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Archive for the 'Copyright' Category

Cory Doctorow keynotes at Internet Librarian International 2009

ILI 2009I went to one of the Birmingham Book Festival events earlier this week, and saw the British playwright, David Edgar, talk about How Plays Work. At one point Edgar talks about the particular problems that romantic comedy presents in the construction of a drama, basically because everyone knows how it’s going to end (unless it’s Jane Austen’s Emma, he said) so you’ve got to draw in quite sophisticated devices to keep the audience interested. So when he was writing his book, How plays work, he really wanted to quote a few passages from Nora Ephron, screenwriter of Sleepless in Seattle et al, but has found, over the years, that it’s almost impossible to obtain permission for quoting passages from film screenplays, because of the over-protectiveness of the entertainment industry towards its own intellectual property (last clause is my words rather than Edgar’s). Just to make sure that I’ve driven this point home, he was prevented from reproducing a few lines in the pursuit of scholarly endeavour together with a full acknowledgement, rather than photocopying an entire script.

Cory DoctorowIt should come as no surprise to anyone who attended Internet Librarian International on Thursday that all of this sprung readily to mind when listening to Cory Doctorow’s opening keynote speech. Doctorow drew a picture of a group of elite broadcasters deciding what we’ll look at and delivering a glossy production to entertain us all. This wouldn’t be a problem, he said (although I find that debatable), except that those people have the ear of lawmakers, and are intent on using that to preserve their privileges.

It’s interesting to have a Canadian point out that in the UK here is no right to parody – and that use of copyright material to parody can constitute copyright infringement or even libel. I had no idea that this was the case, and can only think that the British sense of humour, surely one of the best reasons to live in the UK, is some sort of miracle. Doctorow used this to demonstrate that every country has its own information regulations and legislation. However, international treaties have begun to harmonise right-holder rights. These agreements effectively set a minimum floor for right-holder privilege, but unfortunately no ceiling, and Doctorow argues that this means that public rights vary from one country to another.

Doctorow then turned his attention to Google Books Search, focusing on the contentious issue of whether making copies for the purposes of indexing is unlawful. If enacted, every search engine will be breaking the law, and this would effectively break the web. Copying is just about as difficult today as it’s ever going to be, as a combination of capacious hardware and usable networks means that copying (which was technically a lot more difficult at the time when copyright laws were originally formulated) is going to get easier and easier.

He outlined a number of scenarios to illustrate our dependence on the web. The idea of trying to do my job without the internet certainly chimed with me. I’d struggle without RSS and Delicious, let alone Google. If we’re not careful, then, all these activities will find themselves regulated under copyright legislation, because almost every online activity involves copying in some way.

In the UK, the Gowers Review of Intellectual Property, authored, unusually, by an economist rather than representative from the entertainment or publishing industry, pointed out that copyright doesn’t actually deliver much in terms of economic value. Copyright protection won’t encourage dead artists to produce more work anytime soon.

Doctorow argued that information is a means to an end – it’s about helping people to do interesting things with information, rather than making information an endlessly tradable commodity per se. And with the dramatically lower costs of coordination brought about by the network, it is actually information technology that is the engine, so cutting off the use of IT will be far more economically damaging than cutting off the privileges of the entertainments industry.

He also drew our attention to ACTA – the anti-counterfeiting trade agreement, currently being hammered out in secret. Four key elements of ACTA are:

  • The three-strike rule. This has just been passed in France, and is under consideration in the UK. It means that anyone who is accused (as opposed to convicted, which apparently is too expensive to implement!) three times of copyright infringement, then your ISP will cut off your access to the internet. All the benefits of the internet become subject to the capriciousness of the entertainment and publishing industries, Doctorow argued.
  • Criminal sanctions for non-commercial infringements so your children are liable to gaol time if caught trading files
  • Proposals to wire tap the whole of the internet to detect copyright infringement
  • Searching at borders of hard drives including archiving of private information.

To say the least this is heavy-handed, removing any vestiges of a right to privacy or to a fair trial, and there’s no reason to believe that this will stop infringers who use sophisticated mechanisms to avoid detection. American NGOs have apparently requested details of the treaty, under the Freedom of Information act, but the Obama administration has refused, saying it’s a matter of national security.

Depressing stuff. But like many people, I was heartened by developments in the UK this week, when pressure in the blogosphere and on Twitter effectively broke a super-injunction served on the Guardian preventing any reporting about a Parliamentary question concerning the actions of oil traders, Trafigura. Society gets the freedom(s) it deserves, and there is more scope for disruption than we often realise.

JISC Grasp the Marc Record Re-use Legality Nettle

The JISC Information Environment Team have just announced a study to explore the legal and ownership implications of making catalogue records available to others when this involves copying, transferring them into different formats.

The JISC has just commissioned a study to explore some of these issues as they apply to UK university libraries and to provide practical guidance to library managers who may be interested in making their catalogue records available in new ways. Outcomes are expected by the end of 2009.

The specific objectives of the study are to:
•    Establish the provenance of records in the catalogues of a small but representative sample of UK university libraries and in the national Copac and SUNCAT catalogues;
•     Identify any rights or licences applying to the records and assess how these apply to re-use in the Web environment. This work should include clarifying the legal status of MARC records and copies of MARC records, and the legal implications of translating records between different formats such as MARC and MODS XML;
•     Provide practical guidance to UK university libraries about the legal issues to be considered in making catalogue records available for re-use in Web applications such as social networking sites – drawing on the findings from the sample;
•     Make recommendations to the JISC and the UK higher education community about any initiatives which could usefully be undertaken to facilitate the re-use of catalogue records in Web applications in a way which respects legal rights and business interests.

The core nugget of this being clarifying the legal status of MARC records and copies of MARC records.  Without establishing that anything else would be building castles on sand.

One of the many things that was never fully clarified in the OCLC record re-use saga earlier in the year was the legal status of a Marc record – can it, or parts of it, be considered as a creative work and therefore be applicable for copyright and a concept of ownership.

I wish whoever is undertaking the JISC study (the announcement does not indicate any study group members) well as they set foot in to this minefield of assumption, traditional practice, legal interpretation, and commercial interest and bias.  Let’s hope they do a thorough job and carry enough weight from legal, library, and publishing backgrounds to deliver advice and opinion that will clarify these particularly murky waters well beyond the UK University sector.

DRM provider causes eBooks to disappear

At the time when Apple announces, in Phil Schiller’s keynote address at Macworld, that it has struck a deals with all the major music labels so that music purchased via iTunes will be free from Digital Rights Management (DRM) controls, we get a story from the eBooks world that highlights that DRM encryption can have unintended negative consequences.

As boingboing reports, some customers of eBook supplier Fictionwise will no longer be able to download books that they have purchased because one of their suppliers of  DRM encrypted feeds of books is ceasing to provide that service.   From the Fictionwise FAQ on the issue:

Fictionwise obtains "feeds" of eBooks from several different content aggregators, and these aggregators use their servers to deliver encrypted files to our customers. One of these aggregators, Overdrive, recently gave Fictionwise notice that they would cease serving files to Fictionwise customers as of January 31, 2009. That means that eBooks purchased from Fictionwise via Overdrive’s servers will no longer be downloadable after that date.

In attempt to not leave their customers in a position that they cannot use the eBooks they purchased, they wherever possible are trying to source the books in another format (eReader – owned by Fictionwise) but as they say “we are simply still tracking down the publisher to obtain permission. In some cases the eBook in question was not yet converted to eReader format.”  Of course readers will need to load new reader software to use this format.

Approximately 30,000 purchases have been effected in this way.

The question obviously is, what happens in the hypothetical situation of Fictionwise going away – would you loose what you have paid for then?   Unlike eBooks, the physical rights management of a physical book (it’s hard to physically duplicate it) doesn’t cause your original to break if any part of the supply chain fails.  The discussion that the boingboing article generated, features advice on how to bypass DRM and the need to fight the imposition of DRM.

As with the recent Google announcement about the their agreement with authors and publishers over payment for their works viewed via Google services, there is much similarity between these issues in the music world.

We seem to be spectators to a slow-motion replay of the painful birth of the online music business, being played out with scanned copies and created digital versions of books.  It was bad enough for music, there is far more history, copyright complexity, and entrenched business models in the books world – I can see the tectonic upheaval here being even more painful.

Meanwhile, does your library provide eBooks served up via Overdrive?  If it does, you have until the end of January to source them via alternative routes.

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OCLC Record Sharing, Yogurt, and Copyright

Karen Schneider aka. the Free Range Librarian has produced her reflection and thoughts on the OCLC change from record sharing guidelines to policy saga.   Like many others she has used an analogy to describe how OCLC are trying to protect their interests. 

OCLC has made a policy clarification that in the short run is a perfectly reasonable claim intended to protect the interests of its members and the body of data accumulated under its aegis. In this intellectual-property model, you are a yogurt-maker. I am your distributor. I charge you for this service, and if someone else tries to take your yogurt from my warehouses or steal it from the trucks that deliver your yogurt to stores, I set my dogs after them.

As Rob Styles points out in the comments to her post, there is a fundamental difference between yogurt and records:

We allow distributors of yoghurt to “release the dogs” on thieves because yoghurt is a rival good. That means if I take it then you are left without it. Records are a digital, and therefore non-rival good. Everyone can have a copy and OCLC would still have them. They don’t get “used up”!

This is one of many examples where commentators are thrashing around trying to explain and/or predict the effect of the proposed licensing policy without having any clarity as to the intellectual property rights status of the records in question.

Following my Talking with Talis podcast with Karen Calhoun and Roy Tenant, I raised a question copied on the Metalogue blog which was intended to help clarify this situation:

What does the 1982 OCLC Copyright on WorldCat apply to – the records, schema and organization of records or the records themselves? And was that Copyright not superseded by the 1991 Feist Publications v Rural Telephone Service ruling? Does OCLC hold that individual records qualify for Copyright and if so what "originality" or "creativity" qualifies them for that Copyright protection?

Nearly a month ago when this question was posted Karen said she “will continue to research this”.  No doubt she has had to consult her legal department on this, but I am a little surprised at the time it is taking for a response.  One would have thought that such an establishment of the copyright status of WorldCat and its records would have been at the core of the licence they produced from the start and therefore readily available.

OCLC – Questions Answers and an Open Letter

OCLC logo During my Talking with Talis podcast conversation with Karen Calhoun and Roy Tennant about the new OCLC Record Use Policy, which has been causing such a furore in the blogosphere, Karen (Vice President WorldCat and Metadata Services) did not feel prepared enough in the legal aspects of  the issues at hand to answer a couple of the questions I posed.  She did offer to post replies on the OCLC Metalogue blog to these when she had chance to discuss them with OCLC’s legal backroom.

The first of these questions was about how OCLC can be both a not for profit and have activities which are commercial organisations.  This is the response she posted in the comments to her original Metalogue post on the subject:

In the Talking with Talis program, Richard Wallis asked me and Roy Tennant how OCLC can be a nonprofit organization that owns for-profit entities. As agreed on the show, I checked with the OCLC legal dept., and this is their answer to Richard’s question:

OCLC is a nonprofit organization that furthers access to the world’s information, and we’re going to do that by developing and delivering products and services, as well as providing research and advocacy to libraries, museums and archives. The collective ability to help libraries share resources, do more, and extend their reach — that’s our unique mission and that doesn’t change when new members join the organization. Nonprofit organizations can acquire for-profit entities as OCLC as done, provided they report the income and pay appropriate taxes due as a result of those operations within the local jurisdiction.

An expected reply from a legal person, but in my own mind it doesn’t provide much clarity on how the strategic direction of OCLC reconciles the competing needs of making, and amassing, money and running a cooperative for the benefits of it’s members .

My second question was about a clarification to help those "questioning the intellectual property rights status of an individual marc record or a collection of them". Off-air we agreed that I would phrase the question more succinctly before Karen submitted it to her back-room legal people.  I have now posted this question in the Metalogue blog comments:

What does the 1982 OCLC Copyright on WorldCat apply to – the records, schema and organization of records or the records themselves? And was that Copyright not superseded by the 1991 Feist Publications v Rural Telephone Service ruling? Does OCLC hold that individual records qualify for Copyright and if so what "originality" or "creativity" qualifies them for that Copyright protection?

Karen has acknowledged the question saying that she will continue to research it.   A clear answer will help many who have commented on the new policy clarify their own thoughts about the legal foundation upon which the new policy is based.  I am looking forward to the reply.

Larry Alford, Chair of OCLC Board of Trusties, has also weighed in to the debate with An open letter to the OCLC membership on the WorldCat [pdf].  It is basically an exercise in motherhood and apple pie – how wonderful and worthy OCLC have been over the last four decades when the WorldCat model has worked well.  Kodak’s business model worked well for far more than than four decades before they had to rethink it to stay a major player in the image market place.

Google – Good for Copyright?

David Lammy MP Google books_sm The Google Book Search agreement with group of authors and publishers along with the Authors Guild and Association of American Publishers (AAP) around copyright issues, which I posted about recently, has attracted the attention of David Lammy MP (Minister of State (Higher Education & Intellectual Property), Department for Innovation, Universities and Skills), writing in the TimesOnline, who thinks that overall this could be good for copyright law.

The agreement is one of a mounting number of recent examples where business and rights holders have taken the initiative and struck deals that have the potential to streamline the administration of copyright in the digital age.

While right holders who do not register will still be entitled to compensation for any use of their works, the mass registry should simplify the processes of rights clearance and payment and make the service viable on a scale not seen before.

He sees this as a step forward in making copyrighted works easy to get to those that want to read them.

Nobody can argue with the fact that books are meant to be read. This is what the consumers want and also what authors want.

Even in this digital age, there are many thousands of works, out of print and often out of copyright, that are locked away in library collections; unsearchable and inaccessible. The fact that this pressing need has not been addressed through changes to the legal framework is evidence of the difficulties of legislating in this area.

Nevertheless he does sound a note of caution.

There are, of course, notes of caution. It is important that rights holders are free to enter into collective agreements or to pass them by, without unduly suffering as a result of exercising that choice. There are also those international and domestic legal obligations that in many cases act as essential safeguards for rights holders and consumers

Yet it cannot be overlooked that such agreements are a practical and innovative attempt to move things forward and make copyright work.

Still early days, and it must be remembered that this is an agreement that only currently addresses the USA, but I agree with him that this could be the start of a significant change.

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