World Book and Copyright Day

On April 23, 2009, UNESCO suggests exploring the topic of the paramount function of books for the development of quality education, as well as the link between publishing and human rights. Visit the World Book and Copyright Day site for more information on activities.

More than 100 countries will take part in the celebration of World Book and Copyright Day, proclaimed by UNESCO in 1996. Publishers, book shops, libraries, schools, cultural institutions and authors’ societies from all over the world have undertaken to celebrate the Day and promote the enduring importance of books.

Copyright Spinner for Section 108

The American Library Association Office for Information Technology Policy (ALA OITP) has released its digital copyright spinner, a new tool for section 108. It is a helpful reference for preservation, ILL, and other library purposes.

ALA Report to Obama-Biden Transition Team: Libraries' Role in Changing America

Following internal meetings to discuss the key issues and concerns that libraries must communicate to the new Administration, the American Library Association submitted a report to the Obama-Biden Transition Team entitled "Opening the 'Window to a Larger World': Libraries' Role in Changing America."

The report states that

"during this time of transition for our nation, libraries of all types...are resources the American public and new Administration can use to help people find jobs, support education and lifelong learning, provide access to information and telecommunications services, empower families, and enable civic engagement as well as promote literacy and connect communities."

In fact, public libraries are the sole source of no-fee access to the Internet for 73% of Americans without connectivity at home or work. This is especially important for people who use their libraries to gain access to e-government services, such as Social Security and Medicare information and tax preparation and filing. Although the demand for library services has increased with the economic downturn, library budgets are often the first thing cut.

Key issues discussed in the report include:

• Broadband build-out and telecommunications
• School libraries
• Funding for library programs
• Access and transparency in government
• Access and civil liberties
  
• Literacy and lifelong learning
• Copyright

The following concerns are of particular interest and specific recommendations were made:

• Recognize and fund libraries as critical access points for e-government services
• Require all federal agencies to implement open access policies
• Increase funding and develop long-range plans to maintain digital repositories for research and discovery of all types
• Insist that all federally funded research reports be publicly accessible
• Support library and information services for veterans, active-duty military and their families
• Support amending the USA PATRIOT Act to protect user privacy and related civil liberties
• Assure protection of personal information
• To protect children, support legislation and fund programs that include Internet safety education and emphasize the importance of parental involvement instead of Internet blocking and filtering
• Promote copyright law that balances the rights of the public and the rights of copyright holders as articulated in the U.S. Constitution
• Advance fair use and other lawful uses of protected works by the public and libraries that serve them
• Support library community participation in the World Intellectual Property Organization (WIPO) by meeting with library representatives prior to meetings to ensure diverse views are considered in the development of treaties
• Support the library community's efforts to expand access to materials for the visually impaired
• Seek input from the library community on potential candidates for Executive Office of the President Coordinator for Intellectual Property, the Chief Technology Officer, and head of the Copyright Office positions

View the report in its entirety for all of the recommendations.

Public access policy challenge

Library Journal reports that the Subcommittee on Courts, the Internet, and Intellectual Property of the House of Representatives' Judiciary Committee is scheduled to meet on September 11th to hear publishers' concerns that public access policies conflict with copyright and intellectual property laws. Although no text for proposed legislation has been released, it is reported that it is tentatively titled the "Fair Copyright in Research Works Act."

Publishers contend that public access policies, the NIH policy in particular, undermine publishers' ability to exercise their copyrights in published articles and threatens the intellectual freedom of authors.

Anticipating such concern, library organizations (ALA, ARL & SPARC) released a memo a year ago asserting that the policy does not create a statutory exception or limitation to copyright but rather requires as a condition of its grant of funding the agreement to make the article publicly available.

LJ also reports that submissions to PubMed Central in July 2008 were at an all time high of 3,999 compared to 721 in July 2007 when the program was voluntary.

Music Copyright Search

I just found this page and thought it might be useful for folks who are seeking permission for using music. It is a copyright search guide from the Music Publishers' Association. But first take a look at the Guidelines for Educational Uses of Music developed by the Music Library Association to see if your use requires permission.

PIJIP and the AU Center for Social Media Release Best Practices in Copyright and Fair Use for User-Generated Content

From the press release dated July 7, 2008:

The American University's Program on Information Justice and Intellectual Property (PIJIP) announces the release of a new code of best practices in fair use for creators in the burgeoning online video environment. The code was coordinated by PIJIP and the American University Center for Social Media, with support from the Ford Foundation through CSM s Future of Public Media Project. Back in January, we released a report on copyright and remix culture, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video (wcl.american.edu/pijip/), back in January. The code, which was made public on July 7, represents the next step. Collaboratively created by a team of media scholars and lawyers, these best practices will allow users to make remixes, mashups, and other common online genres with the knowledge that they are staying within copyright law. The full text of the code for user generated video is available at wcl.american.edu/pijip.

Until now, anyone uploading a video has run the risk of becoming inadvertently entangled in an industry skirmish, as media companies struggle to keep their programs from circulating on the Internet. As online providers have begun to negotiate with media companies, everyone has agreed that fair use should be protected. Before the code s release, there was no clear statement about what constitutes fair use in online video.

The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations. They are:

* Commenting or critiquing of copyrighted material
* Use for illustration or example
* Incidental or accidental capture of copyrighted material
* Memorializing or rescuing of an experience or event
* Use to launch a discussion
* Recombining to make a new work, such as a mashup or a remix, whose elements depend on relationships between existing works

For instance, a blogger's critique of mainstream news is commentary. The toddler dancing to the song "Let s Go Crazy" is an example of incidental capture of copyrighted material. Many variations on the popular online video "Dramatic Chipmunk" may be considered fair use, because they recombine existing work to create new meaning.

While you were away...

My blog has been quiet while I've been traveling, but things have been busy in the world of scholarly communication and copyright! Let me try to catch up on the happenings of the past month.

New Copyright Tool
Carrie Russell at the ALA Office of Information Technology Policy and Michael Brewer at the University of Arizona library developed a handy slide rule for copyright compliance. It is available in print and digital form from ALA.

Balanced Interpretation of the Three-Step Test
The Max Planck Institute released a Declaration offering a balanced interpretation of the Three Step Test in international copyright law. The Three Step Test is a provision found in international treaties, especially the Berne Convention and TRIPs. It provides for exceptions to copyright law as long as those exceptions are confined to "certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." The experts who drafted this Declaration, advised on its content, and signed it, comprise a group of highly experienced and authoritative commentators on international copyright law.

One objective of the Declaration is to offer an alternative to some of the more narrow interpretations of the test that limit the extent to which governments can protect users' rights and interests when drafting copyright law. The Declaration maintains that the test is not a series of hurdles that users must overcome; instead the steps should be considered together as a comprehensive overall assessment. The test allows exceptions based on the balance of competing considerations, including basic human rights and fundamental freedoms, competition, scientific progress, and cultural, social, and economic development.

Anti-Counterfeiting Trade Agreement (ACTA)
Those interested in intellectual property rights are following ACTA negotiations whenever information from the closed-door meetings becomes available. The concern is that the enforcement measures will further reduce fair-use rights to use copyrighted works in digital format. Although few details have surfaced from the negotiations, this concern is founded on a "Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement" written in October 2007 and leaked in May 2008.

Section 108 Study Group Report Recommendations

The Section 108 Study Group is an independent group assembled by the Library of Congress and the US Copyright Office. They were charged to provide recommendations for updating Section 108 of the Copyright Act (§ 108. Limitations on exclusive rights: Reproduction by libraries and archives) specifically in light of new technologies. Ultimately, the findings are to be used to draft legislation for Congress. There were three categories for these findings: recommendations for legislative change, conclusions on other issues, and additional issues. The first section is the only one in which specific legislative solutions are proposed and it contains broad language that can be interpreted many ways.

The group was able to agree that

• Museums should be eligible institutions under section 108.
• The current minimum qualifying criteria should be retained AND libraries and archives should be required to meet additional eligibility criteria: they must have a public service mission, employ trained staff, provide the normal professional services, and possess a collection of lawfully acquired materials.
• A library or archives should be allowed to authorize outside contractors to perform some activities on its behalf as long as the contractor is only receiving compensation for the contracted work, does not retain copies other than is necessary to provide the contracted service, and the rights holder can obtain remedies for infringement by the contractor.
• No liability should be imposed on libraries when copyright infringement occurs through "unsupervised use of reproducing equipment located on its premises" including that which is owned by the user as long as there are copyright notices in public areas.

More ambiguous recommendations were made for preservation and replacement activities. The recommendations for preservation include a long list of qualifications to be met to determine which institutions are included in the exception and suggests limiting copies to those which are "reasonably necessary" in addition to "restricting access." There are recommendations to the "three-copy rule" which permits libraries to make up to three copies of a published work for replacement purposes. The groups suggests changing this to allow "a limited number of copies as reasonably necessary" to create and maintain "a single replacement copy" and attaches the condition that a "usable" replacement copy is not available at a "fair price" while suggesting that "there may be circumstances under which a licensed copy of a work qualifies as a copy obtainable at a fair price."

The group was unable to form substantive recommendations regarding copies for users, including interlibrary loan. Additional issues identified included virtual libraries and archives, display and performance of unlicensed digital works, licenses and contracts, technological protection measures, e-reserves, pre-1972 sound recordings, and remedies. Academic libraries were hopeful that they would have recommended exceptions and limitations for the use of copyrighted works as electronic course materials that are not specifically addressed by the Copyright Act.

Support Orphan Works Legislation

There is legislation in both the House and Senate (H.R. 5889, S. 2913) regarding orphan works -- those works whose copyright holder cannot be found. This legislation limits remedies in copyright infringement cases involving orphan works; that is, if the work is used without permission and a copyright holder later emerges, the copyright holder is entitled to reasonable compensation. Generally, these works haven't been used because of the fear of unknown liability. The House version of the bill includes a "dark archive" requirement that mandates that users file a notice to the U.S. Copyright Office before using an orphan work. The Senate version of the bill does not include a dark archive provision and is the recommended version.

Why is this important to scholars? The following talking points are provided by the American Library Association:

• This legislation advances productive uses of culturally and historically significant works whose copyright holders cannot be identified or located, even after a reasonable search to locate rights holders is conducted.
  
  
• The collections in our libraries, museums, state and local historical societies, and archives include a significant number of orphan works. These repositories with orphan works are not made publicly available by libraries for fear that rights holders will come forward, initiate legal action, and demand unknown amounts of compensation.
  
  
• A dark archive requirement – mandating that users file a notice to the U.S. Copyright Office before using an orphan work – would be excessively burdensome for users, with little benefit to owners. Such a requirement will undoubtedly drive up compliance costs, and many institutions will require legal counsel to review the submissions prior to filing.
  
  
• Despite extensive and costly searches to locate orphan work rights holders, without a legislative solution, the risk remains high for institutions that make these works publicly available.
  
  
• Resolving the orphan works problem presents significant new educational opportunities because these works will be accessible and available to students, scholars, and the public.

Scholars will benefit from the use of these works and this legislation fills a significant gap in copyright law. Contact your Senators and Representatives to lend your support for orphan works legislation without a “dark archive” provision.

Clarifying NIH Public Access Policy

Authors have been trying to determine how their current publisher agreements fit with the new NIH Public Access Policy that goes into effect next week. Even copyright scholars are seeking advice from each other regarding the interpretation of the more subtle nuances of the requirements. Fortunately, Kevin Smith at Duke has written a brief guide. He emphasizes that there are three distinct elements:

1. Authors must retain sufficient rights in their articles to give NIH a license to make their work publicly accessible (this requires retaining these rights in copyright transfer agreements with publishers).
2. The article must be submitted to PubMed Central (PMC).
3. The author(s) will need to obtain the PMC reference numbers for the articles to include in subsequent documents for NIH (such as future grant applications, renewal requests, progress reports).
   

He goes on to suggest that universities need to create structures that support compliance and make it easy for authors to complete the steps outlined above. At the very least, it requires significant educational efforts but may indicate a need for an active role in copyright management.

Potential strategies:

• Authors publish in journals that will deposit research in PMC
  
• Universities create a license that gives the institution rights to deposit, educate researchers that such a license exists and may conflict with publisher agreements, and develop short-term compliance strategies
• Universities provide comprehensive assistance to authors and develop a sample submission letter and author's addendum

In my role as a copyright specialist for the libraries, I am happy to assist authors and the greater University community develop local strategies for compliance.

The Economics of Fair Use

Because the economic growth of nations is driven by the intellectual property of their people, the balanced protection of IP creates the necessary incentives for innovation and the structure for sharing results that yields an expansion of knowledge creation and economic prosperity. It is not a one-sided system but rather a perfectly balanced system, where those who create knowledge and those who use it contribute to economic growth.

While the economics of copyright-based industries have been studied extensively, there are few studies about the value of fair use. Last year, the Computer & Communications Industry Association released a study of the Economic Contribution of Industries Relying on Fair Use. In the Preface the CEO of CCIA, Ed Black, states that, "Balanced copyright law – the sort envisioned by the Framers of the Constitution – was once the law of the land. Unfortunately, the past decade has seen a slow erosion of this balance. This study illustrates that this erosion is not merely a philosophical issue; it endangers our economic growth and threatens millions of jobs."

Significant findings include:

• The fair use economy in 2006 accounted for $4.5 trillion in revenues and $2.2 trillion in value-added, roughly one-sixth of total U.S. GDP. The most significant growth occurred in electronic shopping, audio and video equipment manufacturing, Internet publishing and broadcasting, Internet service providers and web search portals, and other information services.

• It employed more than 17 million people and supported a payroll of $1.2 trillion. About one out of every eight workers in the United States is employed in an industry that benefits from the protection afforded by fair use.

• It generated $194 billion in exports and rapid productivity growth.

What are the industries based on fair use? The most obvious examples for an academic include those based on scholarship (teaching) and research (product development). But it also includes Internet-based and high-tech businesses including web hosting, search engines, and software development. The growth of these businesses supports is beneficial for supporting industries such as fiber optics, consumer hardware, and communications. Because fair use also allows consumers to make personal copies of copyrighted material, such as recording television programming and moving digital music from one device to another, it supports the manufacturing and sales of related equipment.

But once again, it must be emphasized that the economics of copyright depend on a balanced system, not one that lacks economic incentives for creation. Civil society recognizes that this balance is necessary, so discussions of exceptions and limitations to copyright laws should never be reduced to the simple argument that "one side just wants everything to be free." Creators, producers, and distributors contribute to this system and should recognize the important economic contributions of the industries dependent upon this balance.

WIPO Copyright Committee Meeting

It was a quite a trip to Geneva. As I mentioned in my previous post, I attended the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights (SCCR) as a representative for the Library Copyright Alliance. The agenda consisted of three main issues: protection of audiovisual performances, protection of broadcasting organizations, and exceptions and limitations. The main purpose of this meeting was to establish a work program for the committee; there will be a longer meeting later this year after additional information is gathered and reported.The AV Performance issues are being examined at the General Assembly level, so delegates spoke mostly to inform that process. The Broadcast Organization (BO) issues have been discussed for over 12 years with no consensus; it was concluded that further work was needed to define the objectives, scope, and object(s) of protection.

It was a very good sign that exceptions and limitations (E&L) for libraries, distance education, and the visually-impaired appeared on the agenda. Brazil, Chile, Nicaragua, and Uruguay submitted a proposal that elaborated on a 2005 Chilean proposal suggesting an informational meeting to review existing and forthcoming studies on E&L and to prepare a comprehensive work plan. Three existing studies include the WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, WIPO Study on Automated Rights Management Systems and Copyright Limitations and Exceptions, and the WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired. Kenneth Crews has been commissioned to publish a study on E&L for libraries, which the WIPO chair expects to be released this quarter. The committee requested that an additional study be undertaken regarding E&L for educational activities and distance education, including transborder aspects.

I had the opportunity to submit an intervention to the committee. We were only allowed three minutes, so my original statement was whittled down to just the basics that the LCA wanted me to communicate. The full text of the statement I read is available at the site of this press release.

I'm looking forward to the study on E&L for libraries, a possible study on distance learning, and following up at the next meeting. This is such a critical time for librarians and educators to be involved on an international level.

World Intellectual Property Organization Standing Committee on Copyright and Related Rights

I fly to Geneva, Switzerland tomorrow to attend the 16th session of the WIPO SCCR on behalf of libraries in my role as an International Copyright Advocate. There is an ambitious agenda, including items on protection of audiovisual performances, protection of broadcasting organizations, and exceptions and limitations. These are all important issues for libraries and academic institutions. Libraries rely on exceptions and limitations on copyright in order to place materials on course reserve, loan materials to other libraries, preserve materials, and so on. Additional protection for audiovisual performances may affect course reserves or distance learning, while additional protection for broadcasting may include contributory liability, making libraries or their academic institutions responsible for infringing acts of patrons, students, or employees.

Why do we care about international copyright law? We have seen the impact of WIPO treaties on U.S. copyright law. After the U.S. signed the WIPO Copyright Treaty, Congress was instructed to amend U.S. law to comply with this treaty. The Digital Millennium Copyright Act is the result. Treaties are one way for the executive branch to circumvent our democratic legislative process.

So I will update the blog as I am able during these discussions. I believe it will be an exciting week!

Seeking permission to use music

Most often in my work, I review printed materials and determine whether or not they can be digitized for electronic course reserves or other library services. When I'm asked how to seek permission to use music on a web page I cringe, because the answer is a little more complex and takes me out of my comfort zone. I'll provide some resources here, mostly for my benefit, so I have somewhere to run when a student asks me this question. But remember that there are situations under which copyright law allows "fair use" without permission.

Music permissions are more difficult because there are two types of permissions to seek: one for the performance and one for the original creative work. To request permission from the performer, you'll need to contact one of three performing rights organizations. Performers can only be registered with one and a statement about membership may be listed on the label of the recording:

American Society of Composers, Authors and Publishers
www.ascap.com

Broadcast Music, Inc.
www.bmi.com

SESAC (originally, "Society of European Stage Authors & Composers" and now just SESAC because its scope has broadened)
www.sesac.com

But you must also seek permission for the music itself. The Music Publishers' Association is an excellent resource that has directories and sample permission letters. Many of the record companies will clear rights for music on their labels, so you may also contact the record companies directly. The Harry Fox Agency (www.harryfox.com) is another resource.

Learn more about what you can do with recorded music without permission.

From the RIAA:

Internet Copying

* It’s okay to download music from sites authorized by the owners of the copyrighted music, whether or not such sites charge a fee.
* It’s never okay to download unauthorized music from pirate sites (web or FTP) or peer-to-peer systems. Examples of peer-to-peer systems making unauthorized music available for download include: Kazaa, Grokster, WinMX, LimeWire, Bearshare, Aimster, Morpheus, and Gnutella.
* It’s never okay to make unauthorized copies of music available to others (that is, uploading music) on peer-to-peer systems.

Copying CDs

* It’s okay to copy music onto an analog cassette, but not for commercial purposes.
* It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.
* Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
o The copy is made from an authorized original CD that you legitimately own
o The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
* The owners of copyrighted music have the right to use protection technology to allow or prevent copying.
* Remember, it’s never okay to sell or make commercial use of a copy that you make.

There are sites where you can legally download music.

Harvard faculty require open access for research

Here's the full text of the motion that passed unanimously:
"The Faculty of Arts and Sciences of Harvard University is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment,the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy for a particular article upon written request by a Faculty member explaining the need.

To assist the University in distributing the articles, each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost’s Office in an appropriate format (such as PDF) specified by the Provost’s Office. The Provost’s Office may make the article available to the public in an open-access repository.

The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to the Faculty."