Originally reported on District Dispatch:

“WIPO HQ” by villoks | CC BY-NC-SA

On behalf of the Library Copyright Alliance (LCA), Janice Pilch, one of OITP’s International Copyright Advocates, participated in the second session of the World Intellectual Property Organization (WIPO) Committee on Development and Intellectual Property in Geneva, Switzerland from July 7-11, 2008. Through two formal statements (PDF)–one jointly issued with the International Federation of Library Associations (IFLA)–LCA urged the WIPO committee to recognize and support the ongoing work that libraries undertake as stakeholders in intellectual property issues. For example, libraries engage in copyright education, purchase content, negotiate and manage rights and access to content, and provide direct links to user communities.

A goal of the WIPO Development Agenda is determining how to best address aspects of public awareness, education, training and outreach on various aspects of intellectual property. However, the library associations pointed out the need for balance between protection and access:

A challenge to the programs will be creating a workable equilibrium between intellectual property protection and the special needs of developing countries to make available the benefits of new information and communications technologies, and the content they provide, to transform the lives of citizens.

Specifically, LCA stated that if WIPO wishes to champion strong intellectual property protection as a strategy in spurring the economies of developing countries, efforts must be made up front to grant a developing country latitude in the ways it uses particular materials that can boost its economy. LCA recommended that WIPO consider an amendment to the Berne Appendix in order to reflect these exceptions and needs.

The library community supports access to knowledge and technology, adequate limitation and exceptions for purposes of education, scholarship, and creativity, and a robust public domain. If these important provisions can be adequately addressed, LCA and IFLA indicated that they will continue to work with WIPO and its Member States to engage with the development goals. OITP thanks Janice, LCA, and IFLA for the hard work and ongoing commitment to this cause!

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The Library Copyright Alliance consists of five major U.S. Library associations, including the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. The mission of LCA is to foster global access and fair use of information for creativity, research, and education.

The International Federation of Library Associations is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession.

The World Intellectual Property Organization is is a specialized agency of the United Nations dedicated to developing a balanced and accessible international intellectual property system.

The ALA Washington Office will host the DC CopyNight meetup on Tuesday, August 5, 2008. The event will run from 6:30pm - 8:30pm, with food, refreshments, and free copyright sliders. We’ll discuss the Georgia State copyright lawsuit and other current copyright news and issues. If you’re interested and are in the DC area, please take a minute to RSVP so we know roughly how many people are coming. The ALA Washington Office is located at 1615 New Hampshire Ave NW, 2 blocks from Dupont Circle.

CopyNight is a monthly social gathering of people interested in restoring balance in copyright law. Participants meet over food and/or drinks once a month in many cities to discuss new developments and build social ties between artists, engineers, filmmakers, academics, lawyers, and many others. CopyNight convenes in 22 cities around the world. If your city is not currently hosting, find out how to start one!

On Tuesday July 29th, Jon Ippolito and John Bell of the University of Maine’s Pool project spoke at Harvard’s Berkman Center for the Internet and Society on Can Creativity be Crowdsourced? Jon Ippolito is assistant professor of New Media; John Bell is a devotee of open web culture and web designer at the university. POOL is an open source community and avenue for artistic collaboration, artistic exhibition, criticism, and a means of observing and tracing the artistic process. Artists, interpreted broadly, can post their work and have others reuse it, build on it, collaborate on it, or they may post their work and reserve all rights to it.

What was most interesting in the crowdsourcing creativity discussion was the issue of licensing, reuse, and tracing of the artistic process. The gentlemen from Maine did not simply support the concept of total freedom to use and remix other’s work, but instead emphasized their preferred mode of building relationships, of building community, acknowledging a debt to work that came before – the key point being community and relationships. Thus, their POOL Choosing Rights page offers access ranging from “all rights reserved” through Creative Commons licenses to public domain.

If you click on Orient Yourself on the Pool homepage, you will be offered a walkthrough of how POOL functions.

The good people at the Center for Social Media have just released a Code of Best Practices in Fair Use for Online Video.

From the Introduction:

WHAT THIS IS

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

The new report follows the successful Documentary Filmmakers’ Statement of Best Practices in Fair Use, released in 2005. The Center for Social Media offers a number of excellent resources related to copyright, fair use, and creativity, and they do a great job of blending the perspectives of both artists and academics. It’s worth spending some time browsing their site.

The Office for Information Technology Policy is now featuring the digital copyright slider to go alongside the first-life slider. Thanks to Michael Brewer, OITP Copyright Advisory Committee member and desiger of both tools.

A recent piece in the NYTimes Bits Blog points out a study from the University of Washington which showed that the technologies Big Media uses to investigate illegal file sharing regularly produce false positives.

From the Bits blog:

In two separate studies in August 2007 and May of this year, the researchers set out to examine who was participating in BitTorrent file-sharing networks and what they were sharing. The researchers introduced software agents into these networks to monitor their traffic. Even though those software agents did not download any files, the researchers say they received more than 400 take-down requests accusing them of participating in the downloads.

The researchers concluded that enforcement agencies are looking only at I.P. addresses of participants on these peer-to-peer networks, and not what files are actually downloaded or uploaded — a more resource-intensive process that would nevertheless yield more conclusive information.

In their report, the researchers also demonstrate a way to manipulate I.P. addresses so that another user appears responsible for the file-sharing.

An inanimate object could also get the blame. The researchers rigged the software agents to implicate three laserjet printers, which were then accused in takedown letters by the M.P.A.A. of downloading copies of “Iron Man” and the latest Indiana Jones film.

This is not the first time flaws in the RIAA/MPAAs’ strategy have been revealed, and librarians and other concerned parties have been calling for more transparency in their tactics for quite some time. Now opponents of file-sharing lawsuits - not to mention the defendants in those lawsuits - have scientific evidence that these tactics implicate innocent people. And laser printers.

The news coming from Redmond the Friday before Memorial Day didn’t look promising. Microsoft reported that it was ending its book digitization efforts and scanning collaboration with libraries. Microsoft shut down its Live Book Search portal, which provided access to digitized out-of-copyright books. The materials are still available for search through Microsoft’s main engine, Live Search.

Satya Nadella, Senior Vice-President for Search, Portal and Advertising at Microsoft said the company is “encouraging libraries to build on the platform we developed with Kirtas, the Internet Archive, CCS, and others to create digital archives available to library users and search engines.” Microsoft will remove all contractual restrictions placed on the digitized library content and make the scanning equipment available to former digitization partners and libraries to continue the scanning programs.

Brewster Kahle, director of the Internet Archive and supporter of the Open Content Alliance (the consortium that worked with Microsoft on the book scanning project) said that Microsoft’s exit is inconvenient in the short term, since libraries will now have to scramble to find funds to keep the work going. But Kahle said that over the long term, having library digitization project supported by public infrastructure is the right thing to do. “The idea that the intellectual discourse of humanity should be on only one or two corporations’ shoulders is…Orwellian,” he said. Paul Courant, Dean of Libraries at the University of Michigan, said it’s always desirable when there’s a diversity of players–and money–backing up digitization initiatives. He writes, “I continue to wish that there were folks with deep pockets lining up to provide free digitization of the world’s library collections. Alas, there is no one in line that I know of, and with Microsoft’s departure, the only serious player is Google.”

Kahle, who praised Microsoft for providing a kick-start to the library system in opening up public domain materials to the public, said that it’s now up to the public sphere to take over the operations. The Sloan and MacArthur Foundations, as well as libraries in Boston and the Library of Congress are funding their own scanning projects. The British Library reported that their scanning efforts won’t slow down significantly, even though they will no longer receive Microsoft funds.

With proposed orphan works legislation in Congress, libraries, archives, and museums continue to gauge the impact that a positive law could have in making available to the public thousands of orphan works. A favorable law could open the floodgates to more digitization projects and support further discovery of texts once darkened by fears of copyright infringement. With Microsoft now gone, public investment in large scale scanning projects may be necessary in moving forward.

Though Peter [Hirtle, my co-blogger at the LibraryLaw blog] has just posted on the Georgia State lawsuit on fair use, the AAP’s risk, and end users, my post will focus more on the difficulty in defining the boundaries of fair use for libraries and institutions that are attempting to make owned works available online, the potential options libraries have at this point, and why moving towards open access might (eventually) help to solve this impasse.

Fair Use

According to the complaint, “Georgia State’s general copyright primer …affords “fair use” parameters — that is guidelines as to allowable copying without permission — that plainly exceed legal boundaries.” And what are these so-called illegal policies (so-called because there is no statutory boundary of fair use)? Georgia State

“endorses up to twenty percent of a work — a benchmark that would countenance unlicensed excerpts of dozens or even hundreds of pages from a given work.”

As Peter points out, Georgia State’s percentage is based on “the state’s guide to understanding copyright - developed by a committee of experienced lawyers and educators.”

While the percentage allowed under Georgia State’s interpretation is larger than that of more conservative standards at other libraries, as Northwestern University copyright blog (Claire Stewart) states,

“It is interesting that the publishers [in this lawsuit] are not at all specific about their thresholds for acceptable use, leaving us to wonder whether they would consider any reserve use fair.”

Some publishers do have stated guidelines for what they consider to be “fair use” for both e-reserves and use of materials in the classroom, often with stated percentages. However, from what I was able to easily discern (corrections are welcome!), the three publishers involved in this lawsuit do not have stated fair use guidelines readily accessible on their websites or elsewhere. (“Except as provided under national law, written permission is required to photocopy all Cambridge publications” and stated guidelines for reuse of materials by their own authors)

So what about using more restrictive guidelines than those at Georgia State, as done by other libraries, say not more than ten percent of a work? While that would allow for less use, it still doesn’t address the elephant in the room — that the library has already paid a great deal for the materials placed on either physical or electronic reserve. Either through purchase of usually a physical book or journal, or through licensing, libraries have paid, are paying, and will continue to pay publishers for the use of materials. Of course, ownership of physical copies does not allow for copying without fair use consideration – but the way libraries have been and continue to buy physical copies demonstrates their willingness to pay for copyrighted information.

In the case of licensing, often publishers tie the price of licensing a database to the enrollment numbers for the entire institution — not just for those likely to be using the product, increasingly switching from a per-simultaneous user license to a full-time enrollment (FTE) license.  So academic libraries frequently have to choose to license a database to the entire institution rather than just for the small number of interested users – or do without. So it is probable that at least for some of the items in the complaint Georgia State has already licensed and paid for access to those items for more than those students who are using the e-reserves version of those articles.

One of the additional complicating issues revolves around who is responsible for creating and maintaining e-reserves. As my co-blogger Peter Hirtle stated in a Library Journal article last year,

“Since our AAP agreement, we don’t even have separate e-reserve policies any more,” explains Peter Hirtle, intellectual property officer for the Cornell University Library. “We have electronic course content copyright guidelines.” That change, he says, reflects the recognition that “electronic course content” can reside in a system managed by the library, or in the Blackboard course management system, or on an entirely separate system maintained by the faculty, including personal web sites.”

Effect on the market?

The fourth fair use factor is definitely in play here — the effect of the use upon the potential market. As these three publishers see it, the market for academic materials used for classes is student classroom use, and therefore individual students should purchase any book or journal article that in any part is being used for a class. And as Peter points out in his blog post on this case, at present, the market is not seen as being impacted when individual students make copies of the same chapter in a book during the same semester or over years. From the perspective of the publishers, by hosting e-reserves, libraries are acting as the agents of individual students and professors and therefore the libraries should be required to purchase licenses for every single individual use of these materials. As Peter expresses “does fair use really disappear whenever there is a market that licenses reproductions?”

However, libraries view their “market” differently – to make materials accessible through being the consumers and collectors of academic materials, to be used in the short term and the long term, for the benefit of both individual users and for all possible users. This viewpoint allows libraries to serve both traditional library roles (purchasing physical items for subsequent theoretically unlimited loaning) and for newer library roles (licensing of materials for an entire institution or for a specific class). 

If the publishers’ view of the market wins, it will decimate much of library-based fair use.

Possible Options for libraries

So let’s think about where this leaves libraries and institutions before there is a settlement or decision:

Option 1: Pay for everything posted online through the CCC or some other service. While the upside is that the institution won’t likely get sued, the strong downside is paying again for items owned or licensed by the library — and the abandonment of fair use.

Option 2: Have the entire institution carefully redo its entire policy on online posting of materials. Include information about percentages of material available to be posted (though that didn’t save Georgia State) and how long materials will be posted (many libraries will only post materials for one semester/quarter based on fair use before asking for permission). 

Option 3: Only have links to online content licensed by the library and limit information beyond links in e-reserves to public domain materials. Require that all licenses either explicitly allow or do not forbid the use of links in course reserves. The upside is that no copyrighted content is copied, but once again, fair use loses out.

Option 4: And then there’s the most difficult option for an academic library — saying no to faculty members by not having any e-reserves at all. Dorothea Salo at Caveat Lector states that “If I were the Georgia State library, I’d play hardball. No e-reserves for anybody, and let faculty go whine at the AAP.”

She previously posted in 2005 that libraries should say no to e-reserves until professors and authors understand the cost of publisher-directed “no fair use”:

“Call out the AAP from behind the curtain, Look faculty in the eye and say, calmly, ‘no, we can’t put this on e-reserve, because fair-use is endangered everywhere and the AAP is making lawsuit noises-but why don’t you and I contact the article authors and ask if they’ll post a preprint we can link to? And by the way, are you posting your own preprints for others?” Salo said libraries must “draw a thick black line connecting what faculty do and what they have access to, because right now they don’t see it.” (via Open Access)

Open Access?

Option 5: The most difficult option of all is to change the dynamic between libraries, authors, and publishers. This more than the other options is a dramatic overall policy shift and therefore has little to do with copyright or fair use, but rather changing the question. Here the question is “How can professor authors help to make their work available for professors and students to use in the classroom and for scholarly work?”

One means of making more information accessible is through open access, defined by Peter Suber as “Putting peer-reviewed scientific and scholarly literature on the internet. Making it available free of charge and free of most copyright and licensing restrictions.” Harvard University and other institutions are moving in that direction. In an era where more and more information is seemingly available for free on the internet, placing peer-reviewed information where “anyone, anywhere, with access to the Internet may read, download, copy, and distribute that article” seems like a great idea. But as Peter Suber states, open access is not a panacea; creating works still takes the efforts of authors and others.

Open Access leaves the beginnings of changing the dynamic in the hands of authors, but there is still a role for publishers (who can help with the selection, peer review, and editorial process), and libraries. Libraries can serve as institutional repositories for works written by their faculty and staff, help institution-based publishers, and will continue to purchase works.

As a great example of the possibilities of open access in practice, with a publisher working with an author and libraries, MIT Press has John Willinsky’s The Access Principle: The Case for Open Access to Research and Scholarship published in 2005, available for downloading, purchasing, and has a link for finding in a library. And at the time I’m writing this, the library copy nearest to me is checked out!

Open Access is not a cure-all, but thinking about access to e-reserves only as a copyright versus fair use issue obscures the present imbalance in the world of scholarly publication. The Duke Scholarly Communications blog puts this issue bluntly:

“The real irony is that [the lawsuit] is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.” (emphasis added) 

The promise of moving into an Open Access system for publishing scholarly works will take years. However, fair use is designed to be flexible enough to fit many different types of uses, such as the idea of e-reserves. I hope fair use continues to be as flexible after this case either settles or is decided.

Cross-posted on the LibraryLaw blog

Two new versions of an orphan works bill were introduced last week in the House (H.R. 5899) and Senate (S. 2913). PDFs of the bills, along with a clear and detailed overview of the orphan works problem and the proposed solutions, are available at Public Knowledge.

The bills are a mixed bag. There are some substantial changes from the Orphan Works Act of 2006, several of which are clearly intended please copyright holders who fear that orphan works legislation will erode their ability to control uses of their work. Some of these concessions are only in the House bill.

The first is a new requirement that users of an orphan work must register a “notice of use” with the Copyright Office. According to the House bill:

Such filings shall include—

‘‘(A) the type of work being used, as listed
in section 102(a) of this title;
‘‘(B) a description of the work;
‘‘(C) a summary of the search conducted
under paragraph (1)(A)(i)(I);
‘‘(D) the owner, author, recognized title,
and other available identifying element of the
work, to the extent the infringer knows such in
formation with a reasonable degree of certainty;
‘‘(E) a certification that the infringer per
formed a qualifying search in good faith under
this subsection to locate the owner of the in
fringed copyright; and
‘‘(F) the name of the infringer and how
the work will be used.”

This will make is much easier for concerned copyright holders to keep an eye on things, because anyone who hopes to make a legitimate, protected use of an orphan work will register that use with the Copyright Office. The downside is that the process of registering the use of an orphan work may turn out to be difficult and expensive.

Georgia Harper’s take on the new orphan works legislation, especially the notice of use registry, is quite negative, and well worth a read. She says:

The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the “yes!” responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill.

Another new addition is a requirement that the Register of Copyrights will develop a certification process for electronic databases that will “facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.” This by itself is not bad news - we need resources that make it easier to find information about copyrighted works, and the Copyright Office should be leading the way in promoting the development of those resources. Unfortunately, these registries are likely to be run by private entities, and will likely charge fees for use. Furthermore, in order to have time to develop standards for these image databases, the House bill will not take effect for pictorial, graphic, and sculptural works until after the Copyright Office has certified no fewer than two “independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet,” or on January 1st, 2013, whichever comes first. January 1st 2013 is not soon. And pictorial and graphic works are some of the most notoriously difficult orphans to track down, as well as some of the most fragile.

Other observations… The new draft has language that explicitly exempts non-profit educational institutions, libraries, and archives from having to pay monetary damages, as long as their use is noncommercial and “primarily educational, religious, or charitable in nature.” There was similar language in the old bill, but it didn’t single out any particular kind of institution; I’m not sure if the new phrasing is better or worse, or just different.

And a last note to the illustrators and photographers who have been up in arms about orphan works legislation: the following language was in the 2006 version of the bill as well, and it still negates any claims that orphan works legislation will permit people to steal all unsigned photographs and images:

LACK OF IDENTIFYING INFORMATION.—The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions [for eligibility] under paragraph (1)(A)(i)(I).

In other words, the mere lack of a copyright notice or name attached to the work is not enough for someone to declare a work orphaned.

Overall, I think the orphan works bills, especially the Senate version, are a small step in the right direction, but ultimately their effectiveness will depend a great deal on how they are implemented. Too many concessions to the anti-orphan works lobby, and meeting the requirements to protect users of orphan works will be too difficult, rendering the legislation essentially useless.

[Cross posted, sort of, at Multi-Purpose Librarian]

On April 17th, the Berklee College of Music (in Boston, MA) hosted “Envisioning 21st-Century Music Business Models,” part of a series of discussions at Berklee on the future of the recording industry. A standing room-only audience of primarily young men listened to music business executives and Marybeth Peters, U.S. Register of Copyrights.

Understanding music licensing and the collection and payment of royalties is not terribly simply for those not part of this business. Ms. Peters spoke a bit on the history of copyright and sound recordings, noting that sound recordings were not covered by federal copyright law until 1972. She positively did not discuss the status of recordings issued before 1972. They will not be covered by federal copyright until 2067, unless the law is revised.

New ways of generating revenue for the music business (oh, and for artists also), was the subject of this Berklee discussion. Someone mentioned Rhapsody, the online subscription music service that provides streaming access to a library of digital music. Albhy Galuten of Sony BMG Music Entertainment then spoke of a proposed larger and interoperable system being considered by Sony and Universal Music Group called Total Music. (Here is a CNET blog post on this possible venture). The initial goal of the project would seem to be to establish a subscription music service that would of course be an iTunes competitor. But Mr. Gahluten spoke of the interoperability of systems as key to the enterprise, with the goal of generating revenue from the sheer convenience of providing users the delivery and management of music via cell phone, iPod, laptop, home server, etc. A service aggregator such as Verizon was mentioned as theoretically capable of providing this integrated service.

Aside from the technical feat of the cross-platform provision of one’s digital music on a variety of devices, what about the licensing of the music? Discussion participant Susan Butler, Billboard’s legal correspondent, asked if a compulsory license would be required to do this, and asked how likely this would be to happen. Possibly some other form of automatic licensing by a performing rights or collecting agency could serve. Marybeth Peters asked who would pay to make the Harry Fox Agency more efficient (sufficiently efficient, that is, to actually successfully manage licensing for a venture like Total Music).

For the outside observer, a “take-away” from the Berklee discussion was the IMPRESSION that portions of the music business are prepared to let people listen to as much music as they wish, at any time, on as many devices as they wish, in exchange for a reasonable, regular fee. In truth though, listeners will have to wait and see what sort of digital rights management would be employed by a business like Total Music and what choices listeners will have then.

[Hopefully, this post is not too far afield from copyright and librarians].