The roundtable was conducted by Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office.

Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office

The White Paper was submitted to Brauneis by Ariel Green, Sean Harb, Peter Holm, Kingdar Prussien, Kasonni Scales, and Juliana Yee, Copyright Policy Lab Practicum

Mary Minow: What was the impetus that led Stanford to research and write this White Paper?

Peter Holm:  The Copyright Office contacted Stanford initially and Professor Paul Goldstein contacted us.  I took a copyright class in the Fall of 2012 with Professor Goldstein. He emailed a few of us over the summer to see if we were interested. He described it as a chance to offer concrete suggestions to modernize the Copyright Office operations.

Minow: That sounds broad.  When did the focus narrow to copyright document recordations?

Holm:  That narrower focus developed in the Fall as we spoke with Maria Pallante, Register of Copyrights; Jacqueline Charlesworth, General Counsel, United States Copyright Office, and then with Professor Bob Brauneis who is there as a scholar in residence on these issues.

Minow:  Why does this matter?

Holm:  To have economic value, an owner of copyrighted works has to be able to sell and make his works available. If you don’t know who the owner is, you can’t make those transactions and the works lose value, so availability of this information is integral.

Minow: How do people find out now about who owns what copyrights?

Holm: It varies by industry.  Neither registration of copyrights nor recordation of copyright transfers are required, but both have benefits to the owner. Because taking these steps is voluntary, the amount of information available for any given work varies considerably.  So for example, in the music industry, there is extensive ownership information and licensing availability through ASCAP, BMI and the Harry Fox agency.  So if I want to play Elton John at a party open to all Stanford students, I can get a license from those collecting societies and not worry about who owns the rights.

Whereas if I find a book in the library, published in 1955 and I want to use it, it’s harder to find information.  There are probably records at the Copyright Office for the initial owner, as registration used to be required, but subsequent transfers might not have been recorded, so many questions remain. Did he transfer the copyright at some point? If not, is the author still alive? Did it go to his heirs, and who are they?

There is a substantial cost to investigating this, and often one doesn’t know who to talk to.

Minow: What’s the gist of your proposal?

Holm: It’s not a proposal per se. It’s really a list of options and tradeoffs.  We look at the role of the copyright office. Should it hold a giant database, partner with third parties?  Really it comes down to how do we best provide access to the public and get the information they need without overly burdening authors with unnecessary requirements?  We don’t want to make it too hard for them to exercise their rights to transfer works, since transfers are potentially beneficial.

Minow: What are the benefits of recording transfer documents, since it’s not required?

Holm:  It gives constructive notice of the transfer.  Also, if you record a transfer document there is a presumption of validity for that document over subsequent instruments of transfer of the same title.

Minow: Thanks for talking with us today.

——

Peter Holm is a third year law student at Stanford Law School.

Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use page.

The post Who’s the Owner: A White Paper on “Improving Copyright Information Management: An Investigation of Options and Areas for Further Research” appeared first on Stanford Copyright and Fair Use Center.

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 thatthere 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.

The post Behind the Scenes With Winston Tabb, Representing Libraries at the World Intellectual Property Organization (WIPO) appeared first on Stanford Copyright and Fair Use Center.

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.

The post Copyright Case Summaries: Interview with Cicely Wilson and Courtney Minick of Justia appeared first on Stanford Copyright and Fair Use Center.

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.

The post Interview: Rich Stim, Permissions and Fair Use appeared first on Stanford Copyright and Fair Use Center.

Minow: Tell us about this major new step forward in the quest for open access.

Julia Blixrud: A part of the background for this effort was an author rights addendum that came out of work several years ago by SPARC, the Scholarly Publishing and Academic Resources Coalition. We worked with lawyers to develop a legal instrument that modifies the publisher’s agreement and allows authors to keep key rights to their articles.  How could authors amend their agreements to allow them to use their own work in the way they wanted to?

Ivy Anderson: That was for an individual author, which is different from content licensing.

Blixrud: At the time, we thought the best way to be able to get our authors’ content made freely accessible in libraries was for authors to say, “oh, wait I ought to retain some of my rights in order to be able to deposit and use my work in my environment.”

You see, a lot of authors get an agreement from a publisher and they just automatically sign it without reading it. The agreement basically says, we the publisher have all rights to do whatever we want with this article in perpetuity.

Which means that if you’re the author, and you want to reuse your own work, you may have to get permission.

Blixrud: Get permission, or pay some fees … and no one at your institution can do anything with your stuff either, unless they bought it and paid fees and so on.

The author addendum was the first attempt to get that content opened up and made available to the author herself as well as to the institution.

Minow: How’s that been working out? SPARC put out some wonderful training tools, videos, slide shows, etc., for campuses to use to educate faculty authors.

Blixrud: Yes, but it’s hard. It’s a one-off. It’s an added step for the author to get the publisher to understand why they have to sign the new agreements. Some of the publishers made an initial push back, and the authors would say, I don’t want to go through the extra effort to push back on it — that’s one more hurdle I have to jump through get my work published.

We don’t have data. There’s no reporting when they had a failure.  We get stories once in a while of someone who persisted and was successful. And a lot of publishers have created better contracts that let the author retain some rights. Some people just strike through “exclusive” and write “non-exclusive.”  I’ve done that myself.

Sometimes it turns out that the publisher actually has a better agreement that they’ll pu ll out if there is push-back.

Ivy Anderson

Anderson:  There’s also a real problem of scalability and consistency. The authors and institutions have a hard time knowing what rights they’ve actually obtained.

Blixrud: Right – because I could adjust my agreement, but my buddy in the next office might adjust his agreement slightly differently.  So now what does the university have for its institutional website? It’s hard to keep track of what the different authors have agreed to. Do the authors even know what they’ve signed? The burden gets put on the libraries to do one-offs on each of these articles.

Minow:  Sounds impossible. And the problem will only get worse in five years. Who remembers what individual agreements they signed five years ago?

Anderson:  Right. There are two aspects to the environmental picture to start with.  First, there’s the individuality of each author’s agreement — a separate agreement with each publisher for each publication.

Second, many publishers now have green open access policies that are listed on the SHERPA ROMEO site. It’s a great site that lists what the publishers’ open-access policies are. But they’re all slightly different, with different attributes, and the publishers can change those policies at any time.

While this has introduced some organization and orderliness to this environment, it’s still not something that’s completely reliable.  One publisher may be green on that site and another may not be so green, or a green publisher today may not be so green tomorrow.  It’s hard to rely on the persistency of those rights.

A third environmental aspect is the institutional policies that are emerging …

Minow:  Do you mean institutional policies like Harvard’s that tell the faculty authors that they must deposit an electronic copy of their work to the school? [Editor: See our interview with HLS’s Michelle Pearse for more information on Harvard’s open access policies, linked above]

Anderson:  Yes — many institutions and academic faculties are now adopting policies that require academic authors to grant the institution certain rights in the articles that they publish, such as the right to deposit in an institutional repository and to make the work available for academic use.

Blixrud:  We don’t have a tradition in the US or Canada I don’t think, of faculty articles as work for hire. Europe has more of a work for hire environment. Here, we have the tradition that the content faculty authors produce is their own, and they get the copyright.

Through these policies, the university faculty are saying, “we’d like to make the content we’ve been producing more widely available for scholarly use.”

Anderson:  So these policies are springing up, but in many cases they still rely on individual action This brings us to the latest development: the notion of using the vehicle of the content license that libraries negotiate with publishers to institutionalize this bundle of rights.  Here’s our press release.

Minow:  Fabulous. I hadn’t heard of that. Using library content licenses to negotiate author rights.

Anderson:  This idea has been around for a while — for example, the NESLi2 national educational site license in the UK has had a model clause like this since 2006.

The U.S. hasn’t had a similar model until now, although some of us have been advancing the idea.  Since libraries represent their institutions in negotiating agreements with publishers, largely for journal content, there is a ready a vehicle in the form of an institutional agreement — one agreement between the institution and the publisher that secures content, or a set of rights over that content.

The idea is, why not use that vehicle to secure the right of the institution’s affiliated authors to retain rights to their work?

Minow:  They’re so unconnected, aren’t they?

Anderson:I think the feeling is that they’re not really unconnected.  We’re representing the institution, and we’re in a negotiation relationship with the publisher, and our affiliated authors who publish with that publisher also have a stake in and rights in that content that we are licensing back.  So why not use this relationship to also negotiate the authors’ rights?

Blixrud:  Most of the content that we’re talking about with this agreement are with the large publisher packages.

Say there’s an author at an institution who writes an article for an Oxford journal. What we’re saying is that in our agreement with Oxford, is that we’d like to be able to have that paper open for us to put in our repository, to be able to used for other scholarly purposes on our campus, whether or not the author has signed some other agreement.

The author has said, Oxford can publish this.  And we’re saying to Oxford, hi there that’s our author, and we’d like to use that work in our institution. We’d like to negotiate that as part of our agreement with you along with all the other things we’re negotiating with you on our contract.

That way, even if our authors forgot to negotiate or were oblivious, we still get the content for our repository.

Minow:  Nice.

Blixrud:  This came up because this one-off effort with authors who had signed article by article, publisher by publisher was a lot of labor. We knew we had to find a better system, and thought the contract license is a better place to do that, at least for large bundles of content.

Anderson:  That is the place where there already is an institutional relationship with the publisher.  No other part of the institution typically negotiates with publishers; it’s the library that has that established set of relationships. This idea came up at a meeting that ARL hosted on digital repositories in 2009 about how to develop more scalable repository infrastructure and policies.

Minow:  This is interesting. I can see lots of complications. What about retrospective content by an author?

Blixrud:  It’s whatever’s in the package. If my package agreement says I’m getting current content plus past x-years, that’s what our clause would indicate.

Anderson:  This is initial language that we’ve put out for comment at this point.  We’re inviting institutions to adopt it as a matter of policy, but there is also an expectation that it might iterate over time.

Blixrud:  It’s broadly stated. That’s why it’s in a blog, rather than something formal. This is an ad hoc group — we think this covers what we think is needed and we’ll make it public now so we can get comments. There’s a group of people working on this, but probably not every perspective is represented.

Minow:  Another issue, is which contract trumps the other. It seems timing would factor in. That is, what if the author signs a new contract after the institutional content license is signed?

Anderson:  That’s a good legal question. I’d be interested in your view!  We do have four lawyers in this group, and I vetted the clause with our own institutional counsel, particularly about the issue of making authors third party beneficiaries in a contract between the institution and the publisher.

Blixrud : In a practical sense, the use of this content within the institution, I am quite sure that every institution would weigh in the author’s preference.

Minow:  How would you capture an individual author’s preferences in a blanket contract?

Blixrud:  Well, most of the institutional mandates for deposit I’ve seen have or are building in opt-out clauses. That is, if a faculty member says, I don’t want to play in this agreement, they have an out.   They usually have to say why they want an out, so I expect something similar.

But part of my question would be to the author, “why wouldn’t you want it to be available to everyone in the institution?”

Minow (playing author) : Royalties.

Blixrud:  In fact, the benefit to journal authors is visibility, not royalties (unlike book authors).  You want to demonstrate impact in your field.

Greater open access means you’re more visible and we’re increasing knowledge.

It’s rare that authors opt out.

Anderson:  My understanding is that at Harvard, which has an institutional policy, a lot of the opt outs are because the publisher won’t allow it — the author wants to publish in journal X, and the publisher Y will not comply with the Harvard policy, so the only way to publish is to get an opt-out waiver from the institution.

A clause like this is meant to help that situation by trying to exert some additional institutional leverage on the relationship with the publisher. “We want to ensure in our contract that you will allow our authors to retain their rights, and by the way, we’re spending a lot of money on your journals.

Minow:  Is there any embargo? That is, is there say, a six month delay before an author can distribute the content?

Anderson and Blixrud (together):  The language doesn’t speak to that.

Minow:  Other expected pushbacks from publishers?

Blixrud:  There may be some pushback from a publisher who may say “I don’t need that clause because I’m green” [Ed. note: See Sherpa/Romeo for list of green publishers]

Minow:  It seems to me that if a publisher is already green, it would not be a problem to sign the agreement.

Anderson and Blixrud (together):  Right!

Anderson:  Some commenters have suggested that a publisher’s own green language should be incorporated into the agreement.

Blixrud:  We’ve put the model clause out there, but the agreements that are signed may have something different along the road.

Minow:  Ah, but then you’d still need to keep track of the different agreements.

Blixrud:  Right. And as Anderson said we’re trying to get consistency … not have all publishers doing something differently.  The labor costs of figuring out what you can and can’t do with one individual article are tremendous.

Anderson:  We want to make these transactions more efficient, and also by being more consistent with model language that everyone can agree to, the result will be more scalable for publishers as well. We’ve seen a lot more standardization around content licenses in general, so this is just one additional piece that can be added to those models that would make it more efficient for the publishers. They wouldn’t have to refer to their own internal legal counsel every time another library comes to them with an agreement, saying what about this version, what about this language.

Minow:  Who is a member of the institution? What about visiting professors?

Blixrud:  That is part of the contract. You would have defined who your users are in the contract.

Anderson:  It’s similar to defining authorized users, which are in fact controlled by institutional policies. Who you give an ID card and email address to helps define who the institutionally affiliated author is.

Edwards:  What about portability when an author leaves the institution?

Anderson:  The model clause doesn’t give the institution rights — it gives the author the rights. It says the author shall retain rights to use their Content for a list of scholarly and educational purpose including deposit in institutional repositories.

Minow:  I thought it was the institution. Isn’t it tricky to negotiate for authors?

Anderson:  Our legal counsel found it to be okay.

Blixrud:  We’re negotiating on behalf of these same people now, so they have access TO content.

Anderson:  We do this every day when we negotiate on behalf of our community. Vendors, publishers all have Terms of Service somewhere on their site, often embedded.  So our agreements always have a clause stating that notwithstanding the Terms of Service on the provider’s site, if they are sufficiently different, our terms will prevail. Why even negotiate terms at all if our users are subject to a contract of adhesion on the website?

Minow:  This is really interesting. I’ll be interested to see what happens.

Blixrud:  We expect some will go ahead and sign — especially green publishers. As for others, if it just keeps showing up, they will probably eventually sign. We felt the best thing we could do is give people real language, real clauses. If in every agreement it keeps coming up, the other party will have to notice that this is important. It’s not going to go away, and they’ll ask, “what can we do to meet that need?”

That’s what we’ve learned over the years. You just have to keep pushing on the things that you need.

Minow:  What about ebooks?

Anderson:  You’ve rightly identified that book content is often different because of royalties.

Blixrud:  This is for journal content. Ebook models are all over the map.

Anderson:  We have open access relationships with publishers who publish both journals and books, and we’ve had to clarify that this only applies to journals.

Edwards: Do you see differences across disciplines – business schools, law schools, medical schools, etc., all with different mindsets?

Anderson:  We haven’t seen those kinds of differences.

Blixrud:  At the ARL level, most of the contract negotiations are for content used across the institution. There may be separate contracts for medical and law, but most content is to serve everyone.

Anderson:  The strongest open access movement is in the biomedical sciences, but I don’t think there’s a protectionist view in non-science disciplines, just a lack of outside impetus. The biomedical and other sciences frequently have grant funding and typically engage in highly collaborative, data intensive research that requires widespread geographic teams where everyone needs access to the same content, whereas the humanities typically don’t operate that way.

Minow:  What about all the small publishers? Is the focus on large publishers?

Anderson:  The best estimates are that there are about 25,000 peer reviewed journals. Large publishers control a significant fraction, but there are still lots of individual publishers and societies.  Some of these may sell their content online through an aggregator. We can’t negotiate these rights with aggregators; they’re not in the position to grant them.

So a limited number of publishers cover a large percentage of content.

Blixrud:  It’s an 80/20 thing. Life will be a lot better if we get the 80%.

Minow:  Any related efforts?

Anderson:  I mentioned earlier the NESLi2 initiative in the UK (there’s a link in our blog).  And there’s a new joint UK-European effort to collaborate on similar language.  We’re staying in touch with these efforts.

Minow and Edwards:  Thanks so much for talking with us today.

Julia Blixrud  is the Assistant Executive Director, Scholarly Communication, for the Association of Research Libraries where her responsibilities include promoting positive change in the scholarly communication system.  From August 1999 to spring 2009, she also served as the Assistant Director for Public Programs for SPARC, the Scholarly Publishing and Academic Resources Coalition.

Ivy Anderson is the Director of Collection Development and Management at the California Digital Library, where she coordinates a broad range of shared collections activities encompassing licensed content, management of shared print collections, and mass digitization on behalf of the ten campuses of the University of California system. Before coming to the CDL in December 2005, Ivy was Program Manager for E-Resource Management and Licensing at the Harvard University Library, where she developed and managed a shared licensing program on behalf of Harvard’s many libraries.

The post A new twist — securing authors’ rights when negotiating content licenses <span class="subtitle">An interview with Julia Blixrud (ARL) and Ivy Anderson (University of California)</span> appeared first on Stanford Copyright and Fair Use Center.

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.

The post Open Access Scholarship, Part II: An Interview with Richard A. Danner appeared first on Stanford Copyright and Fair Use Center.

Mary Minow had a chance to talk with a colleague at Harvard Law School about Open Access.

Today, Mary talked with Michelle Pearse, Research Librarian for Open Access Initiatives and Scholarly Communication, Harvard Law School Library.

Minow: Michelle, now that the Open Access Policy has been in place for two years, how has it been working out?

Pearse: It has been an interesting journey. We are still in the process of reaching out to and educating the faculty, trying to get them to understand the policy and get it into their personal workflows. As part of our reorganization in Summer 2009, we made publication support part of library services, so we have tried to implement and educate faculty about the policy in that context (i.e. the policy is one aspect of the publication process now). The policy is often referred to as a mandate, which is a bit of a misnomer because faculty are always free to seek a waiver. (See the Director of Harvard’s Office for Scholarly Communication posting about this issue on his Occasional Pamphlet blog.)

It can be challenging implementing such a policy. It is important that we make the process as simple and straightforward as possible. While the traditional mark of repository success seems to be the number of items deposited, I think the more important metric at this point is progress in educating the faculty and cultivating relationships with them so they see the library as a partner in their publishing experience—from initial research to the disseminating the final product.

The open access policy itself applies only to scholarly journal articles, and our faculty actively publish books and other materials that do not even fall under the policy. We envision a “one-stop-shopping” system literally and figuratively. We are trying to develop workflows and technical systems that can truly realize that vision.

Minow: Since you have experience now with the journals, what has been the journal reaction to the policy?

Pearse: Overall, there is confusion about what these policies mean or are trying to do, so there is quite a bit of education with the publishers. The “teachable moment” often comes up when an author uses the addendum that the university has provided for faculty to send along with publication agreements. Most of the larger publishers of the peer-reviewed journals are already aware of the policy, and some have started asking their authors to show proof that they have submitted waivers. We have waiver language for faculty, that states that the faculty member has granted Harvard a license with respect to his or her scholarly articles, and that a waiver is requested for a particular article.

In an odd way, it actually facilitates my outreach work with faculty as it brings the issue to the forefront.

There have been some instances where even when a waiver has been submitted, in the end the publisher agrees to budge a little bit from its routine policy as a compromise.

Minow: In what way?

Pearse: For example, the publisher may authorize self-archiving of a later version than it normally permits. With some of the bigger publishers, it can be a challenge figuring out the appropriate person with whom to discuss these issues.

Minow: Law reviews are produced by the law schools, and edited by students. Do you get a different reception from law reviews than you do from other journal publishers?

Pearse: Yes. By contrast, the law school law reviews are generally more supportive of the policy (particular the ones that have their contents open or “gratis open access”), but they are not always comfortable with or understand the terms of the Harvard license. We are trying to compile a list of law journals that are expressly supportive of the policy to facilitate workflow and educate faculty when they are publishing. At some point, if more law schools adopt open access policies, it would be great to have that information incorporated into submission systems and journal web pages.

Minow: How has it been implementing it in a university environment that has different schools enacting open access (e.g. centralized vs. local practices)?

Pearse: We were only the second school after the Faculty of Arts and Sciences (FAS) to adopt the open access policy, so it has been interesting to watch the Office for Scholarly Communication (OSC) evolve over time. We now have 6 schools at Harvard with OA policies. The growth in the number of schools has provided a fabulous opportunity to meet with colleagues working on similar issues, to share thoughts and processes for workflow, experiences with implementing the policies, etc. … especially where scholarship has become so interdisciplinary now. Over time, the OSC has also developed rich external and internal sites where we can share tools to help with the administrative aspects of implementing the policy. It also has open access student “fellows” that we have occasionally used to help populate the repository. We are also hoping that centralized discussions and negotiating with publishers will be helpful in communicating with publishers and facilitating the deposit of content.

Some of the “advantages” of centralization, however, can also create some of the biggest challenges. For example, we are fortunate to have a central office to run the repository on a technical level (it uses DSpace), but it also means we sometimes have to wait for certain developments to take place or compromise if have different ideas about the look and feel of the interface. In general, these issues tend to work themselves out. For example, delays in technical developments that are problematic for us often tend to be important to other schools as well, which can cause them to move up the priority list. The schools (and disciplines) have very different cultures, so it is interesting to see how these local cultural differences sometimes affect how we might approach certain aspects of implementing the policy like outreach and workflow. It is also interesting to see how the language of the policies themselves are slightly different and have evolved with each new school adopting a policy. (At this point, each school has its own language and responsibilities in figuring out how it wants the policy to operate in its own school.) While we can share technical resources and information and harness the synergies that exist, I think we will have to think about ways to create overlays and develop underlying workflows that can be customized to accommodate our own needs.

Minow: Thank you so much for your update!

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For part two of Open Access Scholarship, we will be discussing the Durham Statement and what has happened in the two years since its publication with Richard A. Danner, Rufty Research Professor of Law and Senior Associate Dean for Information Services at Duke Law School.

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Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use site.

Michelle Pearse is the Research Librarian for Open Access Initiatives and Scholarly Communication, Harvard Law School Library. You can follow her on Twitter at @aabibliographer.

The post Open Access to Scholarship, Part I: A Conversation with Michelle Pearse appeared first on Stanford Copyright and Fair Use Center.

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

• Abigail De Kosnik is an Assistant Professor at the University of California, Berkeley in the Berkeley Center for New Media (bcnm.berkeley.edu) and the Department of Theater, Dance & Performance Studies (tdps.berkeley.edu). She is the co-editor of The Survival of Soap Opera: Strategies for a New Media Era, which will be published by the University Press of Mississippi in December 2010.

• Gary P. Handman is the Director of the Media Resources Center, Moffitt Library, University of California Berkeley, one of the largest curated video collections in a US academic library. Mr. Handman has written extensively in the field of video librarianship, including a regular video column in American Libraries and regular reviews for Video Librarian magazine. Handman is a member of the board of advisors of the New York Film and Video Festival and of MediaRights.org; he is a founding member of the American Library Association Video Round Table, and was the first elected chair of the group.

• Mark Kaiser is the Associate Director of the Berkeley Language Center at the University of California, Berkeley, and an occasional lecturer in Russian in the Slavic Department. Formerly an Associate Professor of Russian at Illinois State University, Kaiser became increasingly involved in applying computer technologies to the teaching of Russian, which led him to UC Berkeley in 1996. At the BLC he has overseen the transition from analog to digital technologies, the expansion of Distance Learning services, and the incorporation of film into language teaching.

The post The 2010 DVD Exemption to the DMCA: An Interview with Abigail De Kosnik, Gary Handman and Mark Kaiser appeared first on Stanford Copyright and Fair Use Center.

An Insider’s View of the WIPO: Interview with Janice T. Pilch, Associate Professor of Library Administration and Humanities Librarian at the University of Illinois at Urbana-Champaign

An international copyright advocate for the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, Janice has represented the interests of U.S. libraries and the public at copyright-related meetings of the World Intellectual Property Organization (WIPO) and other international fora for the past three years. As an advocate, she develops position statements to advance fair and equitable access to information, contributing to LCA’s strategic effort to influence legislation and public policy governing use of copyrighted materials.

In 2009-2010 Janice also served as Visiting Program Officer on International Copyright for the Association of Research Libraries, responsible for research and policy formulation on international copyright issues relating to libraries.

At the ALA Annual Conference in June 2010 in Washington, Janice was a member of a panel co-sponsored by ACRL and the ALA Office for Information Technology Policy on “Why WIPO? Why International Copyright Matters.” We thought we would invite her to share some of her insights on the important work being done by the Library Copyright Alliance at WIPO in the global IP debate.

Mary Minow:
How did you find yourself before WIPO in June, representing library, and by extension, the public’s interests?

Janice Pilch: When the Library Copyright Alliance launched its international copyright advocacy program in October 2007, it gained accreditation as an NGO with observer status at WIPO. We set out to cover the work of three key WIPO committees: the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), as well as the WIPO General Assembly.

These committees are dealing with international treaty proposals and initiatives that impact the way that libraries and the public use copyrighted works and the future of information access. It’s critical for library organizations to be at the table for the discussions. In the most general terms, it’s about restoring the balance between private and public interests in copyright. I should mention that the LCA international copyright advocacy program has been generously funded by a grant from the John D. and Catherine T. MacArthur Foundation.

I have attended meetings of the General Assembly, CDIP and SCCR. In December 2009 and June 2010 I was the LCA representative to the SCCR, which is now is engaged in historic discussions on copyright limitations and exceptions in three areas: for blind, visually impaired, and reading disabled persons, for libraries and archives, and for education.

Mary Minow: Why is international copyright important for libraries?

Janice Pilch: There are several levels at which law is shaped — directly through the national legislation, and indirectly through international treaties and other international instruments that influence the national law. In some parts of the world, regional agreements also play an important role. In the U.S. we can influence lawmaking nationally, by reaching out to Congress — this is something that ALA does very well — and internationally, by sending representatives to WIPO to work from the top down, to shape the treaties and other instruments that condition the national law.

Because libraries preserve and provide access to the world’s intellectual heritage, they have an interest in promoting copyright laws that provide the broadest possible use of information for creativity, research and education. Library activity is made possible by limitations and exceptions to the exclusive rights of copyright holders. But there are no limitations or exceptions in the international instruments underlying the responsible work that libraries and archives do to keep information alive and circulating. Copyright limitations and exceptions for libraries exist as a matter of common practice in national laws, but they are not mandated by treaties. They are being compromised in the digital environment. They can disappear. Copyright limitations and exceptions are one of the most important issues currently on the agenda of the SCCR.

Engagement in international copyright issues is especially important for libraries in developing nations, that experience the uneven effects of globalization, compounded by external pressure to adopt high standards of protection that do not benefit them domestically. We support the goals of the WIPO Development Agenda that was adopted at the 2007 WIPO General Assembly to change this. It aims to bridge the “digital divide” — the technology gap and the knowledge gap that has come about as a result of globalization, technological change, and trends toward higher protection of intellectual property associated with the WTO TRIPS Agreement. The work that LCA does at the CDIP is about improving access to knowledge for developing and least developed nations.

And in the IGC, WIPO is currently considering adoption of a treaty to protect traditional cultural expressions (TCEs), works of indigenous peoples and traditional communities. This would have far-reaching implications for indigenous peoples and other communities that are tradition bearers of these expressions. It would also affect libraries and museums holding collections that include TCEs — texts, audiovisual works, sound recordings, art, photographs, artifacts, and more, and also derivative works, such as collections of native folk tales and archives of anthropological research related to native history and culture. Because libraries and museums play a primary role in preserving cultural heritage, this is a key issue for us.

Mary Minow: Can you describe the atmosphere at the WIPO proceedings?

Janice Pilch: WIPO is a specialized agency of the U.N. Discussion is formal, governed by U.N. protocols. Government delegations raise their flags and speak in queue. The meetings are held in a large assembly room, consisting of delegations of WIPO Member States — 184 nations belong to WIPO — plus plus accredited IGO and NGO representatives. They are typically week-long meetings. Meetings go all day long, sometimes into the night.

Government delegations consist of a combination one or more heads of copyright, patent, or trademark offices, representatives from U.N. missions, government ambassadors, diplomats, or other senior government officials. Although it varies from meeting to meeting, usually there are several hundred government delegates present, plus the IGOs and NGOs.

The atmosphere is refined and polite, but discussions can be polarized, often with highly industrialized nations and developing nations presenting opposing interests. Regional groups play an important role. As in other U.N. bodies, regional groups wield power collectively. Examples of regional groups are the Group of Latin American and Caribbean Countries, the African Group, and the Asian Group. Group B is a cluster of industrialized countries. Agreement between several regional groups is the way to get things done.

Mary Minow: What do you do as an NGO representative at WIPO?

Janice Pilch: We do a lot at the meetings, and put a lot into the preparation for meetings. As an observer organization, we prepare written statements and give statements, called interventions, on the floor. NGOs are given time usually at the end of a topic discussion, or at the beginning of a meeting, or end of a week-long meeting — usually 3 minutes — to take the microphone and deliver an intervention. We have to anticipate the flow of a discussion and also be ready to give statements on the fly if there is not a lot of advance notice.

We also prepare written documents for distribution to WIPO delegates, to clarify and reinforce library concerns. Our aim in doing this is to offer to government delegations information about libraries and archives, as well as our concerns, so that they will make better decisions. Copyright law is not absolute — it is constantly changing, and it’s created by human beings. Who can better explain the practicalities of copyright law for libraries than librarians?

An example of such a written document is the Statement of Principles on Copyright Exceptions and Limitations for Libraries and Archives that LCA, along with eIFL.net and IFLA, wrote and distributed at the WIPO SCCR meeting in May 2009. The Statement outlines the urgency of taking action to expand limitations and exceptions to meet the needs of librarians and the public in the digital environment. It followed the WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives prepared by Kenneth Crews, whom we all know as a leader in the area of libraries and copyright.

In addition, we work on new ideas related to committee meeting agendas that will benefit libraries. Sometimes the work results in new proposals officially put forward by government delegations, or studies, or information incorporated into studies. For example, in the CDIP there is a project involving the digital divide and access to knowledge that will include analysis on education and research, open access, and e-information services. Contributing feedback to projects like this enriches the discussion. The more information there is on the table, the greater the likelihood that the outcome will be reasonable and will consider the interests of all stakeholders.

In Geneva we also attend and speak at side meetings organized by official delegations, IGOs and NGOs, at lunchtime sessions or in the evening. They are sometimes on a specific issue, such as a new breaking development, and sometimes they are general meetings. During the breaks and other available free time, we engage with delegates, to make our concerns known, and to be supportive to them as well. We sometimes meet with the U.S delegation and we appreciate those meetings very much.

The work is collaborative. We work with other civil society organizations, especially other library organizations. Civil society organizations support each other, and do enormous amount of work. Increasingly committee chairs and delegations acknowledge the beneficial influence of NGOs, including library organizations, and this is gratifying for us. Our presence alone is important.

Mary Minow: You’ve been to WIPO sessions before. Have you noticed any changes over the years?

Janice Pilch: I have noticed changes in the three years that I have attended, since 2007 — all positive. Colleagues who have been involved in this work for much longer also note that the influence of NGOs has increased over the years, and that there is more acknowledgment of their participation. When library organizations started attending WIPO meetings, the organization was less receptive to our views. Now there is more cooperation. WIPO welcomes civil society participation but at the same time the main focus of WIPO is the promotion of IP protection worldwide, and that is the context we work in.

Many WIPO delegates express gratitude for our presence and support us, in their interventions. We feel that there is a cumulative effort in the work we do. On the issue of copyright limitations and exceptions for blind, visually impaired and other reading disabled persons, over time we have seen a move from resistance to the issue, to tenuous acceptance, to full agreement that this is an issue that demands a solution at WIPO.

Mary Minow: Can you describe some of the surprising twists and turns on the copyright front for blind and reading disabled persons?

Janice Pilch: This is such an important issue, and it has a long history. For decades, blind and visually disabled persons have been struggling for improved access to copyrighted works. In most countries it is difficult legally to copy and transform a copyrighted work into an accessible format, even as digital technology has made this easier. There is no international copyright treaty that contains a specific provision relating to the needs of blind and visually impaired people. The result is that provisions in national laws vary greatly from
country to country. And there is no international framework that facilitates cross-border distribution of accessible versions.

The need for a solution has been under discussion since the early 1980s. A 1985 report issued by the Executive Committee for the Berne Convention and the Intergovernmental Committee of the Universal Copyright Convention recommended a solution in the form of a new treaty. But nothing happened. Even now it is estimated that in the U.S., less than 5% of published works are available in accessible formats. The problem is more acute in developing nations. This is an appalling figure.

To get the issue on the WIPO agenda, in 2004-2005 the government of Chile made several proposals to WIPO to address exceptions and limitations for education, libraries, and disabled persons, and the public interest. Library groups were fully behind these proposals.

WIPO responded positively to the 2005 proposal by Chile, and commissioned a series of new studies on limitations and exceptions in the digital environment covering three areas: for the visually impaired, for libraries and archives; and on educational activities and distance education, including cross-border issues. The WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired by Judith Sullivan in 2007 identified only 57 nations that have a provision for visually impaired people in the national copyright law.

In July 2008 Brazil, Chile, Nicaragua and Uruguay presented a new proposal. There was discussion but no real action. Remarkably, the idea came under a lot of criticism when it was discussed at a November 2008 SCCR information session.

But one group was ready to take the process a step further to make something happen — the blind and reading disabled community. The World Blind Union made something happen. In October 2008 the WBU submitted to WIPO their proposal for a Treaty for Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons. It was formally introduced at the May 2009 SCCR meeting by Brazil, Ecuador and Paraguay. It is now also supported by Mexico.

The proposal was introduced at about the same time that there was public reaction in the U.S. over Amazon’s Kindle 2 E-book reader. In April 2009 hundreds of people organized by the Reading Rights Coalition gathered in front of the headquarters of the Authors Guild in New York to protest the removal of the text-to-speech capabilities in Amazon’s new Kindle 2 E-book device. The Authors Guild had pressured Amazon to disable the synthetic speech function of Kindle 2, which it stated was a violation of copyright law.

Back to Geneva. The text step for WIPO was to discuss the treaty proposal. It was on the agenda for discussion at the SCCR meeting in December 2009, and was the most anticipated agenda item of the meeting. Seventeen NGOs representing blind and reading disabled persons had applied for special ad hoc accreditation to attend the meeting in
support of the proposal.

The post An Insider’s View of the WIPO: Interview with Janice T. Pilch, UIUC appeared first on Stanford Copyright and Fair Use Center.

Undue Diligence: Seeking Low-risk Strategies for Making Collections of Unpublished Materials More Accessible

OCLC, a nonprofit membership organization of computer, library service and research organizations, organized the seminar and coordinated the effort that resulted in a one page document to help users with a practical approach to selecting collections, making decisions, seeking permissions, recording outcomes, establishing policy and working with future donors: Well-intentioned practice for putting digitized collections of unpublished materials online.

Fairly Used sits down with Ricky Erway and Merrilee Proffitt, Senior Program Officers, OCLC Research to learn more.

Minow: What prompted you to develop the Well-Intentioned Practice Document for libraries and archives?

Proffitt: This is a follow-up to a previous activity we did with institutions to encourage them to digitize more from special collections, and do it at scale. Our original exercise (which resulted in a paper called Shifting Gears) was aimed at getting institutions to refocus from digitizing a few collection high points, to digitizing entire collections, and to do it at scale. To focus more on access and less on preservation. For those institutions who held more modern collections, concern about rights was big stumbling block.

Erway: We had ruled rights issues off-topic for that activity, but now it was time to look at the issue of rights – and to do it from a risk management perspective. I’d like to be clear that the Well-intentioned Practice document was drafted with the help of an advisory group and the speakers of the event you mentioned and had lots of review and reworking by others during and after the event. It is not an OCLC document. It is of, by, and for the community.

Minow: Is there a connection with the Society of American Archivists Orphan Works: Statement of Best Practices? See our interview with Heather Briston on that statement.

Proffitt: OCLC Research and the RLG Partnership actually funded the meetings that led up to the publication of that document, and I was privileged to participate in the discussion and also played a small role in writing the document. I think the documents are very complementary. From my viewpoint, the well intentioned practices can be used at a higher level, to help rule collections in and out of scope for digitization.

Erway: There is still an important role for guidelines (how to determine if something is still in copyright, how to balance the fair use factors, how to locate rights holders…) They should be considered on a case by case basis. It all depends on the nature of the collection and the perceived risk.

Minow: In the suggestions going forward, in working with donors, institutions are suggested to include in the deed of gift that: if content is in the public domain, ensure that no restrictions are placed if content is in the public domain, ensure that no restrictions are placed on it; if donor retains the rights, seek license to digitize the materials for unrestricted access; ensure that nothing will limit or restrict fair use rights . This seems very helpful. Do you have a sense that this is becoming standard in deeds of gift today?

Proffitt: With archival backlogs a growing concern, I think many institutions are rethinking the way they appraise and accession collections, and there is a growing interest in ensuring that collections we do take in can be put to as many uses as possible. Working more closely with donors is a growing trend, I’m happy to say, and I think that’s a good thing.

Minow: Do you think in general that the library and archive community is overly cautious in making their unpublished works available online? Is the intent of this document to help increase the efforts to share works with the public?

Proffitt: I think there are many cases were caution is appropriate. But it’s also important to take risks on behalf of serving scholarship, which is a core mission for most of our institutions. Going back to Shifting Gears, we want the community to find ways to digitize more collections. Assessing risk and consequences for collections that may have items in copyright is part of the toolkit that reasonable archivists should have at their disposal. In the end it comes down to making sound judgments based on the information at hand and I think that librarians and archivists are very capable of making judgments that will benefit scholars and not get their institutions into hot water.

Erway: Sometimes we forget that it is Counsel’s job to assess risk and advise us, but it is our job to make the ultimate decision. We’re encouraging decisions that balance risk with mission.

Minow: Are you aware of any institutions that have been threatened with a lawsuit or asked to take down works that they have digitized?

Erway: In almost any crowd, if you ask for examples of institutions that have been sued for making something accessible online, you are greeted with silence. Or an example that’s not quite on topic. Or a story about a threat that was amicably resolved. Mostly you hear about the effectiveness of gentle wording and generous take-down policies! Or about the person was so thrilled to see his stuff on your site. So if no one is being sued, why do we lose so much sleep over this? Let’s do it with good intentions, but not shirk our responsibilities as caretakers of these collections.

Minow: Where can readers get more information about these issues? This is a softball for you to add the link to the wonderful materials you made available from the seminar!

Erway/Proffitt:
The Well-Intentioned Practice document is at http://www.oclc.org/research/activities/rights/practice.pdf
The information about the Undue Diligence event is at http://www.oclc.org/research/events/2010-03-11.htm
New developments will be tracked on this page

[*] Ricky Erway and Merrliee Proffitt are both Senior Program Officers with OCLC Research.

Mary Minow is Executive Editor of the Stanford Copyright and Fair Use Website.

The post Can My Library Scan and Post Unpublished Photographs from its Local History Files? <span class="subtitle">An interview with Ricky Erway and Merrilee Proffitt</span> appeared first on Stanford Copyright and Fair Use Center.