Even very popular government mandates have opponents, and the National Institutes of Health’s (NIH) Public Access Policy certainly has its critics.

According to the agency, “The NIH Public Access Policy implements Division G, Title II, Section 218 of PL 110-161 (Consolidated Appropriations Act, 2008). The law states:”

The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

Critics of the policy are making a move, yet again, to eviscerate it.

Last month, Representatives Darrel Issa (R-CA) and Carolyn Maloney (D-NY) introduced The Research Works Act, H.R. 3699. The bill is currently referred to the House Committee on Oversight and Government Reform (which Rep. Issa chairs).

The Association of American Publishers lauds the bill, which it describes as

… [prohibiting] federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding. It would also prevent non-government authors from being required to agree to such free distribution of these works. Additionally, it would preempt federal agencies’ planned funding, development and back-office administration of their own electronic repositories for such works, which would duplicate existing copyright-protected systems and unfairly compete with established university, society and commercial publishers.

(Emphasis mine)

Evolutionary biologist and Public Library of Science co-founder Michael Eisen has done some research, finding that 12 of Reed Elsivier’s (and their senior executives) 31 political contributions for 2011 went to Rep. Maloney, co-sponsor of the bill, totaling $8,500. He also argues that while the bill refers to “private-sector research work,” the definition of such in the bill encompasses research products that receive funds from government agencies, thus invalidating the NIH Public Access Policy.

Some Blogosphere reactions to the bill include:

SOPA and the Research Works Act: Evil master plan or do publishers think so little of us? from Library Attack

Representatives Issa (R-CA) and Maloney (D-NY) introduce anti-open access legislation from Knowledge Ecology International

Congress Considers Paywalling Science You Already Paid For Congress wants to limit open access publishing for the US government’s $28B/year subsidized research from BoingBoing

Why Is Open-Internet Champion Darrell Issa Supporting an Attack on Open Science? from The Atlantic Online

Scholarly Societies: It's time to abandon the AAP over The Research Works Act from Confessions of a Science Librarian

New bill to block open access to publicly-funded research from Peter Suber

The Alliance for Taxpayer Access, an Open Access advocacy group, already has a Take Action page, asking supporters of the NIH Public Access Policy to call Reps. Issa and Maloney, as well as other members of the House Committee on Oversight and Government Reform.

We at Fairly Used will continue to look for news and reactions to this bill.

BEHIND THE SCENES WITH WINSTON TABB, REPRESENTING LIBRARIES AT THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)

Mary Minow:  Good morning. I understand that international treaty discussions concerning libraries, archives and copyright are scheduled in Geneva in November 2011.  How did that come to be?

 

Winston Tabb:  Really, where we began was at the International Federation of Library Associations and Instititutions (IFLA) World Congress in Oslo in 2005. We didn't start with the idea of a treaty at all, but with an interest in finding real-life, detailed examples from our colleagues from all parts of the world about what issues they were facing with copyright and managing their libraries. So, we planned a program session in which we organized people into discussion groups based on regions, both because of linguistic affinities and because typically regional differences may matter a lot in the challenges faced by libraries in dealing with intellectual property.   Through this session we came up with a list of very specific problems that our library colleagues face in different parts of the world, and that became the basis of our thinking.

I should add that we were led to plan this session in the first place because a group of Latin American countries had strongly suggested at WIPO in 2004 that the Standing Committee on Copyright and Related rights (SCCR) should focus in the need for limitations and exceptions, and we as a library community wanted to be prepared to say which L&Es were most critical to our mission.

Next, we said, if these are the problems we need to solve, then what is the best way to proceed with that?   Around the same time, we and several other library groups were asked by the World Blind Union to join in the drafting of the treaty for the visually impaired that was introduced about three years ago, and we very happy to do so since service to print-disabled patrons was one of the issues that had surfaced in our dialogue with other librarians.  We realized, in the course of that work, not only that it’s a really important issue, but that it was good to come first because it was easily definable, relatively easy to describe exactly what the applicable universe was.  But this treaty solved only one of the issues that libraries have.  So then we decided that we needed to  move more toward crafting our own, broader instrument on libraries and archives.  That process began with a workshop at the British Library in 2009 where a group of librarians, law professors, and civil society representatives (including the World Blind Union) met to develop a set of principles that would undergird the treaty we eventually drafted.

 

We also wanted to get archives engaged with us, and now they are. Someone from the International Council on Archives (ICA) has been part of our working group as well. So that's it, a short summary of how we got from thinking about what the library problems are to a document that presents possible solutions to those problems.

Minow: That's great! And then how did you get on the agenda at WIPO?

Tabb: The way we got on the agenda was by going and going and going!  This is one of those situations where if you're not present, you can just forget about having any impact.  You can go to many of these meetings and maybe very little happens, but if you don't appear, it is definite that nothing good is going to happen for libraries.   So, to back up, when I was appointed Chair of the Committee on Copyright and other Legal Matters (CLM) of IFLA in 2003, the committee had existed for just six years.  It had focused more on programs for the IFLA conferences and general awareness raising  than on really active representation and engagement at the international level. There was, at that time, a Swiss who would go to WIPO meetings and report about what happened, but that was really quite different from our being formally accredited and regularly sending a delegation. So after I went to the WIPO General Assemblies and the meeting of the Standing Committee on Copyright and Related Rights in the fall of 2003, I realized that really we needed to be much more active. We needed to be present on a more regular basis and with more force, ideally with broad geographic representation. When you're at WIPO, there's a lot of time that's not spent in plenary, but in hallway conversations and caucuses. The more people that we could have there, who could speak particularly to their own delegations, the greater our impact could be.  When I could speak to the US delegation, [Victoria Owen] to Canada, etc. the easier it was to have access and impact, because delegates often naturally tend to listen more carefully to people who are their constituents, so that having a diverse delegation was important. 

 

As it turned out, it was also a wonderful coincidence of timing that we began to appear just at the time that WIPO itself began to be more open to non-governmental agencies (NGOs) and NGO interventions. The very first time I went to the Standing Committee on Copyrights was the first time in anyone's memory when the chair of the session without prior warning suddenly asked, "Are there any NGOs that would like to make an intervention?" We were all caught so by surprise that we hardly knew what to do so.  As I recall, Jamie Love, representing Knowledge Ecology International, took the microphone and made an off-the-cuff statement and then a few more people followed, and that was that.  But that episode really started the trend, so that from that point forward, routinely, time has been set aside for all of the accredited NGOs to make interventions.  In fact, at the last SSCR (June 2011), several Member States insisted that the Chair permit NGOs to speak early on concerning L&Es for the print-disabled because they really wanted to hear our reactions to recommendations that had been tabled on this hot issue.  Quite often, we are limited to no more than three minutes, or sometimes even two minutes depending on how many NGOs are there.  So it became obvious that not only was it good to have people from different parts of the world there so that we could discuss issues with representatives from our own countries or regions, but also that the more library organizations that were present, the more “air time” we actually got to do interventions. So  IFLA was joined first by eIFL and after that came the Library Copyright Alliance of the United States; now we also have the Italian Library Association, and the Canadian Library Association. So we now have five library organizations that are accredited plus the International Council of Archives. We coordinate our statement so that if we only have two minutes each, that’s 10 minutes total for the libraries. We discuss whether we all want to say more or less the same thing because it's so important we want people to hear about it five times; or whether there are multiple issues that need to be addressed.   If so, we each take one so that we can maximize the benefit of having multiple delegations. That's been a very, very big change at WIPO, this idea that the NGOs are not only permitted to be present but are expected to be heard from. Time is set aside and then WIPO takes our statements and publish them as part of the record.  It's been a very important way of our doing education for the people who are from the member states.

Minow: Are there NGOs then that also appeared that take positions opposing yours?

 

Tabb: Oh, of course. One of the most obvious ones, particularly in the context of the treaty for the visually impaired, is the International Publishers Association (IPA) which has said in its interventions said that it will never support a treaty. That was two or three sessions ago I think. And the other major one opposing a treaty is the International Federation of Reproduction Rights Organizations (IFRRO). Both of them have said that they will oppose our treaty in principle, that our issues should be dealt with at the national level, so they are opposed to a treaty in principle. In fact, we had been hoping for some more progressive collaboration because we've had fairly close relationships between IFLA and the IPA over the years.  I've been a member of the IFLA IPA Steering Committee for the last eight years and we've issued joint statements on topics of mutual interest like retraction of articles and data-driven policies.  IFLA hoped to get into a constructive dialogue about the library L&E instrument itself , focused on the substance of various articles  - maybe some were ok, others weren't, and yet others needed to be tweaked; but instead both IPA and IFRRO just basically said that in principle they opposed an international instrument so there was nothing substantive to discuss. That's discouraging.

 

Minow: That is discouraging. And so do you expect the same, more of the same, when it comes to the library exceptions and limitations?

 

Tabb: Absolutely, I mean there's no question about it. As a courtesy, it was extremely important to us to share our drafts because we want to be transparent. We were hoping we could agree on that some portions that should be relatively uncontroversial, like preservation.  Perhaps they worry about the “slippery slope,” that if they start talking about an instrument at all there'll just be no stopping it.  I really don't know the reasons, but it has been disappointing.  Those are the two NGOs that probably have the most interaction with libraries generally – we are major customers! -  but certainly the people representing the motion picture industry, the recording industry and others are not likely to be very supportive either. We just haven't engaged with them as much as we have IPA and IFRO.

 

Minow: You don't expect the motion picture industry et cetera to show up... or do you?

 

Tabb: Yes, they're often there.

 

Minow: Okay, all right.

 

Tabb: I can't remember all the different NGOs now engaged at WIPO.  There are people who represent actors – especially when rights in audio-visual performances are being discussed -  and people who represent music producers, broadcasters... really all these international associations for the various rights holders as well as the NGOs like Knowledge Ecology, Public Knowledge, the Electronic Frontier Foundation that represent the public interest.

 

Minow: Okay. Are you hopeful, then, about a treaty going forward?

 

Tabb: Yes, I think we have to be. Who knows what will happen or when.  We have to be  patient and willing to persevere.  As I mentioned the treaty for the visually impaired looks from certain points of view like it should've been a “slam dunk,”  but it's actually been on the table for several years now. At the session that we'll be going to next week, actually, starting on the 15th of June, three full days are to be devoted to discussions just about the treaty for the visually impaired.   It is gaining some traction.  Libraries are the second in line by level of "maturity”.  I'm putting that in quotation marks because that's the term that's often used at WIPO to determine how to proceed on certain issues. The SCCR agreed at its last meeting to a multi-year work plan, with three days devoted to the treaty for the print-disabled now in June, and then for libraries/archives to have three days at the SCCR in November, and then education will probably be taken up at the session of SCCR in May or June of 2012. At least that's the current plan that's a matter of record, part of the conclusions of the last SCCR. What we don't know yet is what will actually happen either at the three days next week relating to the treaty for the blind or what will happen in November. We're very interested to get there next week and see how WIPO or the member states deal with these three-day windows that have been set aside for focus on a very particular issues and instruments. One of the important directions from the member states as stated in the conclusions is that these three-day sessions should be “text-based.”  The working assumption is that there has to be some text, so that people aren’t just talking in general about an issue but are focused on the current draft treaty for the visually impaired; and then the same thing should be true in November on the treaty for libraries.   The library text would include the document that's been produced by the African group, which is at this point the only one formally on the table at WIPO that talks about libraries. Our draft treaty has not yet been introduced by a member state.

Minow: Tell me about the African draft treaty.

 

Tabb: The African Group is very focused on what they call the holistic approach. They have one instrument that would cover the visually impaired and other disabled individuals, libraries and archives, and education.  Probably the biggest controversy at the last SCCR session was whether the African group would accede to the idea that there should be separate, sequential discussions over a two-year period breaking the elements of their proposal into various pieces. I think it's clear that one reason that the African group has been so adamant about the holistic approach is that they really believe that they will have more leverage if all of them are taken together. Particularly, they are concerned about education, which may drive the African group more than any of the other issues.  The dispute about whether to sequence or bundle these issues literally brought us up to the midnight hour at the last SCCR.  Finally there was agreement that these issues – visually impaired, libraries/archives, and education – would be taken up in sequence by level of maturity.

 

Minow: I see, okay.

Tabb: We have worked with the African group; we've explained our library concerns, and  attended workshops with the Africa group in Geneva to talk about their proposals. They made quite a number of changes in their document relating to libraries based on the discussions we had – more detail, more clarity about real-life issues that need to be addressed through the treaty for libraries particularly.

 

Minow: Tell me about the IFLA draft treaty.

Tabb: It was drafted by IFLA and eIFL together. I was directed by the governing board of IFLA at the World Congress in Milan to appoint a drafting committee, which I did. The committee has six or seven people, and is chaired  by Teresa Hackett who is a member of IFLA’s CLM but of course is also the head of the IP program for eIFL.  The draft is considered to be jointly produced by IFLA and eIFL.  The American NGO, the LCA, Library Copyright Alliance, has commented and offered suggestions, and we've taken some of them on board; but it has not formally signed on.   I am very conscious when I'm working on these issues about functioning at the international level, not as an American librarian.  Because there are national differences, I think it's possible that the LCA – or other national library associations - would not endorse the entire draft that we have because they're obliged to looking at issues primarily through a national lens whereas IFLA and eIFL represent an international constituency, and in eIFL’s case one that especially focuses on developing countries.

 

Minow: Interesting. I just re-read it and it's hard for me to imagine what that would be because it seems like it covered everything the way we would want it but ...

Tabb: Yes. Well the debate may come to focus not so much on the substance but the modality. I think what we're seeing now, what's happening with the treaty for the blind, is that  there are various approaches. One would be the full treaty approach, and others more “soft law” approaches, a joint recommendation perhaps; there are different ways of coming at this.  But IFLA – and the World Blind Union – remains convinced that a treaty will ultimately be the most efficacious way of achieving our mission.

Minow: Oh, I see.

Tabb:  Some parties think the solution is always a “stakeholders' platform,” like an agreement involving “trusted intermediaries” that was one venue used for a time as an approach to resolving issues for the visually impaired.  I think the best summary of where we are may be that people are more likely to agree, in many respects, about what they would like the outcome to be than about the method of getting there.

Minow: Yes.

 

Tabb: For lots of people it’s easier not to think about a treaty.  From IFLA’s point of view, we are more interested in results for libraries than in the process.  We are focused on the needs of libraries in about 185 countries, many of which, we know from Kenny Crews’ WIPO study, have no provision whatsoever in their national law for libraries, or such a general exception that it is practically useless. The chance of achieving our objectives either through national approaches or through soft law is less likely to be fully productive for all the countries that are members of IFLA than a treaty would be.   Of course I could see that from the LCA point of view, a different approach might be more appealing - because really, American libraries have it better than any in the whole world, with our Section 107 and 108 provisions. We are really the envy of our colleagues in every other country.  While there are changes that need to be made in our copyright law - none of us are totally satisfied, as we saw in the result of the 108 study group – American librarians might feel that they can get farther by some tweaks in US law, and that an international treaty is not as important to them as it would be to some of these countries, particularly in Africa or Latin America, that have no provisions for libraries at all. 

 

Minow: I see. And what about the US delegation? What is their position? Support for the IFLA/eIFL draft treaty?

Tabb: Interestingly, I convened a panel at the Association of Research Libraries (ARL) meeting in Montreal in May and I invited Justin Hughes, who is the current head of the US delegation to SCCR, to come and speak along with Jonathan Band [LCA] and Paul Whitney, who is a Canadian librarian and a member of the IFLA governing board. They talked not so much about the library treaty per se but about the way things work in Geneva in general, and so I don't really know exactly what the U.S. position is going to be.  Also, we have the recent appointment of Maria Pallante as the new U.S. Register of Copyrights, and that could have an effect on the U.S. position.  The U.S. delegation comprises many agencies and interests and individuals.  Currently the U.S. Patent and Trademark Office (USPTO), as part of the executive branch, is playing the lead role, with support from the Copyright Office, Department of State and the Institute for Museum and Library Services (IMLS). When I was working in the Copyright Office in the 1980s, our delegations to WIPO were almost always led by someone from the State Department or Copyright Office.  So you know, these things change over time. It's a little bit hard to know what's going to happen next because we do have some new players.

Minow: Right, right.

 

Tabb: So I don't really know. I'll be curious to see how this plays out.

 

Minow: When you talk about nontreaty options, soft law, what do you mean?

Tabb: Well, there could conceivably be a consensus of the signatories to the Berne Convention, that aspects of certain substantive provisions of our treaty are to be assumed under Berne.  I think looking at the comments from both the US and the EU on the treaty for the visually impaired gives some examples of how non-treaty approaches might play out.  Some argue that it might be wise to use these “soft” approaches to get half a loaf now, and work on the treaty later on.  Another alternative is to say we want it all, and we're willing to wait x years. Some argue it would be better to have something now than nothing, and others feel that if you start compromising, you'll only get something and never get the whole thing, which is I think the point of view of the World Blind Union.

 

Minow: I'm not familiar with the consensus... is that something in writing that everyone agrees to but it doesn't come back to be enacted into national law or what?

Tabb: Let me send you as an example a copy of the document from the US delegation relating to the visually impaired.

 

Minow: Thank you. How would you summarize where we are now?

Tabb: It's a very exciting development to have come as far as we have,  from 2003 and not really being present, not permitted to speak at WIPO  - to being where we are now where people expect us to be there, in force, and to be making substantive  interventions.  People are expecting our treaty because it really follows on directly from those studies that the WIPO secretariat itself commissioned. The first one focused on the visually impaired and then the 2006 Crews study focused on libraries.  We consider that we're really just building on the WIPO-commissioned studies like the one done by Kenny Crews.  The results of the data revealed in that study, like that fact that so few countries have provisions for libraries, made preparation of an actionable instrument inevitable.

 

Minow: I thought the orphan works provision was particularly elegant.

Tabb: Well thank you for that, we're interested to see what will happen because orphan works present one of our biggest frustrations as librarians.  At the very time when technology makes it possible to share information easily and widely, the incessant (and unconscionable) extension of copyright term combined with the elimination of registration and renewal formalities has effectively prevented the sharing of millions of publications that have little if any commercial value.  We’re watching very closely what’s going on at the EU and at what decisions might be taken in the US under the new Register of Copyrights about how to proceed, if at all, on new orphan works legislation.  A lot of people are afraid that opening things up could be more dangerous than living with what we have now through our Section 107 and 108.  But clearly the orphan works issue has got to be resolved somehow, because it's really locking up so much information that's giving no value to anyone, including the theoretical owner.

 

Minow: The orphan works language was simple and well written. Why haven’t we just used similar language in U.S. legislation?

Tabb: Well, in the draft treaty, what we tried to do in several of the provisions was to focus on what the result should be, not on the modality.  And we took a similar approach in articles where moral rights issues might arise. We don’t really think about moral rights in the U.S.  But there are countries where that's a very important issue. So we focused not on prescribing exactly how things should be done or how they should be embodied in the national law if the treaty were to be adopted and ratified, but on what the outcome ought to be for libraries and our users. We realize that there can't be a one-size-fits-all approach to how these exceptions or limitations would be implemented.

 

Minow: That's right, I wasn't thinking about the moral rights for orphan works, of course that would be an issue elsewhere.

Tabb: Well it came up very explicitly when I launched the treaty at the IFLA President's meeting at the Hague in April.   Take the idea of retraction of articles from databases. This is a very controversial issue.  Most librarians, myself included, feel strongly that the record is the record and shouldn’t be expunged.  Records can be annotated to explain why retraction might be sought; but it’s part of the historic, scholarly record and it doesn't disappear.   However, there are others who feel, particularly if they're from a country where moral rights are prized, that if the owner or author wishes to withdraw his or her work, it simply must be done, period.  There are various, strong differences of opinion on some issues like this; so we knew from the beginning that we had to leave certain matters more open to national interpretation.

 

Minow: So that provision says, I'm not looking at it now, it says "but subject to national law" or something like that?

Tabb: Right. And that's the reason for that.

 

Minow: I see.

Tabb: That's the pragmatic approach, which you have to have if you're ever going to get this treated adopted.  I wasn't at all surprised when I got asked that question about moral rights from one of the students who had been invited to come to the IFLA president's meeting. He was just appalled at the idea that the author couldn't withdraw or destroy something that he or she had created. To a librarian, thinking about the national record, that's an anathema.

 

Minow: It seems like when things are withdrawn, it's not usually the author... but it could be.

Tabb: Usually it is the publisher, and more often in the area of science where things were really wrong and someone could be killed because there was a wrong formula or prescription...

 

Minow: Right ...

Tabb: Something of that sort. So there really are good reasons why retraction could be sought.  About six years ago, the IFLA/IPA steering committee did issue a joint statement on retraction.  As I recall, the agreement there with the international publishers was that yes, the publisher should be able to withdraw an article, but taking notice of the importance of legal deposit, we also agreed that the item should remain as part of the legal deposit, properly annotated to indicate that the publisher has withdrawn x publication on x date for the following reason.   That's the approach librarians would prefer because we think that really is necessary for the historical record.

Minow: Oh, absolutely.

 

Tabb: There are a lot of people, including some colleagues from other countries, who see that in a different way;  so our own drafting compromise was to say that this situation would be handled according to national law, knowing that means that it would be treated differently in different countries.

 

Minow: Well, thank you so much for your time, I know it's a busy time for you.

Tabb: Oh, yes, I've enjoyed it so much. 

 

Winston Tabb is Chair, Committee on Copyright and other Legal Matters (CLM), International Federation of Library Associations and Sheridan Dean of University Libraries and Museums and Vice Provost for the Arts, Johns Hopkins University.

 

Mary Minow is Executive Editor, Stanford Copyright & Fair Use website.

Above: Cicely Wilson and Courtney Minick of Justia, holding Sheba and Belle, respectively

The Stanford Copyright and Fair Use site is pleased to announce a new feature to aid readers in keeping up and understanding copyright cases in a timely manner: copyright case summaries. To explain this new feature, Mary Minow talks to two editors of Justia, Cicely Wilson and Courtney Minick.

Mary Minow: Tell us about the copyright case summaries that the Stanford Fair Use site will be offering to readers.

Cicely Wilson and Courtney Minick: We will send a feed of summaries for cases that involve copyright issues to the Fair Use site. The summaries themselves are short blurbs that describe the key issues and holdings of a particular case. They are designed to give the reader a sense of whether they need or want to read the case in its entirety. The summaries link to the full text of the opinion on the Justia site, and they are also displayed on the same page as the opinion. This way someone browsing or searching for caselaw on our site gets the benefit of the overview as well.

As the number of opinion summaries grow in this feed, it serves as a survey of sorts for copyright and fair use law -- something that we hope will provide a lot of value as a free tool.

Minow: Who is writing the summaries?

Wilson and Minick: We have hired a team of experienced writers, all of whom are licensed attorneys, to write the summaries. They summarize the cases in a concise manner and tag the cases with relevant areas of law.

Minow: You're saying that a private company has hired a team of attorneys to write case law summaries, and then make those summaries available to the public for free? Why would you do that?

Wilson and Minick: Great question, Mary. At Justia we believe we all "do well by doing good."  To that end, one part of our core mission is to advance the availability of free legal resources on the web. The newsletter summaries fit in as a part of this by expanding access to the law and add value to the free primary law on our portal.

Minow: Any last words?

Wilson and Minick: Thanks Mary! We are very excited about this new product, and hope it will provide a lot value to lawyers, law librarians, and others who need to stay on top of legal developments. We are also looking forward to the addition of editorial information to our database of free legal opinions, as a way to help organize and contextualize the material.

Minow: By the way, who are the pugs?

Wilson and Minick: The pugs are our co-workers, Sheba and Belle!  You can see more of there Justia office adventures on their Facebook page.

Rich Stim is corporate counsel for Nolo. Rich is the author of several Nolo intellectual property books including:

Patent, Copyright & Trademark: An Intellectual Property Desk Reference
Patent Pending in 24 Hours
Music Law: How to Run Your Band's Business

Rich also writes two blogs for Nolo, What Price Justice and Nolo's Patent, Copyright & Trademark Blog, and provides information about trade secrets and nondisclosure agreements at NDAs For Free. He lives in San Francisco and has been without cable TV since 2006.

Nolo has published a new edition of the volume Getting Permission, a comprehensive, up-to-the-minute book on securing the use of copyrighted images, text, music and more. Moreover, Nolo has granted permission to the Stanford Copyright & Fair Use to provide free and open access to salient chapters dealing with copyright, fair use, and web-based content. Fair Use's Executive Editor Mary Minow has a brief interview with Rich Stim about the new edition of the book, and what's new in fair use law.

Mary Minow: thanks so much for sharing the rich Nolo content with the Fair Use site. What have been some of the recent changes worth pointing out?

Rich Stim: The mix of recent fair use case hasn't been too surprising. For example, we learned it's not a fair use to create a Harry Potter lexicon or to create a postage stamp from a sculpture. And it's not a fair use/parody to create a sequel to Catcher in the Rye. It is a fair use, however, to reproduce movie monster magazine covers in a book about the cover artist. No surprises with any of these decisions.

The most important fair use ruling may have been Lenz v. Universal Music Corp. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, 'Let's Go Crazy,' by Prince. The owner of the video claimed that since Universal didn't consider the issue of fair use, Universal could have not had a "good faith belief" they were entitled to a takedown. Faced with this novel issue, a district court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. That may have an effect on the trend towards automated mass DMCA notices. Let's hope so.

Minow: What's your assessment of these changes with regards to the big picture of copyright law, especially as it affects the higher education community?

Stim: I'm not sure much has happened recently will affect the higher education community. It's all been business as usual although we'll see what happens as a result of this recent ruling regarding the Google book archive. That may have a profound effect on the ability to access orphaned works.

There was a recent case that may, by analogy, effect the ability to claim fair use when copying electronic texts. In Capitol Records Inc. v. Alaujan, a defendant in a music file sharing case was prohibited from claiming fair use because he had failed to provide evidence that his copying of music files involved any transformative use. The court held that "In the end, fair use is not a referendum on fairness in the abstract ..." In other words, making a copy of a digital file and using that file for the purpose for which it was intended (in the case of purloined MP3s, that means copying it to listen to) can not be a fair use. To some people that may seem to chip away at the underpinnings of the Betamax case in which time-shifting of television shows for the purpose of later viewing was permitted as a fair use.

Here is the corrected link for over five years of court documents, organized by date. Courtesy of Stanford Fair Use and Justia:  http://fairuse.stanford.edu/blog/2011/03/the-authors-guild-et-al-v-goog.html

http://fairuse.stanford.edu/blog/2011/03/the-authors-guild-et-al-v-goog.html

The Council on Library and Information Resources (CLIR) and the Digital Library Federation (DLF) have launched a new publication series, with the inviting name of "Ruminations."  It will feature short research papers and essays with fresh perspectives in the digital environment for scholarship and teaching.

Kicking off the launch is a new rumination from John P. Wilkin, who we interviewed not so long ago, about his work helping old titles "rise" into the public domain.

John writes us:

"I'd like to point readers to a piece I recently wrote about publication patterns and copyright status, which was just published on the CLIR website at http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html.  Based on the analysis of over 5 million books in HathiTrust and several years of copyright status analysis for US 1923-1963 works, I point out some important patterns in the dates and origin of the works.  The date distributions and work Michigan has led on copyright determination helps make clear how few of these books (proportionately) are likely to be in the public domain.  On a more speculative note, the numbers lead me to conclude that 'orphans' may represent a startlingly high percentage of published books.  If nothing else, I hope what I show here stimulates more debate and even more work to help refine our sense of what's in the public domain, what's in copyright, what's likely to be an orphan, and what the consequences of these numbers is."

The Council on Library and Information Resources (CLIR) and the Digital Library Federation (DLF) have launched a new publication series, with the inviting name of "Ruminations."  It will feature short research papers and essays with fresh perspectives in the digital environment for scholarship and teaching.

Kicking off the launch is a new rumination from John P. Wilkin, who we interviewed not so long ago, about his work helping old titles "rise" into the public domain.

John writes us:

"I'd like to point readers to a piece I recently wrote about publication patterns and copyright status, which was just published on the CLIR website at http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html.  Based on the analysis of over 5 million books in HathiTrust and several years of copyright status analysis for US 1923-1963 works, I point out some important patterns in the dates and origin of the works.  The date distributions and work Michigan has led on copyright determination helps make clear how few of these books (proportionately) are likely to be in the public domain.  On a more speculative note, the numbers lead me to conclude that 'orphans' may represent a startlingly high percentage of published books.  If nothing else, I hope what I show here stimulates more debate and even more work to help refine our sense of what's in the public domain, what's in copyright, what's likely to be an orphan, and what the consequences of these numbers is."

A New Twist -- Securing Authors' Rights When Negotiating Content Licenses: an interview with Julia Blixrud, ARL and Ivy Anderson, University of California

Part I of Open Access Scholarship was an interview of Michelle Pearse, conducted by Executive Editor Mary Minow.  As promised, here is part II, which will specifically address law reviews and legal scholarship.

Eli Edwards: Nearly two years ago, a group of academic law library directors promulgated the Durham Statement on Open Access to Legal Scholarship. It called for (1) open access publication of law school-published journals, and (2) an end to print publication of law journals, coupled with a commitment to keeping the electronic versions available in 'stable, open, digital formats."

Recently, we talked with Richard A. Danner, Rufty Research Professor of Law and Senior Associate Dean for Information Services at Duke Law School.

Danner: Duke University adopted an open access policy in March 2010. The policy, which is available here [PDF] has not to my knowledge ever been published in final form. The policy is very similar to those adopted at schools and other entities at Harvard; the main difference being that Duke's policy is university-wide. It is also stated as a mandatory policy, but the legislative history, such as it is, indicates it is not.

Duke has had DSpace running, under the name DukeSpace, for several years, mostly for electronic theses and dissertations. In the short term it is also being used as the platform for archiving and access of faculty publications, but the longer term plans are to move toward a new repository system being developed at Duke using the Fedora Commons.

The Law School started its own Faculty Scholarship Repository in 2005, providing free access to the majority of all articles published by then members of the Duke Law faculty. The contents of that archive are now the foundation of the Duke Law Scholarship Repository on BePress, with which we have partnered through Nellco since 2009. Our repository policies do not include a mandate, but in practice nearly our faculty publishes of a scholarly nature is included. Over time, it will include: the texts of lectures delivered at Duke Law, webcasts from scholarly presentations and conferences, publications of Duke Law's research centers, Duke Law student works, and more.

Edwards: Prof. Danner, you recently presented a paper at Duke, at the workshop, "Implementing the Durham Statement: Best Practices for Open Access Law Journals" on Oct. 22, 2010. [The current draft of the paper is available here: Danner draft formatted RAD 23 Nov 2010.PDF (PDF); see below for an excerpt of the most recent draft - EE] If you were to summarize the progress made in the last two years, what would you say?

I am not sure what actually I can add to what is in the paper I sent, which my co-authors and I did revise substantially after the October conference. As Michelle [Pearse - see previous blogpost/interview] knows, student law journal editors often say that they are reluctant to move to all-electronic publishing because authors are reluctant to publish in non-print journals. [This and other issues surrounding open access legal scholarship will be part of an upcoming article in Duke Law Magazine.]

To assess these comments, my Duke colleagues, Marguerite Most and Kiril Kolev, and I have designed a brief survey to gather information about attitudes toward electronic publication of scholars who have recently published articles in leading law reviews. After pretesting the survey in December and gaining approval from University reviewers, we will administer the survey in mid-January to authors of articles in the last two completed volumes of the lead journals published at the US News top-fifteen ranked law journals.

Faculty members who frequently publish articles in the top law reviews and journals will share their attitudes towards online publications by filling out a nine-question online questionnaire. about 500 scholars will be contacted via email and invited to fill out the survey. The questions are designed to gain insight into how important print publication is to authors who publish in leading law journals.

I think this should be an interesting exercise and look forward to the results.

Edwards: As will we! Thank you so much for talking with us, Prof. Danner.

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Eli Edwards is an intern and Content Minion of the Stanford Copyright & Fair Use site.

Richard A. Danner is Senior Associate Dean for Information Services, and Archibald C. and Frances Fulk Rufty Research Professor of Law. Professor Danner has been active in the affairs of the American Association of Law Libraries, the International Association of Law Libraries, the American Bar Association Section of Legal Education and Admissions to the Bar, and the Association of American Law Schools. From 1984-94, he served as editor of AALL's Law Library Journal. He was President of AALL in 1989-90 and has chaired several AALL special committees and task forces; he served on the executive committee of the AALS from 2002-2004, and as first vice-president of the IALL from 2004-2010.

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EXCERPT: 

The Durham Statement Two Years Later: 

Open Access in the Law School Journal Environment

The Durham Statement calls for law schools to end print publication of law journals in a planned and coordinated effort led by the legal education community, focused on ensuring access to and preservation of the electronic journal literature. Without that effort, in an economic environment in which external factors are more than ever impacting libraries' collection decisions and law school budgets, what can we do to assure that electronically-published legal scholarship will remain available to future scholars?

...

1. It is time for law librarians to explore alternatives for preserving legal scholarship working in concert with the other stakeholders, including:

• Existing efforts to preserve legal information, such as the Legal Preservation Alliance (LIPA), which in 2010 established the Legal Information Archive as a collaborative digital archive . . . to preserve and ensure permanent access to vital legal information currently published in digital formats.
• Legal publishers holding extensive libraries of law journal content in electronic format -- LexisNexis and Westlaw, but perhaps primarily HeinOnline, with its extensive retrospective collections. Will their interests in preserving access to law journals for their commercial value mean they will now preserve digital content as libraries have traditionally preserved print content?
• Established preservation and electronic archiving programs such as Portico and LOCCKS, which have worked mostly with libraries and publishers outside of law.
• The Library of Congress, which already receives copies of all law journals whether published in print or electronic format under the mandatory deposit requirements of the Copyright Act, and works to establish best practices for digital preservation through the National Digital Information Infrastructure & Preservation Program (NDIIPP).
• Institutional repositories, such as Harvard University's local Digital Access to Scholarship at Harvard (DASH), or services such as the bepress Digital Commons, which hosts repositories for a number of law schools and supports law review publication.
• Printers of law journals, in order to forge the future role of print for preservation or print-on-demand services for legal scholarship.

2. It is also necessary to promote the use of common standards for formatting the files of the documents. Joe Hodnicki has noted ALA's and ACRL's calls for across-the-board format standardization, and the use of a standard mark-up language (e.g., XML) instead of PDF. Wayne Miller has proposed developing mutually-agreed upon law journal formats for archiving, preservation, and other uses.

3. It is time as well to take the initiative to create opportunities for dialogue with law school deans, law review editors, interested faculty, and legal information vendors on the need for concerted action regarding access to and preservation of electronically published law journals. These activities do not answer all of the concerns raised regarding the Durham Statement's call to end print publication of law journals, but they should at least provide a start for action toward meeting those concerns.