentation from the [Copyright Review Management System] project.

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College & Research Libraries has released an e-print of "How Large is the 'Public Domain'?: A Comparative Analysis of Ringer's 1961 Copyright Renewal Study and HathiTrust CRMS Data" by John P. Wilkin.

Here's an excerpt:

The 1961 Copyright Office study on renewals, authored by Barbara Ringer, has cast an outsized influence on discussions of the U.S. 1923-1963 public domain. As more concrete data emerges from initiatives such as the large-scale determination process in the Copyright Review Management System project, questions are raised about the reliability or meaning of the Ringer data. A closer examination of both the Ringer study and CRMS data demonstrates fundamental misunderstandings and misrepresentations of the Ringer data, as well as possible methodological issues. Estimates of the size of the corpus of public domain books published in the U.S. from 1923-1963 have been inflated by problematic assumptions, and we should be able to correct mistaken conclusions with reasonable effort.

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Paul J. Heald et al. have self-archived "The Valuation of Unprotected Works: A Case Study of Public Domain Photographs on Wikipedia."

Here's an excerpt:

We study the biographical Wikipedia pages of a large data set of authors, composers, and lyricists to determine whether the public domain status of available images leads to a higher rate of inclusion of illustrated supplementary material and whether such inclusion increases visitorship to individual pages. We attempt to objectively place a value on the body of public domain photographs and illustrations which are used in this global resource. . . . We find that the large majority of photos and illustrations used on subject pages were obtained from the public domain, and we estimate their value in terms of costs saved to Wikipedia page builders and in terms of increased traffic corresponding to the inclusion of an image. Then, extrapolating from the characteristics of a random sample of a further 300 Wikipedia pages, we estimate a total value of public domain photographs on Wikipedia of between $246 to $270 million dollars per year.

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Maira Sutton has published "Negotiators Burn Their Last Opportunity to Salvage the TPP by Caving on Copyright Term Extension" in DeepLinks.

Here's an excerpt:

New reports indicate that Trans-Pacific Partnership (TPP) negotiators have agreed to language that would bind its 12 signatory nations to extend copyright terms to match the United States' already excessive length of copyright. This provision expands the reach of the controversial US Sonny Bono Copyright Term Extension Act (or the "Mickey Mouse Act" as it was called due to Disney's heavy lobbying) to countries of the Pacific region. Nations including Japan, New Zealand, Malaysia, and Canada would all be required to extend their terms and grant Big Content companies lengthy exclusive rights to works for no empirical reason. This means that all of the TPP's extreme enforcement provisions would apply to creative works for upwards of 100 years.

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John Bergmayer has published "Let's Make It Easier to Expand the Public Domain" in Copyright Reform.

Here's an excerpt:

The fact that a license is "perpetual" doesn't require the copyright holder to keep offering the license; it just means the license, once granted, can't be revoked.

Except it can be. Copyright termination means that any license, including a perpetual public license, can be revoked. This means, for example, that contributors to projects like Wikipedia (where an original contributor continues to own the copyright to her work, but licenses that copyright under a liberal license) can revoke that license. It also means that people who transfer actual ownership of their copyrights to stewards like the Free Software Foundation can claw back that ownership.

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Neil Weinstock Netanel has self-archived "First Amendment Constraints on Copyright after Golan v. Holder" in SSRN.

Here's an excerpt:

Commentators have depicted the Supreme Court's January 2012 ruling in Golan v. Holder as a far-reaching repudiation of First Amendment limits on Congress's power to expand copyright and diminish the public domain. However, Golan imposes potentially significant First Amendment constraints on copyright protection even while granting fairly broad First Amendment immunity to Copyright Act amendments. It does so by effectively adopting Melville Nimmer's "definitional balancing" approach to resolving the tension between copyright and the First Amendment. . . As Golan applies that approach, neither Congress nor courts may "disturb" copyright law's idea/expression dichotomy or fair use privilege without running afoul of the First Amendment. Accordingly, following Golan, Copyright Act provisions and proposed legislation that would diminish one or both of those free speech safeguards remain vulnerable to First Amendment challenge.

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Randal C. Picker has self-archived "Access and the Public Domain" in SSRN.

Here's an excerpt:

Section I of the paper sketches out the emerging public domain. Section II considers three conceptual questions for structuring use of the public domain focusing on the extent to which the public domain should be viral; on whether we should insist that the public domain be accessed only through the original artifacts embodying it; and on whether private appropriability incentives for distribution of public domain scans match overall social interests. Section III turns to the tools for restricting use of the public domain, to copyright, contract, the DMCA and the CFAA. Each of these matters for access to the public domain and for competition over it. Section IV considers one narrow question regarding the relationship between copyright's deposit requirement and a truly public domain, while the last section briefly concludes the paper.

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Open Book Publishers has released The Digital Public Domain: Foundations for an Open Culture.

Here's an excerpt:

The public domain is the sovereign space of all citizens of the world. Like the air we breathe, it is free for all people to use, without restriction, no rights reserved. Our public ownership of this domain of knowledge should be understood as a fundamental human right to access our shared knowledge, the use of which is not the result of a grant by any specific government.

In this book, the members of Communia not only articulates this positive conception of our public domain, but also seek to make the European public domain actionable. The book defines the public domain of the European nations and studies the environment in which it operates. Most importantly, it recommends a set of actions to build and make use of that domain as an environment of shared intellectual property and multifaceted cultural heritage.

| Transforming Scholarly Publishing through Open Access: A Bibliography| Digital Scholarship |

In a major defeat for public domain advocacy, the US Supreme Court has ruled against Lawrence Golan and others in Golan v. Holder.

Here is an excerpt from a synopsis of the case from the Legal Information Institute:

Congress enacted Section 514 of the Uruguay Round Agreements Act in order to comply with the international copyright standards of the Berne Convention for the Protection of Literary and Artistic Works. Section 514 restores copyright protection to foreign works currently found in the public domain. Lawrence Golan and other performers, educators, and motion picture distributors brought this suit challenging Section 514, arguing that Congress's removal of works from the public domain exceeded its Copyright Clause powers. Golan also argues that Section 514 violates the First Amendment because the law does not serve any important government interests. Attorney General Holder counters that the Copyright Clause does not restrict Congress's authority to remove works from the public domain. He further argues that Section 514 does not violate the First Amendment because the government has a substantial interest in complying with the Berne Convention and protecting American works abroad.

Here's an excerpt from the ruling:

Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judgment of the Court of Appeals for the Tenth Circuit is therefore Affirmed.

In a lengthy dissent, Justice Stephen Breyer said:

The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute.

Justice Samuel Alito also dissented.

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