Carrollogos

Washington Declaration on Intellectual Property and the Public Interest

2011-09-08T11:04:00.002-04:00

At American University, we recently hosted an amazing gathering of about 170 thoughtful experts on intellectual property law from around the world to chart policy proposals that would make intellectual property law better serve its role in society. This inaugural Global Congress on Intellectual Property and the Public Interest discussed and debated a range of policy initiatives that would better adapt and rebalance the rights and obligations of rightsholders and the public.

There are many feasible opportunities, but recently, the attention of some policymakers has been turned toward misguided or ham-handed enforcement proposals. So, it's time to change the conversation. Please help by signing the Washington Declaration on Intellectual Property and the Public Interest.

http://infojustice.org/washington-declaration
http://infojustice.org/washington-declaration-html

YouTube and Creative Commons

2011-06-23T17:05:00.000-04:00

So, this blog has been dormant for some time. I've been swamped, but it's time to get back to business. Here's a short post just to make sure not to let this development go unmentioned by me. YouTube has embedded the ability for users to license their videos under the CC Attribution Only license (a.k.a. CC BY)! Details here. Already a repository of more than 10,000 videos under this license are available.

From the day Creative Commons launched, we've sought to work with companies that provide content platforms to embed CC licensing as a choice for creators who want a different deal than the one that all-rights-reserved copyright law offers. It's been a long time coming, and I'm personally grateful to the staff at CC and at Google for making this happen.

The CC By license allows others to translate, mash-up, or otherwise adapt these videos as long as credit is given as directed by the copyright owner. I hope that the creative folks out there make use of the freedom that the CC license offers. Stay tuned . . . .

Benjamin Kaplan - R.I.P.

2010-08-24T14:04:00.000-04:00

I've been away from the blogosphere for far too long and plan to reenter in the coming month or so. A lot is going on with open access, open education, Creative Commons, and at American University Washington College of Law.

But for now, I have to pay my respects to Benjamin Kaplan, who sadly has passed. A pioneer in the field of copyright law, Professor Kaplan also set the gold standard for authorial elegance in An Unhurried View of Copyright.

His impact on the field will be felt for generations to come.

Rest in peace.

IP/Gender - April 16, 2010

2010-04-05T17:34:00.001-04:00

Seventh Annual Symposium, April 16, 2010

American University Washington College of Law
4801 Massachusetts Ave, NW
Washington, DC 20016

Sponsored by American University Washington College of Law’s

Program on Information Justice and Intellectual Property
Women and the Law Program
Journal of Gender, Social Policy & the Law

In collaboration with Dan Burk, Chancellor’s Professor of Law, U.C. Irvine

Over the past seven years, the IP/Gender symposium has provided a forum to examine and discuss research on gendered dimensions of intellectual property law. Because issues of gender in intellectual property have been under-appreciated and remain under-theorized, much of this work has been exploratory and pioneering. Topics discussed in past years have ranged from the impact of intellectual property law and policy on gender-related imbalances in wealth, cultural access, political power, and social control; creative production and gender; the effects of stereotyping and of actual and rhetorical feminization and masculinization of participant roles upon intellectual property stakeholders; the gendered development of IP doctrines and doctrinal categories; related issues in the teaching and practicing of intellectual property; feminist jurisprudential insights about intellectual property law; and female fan cultures and intellectual property. The Spring 2010 symposium on Gender and Invention will be highly interdisciplinary, including historians, social scientists, legal academics, cultural scholars, and practicing lawyers.

Call for Papers - International IP Enforcement

2010-04-05T17:24:00.003-04:00

On June 16-17, 2010, American University Washington College of Law’s Program on Information Justice and Intellectual Property will host a workshop of scholars and advocates to assess the potential public interest impacts of the shift of international intellectual property norm setting to an enforcement agenda. This workshop will be followed by the launch of a working paper series on Public Interest Analysis of the International Intellectual Property Enforcement Agenda.

The enforcement agenda includes the proposals for an Anticounterfeiting Trade Agreement (ACTA) at its center, but also includes other manifestations including the expansion of enforcement provisions in free trade agreements, seizures of drugs in Europe, broad “anticounterfeiting” national laws and bills such as that passed in Kenya and being considered in other African countries, pressure on countries through Special 301 and GSP benefit determinations, foreign aid and technical assistance directives, and other means.

PIJIP seeks to promote the creation of short (8-12 page) plain language policy papers analyzing possible public interest impacts of elements of the enforcement agenda. The project is particularly interested in analysis of leaked text of major proposals for ACTA. For copies of the text of ACTA proposals, and other resources on elements of the enforcement agenda, see the project’s collaborative website: https://sites.google.com/site/iipenforcement/

Specific questions of interest to the project are detailed below and in the attached description of research questions generated at a previous workshop on this issue (also available at the iipenforcement site). However, proposals on any aspect of the public interest impact of the enforcement agenda will be entertained.

Academics and policy advocates are invited to submit an abstract of a proposed paper on this topic for presentation at the workshop. Accepted papers for the workshop will receive travel assistance to attend the workshop in Washington D.C. Completed papers will be eligible for publication in the PIJIP Working Paper Series. A Prize of $1,000 will be granted for the top five completed papers presented at the workshop and submitted for publication in the Working Paper series.

PIJIP is particularly interested in examinations of the following issues:

• Section by section analysis of the how adoption of major ACTA proposals would alter the law of a given country (either a current ACTA negotiating country or a country not yet in ACTA negotiations).
• Analysis of the impact of ACTA’s proposed institutional mechanisms on the current international institutional structure for intellectual property matters (including, e.g. WIPO and WTO) and how such alterations will impact public interests;
• Analysis of the potential impact of ACTA proposals or other elements of the enforcement agenda on specific public interest concerns, including
o access to knowledge imbedded goods and services,
o libraries,
o fair use,
o media literacy,
o public media,
o developing countries (including if ACTA were globalized).
• Analysis of the legality of elements of the enforcement agenda under international or domestic law, including, e.g.: Does the US Special 301 watch list program violate the WTO’s international dispute resolution mechanism? Do elements of the enforcement agenda violate international human rights obligations?

Papers will be expected to be 8-12 pages in length and written in general policy paper (ie “white paper”) language geared toward policy advocates, government officials and other interested parties, but not an exclusively legal audience.

Submission of abstracts should be made to pijip@wcl.american.edu by April 15, 2010. Draft papers for presentation at the workshop will be due by June 1, 2010. Completed papers for publication in the Working Paper Series will be due by July 30, 2010.

Questions can be sent to addressed to Sean Flynn, Associate Director, PIJIP, at pijip@wcl.american.edu

Upcoming Conference in Miami

2010-04-05T17:13:00.003-04:00

I haven't blogged in a while, but this one is time sensitive.

The Washington College of Law is holding the Conference Practicing Law in an Interconnected World: Exploring Trends and Opening Dialogue in Miami on April 8 - 10, 2010.

The Conference will bring together law practitioners from the U.S. and around the world to discuss relevant legal issues in areas such as environmental law, crisis management and media, international trade, arbitration, among others.

The Honorable Tomas Regalado, Mayor of Miami, Ricardo Ramirez, Member of the WTO Appellate Body, Welber Barral, Secretary of Foreign Trade of Brazil and renowned litigator Richard Lydecker are among the speakers.

Registration information is available at www.wcl.american.edu/events/miami2010

Lecture at Bucerius Law School

2009-12-10T14:45:00.003-05:00

I will be giving a lecture on copyright law and Creative Commons tomorrow (Friday, December 11, 2009) at the Bucerius Law School in Hamburg, Germany. Dean Niva Elkin-Koren from the University of Haifa in Israel will also speak. Should be great fun!

White House - Open Access - Request for Information

2009-12-10T14:34:00.002-05:00

Publicly funded research outputs should be freely accessible by the public absent compelling reasons to withhold access. That's a simple, perhaps obvious, principle that is slowly gaining ground in the digital environment. The NIH Public Access Policy makes important strides in the right direction, although the delay in public access is too long.

Now, in an important development, the White House Office of Science and Technology Policy has launched a public consultation on the question of whether the executive branch should adopt a more general public access policy for all federally-funded research outputs.

The window for comments is not open for long, so please take a moment to let the White House know that public deserves access to the research it funds absent compelling reasons to keep such research secret.

Please help me support Creative Commons

2009-12-04T16:30:00.002-05:00

Gentle reader,

'Tis the season to ask for support for Creative Commons, and this year I have to make it personal. I have my own fundraising page, and anything you can give to help out would be most appreciated.

As many of you know, I have served on the Board of this organization since its founding in 2002. My primary motivation throughout these years has been to find ways to make it easy and understandable to legally share knowledge, creativity, and discovery. I’m a lawyer and my way of contributing to this effort is to help the organization craft standardized legal licenses and technical tools designed for these purposes. I hope that’s a goal you will support as well.

The organization is staffed by energetic, devoted folks who embrace the mission today with as much passion as when we launched. That’s a hard thing for most non-profit organizations to say, and it speaks to the power of the fundamental idea that we can accomplish more by working together to build a shared culture than by working apart. Just this year, a number of CC’s initiatives have produced these results:

Follow the links for more details, and don't forget to make a donation on your way out!

Patent Lecture - Dreyfuss talk now posted

2009-10-22T17:46:00.002-04:00

I'm pleased to announce that the video of Professor Rochelle C. Dreyfuss's delivery of the Fifth Annual Finnegan Distinguished Lecture on Intellectual Property at American University, Washington College of Law is now available here. The lecture is "What the Federal Circuit Can Learn from the Supreme Court -- and Vice Versa."

In her talk, Professor Dreyfuss first reviewed the history of the Federal Circuit's creation, and then analyzed why the Supreme Court has taken such increased interest in reviewing Federal Circuit decisions on substantive matters of patent law in recent years. She drew attention to the difficulties of the expert Federal Circuit, sitting between generalist trial courts and a generalist Supreme Court. You'll have to watch the video to hear her specific recommendations for both the Federal Circuit and the Supreme Court. Also, be sure not to miss the lively question and answer period that followed, which closes with an eloquent comment by Federal Circuit Judge Pauline Newman.

An edited transcript of the lecture will be published later this year in the American University Law Review's annual review of Federal Circuit decisions.

Patent Law Lecture at American

2009-10-15T09:25:00.004-04:00

What the Federal Circuit Can Learn from the Supreme Court -- and Vice Versa

Please join us for the Fifth Annual Finnegan Distinguished Lecture on Intellectual Property on October 20, 2009 at 6:00 p.m. EDT. This year's lecture will be delivered by Professor Rochelle C. Dreyfuss, Pauline Newman Professor of Law at New York University Law School.

Abstract:

For over a quarter century, the Federal Circuit has been in the business of using its special expertise to revise key aspects of both procedural and substantive patent law. In the court’s early years, the Supreme Court largely refrained from reviewing its jurisprudence. However, in the last decade, the two tribunals have engaged in a vibrant dialogue. In this presentation, Professor Dreyfuss will examine their interaction, asking questions about the role that specialists should be permitted to play in tailoring law to the needs of technologically complex and emerging industries, and the extent to which generalists can helpfully intervene to keep this law in the mainstream and attuned to other social values and related developments, such as open innovation.

When: October 20, 2009, 5:00 p.m. Reception | 6:00 p.m. Lecture
Where: Washington College of Law
4801 Massachusetts Ave., N.W., Room 603
Registration: http://www.wcl.american.edu/secle/register
or call 202-274-4445
Webcast: Live and On Demand: http://www.wcl.american.edu/pijip/webcast.cfm

The "How To" Web - El Cocinero Fiel

2009-07-17T15:03:00.007-04:00

Whenever Internet theorists want an example of how the Internet changes the world and makes possible things we never could have had before, Exhibit A is almost always Wikipedia. Now, I also think Wikipedia as a social phenomenon and as an information resource is pretty incredible. But, often I think this talk drifts into a kind of Wikipedia-exceptionalism. Even when one sweeps in free software as another form of peer production, I think the discussion about building an "it" misses what I think is the more fundamental human urge to teach one another.

It is a strong impulse learned in the nuclear family to teach others so that they may grow. In my view, it is this impulse that leads folks to contribute to Wikipedia, to essentially provide free software support or customer service to producers through user forums, and to share practical tips and knowledge through all manner of blogs. Taken together, all of this advice and sharing of practical knowledge forms the "How To" web.

(Of course, sometime this exercise comes off the web. At Campus Party 2009, Patricio Lorente of the Wikimedia Foundation taught a group of astronomers f2f at Campus Party 2009 how to create a Wikipedia entry.)

A case in point is the growth of video blogs or posts to YouTube that provide all manner of instructional video. While in Columbia, I had the good fortune to get to know Txaber Allue Marti, otherwise known in the Spanish-speaking world as El Cocinero Fiel (the funky cook). Living in Spain, but increasingly engaged in gastronomic tourism, Txaber's video blog is essentially an interactive cooking show hosted on YouTube. An important part of his success is that he interacts with his audience through the comment feature. He also posts his blog under a Creative Commons license.

Having been an occasional viewer of television cooking shows, I find Txaber's videos refreshingly direct and fun. In part, he makes the food the star of the videos, not the cook.

Below is Txaber, Carolina Botero (Creative Commons Colombia), and Patricio.

Bogota - Campus Party 2009

2009-07-17T14:04:00.007-04:00

On July 11, I gave a keynote on Creative Commons and the principle of copyright neutrality at Campus Party 2009. Many thanks to Carolina Botero of Creative Commons Columbia and the folks at CampusBlog for the invitation. Pictured at the right are Carolina and Jaime Rojas, two of the four founders of CC Columbia.

Below is a scene from Campus Party.

Guangzhou - International Workshop on Copyright Industries

2009-07-17T12:40:00.005-04:00

On June 15, I participated in the 2009 International Workshop on Copyright Industries and Intellectual Property, hosted by the South China University of Technology in Guangzhou. This invitation also was through the good offices of Peter Yu and the faculty at SCUT. My talk was on the role of intellectual property licensing in copyright industries, and the interrelation between private licenses and public licenses, such as the GNU General Public License or Creative Commons licenses.

Our hosts were very generousm and we were very well fed! I particularly enjoyed the river tour of the city.

Hong Kong - Age of Digital Convergence Conference

2009-07-17T11:35:00.008-04:00

On June 12-13, I participated in the Age of Digital Convergence conference organized by Peter Yu in conjunction with, and hosted by, Hong Kong University. My talk was on "Copyright and the Role of Machines in Cultural Production." I briefly look at issues concerning the roles of machines as reading tools and authoring tools. Machines as readers has greater impact on copyright practices than on the interpretation of copyright law as such.

As a matter of practice, copyright owners are, or should be, increasingly aware of machines as the immediate audience for their works. These machines may be acting as discoverers, filters, organizers, translators, etc. Machines need rules to perform these functions, and digital works need to be marked up or formatted consistently with the rules used by these machines. In the open access context, the big lost opportunity is that most scholarship is not being published in a manner that enables machines readers to fully assist researchers.

Machines as authoring tools raise a host of interesting legal questions. I use the case of David Cope as an example. His Experiments in Musical Intelligence software composes music in the style of famous classical composers. WNYC has a nice interview with him, in which he explains how EMI works and the kinds of reactions he receives when audiences who find themselves emotionally moved by live performance of the composition learn that it is the produce of Cope's algorithm.

According to Cope:

Ultimately, the computer is just a tool with which we extend our minds. The music our algorithms compose are (sic) as much ours as the music created by the greatest of our personal human inspirations.

Well, "ours" in what sense? As a matter of copyright law, it is not at all clear that Cope is the legal author of the music that results from the operation of his software. There are four choices concerning copyright ownership of the outputs of an authoring tool:

(1) designer of tool
(2) user of tool
(3) joint ownership between designer and user
(4) no ownership

Tool designers can influence the outcome by running multiple permutations and fixing these in a tangible medium (digital storage).

Playing for Change

2009-06-29T07:32:00.003-04:00

I just bought the Playing for Change CD/DVD. What a joy! While the Stand By Me video has received a lot of attention, the other songs and videos are as inspiring.

Federal Research Public Access Act (FRPAA) - Reintroduced

2009-06-29T07:07:00.002-04:00

Senators Lieberman and Cornyn have reintroduced the Federal Research Public Access Act (S. 1373), which would require agencies with large research budgets to develop public access plans to make the peer reviewed journal articles reporting the results of research funded by these agencies publicly accessible over the Internet. In essence, this bill would take a large step toward generalizing the principle established by the NIH Public Access Policy. This is great news. For more information about what you can do to support the bill, see the Alliance for Taxpayer Access page.

Josh Sarnoff's New Blog - Inherently Sarnoff

2009-06-05T17:41:00.003-04:00

Congratulations to Josh Sarnoff, who joins the blogosphere with his new blog - Inherently Sarnoff. Josh is my colleague at the Washington College of Law, and he has interesting thoughts and perspectives to contribute to the online dialog about patent law and related matters. For those unfamiliar with patent law, the title of his blog refers to the doctrine of inherency under which a claimed invention can be found to fail the test of novelty because the invention, or one of its elements, is inherent in the prior art. Welcome Josh!

Professional Move - Au Revoir Villanova

2009-06-05T17:16:00.004-04:00

My professional move from the Villanova School of Law to the American University, Washington College of Law became effective on June 1, 2009. I wanted to take a moment to express my gratitude to the Villanova community for having given me the opportunity to live and to work as a member. I had the opportunity to teach a wide range of interesting and interested students, some of whom are kind enough to subscribe to this blog :-)

I leave behind many friends on a great faculty. My faculty colleagues and Dean Sargent supported my scholarly activities with enthusiasm and were always generous with their time and attention when questions about teaching or other aspects of life in a law school arose.

The Villanova Law School has a distinctive, collegial culture, which I expect will thrive when it gets transplanted into a new building, this summer. Congratulations to all those who made the new building a reality!

When a professor moves to a new school, it is not a sharp transition because the professor remains colleagues with his former faculty members in the larger communities of legal education, higher education, and the legal profession. So this is not goodbye; simply au revoir.

Stuart Shieber's New Blog - Occasional Pamphlet

2009-06-05T17:01:00.003-04:00

Stuart Shieber, Professor and Director of the Office of Scholarly Communication at Harvard,has started an open access blog, The Occasional Pamphlet. Stuart was responsible for shepherding the Harvard Faculty of Arts and Sciences Open Access policy through the process. Stuart cares deeply about getting the architecture right for digital scholarly communication, and he has a number of creative ideas about how to move to a more open and productive environment for scholarly communication. Welcome Stuart!

Lessig on Helprin

2009-05-21T13:27:00.003-04:00

There's a cottage industry of naysayers who seek attention by deriding all things Internet. A member of this crew, Mark Helprin, has put together a collection of pages bound together under the title Digital Barbarism which was printed by Harper Collins. I say printed rather than published because the book could not have passed through any meaningful peer review or editorial process. It appears that at least in this case, Harper has decided that its future is as a vanity press.

In the book, Helprin presents a largely fictional account of copyright law and takes some pot shots at Creative Commons along the way. If you happen to come across someone who has been taken in by Helprin's account, please refer them to Larry Lessig's meticulous refutation of Helprin.

Please Don't Use .docx

2009-05-04T11:08:00.002-04:00

If you, like me, work in an organization that has switched to Microsoft Office 2007, please be alert to two problems and their solutions.

Problem 1: They changed the interface big time. Microsoft says it's an improvement based on user data. If you, like me, value your time relearning a new menu structure that is in no way intuitive is not an improvement.

Solution: There is an easy solution - OpenOffice, the free office suite that is interoperable with Microsoft Office let's you stay with largely the same interface as MS Office 2003.

Problem 2: They changed the file format. For reasons nicely explained by Brian at Teach Them Well, this is not an improvement. It's an attempt to break the standard that Microsoft established with earlier versions of Office. The new file formats end in x (.docx, .pptx, .xlsx). These are not compatible with earlier versions of MS Office. When you instruct MS Office 2007 to use the older file formats (.doc, .ppt, .xls) the window announces that you are operating in "Compatibility Mode". Draw the inference - when you are using the new MS Office 2007 formats, you are operating in "Incompatibility Mode". Why would you want to do that?

Solution: Switch to OpenOffice or, if you must use MS Office 2007, use these instructions to change the default file formats to the standard ones.

Urgent - The Fate of Internet Users' Rights in the EU

2009-04-27T10:06:00.005-04:00

Readers in Europe who care about keeping the Internet relatively neutral need to express that opinion to policymakers in the European Parliament by April 29. In particular, it is inexplicable why the Green Party is on the sidelines and not actively supporting the Citizens' Rights Amendments that have been tabled to restore users' rights that were in an earlier version of the gargantuan Telecoms Package making its way through the European Parliament. Erik Josefsson is a leading proponent of these amendments, and he is hosting PDF versions of the amendments Part I, Part II and Part III on his site.

The magic numbers in this debate have been 138 and 166. These are the two amendments that initially were hailed in the US press as recognizing access to the Internet as a fundamental right, countering French President Nicolas Sarkozy's campaign to require service providers to impose the Internet death penalty on users found to have infringed intellectual property rights three times.

Lobbying by representatives of corporate and professional rights owners - remember there is no group dedicated solely to lobbying on behalf of the millions of amateur creators who also are rights owners under copyright - has led to a reversal of this position As Monica Horten reports, the current versions of Amendment 138 and Amendment 166 would allow for imposition of the Internet death penalty and non-neutral network management.

The Citizens' Rights Amendments have been tabled to reverse these back-room deals and to clarify the original position concerning users' rights.

While it is of course up to European citizens to decide for themselves what regulations they want to live under, as a participant in a global network, I hope that those who support the cause of citizens' rights will mobilize to establish those rights in law.

Can IP Law Save Newspapers?

2009-04-20T17:57:00.005-04:00

The news that the Associated Press is going to rely increasingly on copyright and trademark law to staunch losses to its newsgathering business and its client/member newspapers does not bode well for the level of creative, entrepreneurial thinking needed in the Fourth Estate right now.

Robert Scoble has a nice post reflecting on the challenges facing the industry as currently structured and does a nice functional analysis of the assets news organizations still have to work with.

Open Access - Where is Columbia?

2009-04-14T19:22:00.002-04:00

On Wednesday, April 8, I gave an open access presentation at Columbia University, and I asked the question why the university as a whole was not interested in demonstrating greater leadership in this area. The University Librarian, Jim Neal, has been a strong and important open access advocate for years. He has brought on Kenny Crews to help those on campus sort out the copyright issues. But, where is the rest of the campus?

Well, the good news, at least, is that two days later we saw that some of the students get it. Kudos for a very well done piece!

Physicists and the Harvard Mandate

2009-04-14T18:55:00.002-04:00

Congratulations are due to the American Physical Society and the Harvard University Office of Scholarly Communication for working out an understanding about how Harvard plans to exercise its rights under the copyright license granted to it by the Faculty of Arts and Sciences. The press release is here.

This is further evidence that open access to authors' final manuscripts is consistent with the mixed subscription and page-charges model to fund the costs of publication and dissemination of research.

Open Access Events - American and Columbia

2009-03-30T16:52:00.003-04:00

The momentum for campus-wide action on open access is building. Tomorrow, I'll be speaking at American University Library's Digital Futures Forum. On April 8th, I'll be participating in one of Columbia University Library's series of programs on scholarly communication and open access. In a trying time for many, it's nice to see at least one trend that's positive!

New Position

2009-03-30T16:34:00.003-04:00

I'm delighted to share the news that I'll be permanently joining the faculty at American University's Washington College of Law and will be the new director of the Program on Information Justice and Intellectual Property (PIJIP). The press release is here: http://www.wcl.american.edu/news/michaelcarrollPIJIP.cfm.

Harvard Kennedy School Goes Open Access

2009-03-19T11:27:00.001-04:00

This is a very good week for open access. Perhaps there is something in the water in Cambridge, Mass. because now the Kennedy School of Government at Harvard also has adopted an open access mandate. Who's next?

MIT Open Access Policy

2009-03-19T11:16:00.004-04:00

Big news at MIT. By unanimous faculty vote, MIT adopted the first University-wide OA mandate in the United States for faculty authors. The driving force for this initiative on the faculty was Hal Abelson, with whom I have the honor to serve on the CC Board. I've also had the pleasure of working with the Director Libraries and the MIT Press, Ann Wolpert on various projects, who also played a central role and who, I am sure, will enthusiastically implement the new policy. Congratulations MIT!

Copyright in Databases

2009-02-20T17:55:00.003-05:00

I'm going to have more to say about data, databases, and intellectual property rights in the coming months. This longish post provides a basic primer on how U.S. copyright law applies to databases.

A. Copyright

Copyright attaches to an original work of authorship that has been embodied in a fixed form. The “work” to which copyright attaches can be the structure of the database or a relatively small part of a database, including an individual data element, such as a photograph. It is therefore possible for a database to contain multiple overlapping copyrighted works or elements. To the extent that a database owner has a copyright, or multiple copyrights, in elements of a database, the rights apply only to those copyrighted elements. The rights are to reproduce, publicly distribute or communicate, publicly display, publicly perform, and prepare adaptations or derivative works.

1. Standards for obtaining copyright

a. Originality

Copyright protects only an author’s “original” expression, which means expression independently created by the author that reflects a minimal spark of creativity. A database owner may have a copyright in the database structure or in the user interface with the database, whether that be a report form or an electronic display of field names associated with data. The key is whether the judgments made by the person(s) selecting and arranging the data require the exercise of sufficient discretion to make the selection or arrangement “original.” In Feist Publications, Inc. v. Rural Telephone Service Company, the United States Supreme Court held that a white pages telephone directory could not be copyrighted. The data—the telephone numbers and addresses—were “facts” which were not original because they had no “author.” Also, the selection and arrangement of the facts did not meet the originality requirement because the decision to order the entries alphabetically by name did not reflect the “minimal spark” of creativity needed.

As a practical matter, this originality standard prevents copyright from applying to complete databases – i.e. those that list all instances of a particular phenomenon – that are arranged in an unoriginal manner, such as alphabetically or by numeric value. However, courts have held that incomplete databases that reflect original selection and arrangement of data, such as a guide to the “best” restaurants in a city, are copyrightable in their selection and arrangement. Such a copyright would prohibit another from copying and posting such a guide on the Internet without permission. However, because the copyright would be limited to that particular selection and arrangement of restaurants, a user could use such a database as a reference for creating a different selection and arrangement of restaurants without violating the copyright owner’s copyright.

Copyright is also limited by the merger doctrine, which appears in many database disputes. If there are only a small set of practical choices for expressing an idea, the law holds that the idea and expression merge and the result is that there is no legal liability for using the expression.

Under these principles, metadata is copyrightable only if it reflects an author’s original expression. For example, a collection of simple bibliographic metadata with fields named “author,” “title,” “date of publication,” would not be sufficiently original to be copyrightable. More complex selections and arrangements may cross the line of originality. Finally, to the extent that software is used in a databases, software is protectable as a “literary work.” A discussion of copyright in executable code is beyond the scope of this entry.

b. Fixation

A work must also be “fixed” in any medium permitting the work to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration. The structure and arrangement of a database may be fixed any time that it is written down or implemented. For works created after January 1, 1978 in the United States, exclusive rights under copyright shower down upon the creator at the moment of fixation.

2. The Duration of Copyright

Under international treaties, copyright must last for at least the life of the author plus 50 years. Some countries, including the United States, have extended the length to the life of the author plus 70 years. Under U.S. law, if a work was made as a “work made for hire,” such as a work created by an employee within the scope of employment, the copyright lasts for 120 years from creation if the work is unpublished or 95 years from the date of publication.

3. Ownership and Transfer of Copyright

Copyright is owned initially by the author of the work. If the work is jointly produced by two or more authors, such as a copyrightable database compiled by two or more scholars, each has a legal interest in the copyright. When a work is produced by an employee, ownership differs by country. In the United States, the employer is treated as the author under the “work made for hire” doctrine and the employee has no rights in the resulting work. Elsewhere, the employee is treated as the author and retains certain moral rights in the work while the employer receives the economic rights in the work. Copyrights may be licensed or transferred. A non-exclusive license, or permission, may be granted orally or even by implication. A transfer or an exclusive license must be done in writing and signed by the copyright owner. Outside of the United States, some or all of the author’s moral rights cannot be transferred or terminated by agreement. The law on this issue varies by jurisdiction.

4. The Copyright Owner’s Rights

The rights of a copyright owner are similar throughout the world although the terminology differs as do the limitations and exceptions to these rights.

a. Reproduction

As the word “copyright” implies, the owner controls the right to reproduce the work in copies. The reproduction right covers both exact duplicates of a work and works that are “substantially similar” to the copyrighted work when it can be shown that the alleged copyist had access to the copyrighted work. In the United States, some courts have extended this right to cover even a temporary copy of a copyrighted work stored in a computer’s random access memory (“RAM”).

b. Public Distribution, Performance, Display or Communication

The United States divides the rights to express the work to the public into rights to distribute copies, display a copy, or publicly perform the work. In other parts of the world, these are subsumed within a right to communicate the work to the public.

Within the United States, courts have given the distribution right a broad reading. Some courts, including the appeals court in the Napster case, have held that a download of a file from a server connected to the internet is both a reproduction by the person requesting the file and a distribution by the owner of the machine that sends the file. The right of public performance applies whenever the copyrighted work can be listened to or watched by members of the public at large or a subset of the public larger than a family unit or circle of friends. Similarly, the display right covers works that can be viewed at home over a computer network as long as the work is accessible to the public at large or a subset of the public.

c. Right of Adaptation, Modification or Right to Prepare Derivative Works

A separate copyright arises with respect to modifications or adaptations of a copyrighted work so long as these modifications or adaptations are themselves original. This separate copyright applies only to these changes. The copyright owner has the right to control such adaptations unless a statutory provision, such as fair use, applies.

5. Theories of Secondary Liability

Those who build or operate databases also have to be aware that copyright law holds liable certain parties that enable or assist others in infringing copyright. In the United States, these theories are known as contributory infringement or vicarious infringement.

a. Contributory Infringement

Contributory copyright infringement requires proof that a third party intended to assist a copyright infringer in that activity. This intent can be shown when one supplies a means of infringement with the intent to induce another to infringe or with knowledge that the recipient will infringe. This principle is limited by the so-called Sony doctrine, by which one who supplies a service or technology that enables infringement, such as a VCR or photocopier, will be deemed not to have knowledge of infringement or intent to induce infringement so long as the service or technology is capable of substantial non-infringing uses.

Two examples illustrate the operation of this rule. In A&M Records, Inc. v. Napster, Inc., the court of appeals held that peer-to-peer file sharing is infringing but that Napster’s database system for connecting users for peer-to-peer file transfers was capable of substantial non-infringing uses and so it was entitled to rely on the Sony doctrine. (Napster was held liable on other grounds.) In contrast, in MGM Studios, Inc. v. Grokster, Ltd., the Supreme Court held that Grokster was liable for inducing users to infringe by specifically advertising its database service as a substitute for Napster’s.

b. Vicarious Liability for Copyright Infringement

Vicarious liability in the United States will apply whenever (1) one has control or supervisory power over the direct infringer’s infringing conduct and (2) one receives a direct financial benefit from the infringing conduct. In the Napster case, the court held that Napster had control over its users because it could refuse them access to the Napster server and, pursuant to the Terms of Service Agreements entered into with users, could terminate access if infringing conduct was discovered. Other courts have required a greater showing of actual control over the infringing conduct.

Similarly, a direct financial benefit is not limited to a share of the infringer’s profits. The Napster court held that Napster received a direct financial benefit from infringing file trading because users’ ability to obtain infringing audio files drew them to use Napster’s database. Additionally, Napster could potentially receive a financial benefit from having attracted a larger user base to the service.

6. Limitations and Exceptions

Copyrights’ limitations and exceptions vary by jurisdiction. In the United States, the broad “fair use” provision is a fact-specific balancing test that permits certain uses of copyrighted works without permission. Fair use is accompanied by some specific statutory limitations that cover, for example, certain uses in the classroom use and certain uses by libraries. The factors to consider for fair use are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Countries whose copyright law follows that of the United Kingdom, a more limited “fair dealing” provision enumerates specific exceptions to copyright. In Europe, Japan, and elsewhere, the limitations and exceptions are specified legislatively and cover some private copying and some research or educational uses.

7. Remedies and Penalties

In general, a copyright owner can seek an injunction against one who is either a direct or secondary infringer of copyright. The monetary consequences of infringement differ by jurisdiction. In the United States, the copyright owner may choose between actual or statutory damages. Actual damages cover the copyright owner’s lost profits as well as a right to the infringer’s profits derived from infringement. The range for statutory damages is $750 to $30,000 per copyrighted work infringed. If infringement is found to have been willful, the range increases to $150,000. The amount of statutory damages in a specific case is determined by the jury. There is a safe harbor from statutory damages for non-profit educational institutions if an employee reproduces a copyrighted work with a good faith belief that such reproduction is a fair use.

A separate safe harbor scheme applies to online service providers when their database is comprised of information stored at the direction of their users. An example of such a database would be YouTube’s video sharing database. The service provider is immune from monetary liability unless the provider has knowledge of infringement or has control over the infringer and receives a direct financial benefit from infringement. The safe harbor is contingent on a number of requirements, including that the provider have a copyright policy that terminates repeat infringers, that the provider comply with a notice-and-takedown procedure, and that the provider have an agent designated to receive notices of copyright infringement.

Case Examples

In cases arising after the Feist decision, the courts have faithfully applied the core holding that facts are in the public domain and free from copyright even when substantial investments are made to gather such facts. There has been more variation in the characterization of some kinds of data as facts and in application of the modicum-of-creativity standard to the selections and arrangements in database structures.

On the question of when data is copyrightable, a court of appeals found copyrightable expression in the “Red Book” listing of used car valuations. The defendant had copied these valuations into its database, asserting that it was merely copying unprotected factual information. The court disagreed, likening the valuations to expressive opinions and finding a modicum of originality in these. In addition, the selection and arrangement of the data, which included a division of the market into geographic regions, mileage adjustments in 5,000-mile increments, a selection of optional features for inclusion, entitled the plaintiff to a thin copyright in the database structure.

Subsequently, the same court found that the prices for futures contracts traded on the New York Mercantile Exchange (NYMEX) probably were not expressive data even though a committee makes some judgments in the setting of these prices. The court concluded that even if such price data were expressive, the merger doctrine applied because there was no other practicable way of expressing the idea other than through a numerical value and a rival was free to copy price data from NYMEX’s database without copyright liability.

Finally, where data are comprised of arbitrary numbers used as codes, the courts have split. One court of appeals has held that an automobile parts manufacturer owns no copyright in its parts numbers, which are generated by application of a numbering system that the company created. In contrast, another court of appeals has held that the American Dental Association owns a copyright in its codes for dental procedures.

On the question of copyright in database structures, a court of appeals found that the structure of a yellow pages directory including listing of Chinese restaurants was entitled to a “thin” copyright, but that copyright was not infringed by a rival database that included 1,500 of the listings because the rival had not copied the plaintiff’s data structure. Similarly, a different court of appeals acknowledged that although a yellow pages directory was copyrightable as a compilation, a rival did not violate that copyright by copying the name, address, telephone number, business type, and unit of advertisement purchased for each listing in the original publisher’s directory. Finally, a database of real estate tax assessments that arranged the data collected by the assessor into 456 fields grouped into 34 categories was sufficiently original to be copyrightable.

Copyright and Linking

2009-02-20T17:37:00.003-05:00

Periodically, I am asked to explain some feature of copyright law. When I do this in an email, I'm going to make it a practice of also posting the explanation here in case it's of use to others.

I was asked about what the copyright issues are with hyperlinks on the web. So, in US law, generally there is no copyright issue with linking because the link causes the person clicking on it to load a copy of the web site, but the person who posts the link is not making a copy, or displaying a copy, or distributing a copy so there's no copyright issue for the person posting the link. (And therefore, there's generally no legal theory that a site can use to stop someone from linking to their site, even if it's a so-called "deep" link or an in-line link). See Perfect 10 v. Amazon, Inc., 487 F.3d 701 (9th Cir. 2007).

The one exception is if the target site has material that infringes copyright on it. In that case, even though the person linking to the site is not directly infringing, they could be liable on the theory of indirect infringement - helping someone else to infringe copyright.

The one law that specifically deals with this is Section 512(d) of the Copyright Act, which creates a "safe harbor" for search engines and others who link to "online locations" with copyright infringing materials. As long as the search engine removes the link after receiving notice of the infringing materials, the search engine does not owe the copyright owner any money.

For more information, see the Chilling Effects site.

YouTube Tests Creative Commons Licenses

2009-02-20T17:34:00.002-05:00

Very exciting news, as reported by Eric Steurer on the CC Blog:

Eric Steuer, February 12th, 2009

YouTube just made an incredibly exciting announcement: it’s testing an option that gives video owners the ability to allow downloads and share their work under Creative Commons licenses. The test is being launched with a handful of partners, including Stanford, Duke, UC Berkeley, UCLA, and UCTV.

We are always looking for ways to make it easier for you to find, watch, and share videos. Many of you have told us that you wanted to take your favorite videos offline. So we’ve started working with a few partners who want their videos shared universally and even enjoyed away from an Internet connection.

Many video creators on YouTube want their work to be seen far and wide. They don’t mind sharing their work, provided that they get the proper credit. Using Creative Commons licenses, we’re giving our partners and community more choices to make that happen. Creative Commons licenses permit people to reuse downloaded content under certain conditions.

Visit YouTube’s blog for information. And if you’re are a partner who wants to participate, fill out the YouTube Downloads - Partner Interest form.

Renewed Attack on Open Access in Congress

2009-02-04T16:21:00.004-05:00

As Peter Suber reports, yesterday Rep. John Conyers (D-MI) re-introduced the Fair Copyright in Research Works Act. This year it's H.R. 801 (last year it was H.R. 6845), and co-sponsored by Steve Cohen (D-TN), Trent Franks (R-AZ), Darrell Issa (R-CA), and Robert Wexler (D-FL).

The bill language has not changed. Neither has the fact that there is no reasonable basis in law or in fact to support this legislation. The NIH Public Access Policy is working. Although publishers have made vague assertions, claims that there are legal problems with the NIH policy have been discredited. Similarly, there is no evidence to support the policy - with its allowance of an unduly long 12 month delay - that scholarly communication in the biomedical sciences has been harmed.

Indeed, it's really time to turn this conversation around. The United States' economy needs more than increased consumer spending to recover. We need to innovate, and innovation in basic research happens quicker and in more diverse directions in an open, networked environment. In a word, research should be linkable.

Wanna see? Do you have breast cancer or is there a woman in your life who does? Want to know more about the statistical risks? Thanks to the NIH Public Access Policy, I can simply suggest that you click here because your tax dollars supported the study.

Now that's just using the freedom to link to help quickly point you to an article or scientific letter you might want to read. But the real power of linkable science is that scientists would be able to use their computers to study the network of links to find otherwise hidden patterns in the research and to find otherwise hidden linkages between results in related but distinct fields of research or even in different disciplines. It's the power to process links that has made Google the leading search engine for the web. So why can't web technologies do for scientists what they do for web searchers looking to buy electronics or shoes? Because scientific information other than NIH funded research articles is not generally linkable!

So the path to linkable science and the innovations that will follow from processing the links is to release journal articles and associated data from the paywalls that surround them - either immediately through supply-side funded journals or after a short delay for subscription-based journals.

So, Chairman Conyers, with all due respect, the policy question is not whether Congress should act to deny scientists and taxpayers access to research funded by NIH, but rather, why should NIH-funded research articles be the only articles reporting federally-funded research that scientists and taxpayers like me can link to?

Author Deposit Mandates for Government Grantees

2009-01-28T17:38:00.002-05:00

The NIH mandate is succeeding. Shouldn't all federally funded researchers who produce research articles with federal support have to deposit a copy of those articles in a federal repository or otherwise make them openly accessible?

That question will be discussed at a Public Symposium on Author Deposit Mandates for Federal Research Grantees at the National Academies in Washington, D.C. tomorrow afternoon, January 29, 2009. The symposium, which is open to the public and will be netcast (audio only), will begin at 4:30 EST (Washington, DC time) on the afternoon of Thursday, 29 January. Comments and questions from remote participants will be possible. Information about the symposium is available under "Upcoming Events" on the upper right corner of the website of the newly formed Board on Research Data and Information (BRDI), of which I'm a member.

Access Econ - Big Step for Open Access in Economics

2009-01-26T11:49:00.003-05:00

The first thing a student learns in a microeconomics class is that "There ain't no such thing as a free lunch."

This lesson is emblematic of the deep skepticism that economists trained in liberal democracies harbor about any business model that relies on providing goods or services for "free".

So when economists decide to go open access and build a service business on the basis of free content, pay close attention. That's what economists John Conley and Myrna Wooders at Vanderbilt University have done with Access Econ.

Not only are they willing to host new open access journals in economics, they also are willing to provide the journal management software they've written to do the job. This creates some competition for Open Journal Systems, which is currently the dominant open source solution for open access journals. I think OJS is a great project, and I salute all the developers who worked on it and who maintain it. But, we're too early in the evolution of open access publishing to lock in on a standard. So the competition from Access Econ should be welcome as it should spur further innovation in this field.

There are plenty of proprietary packages for journal management software, so why did these smart economists pass up the opportunity to charge and offer their services for "free"? Here's their explanation to their skeptical colleagues:

Why “Free” is a good business model

As economists, you should be asking: why is “ free” a sensible business model? There are several reasons. First, our purpose in writing this software to begin with was to support JPET, APET, and EB. Thus, we would have incurred the fixed cost of creating this software in any event. There are very few additional fixed costs to recover. Second, the marginal cost of allowing others to use the system is very close to zero. We are good enough public economists to know that the efficient price is zero in this case. The only marginal costs to us are the time it takes to help get others started on the system. This is the reason for the “ mutual support” condition. Third, after careful reflection, we realized that we simply are not business people. The cost in terms of time away from research of shilling, billing and advertising is just not worth the potential financial benefit. To mangle the old joke about arbitrage: if there are five dollar bills lying on the ground it must cost ten dollars to pick them up. Finally, because of our experience at JPET and EB, we sincerely want open-access to spread as rapidly and widely as possible, especially in economics. To nickel and dime people who share this vision seems completely self-defeating.

Well said!

Intellectual Property and Price Discrimination - iTunes

2009-01-17T11:01:00.005-05:00

There's a lot of debate about whether allowing or encouraging price discrimination - charging different people or classes of people a different price for the same good - is good policy with respect to goods that embody copyrighted works of authorship or patented inventions. The general population seems to have different reactions to different kinds of price discrimination schemes. On the one hand, most people don't seem to have a problem with senior citizen discounts at movie theaters, even though some seniors are quite wealthy. But, if Amazon chooses to customize the price of DVDs for each consumer, an uproar ensues.

I am very interested to see what happens with the recent deal between Apple and the recording companies to allow variable pricing on music files distributed by iTunes. This may or not be price discrimination depending on whether the good is "music" or particular songs because everyone will still pay the same price for particular songs.

Here, I just want to make two related theoretical points about the way that economists and legal scholars who use economic models talk about price discrimination.

Point 1. Most economic or law-and-economic analysts who talk about price discrimination say that the policy goal is to maximize people's welfare. I'm at the Penn Law Review symposium on the Foundations of Intellectual Property, and just watched Christopher Yoo make this point about his paper with John Conley on intellectual property and impure public goods.

For these analysts, whether price discrimination is good or bad for society depends on who wins and loses and by how much. But they model this trade off using people's willingness to pay for intellectual property goods as a signal for how much having a copy of a song or book or movie is going to improve their welfare. And these models get pretty complicated quickly, but they all are built on this foundation.

The problem is the gap between ability-to-pay and willingness-to-pay. If you care about welfare, ability-to-pay is a poor proxy for utility or welfare because the marginal value of a dollar depends on how many dollars you have. When iTunes charged you 99 cents a song, how does a consumer decide when it is worth paying that price? Imagine two people who value owning a legal copy of a particular song exactly the same, but one is wealthy and the other is struggling. At certain values, the wealthy person buys the song and the struggling person won't even though they both would get exactly the same amount of pleasure from the song because the relative cost to each person is quite different. So their respective decisions to buy or not are not really telling you how much they value owning a copy of the song.

So, in my view, analysts need to defend the proposition that their models tell us something about the effect of variable pricing on people's welfare when they have not accounted for the gap between wealth and welfare in the model. (Of course, this is a more general point about neoclassical economics, but it has particular salience in this context.)

Point 2. Those who have a reflexive antagonism to price discrimination need to be careful about form and substance. Some folks who have this reflex are reacting to the underlying market power that gives a seller the ability to engage in variable pricing without losing all of its customers to a competitor. I agree that market power is something to watch.

But firms with market power also engage in uniform pricing, as Apple has done with iTunes. In such a case, uniform pricing functions as a form of value discrimination or cost discrimination. Because the marginal value of a dollar varies across people, the price may be the same, but the relative cost of the song from the buyer's perspective varies. So if you want greater equality in the market place, you may actually want to encourage variable pricing if it has the economic effect of equalizing relative cost. I agree that this is very difficult to do in practice, but remember this is a theoretical point. In practice, though, this point about variable cost is what progressive taxation is all about.

So, if copyright is a tax on readers, should it be a progressive tax?

Can You CC License Music and Still Make Money?

2009-01-06T15:13:00.002-05:00

Yes. Nine Inch Nail's Ghosts I-IV was released under a CC license and was the best selling album in 2008 on Amazon's MP3 store. As Fred Benenson writes on the Creative Commons blog:

NIN’s Creative Commons licensed Ghosts I-IV has been making lots of headlines these days.

First, there’s the critical acclaim and two Grammy nominations, which testify to the work’s strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week, and hitting #1 on Billboard’s Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon’s MP3 store.

Take a moment and think about that.

NIN fans could have gone to any file sharing network to download the entire CC-BY-NC-SA album legally. Many did, and thousands will continue to do so. So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon’s MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked.

The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule, and point them here.

A Thought on the Theory of the Firm

2009-01-06T14:33:00.002-05:00

While participating in a conference at Vanderbilt Law School on "user generated content," the following thought occurred in the context of discussions how platform providers such as YouTube, Wikipedia, Facebook, derive value from user contributions.

Here's what's familiar to some. In a famous article, Ronald Coase suggested that in a capitalist economy, productive activities are organized either by a hierarchically-managed firm or through market exchange. The firm manager has to decide whether to "make or buy" a resource, and that choice will be guided or governed by the relative transaction costs associated with each option. See http://en.wikipedia.org/wiki/Theory_of_the_firm.

Recently, Yochai Benkler, generalizing from the experience with Linux and other large-scale free or open source software projects, argues that a third mode of production - "commons based peer production" - has been made feasible by the Internet and is superior to the firm or market exchange for the production of information and cultural goods.

Benkler acknowledges that projects such as Linux and Wikipedia have hierarchical structures, but these are more flexible and are designed to manage contributions from a large set of producers who need not have a relation to the project that is governed either by an employment or purchase contract.

I see a hybrid development in which the boundaries of the traditional, hierarchically managed firm are becoming more porous. While there is nothing new in firms' soliciting suggestions from consumers or responding to unsolicited suggestions, the scale of this activity has increased noticeably and the economic theory of these kinds of transactions has become more sophisticated.

On the economics, Eric von Hippel's book Democratizing Innovation moves us in the right direction. He points out that users face an innovate-or-buy decision when they need/want customized products. In his concluding chapter, he remarks about the failure of managers who rely on user innovation to acknowledge these inputs and a corresponding failure in management training to formalize processes for soliciting and managing user contributions to product development. Kathy Strandburg is doing interesting work on how patent law should respond to these insights.

I think we need to generalize von Hippel's insight further. User generated inputs extend beyond product development. How about marketing? Should the brand manager hire an advertising firm to develop a campaign, to manage a user-generated campaign, or should the campaign be fully outsourced to consumers? Are "consumers" inside or outside the boundary of the firm in options 2 and 3?

It seems to me that forward-looking firms are co-opting Benkler's and von Hippel's insights, and I suspect the future of management training will not limit the manager's choice to make or buy, but instead to extend the choices to make, buy, receive (user contributions) or collaborate (with user innovators). The last two options come with their own transaction cost structures, and so the initial Coasean insight remains valuable. Since many of these user contributions are likely governed by copyright, and reliance on user contributions may be incompatible with some firms' trade secret or patenting strategies, there is plenty of room for those concerned about the role that intellectual property law plays in managing these transaction costs to take these into account more explicitly in discussions about how to adapt/tailor IP law in these settings. (Paul Heald and Dan Burk also have done good work on the transaction cost perspective on IP).

The Digital Public Domain

2008-12-30T14:07:00.005-05:00

Whatever one thinks about the rest of the Google Book business, I think it's important to focus on the digitization of public domain books by both Google and the Open Content Alliance and to use these efforts as the basis for conceiving of the Digital Public Domain as a more robust version of the traditional public domain.

Here's the gist of the argument:

1. Copyright and the Encouragement of Learning.

Copyright law is at the heart of concerns about using the Internet to provide universal access to learned and cultural works. These concerns arise in particular with respect to two related issues: access to books and other printed materials that can be digitized and shared over the Internet, and access to scholarly works yet to be produced, which could be shared over the Internet but routinely are not.

The purpose of copyright law has been to promote learning and the progress of knowledge. Two features of copyright law should provide the guide for how to respond to access concerns. First, copyright is an author's right. This is definitional. Prior to 1710, the law provided exclusive printing rights to printers, leaving authors with no rights other than ownership rights in a physical manuscript. The first copyright act, the Statute of Anne, fundamentally changed this relationship by giving rights to authors, who could then make choices about with whom or how to publish. Since that time, copyright law has consistently remained an author's right.

Second, copyright law explicitly balances the need to reward authors for their contributions to society with the public's interests in having access to works created by others and the rights to reuse such works. For this reason, copyright is a time-limited right. Copyright expires so that the public may ultimately gain unlimited access and use rights. This also is definitional. The Statute of Anne created the public domain, and the English courts held in favor of the public domain in the Battle of the Booksellers, in which English publishers argued that perpetual common law printing rights survived the creation of copyright law.

Therefore, by design, all copyrighted works are destined for the public domain. But, the public domain as a legal concept means only that a work is free from copyright restrictions. There is no positive commitment by the law to make such works available to the public other than the deposit requirement under U.S. law. Nonetheless, removing copyright restrictions gives those who would publish or publicize works an incentive to do so for works still deemed relevant or interesting to the public. See, e.g., Paul Heald's article.

2. The Digital Public Domain

In the age of the Internet, we need to reconceive the public domain as the Digital Public Domain. In the Digital Public Domain, it is not enough that a work is free from copyright restrictions. A positive commitment to universal access to the public domain requires first that public domain works be digitized or at least be subject to a protocol that enables digitization when cost effective.

Second, works free from copyright restrictions should be made accessible over the Internet. Mass digitization of the public domain promotes the goals of universal access, improved learning, and the progress of science.

Third, works free from copyright restrictions should not be subject to technological measures or contractual restrictions or "terms of use" that in any way inhibit members of the public from exercising their usage rights in public domain works.

Fourth, access and the absence of legal restrictions alone are insufficient. Those who search the Internet for information often do so for active purposes. It is not sufficient to find information that is topically relevant. The information also must be useful for the researcher's purposes. Marking and tagging works with their use rights enables computers to search for information that is both topically relevant and useful. I've argued more extensively about use relevance here.

From this principle follows the corollary that the digital public domain should be tagged and marked as such. An important purpose for making copyright a time-limited right is to make the work more useful to the public, who may now republish or repurpose the work without fear of legal liability. To further this purpose in the digital age, computers must be able to parse the public domain status of a work to communicate its usefulness to researchers.

Consequently, those public and private bodies that laudably have been investing in efforts to digitize public domain works should increase the returns on their investment by marking and tagging public domain works as such. Creative Commons provides a metadata standard for digitally marking works with their use rights, the Creative Commons Rights Expression Language (ccREL). Specifically, Creative Commons provides a means of marking a public domain work as such. http://creativecommons.org/licenses/publicdomain/. Creative Commons requires support to implement plans to update this protocol to provide more robust information about public domain works.

3. The Open Access Connection

Looking forward, how should the features of author's rights and balance between author and public influence the availability of contemporary and future learned works, particularly scholarly research reported in peer-reviewed journals? Here, the open access movement has an answer.

Faculty authors and other professional researchers have a responsibility to manage their copyrights in a way that ensures public access to the scholarly record well before copyright expires in these works. Why? Because the standard justification for granting author's rights does not neatly apply to these scholarly authors. They are motivated by the desire to be read and are not remunerated by journal publishers for publishing their work.

When authors have no need to limit access to their work for purposes of remuneration, they should make their work freely available to promote the progress of science. When researchers have been funded by the government or by private charities, it is inexcusable not to ensure reasonable and timely free public access to the fruits of this research consistent with copyright.

Progress has been made recently in improving free public access to recent scholarship. As directed by the United States Congress, the National Institutes of Health now requires researchers who accept NIH funds to ensure that NIH receives a copyright license to make peer-reviewed articles publicly available on the Internet no later than 12 months after the date of publication. Many public and private science funders in Europe, Canada, and Australia have similar policies, with 6 month deadlines.

Faculty authors are coming to the realization that the way they manage their publishing rights should reflect their core values and the university's core commitment to disseminating knowledge. A number of faculties have adopted resolutions recommending open access, but these have led to very few results. Just as was the case when the NIH policy was voluntary, authors at these institutions generally continue to sign away their rights to make their work available on the Internet or fail to use such rights when they have them by depositing manuscripts in an open access repository.

Change is on the way. Taking the lead in the United States, the Harvard Faculty of Arts and Sciences has adopted a policy through which faculty authors commit to deposit their peer-reviewed articles in the university's new digital repository and to grant the university an advance copyright license to any scholarly journal articles written by faculty members, subject to the author's right to waive the license on a per-article basis. Under the policy, faculty authors must manage their copyrights to ensure that their publication agreements are consistent with the university's public access license. Some faculties or departments at universities around the world have adopted similar open access mandates.

4. The Role of Universities

It is time for faculty and university administrators to get serious about the Internet as a knowledge medium. They need to organize a campus-wide process for developing a policy on knowledge dissemination in the digital environment. At most institutions it would be unwise or impractical for university administrators to impose an open access policy on faculty authors, unless the university were to take the position that peer reviewed journal articles are works made for hire and are therefore owned by the university. But, administrators should show leadership by organizing an ad hoc task force on scholarly communication comprised of leading scholars from major departments.

This should not be done by the library committee because the issue goes to the heart of the university's mission and is not merely a departmental budgetary concern. And, it should be made clear that experience teaches that if the task force recommends only adoption of a hortatory resolution requesting that faculty authors provide for open access, that is tantamount to a decision to do nothing to improve access to the scholarly record. Mandates work. Requests do not.

Those studying open access should take note that some authors have gone further to use public licensing as a means of giving the public broad use rights along with free access. Scholars who publish with publishers such as the Public Library of Science, BioMed Central or Rockefeller University Press grant the public a Creative Commons license that provides generous rights to translate, adapt and republish (with proper credit) their articles.

In sum, the initiatives to digitize public domain works and to provide open access to contemporary learning share the common goal of making the Internet a repository for human knowledge and a more powerful resource for researchers, students, teachers, and learners of all kinds around the world. Three principles derived from the purposes of copyright law, should guide these efforts: (1) the works should be freely available; (2) public domain works should be free from any contractual restrictions on use; and (3) the works should be marked with their use rights.

This post is derived from my presentation at the Boston Library Consortium's Universal Access Digital Library Summit in September with the aim of showing connections between book digitization projects and the open access movement.

Jesse Dylan and Creative Commons/Science Commons

2008-12-08T13:51:00.002-05:00

Jesse Dylan, who directed the Emmy Award-winning "Yes We Can" Barack Obama campaign video in collaboration with rapper will.i.am., has donated his talent to make two videos for Creative Commons.

"A Shared Culture", explains the goals of Creative Commons.

Today, the release of the "Science Commons" video was announced in connection with a letter of support for Science Commons from Richard Bookman, University of Miami's Vice Provost for Research, Executive Dean for Research and Research Training.

Please Support Creative Commons

2008-12-01T14:07:00.005-05:00

Creative Commons is asking for your support this year to enable us to continue the work we've been doing in promoting openness in the cultural, educational, and scientific fields. http://support.creativecommons.org/

If you support the vision, please help to staff the vision. Why? You might ask. How hard is it to host a web site?

Well, first of all, running a site that needs constant updating is more work than you might think. But, there's also much more to the organization. For example, CC staff, most of whom are professionals, promote the commons through a series of activities such as fielding inquiries from organizations that want to implement CC licensing, explaining CC licenses through public speaking engagements, working with communities - such as the open education community - to understand copyright law and CC licenses.

Some of that work is the more visible aspects of what we need support for. We continue to work with creators and other owners of copyrights in cultural works, our ccLearn division is promoting the use of CC licenses as a tool to support open education, and our Science Commons division is engaged in pathbreaking work on a number of fronts.

Here, I want to write about some of the less visible work that is hard, important, and really requires your support to continue.

Most people know Creative Commons through the licenses. We have been busy on that front. With support from the Mellon Foundation, CC is in the midst of a study about people's understandings and intuitions about commercial and non-commercial use to see if more should be done to clarify the non-commercial term of some CC licenses.

In addition, CC staff have worked with the network of affiliated professionals around the world to create a legal tool that will enable a person to waive copyright or dedicate their work to the public domain anywhere in the world. Because copyright law is national, and varies by nation, creating standardized tools that are effective on a global scale is challenging. Every copyrighted work is on its way to the public domain because all copyrights expire.

But around the world, the law makes it difficult for copyright owners to speed up that process by putting works into the public domain ahead of time. The CC zero tool is a substantial refinement of an existing tool that enables copyright owners to dedicate their copyright to the public domain in those countries that accept this and to otherwise waive or promise not to assert copyright-related rights against anyone.

One use for this tool is to help clean up the boundaries of copyright. Because copyright has become so expansive, this tool will be useful to those who want to put works at the edge of copyright that are connected to public domain information into the public domain. A prime example is arguably original database structures wrapped around factual data.

With your support, we would like to also improve on the tool that allows a person to assert that a work already is in the public domain, such as older works and works produced by U.S. government employees within the scope of their employment.

The CC tech staff also do amazing and important work. From the beginning, CC licenses were designed to be machine readable. Not all search tools currently fully exploit the machine-readable aspects of CC licenses, but one day they will. I've argued at length that copyright is an example of "use relevance" and anyone searching for information on the web with the question "What can I do with this" cares about use relevance. CC licenses provide an answer, and the Flickr search engine, which does use the license metadata, organizes the information according to its use relevance.

CC metadata has also become a case study for the future of the web, what some people call Web 3.0. CC people have been essential and instrumental in promoting a flexible technical standard, called RDFa, within the World Wide Web consortium. The vision behind this standard supports the decentralized architecture of the web while providing a means to enable machines to make better sense of the information published to the web.

The goal of this work is to enable tools to develop to support the commons by making works in the commons easier to find and to use. Importantly, these standards are also designed to support the role of attribution in the gift economy. With the right implementation, machines could do a better job at identifying the source material and its creators in mash-ups, remixes, and the like.

All it takes is you. http://support.creativecommons.org/

Obama-Biden and Creative Commons

2008-12-01T14:07:00.000-05:00

The Obama-Biden transition team has adopted the Creative Commons Attribution 3.0 license for the content on its web site, http://change.gov/about/copyright_policy. This is great news, and the team should be congratulated for adopting openness and for making it machine-readable openness.

IP/Gender - April 24, 2009

2008-11-18T15:24:00.000-05:00

CALL FOR PAPERS

IP/Gender: Mapping the Connections
6th Annual Symposium
April 24, 2009

Special Theme: Female Fan Cultures and Intellectual Property

Sponsored by American University Washington College of Law’s
Program on Information Justice and Intellectual Property
Women and the Law Program
Journal of Gender Social Policy & Law

In collaboration with
American University’s Center for Social Media
Rebecca Tushnet, Georgetown University
Francesca Coppa, Muhlenberg College

Deadline for submission of abstracts: December 19, 2008

The 6th Annual Symposium on “IP/Gender: Mapping the Connections” seeks papers on female subcultures and their relationship to intellectual property and copyright regimes, with a particular emphasis on fan works and culture. Appropriate topics include: fan arts, including fan fiction, arts, music, filk, crafts, and vids; and fan communities: including clubs, forums, lists, websites, wikis, discussion groups, rec sites, and other creative, celebratory, or analytical communities.

Introduction & Context

Historically, the study of subcultures has been biased toward male groups and activities: first, because male activities (e.g. punk rock, motorcycling, football hooliganism) tend to be public, and therefore visible; second, because many male groups have been seen as overtly resistant to mainstream norms. In contrast, many female subcultural activities took place in private, in the domestic realm or in other less visible spaces, and those that were visible tended, in the words of Sarah Thornton, to be "relegated to the realm of a passive and feminized 'mainstream' (a colloquial term against which scholars have all too often defined their subcultures)"; in other words, the things women did and do have often been framed as mainstream, passive, commodified, and derivative; consuming (in the negative sense of passive product consumption), rather than consuming in the sense of a passionate obsession or devotion to art or criticism.

This has changed significantly in the last twenty years, not only due to a rising feminist interest in subculture studies but also with the rise of fan and audience studies. In their pioneering "Girls and Subcultures" (1975), Angela McRobbie and Jenny Garber presciently suggested that scholars turn their attention "toward more immediately recognizable teenage and pre-teenage female spheres like those forming around teenybop stars and the pop-music industry." Even they had trouble seeing what girls do as interesting and importing, noting that "[b]oys tended to have a more participative and a more technically-informed relationship with pop, where girls in contrast became fans and readers of pop-influenced love comics." McRobbie and Garber don't associate being "fans" with participation, and they see girls as "readers" only. In fact, as we know from fifteen years of fan and audience studies, fandom is a highly participatory culture, and female fans also write, edit, draw, paint, "manip," design, code, and otherwise make things.

However, even within this brave new world of mashup, remix, and fan cultures, what boys do (fan films, machinima, music mash-ups, DJing) is often seen by outsiders and critics as better--more interesting, more original, more clearly transformative-- than what girls do (fan fiction, fan art, vidding, coding fan sites, social networking). This normative judgment risks legal consequences.

We are seeking projects that investigate the ways in which issues of originality and ownership as related to copyright and other issues of intellectual property intersect with this gendered understanding of cultural productions and engagement, especially since these historically female subcultural activities and practices have increasingly become culture.

IP/Gender Mapping the Connections Organizational Details

· DEADLINE for submission of abstracts is DECEMBER 19 at 5:00pm.

· To submit an abstract for consideration, fill in the web-based form at https://www.wcl.american.edu/pijip/ipgender/proposals.cfm . Participants will be notified if their paper has been accepted for presentation by January 15.

· The symposium will begin at 6:00 Thursday, April 23, 2009 at the American University Washington College of Law in Washington, D.C. The symposium will convene from 9:00 am until 4:00 pm on Friday, April 24, 2009.

· To view papers and programs from prior IP/Gender: Mapping the Connections symposia, please visit http://www.wcl.american.edu/pijip/go/events/ip/gender/ip/gender-mapping-the-connection

· Papers may be published in the American University Journal of Gender, Social Policy and the Law.

· If you are interested in attending the event, but not presenting work, please contact Angie McCarthy, Women and the Law Program coordinator at angiem@wcl.american.edu for details.

Open Access to Privately Funded Research - Autism Speaks

2008-11-18T13:33:00.002-05:00

If private funders of scientific and scholarly research want to maximize the impact of their investments, they should condition their funding on a promise from grantees to make any resulting peer reviewed journal articles openly accessible on the Internet within a reasonable time after publication.

To date, the most prominent private funder on this front is the United Kingdom's Wellcome Trust, which funds medical research and requires resulting articles to be deposited in PubMed Central or UK PubMed.

Private philanthropies in the United States have lagged on open access. But the tide is finally turning. On November 12, 2008, Autism Speaks, the United States' largest autism advocacy organization announced that effective December 3, 2008, all researchers who receive an Autism Speaks grant will be required to deposit any resulting peer-reviewed research papers in the PubMed Central online archive, which will make the articles available to the public within 12 months of journal publication.

This is a very important initiative. As Peter Suber notes, advocacy organizations that seek cures for particular diseases should have a particular interest in making sure that their communities have access to published research. I would add this is further evidence to refute the elitist argument against open access.

To learn more about Autism Speaks, see www.autismspeaks.org

Jillian Raye and the Bard: The Vitality of the Public Domain

2008-11-17T18:51:00.005-05:00

So, my family recently lost a friend, Jillian Raye.

I'd keep my remorse to myself, but Jillian had a special relationship with William Shakespeare, and that relationship is emblematic of why copyright's public domain matters and how it maintains its vitality in our cultural life.

When we lived in Takoma Park, Maryland, Jillian, her husband, David Minton, and their daughter, Imogen Minton, moved into our neighborhood and changed it forever.

Jillian founded Lumina Studio in their home as a community youth theater to stage primarily Shakespeare's plays. Jillian and David trained as Shakespearian actors and met onstage and off in a production in Dallas, Texas.

Jillian built her casts from the community, and the ages ranged from young children to middle-aged adults, with young teens as the principal actors. My daughters had their first stage experience as fairies in Midsummer Night's Dream, which we subsequently staged outdoors on a midsummer night. Jillian's vision for the show required that all the lights be turned off near the end of the show so that these three-to-five-year-old fairies could flit about the stage with lit candles. Jillian's will overcame parental objections, and the result was pure magic.

For each show, Jillian developed a highly distinctive but adaptable vision, and she drove hard to realize it. Her visions were animated by her deep understanding and personal relationship with Shakespeare's works. The kids in the cast would begin rehearsals for each show as usual middle and elementary schools would for any after-school activity. But, Jillian would quickly impress upon them that this was serious fun. She worked with the actors to understand their characters and the context for the action.

In the course of these interactions, she breathed life into the Bard's alien language and demanded that the actors make it their own. And, they did. I can still distinctly hear the young actress playing Mercutio in Romeo and Juliet, as she stalked the stage, poised for the fight, and spat out:

MERCUTIO
Tybalt, you rat-catcher, will you walk?

TYBALT
What wouldst thou have with me?

MERCUTIO
Good king of cats, nothing but one of your nine
lives; that I mean to make bold withal, and as you shall use me hereafter, dry beat the rest of the eight. Will you pluck your sword out of his pitcher by the ears? make haste, lest mine be about your ears ere it be out.

TYBALT
I am for you.

Jillian could stage the shows as she envisioned and as she wished because the works of William Shakespeare are in copyright's public domain. She could not legally have applied her prodigious talents to the works of playwrights whose works were still under copyright without a license. And, those licenses often are quite expensive or not available at all.

So, the fundamental policy that copyrights must expire was necessary for a unique institution like Lumina Studio to exist and to grow. And, those who care about this policy need to document how creative individuals like Jillian Raye keep works in copyright's public domain alive and relevant.
While her family mourns, her community has institutionalized her vision and will carry on staging plays and making magic. Perhaps Jillian has joined Oberon and Titania in the kingdom of Shadows and Fairies. It's hard to say, but I know that we will miss her.

With this field-dew consecrate,
Every fairy take his gait;
And each several chamber bless,
Through this palace, with sweet peace;
And the owner of it blest
Ever shall in safety rest.
Trip away; make no stay;
Meet me all by break of day.

(Midsummer Night's Dream, Act V)

Goodbye Jillian.

Law Professors Defend NIH Policy

2008-10-16T18:00:00.002-04:00

I want to thank my colleagues in the legal academy who responded to the AAP's unfounded legal attack on the NIH Public Access Policy by deflecting the TRIPS Hammer with a straightforward explanation of why TRIPS does not apply to the NIH policy. NIH is fully respecting copyright - an author's right.

The letter to Chairman Conyers and shared with the other Members of the House Judiciary Committee has made some on the Hill start to think that certain copyright owners are misusing the TRIPS Hammer.

Here's the letter:

September 8, 2008

The Honorable John Conyers, Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, D.C., 20515

Re: NIH Public Access Policy

Dear Chairman Conyers:

The undersigned professors at law schools throughout the United States teach copyright law or engage in scholarly research about copyright law. We write to respond to serious misstatements relating to copyright law contained in a recent submission to the National Institutes of Health with respect to the relationship between the NIH Final Policy on Public Access and certain aspects of U.S. and international copyright law. The letter (hereafter "the Proskauer Letter") was written by Jon A. Baumgarten of Proskauer Rose LLP, dated May 30, 2008, to Allan Adler, Vice President for Legal & Government Affairs, American Association of Publishers in response to Mr. Adler's request and with the understanding that the letter would be part of a public submission to NIH by the AAP.

As you know, the NIH Policy requires grantees to ensure that all investigators funded by NIH submit an electronic version of their final peer-reviewed manuscripts to the National Library of Medicine's PubMed Central (PMC), which then makes the manuscript publicly available within twelve months of the official date of publication. The NIH adopted this policy as required by a provision included in the Labor, Health and Human Services, Education, and Related Agencies FY 2008 Appropriations Bill.

The Proskauer Letter alleges that the NIH Policy may constitute an involuntary transfer of copyright in violation of Section 201(e) of the Copyright Act. Contrary to the Proskauer Letter's assertions, the Policy does not create an involuntary transfer, a compulsory license, or a taking of the publishers' or investigators' copyright. Rather, under the Policy, NIH
conditions its grant of funding on the grantee's agreement to ensure that investigators provide PMC with a copy of articles reporting NIH-funded research along with a non-exclusive copyright license to make the article publicly available within one year after the article's publication in a journal.

In other words, if the investigator chooses not to receive NIH funding, the investigator has no obligation to provide the article to PMC or a copyright license to NIH. But if the investigator elects to receive NIH funding, he or she accepts the terms of the grant agreement, which include the requirement to deposit the article with PMC so that the article can be made publicly accessible within one year after publication. Because the investigator has this basic choice, the policy does not constitute an involuntary transfer.

Furthermore, because the author makes this choice long before the publisher enters into the picture, the policy does not take any intellectual property away from the publisher. When the investigator transfers copyright to the publisher, as most publishers require as a condition of publication, the copyright is already subject to the non-exclusive license granted by the investigator to NIH. Thus, the policy does not change the scope of the publisher's copyright after the publisher has acquired it.

Additionally, it is important to note that the Policy requires deposit of the author's final manuscript after peer review, not the final published version of the article. This aspect of the Policy renders moot any debate about whether the publisher obtains a copyright interest in the article through the process of copy editing or layout. The publisher performs its copy editing after the investigator submits the manuscript to PMC. While the publisher plays a role in coordinating peer review, this process does not result in any copyrightable expression attributable to the publisher. Any edits or additional text written in response to peer reviewers' comments is written by the investigator, not the publisher.

Building on the erroneous premise that the Policy is an involuntary transfer of copyright or a compulsory license, the Proskauer Letter then suggests that the NIH Policy might violate U.S. obligations under the Article 9 of the Berne Convention or Article 13 of the TRIPS agreement. This argument lacks any basis in law. As discussed above, the NIH Policy governs the terms of contracts, not exceptions to copyright law. As such, the Policy in no way implicates Article 13 of TRIPS or Article 9 of the Berne Convention, which address permissible copyright exceptions. These treaty provisions are completely silent on the issue of the terms a licensee can require of a copyright owner in exchange for valuable consideration.

The federal government provides funding to state and local government agencies and private entities for a wide range of activities, including homeland security, law enforcement, agriculture, transportation, education, and research. Congress frequently imposes conditions on recipients of this federal funding. While one might question the wisdom of a particular condition, Congress without doubt has the authority to impose
them. Similarly, Congress has the authority to require NIH grantees to deposit their manuscripts with PMC and to grant a license to make these publicly accessible over the Internet within a year of publication. Such a requirement conflicts neither with the Copyright Act nor with international treaty obligations.

Respectfully,

Keith Aoki, Professor of Law
University of California Davis School of Laaw
Davis, CA 95616

Ann Bartow, Professor of Law
University of South Carolina School of Law
Columbia, SC 29208

Dan L. Burk, Chancellor's Professor of Law
University of California, Irvine
Irvine, CA 92697-8000

Adam Candeub, Acting Director, IP & Communications Law Program
Michigan State University, College of Law
East Lansing, MI 48824-1300

Michael W. Carroll, Visiting Professor of Law
Washington College of Law, American University
Washington, DC 20016

Anupam Chander, Visiting Professor of Law
University of Chicago Law School
Chicago, IL 60637

Andrew Chin, Associate Professor of Law
University of North Carolina School of Law
Chapel Hill, NC 27599

Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice
Seattle University School of Law
Seattle, WA 98122-1090

Robert Denicola, Margaret Larson Professor of Intellectual Property
University of Nebraska-Lincoln College of Law
Lincoln, NE 68583-0902

William Fisher, Wilmer Hale Professor of Intellectual Property Law
Harvard Law School
Cambridge, Massachusetts 02138

Brett M. Frischmann, Visiting Professor of Law
Cornell Law School
Ithaca, NY 14853-4901

Lolly Gasaway, Associate Dean For Academic Affairs & Professor
School of Law, University of North Carolina - Chapel Hill
Chapel Hill, NC 27599

Deborah R. Gerhardt, Director of Intellectual Property Initiative
University of North Carolina School of Law
Chapel Hill, NC 27599

Llewellyn Joseph Gibbons, Associate Professor of Law
University of Toledo College of Law
Toledo, Ohio 43606-3390

James Grimmelman, Associate Professor of Law
New York Law School
New York, NY 10013

Dan Hunter, Visiting Professor of Law
New York Law School
New York, NY 10013

Peter Jaszi, Professor of Law
Washington College of Law, American University
Washington, DC 20016

E. Judson Jennings, Professor of Law
Seton Hall University Law Center
Newark, New Jersey 07102-5210

Dennis Karjala, Jack E. Brown Professor of Law
Arizona State University Sandra Day O'Connor College of Law
Tempe, Arizona 85287-7906

Jay P. Kesan, Professor of Law & Mildred Van Voorhis Jones Faculty Scholar
University of Illinois at Urbana-Champaign
Champaign, IL 61820

Raymond Ku, Professor of Law
Case Western Reserve University School of Law
Cleveland, Ohio 44106

David S. Levine, Assistant Professor of Law
Charlotte School of Law
Charlotte, NC 28208

Doug Lichtman, Professor of Law
University of California, Los Angeles
Los Angeles, California 90095-1476

Jessica Litman, Professor of Law
University of Michigan Law School
Ann Arbor, Michigan 48109-1215

Lydia Pallas Loren, Professor of Law
Lewis & Clark Law School
Portland, Oregon 97219

Michael J. Madison, Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA 15260

Mark P. McKenna, Associate Professor of Law
Notre Dame Law School
Notre Dame, IN 46556

Michael J. Meurer, Professor of Law and Michaels Faculty Scholar
Boston University School of Law
Boston, MA 02215

Joseph Scott Miller, Visiting Associate Professor of Law
University of Georgia School of Law
Athens, GA 30602

Neil Netanel, Professor of Law
UCLA School of Law
Los Angeles, CA 90095

Tyler Ochoa, Professor of Law
Santa Clara University School of Law
Santa Clara, California 95053

Ruth Okediji, Professor of Law
University of Minnesota School of Law
Minneapolis, MN 55455

Frank Pasquale, Loftus Professor of Law
Seton Hall University School of Law
Newark, New Jersey 07102-5210

Malla Pollack, Professor of Law
Barkley School of Law
Paducah, Kentucky 42001

David G. Post, I. Herman Stern Professor of Law
Beasley School of Law, Temple University
Philadelphia, PA 19122

R. Anthony Reese, Arnold, White & Durkee Centennial Professor
School of Law, The University of Texas at Austin
Austin, TX 78705

Michael Risch, Associate Professor of Law
West Virginia University College of Law
Morgantown, WV 26506-6130

Matthew Sag, Assistant Professor of Law
DePaul University College of Law
Chicago, IL 60604

Pamela Samuelson, Richard M. Sherman Distinguished Professor
University of California, Berkeley
Berkeley, CA 94720-4600

Joshua D. Sarnoff, Practitioner in Residence
Washington College of Law, American University
Washington, DC 20016

Wendy Seltzer, Visiting Practitioner-in-Residence
Washington College of Law, American University
Washington, DC 20016

Katherine J. Strandburg, Professor of Law
DePaul University College of Law
Chicago, IL 60604

Madhavi Sunder, Professor of Law
UC Davis Law School
Davis, CA 95616-5201

Hannibal Travis, Visiting Assistant Professor of Law
Villanova University School of Law
Villanova, PA 19085

Rebecca Tushnet, Professor of Law
Georgetown University Law Center
Washington, DC 20001

Deborah Tussey, Professor of Law
Oklahoma City University School of Law
Oklahoma City, OK 73106

The AAP tries to kill the NIH policy with the TRIPS Hammer

2008-10-16T17:22:00.004-04:00

Having failed to stop the NIH Public Access Policy from becoming mandated by Congress, the American Association of Publishers reached for the handy TRIPS hammer. Their argument - the NIH Policy makes the United States look weak on IP. The legal argument they rely on is here.

The TRIPS Hammer

2008-10-16T16:00:00.003-04:00

Lobbyists for the trade organizations of large copyright-owning intermdiaries, such as the MPAA, RIAA and AAP, have become fond of pulling out the TRIPS hammer whenever they meet resistance to their proposals for more rights.

The TRIPS hammer is the argument that Congress must do what the lobbyist wants or the United States will be non-compliant with its international obligations under the TRIPS Agreement. The hammer then comes down with the argument that the United States has to set an example for the rest of the world about how to "respect" intellectual property because otherwise, certain trading partners will undermine the effectiveness of the TRIPS agreement.

And, of course, this is all said with a straight face even after the United States has been judged to be in violation of TRIPS and has failed to remedy the violation.

The Attack on the NIH Policy

2008-10-16T15:28:00.005-04:00

I am behind on posting, and there's much news.

Last month, Chairman Conyers (D-MI) introduced the "Fair Copyright in Research Works Act" (H.R. 6845) into the House. Paul Courant, Peter Suber, and others, rightly pointed out that "fair" is foul in this case.

The aim of the bill is to use the Copyright Act to override longstanding federal procurement law, including the NIH Public Access Policy and to assert Judiciary Committee jurisdiction over federal procurement agreements that involve support for the creation of copyrighted works, such as journal articles reporting the results of scientific research.

The sad news is that the American Association of Publishers were successful in persuading the Chairman to introduce this bill even though it is terrible public policy.

The better news is that it does not look like this bill is going anywhere during this Congress. Neither Mr. Berman (D-CA)(Chair of the relevant House Subcommittee) nor Mr. Coble (R-NC) (Ranking Member on the Subcommittee) signed on as co-sponsors.

This initiative to snuff out the NIH policy has actually had a galvanizing effect on the community of supporters, and it's time to press the other agencies, such as the Department of Energy and the National Science Foundation, on the question of public access to federally-funded research.

Politics and Popular Music

2008-09-12T15:46:00.003-04:00

As seems to happen during every federal election campaign season, we're seeing a new round of controversies emerge as politicians seek to harness popular music for their own purposes.

There are two kinds of controversies. One involves public performance at rallies and other campaign events. Usually, these performances are licensed under a collective license issued by ASCAP and BMI. The recent complaint issued by Heart against the McCain-Palin campaign for use of the song "Barracuda" falls into this category.

The second involves synchronizing music for use in viral videos on video-sharing sites. Warner Music issued a take-down notice to YouTube for a McCain ad that used Franki Valli's "Can't Take My Eyes Off of You". In these disputes, the use is not licensed and is therefore infringing unless it is a fair use.

Query whether, from a free speech perspective, it is appropriate to let the copyright license status cause these cases to be treated differently? The answer would be yes if the artists' or copyright owner's interests were primarily economic. However, because the concern about implied endorsement is heightened in the campaign setting, should the artist's or copyright owner's interest in being free from an unwanted association be given greater weight while also acknowledging the campaign's desire to use popular culture as a means of connecting with voters?

So as a trial balloon I'm wondering whether copyright law and trademark law ought not be interpreted to yield a result under which campaigns should be free to use popular music at rallies and in connection with promotional videos so long as they prominently disclaim any implied endorsement from the songwriters or performers, regardless of whether such use is covered by a collective license.

I have some reservations about this particular solution, but it seems to me that we need a resolution to this recurring conflict that is medium-neutral and that targets the relevant expressive and economic interests on both sides.

Attacking Public Access Through the Copyright Act

2008-09-12T13:59:00.003-04:00

On September 9th, Mr. Conyers introduced H.R. 6845, "The Fair Copyright in Research Works Act", into the House of Representatives. There is nothing fair about this bill at all, and it should be opposed by anyone who cares about public access to publicly funded research.

The immediate aim of the bill is to cut off public access to NIH-funded research articles which currently must be made available within 12 months of the date of publication. Yesterday, a hearing was held on the bill in the House Subcommittee on the Courts, the Internet, and Intellectual Property. Any further action during this session is unlikely.

The bill is an odd duck because it would do far more than simply end public access to NIH-funded research. It would also impliedly amend public procurement law and impliedly repeal portions of the longstanding "rights in data" contracting provisions of the Federal Acquisition Regulation, the DFARS, and portions of the intangible property provisions of OMB Circular A-110.

Traditionally, the Copyright Act has not been used for this purpose. Certain journal publishers have asserted to NIH and to the Committee that the NIH policy is in some vague way inconsistent with the Copyright Act and U.S. international copyright obligations. This assertion lacks any basis in law, and a group of 47 professors at American law schools who teach or write about copyright law sent a letter to the committee making this point.

Here's a quick summary of the bill:

1. The Scope of the Amendment

The bill would apply in cases in which a copyrighted work arises from:

(1) a contract, grant agreement or cooperative agreement with any federal agency that involves "experimental, developmental or research activities";

AND

(2) the creation of the work was funded in substantial part by a non-federal non-party to the agreement

(3) the work "represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party."

[Try decoding this. One can intuit that the publishers assert that the "meaningful added value" they have in mind is coordinating the peer review process. They need this odd hook because all of the copyrightable expression in the article is the grantee's (actually the researcher's) made in response to the comments of the peer reviewers (who do it for free). Even if this bill were to become law, it would be debatable whether the coordination of peer review is sufficiently "meaningful" in light of the value contributed by the authors and referees.]

2. The Effect of the Amendment

For covered works, the following prohibitions apply:

(a) the agency may no longer receive a transfer of rights or a license to distribute copies to the public; publicly perform the work or publicly display the work.

[This would mean that the work could not be put on a web site. If it were an audiovisual work, it could not be supplied to the news media for broadcast. If it were printed material, it could not be handed out or sold. So, for example, anything produced by a public-private partnership for which the agency would need a license to share with the public couldn't be done.]

(b) the government may not receive a license to make copies or to adapt the work, if doing so "involves the availability to the public of that work"

(c) the agency may not impose a term or condition that requires the "absence or abandonment" of any of the rights described in (a) and (b) above

(d) the agency may not require the recipient of federal funds to grant a waiver or to assent to the violation of (a) - (c)

(e) the agency may not "assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work."

[That is, even though the public has paid for the research and the creation of the article, the public may not assert rights in the work in a way that would impair a publisher's ability to fully privatize the research.]

Free Speech, Guns and YouTube

2008-06-27T10:44:00.004-04:00

Yesterday, the Philadelphia police arrested Andre Moore, a 44-year-old security guard, because he posted a video shot by his 12-year-old son entitled "dissin philly cops" on YouTube. In the video, Mr. Moore brandishes a pistol, demonstrates its operation, and encourages viewers to shoot Philadelphia police officers, particularly those in the 18th district.

He was charged with four counts, one of which was aggravated assault. I'm not a criminal lawyer, but the charges strike me as being highly questionable on their own right.

Even if there were some legal basis for bringing these charges under state law, however, this is in my mind a clear First Amendment violation. Mr. Moore's rant is irresponsible and outrageous. But it's free speech protected by the constitution.

Under the First Amendment, you're entitled to shoot your mouth off about any topic you like, and you're allowed to endorse or encourage violence, as long as you're not making a true threat or inciting imminent lawless activity.

Our society is only as free as we let it be under times of stress. There's been a lot of gun violence in Philadelphia, and there have been tragic shootings of Philadelphia police in recent weeks. Of course, the police in the 18th District were going to be outraged by Mr. Moore's rant. But we rely on law enforcement officials to recognize and respect the consitutional rights of the people they are sworn to serve and protect.

In the court of public opinion, Mr. Moore will have to take his lumps. And, his employer is free to discharge him for this irresponsible act. But, jailing a person for his or her speech, however offensive, undermines the basic liberties that define us as Americans.

Of course, the irony of the day is that on the same day the Phliadelphia police were in the course of breaking down Mr. Moore's door and dragging him away in handcuffs for shooting his mouth off about shooting guns, the United States Supreme Court announced a 5-4 ruling in which it created a new individual right to own and keep a gun in your home.

I expect that these charges will eventually be dismissed, and the courts will uphold the First Amendment. Mr. Moore might even have civil a claim against the police for violating his consitutional rights.

But there's another important point to keep in mind. The right of free speech is a right against government action. YouTube has taken the video down as a violation of its terms of use. In public spaces in the United States, the First Amendment are the terms of use. Speech on the Internet is only as free as the companies that run the Net say it should be.

So far, those companies have issued contracts that purport to restrict quite a bit of speech that would be free under the First Amendment. But those contracts are enforced only intermittently, and so the Internet continues to be a sort-of free speech zone.

The Rule of Law and Copyright's Distribution Right

2008-05-23T11:27:00.007-04:00

As Bill Patry reports, District Judge Michael Davis has asked for briefing on whether he must order a new trial in the best-known P2P copyright infringement case against an individual. The reason is that Judge Davis is properly concerned that he committed legal error by accepting the RIAA's proposed jury instruction that equates the copyright owner's right of public distribution with a right of merely making copies available for distribution or reproduction.

Although it won't, the RIAA should welcome this development because the RIAA's effort to misconstrue the distribution right is another example of "be careful what you wish for."

If courts take the RIAA's argument seriously, which some have, then you or I have the right to download a DRM-free music file from Amazon or Apple or Napster or . . . and share that file with anyone over a P2P service. Huh? How can this be, you ask.

Well, if you, I, or a federal court, takes the language of the Copyright Act seriously, as we should, and if the RIAA's reading of that language were right, then it would work like this. Copyright automatically gives the owner a set of five exclusive rights, with some exceptions for certains types of works: (1) reproduction; (2) distribution; (3) public performance; (4) public display; and (5) adaptation (i.e. the right to prepare derivative works).

In a series of cases against users of peer-to-peer services, the RIAA has argued that to prove infringement of the distribution right, the owner does not need to prove whether any music files in a user's shared directory were copied or when they were copied because merely putting the file in such a directory and connecting to the Internet is enough to violate the exclusive right of public distribution.

The industry has a number of reasons for making this argument, one of which is that the argument makes it much cheaper to prove the industry's many infringement cases against individuals. But most of Section 106 of the Copyright Act was written without digital technology in mind, and courts have to apply the law as Congress has enacted it. If changed circumstances mean that the statute doesn't work the way it once did, courts can use the flexibility inherent in language to adapt the law, but at some point that flexibility is exhausted. If you think the law no longer works, you have to go back to Congress.

In my view, circumstances have changed so that the law no longer works the way it once did, but the reproduction right under the Copyright Act still gives music copyright owners sufficient protection without needing to turn the distribution right into a separate "making available" right. The RIAA is, of course, free to take a different view, but it has to persuade Congress that it's right. Persuading Congress to change the law is expensive and time consuming, and so industry would rather that courts simply give it this new right through creative statutory interpretation.

This kind of expedient thinking is deeply problematic. The RIAA routinely excoriates users of peer-to-peer services for failing to respect the rule of law. But the RIAA's "making available" argument is so at odds with the language of the Copyright Act that it calls the industry's own respect for the rule of law into question. Here's why.

The Copyright Act created separate rights of reproduction and distribution so that the copyright owner could go after the different links in the supply chain of an infringing enterprise. In the days of vinyl, the folks who manufactured bootlegs and unauthorized copies were not always the sellers on the street. So the reproduction right gives the basis for suing the manufacturer and the distribution right provides the basis for going after the retailer.

Specifically, Section 106(3) gives the copyright owner the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." This language breaks down into three elements that the copyright owner must prove to show infringement: (1) the transfer of "copies or phonorecords of the copyrighted work" (2) "to the public" (3) "by sale or other transfer of ownership, or by rental, lease, or lending."

There is no way that merely connecting to the Internet or to a peer-to-peer service with files stored in one's shared directory can be said to be a transfer of those files to the public. The RIAA's argument relies on some statutory sleight-of-hand by which it tries to substitute the definition of "publication" for the plain language of the distribution right in Section 106(3).

Although a few courts have accepted this argument, the tide is now running the other way. It'll be interesting to see how far it runs. If we really take the statute seriously, then, as I and others before me have argued (footnote 52), the truth is that the distribution right simply does not apply to file transfers over the Internet because such interactions are not the transfer of one copy from user A to user B but instead a reproduction of user A's copy for the benefit of user B.

But, let's accept for the sake of argument that making a file available on a peer-to-peer service is a distribution. Then we have to apply all the parts of the Copyright Act that govern distributions because Section 106 says that the exclusive rights it provides are given "[s]ubject to sections 107 through 122". That means the first sale doctrine applies.

When it comes to the copyright owner's exclusive right to distribute copies, the copyright owner gets one bite at the apple. Make your money on the first sale of a copy. Once the user has purchased that copy, the distribution right is exhausted. So, even though a purchaser's resale of that copy to a used record store is technically a distribution of the copyrighted work, Section 109 of the Copyright Act says that the purchaser "is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

So, here's where the DRM-free download comes in. If you or I purchase a copy (technically a digital phonorecord) of an mp3 file and store it in our shared directory, then the first sale doctrine applies to that file. And if making it available to others on a peer-to-peer service is a distribution, then under Section 109, you or I could legally distribute that copy to whoever wants it.

The RIAA would first say, ah, but you didn't actually purchase that copy. You only have a license to it. That theory, however, is going bust, as it did in the recent Vernor case.

The RIAA would then say, "no, no, no, you're not distributing that copy. You're letting others make their own copies."

Q.E.D.

Open Access Law - Danner Article

2008-05-09T15:54:00.004-04:00

While we're on the subject of open access to law and legal scholarship, Richard Danner has written a very nice piece adapting the argument from John Willinsky's Access Principle to law and providing some interesting data regarding access to American legal scholarship.

Here's the abstract:

This article applies to legal scholarship the ideas developed and argued in John Willinsky’s 2006 book: 'The Access Principle: The Case for Open Access to Research and Scholarship' regarding the responsibilities of scholars to make their works widely available through open access mechanisms via the Internet. Willinsky’s access principle states that “A commitment to the value and quality of research carries with it a responsibility to extend the circulation of such work as far as possible and ideally to all who are in interested in it and all who might profit by it.” For Willinsky, the transformation of scholarly journals from print to online formats means that not only researchers and scholars, but “scholarly societies, publishers, and research libraries have now to ask themselves whether or not they are using this new technology to do as much as they can to advance and improve access to research and scholarship.”

This article considers the roles and responsibilities under the access principle of legal scholars and the institutions that support the creation and communication of legal scholarship for improving access to legal information The article begins with a presentation of Willinsky’s access principle, then introduces the movements for open access to law and to scholarship in other disciplines, addresses questions regarding access to the legal journal literature in the U.S., the U.K., and South Africa, discusses means for enabling access to legal literature through open access journals and scholarship repositories, and describes one law school’s experiences in providing open access to its own scholarship. It concludes with suggestions for law schools and law libraries wishing to pursue the implications of the access principle in their institutions.

The link to the article in the Duke repository is: http://eprints.law.duke.edu/1698/

Harvard Law Goes Open Access

2008-05-09T15:30:00.004-04:00

I'm late with this post because I had to grade exams in time for my graduating students to, well, graduate.

Big congratulations to the faculty at Harvard Law School, which adopted the following policy on May 7, 2008:

“The Faculty of the Harvard Law School 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. More specifically, each Faculty member grants to the President and Fellows a nonexclusive, irrevocable, 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 authored or co-authored 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 to a particular article upon written request by a Faculty member explaining the need.
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 no later than the date of its publication. 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.”

Kudos!

Open Access White Paper

2008-04-28T11:52:00.003-04:00

Science Commons and SPARC have teamed up on Open Doors and Open Minds: What Faculty Authors Can Do to Ensure Open Access To Their Work Through Their Institution. This is a White Paper directed to faculty and researchers interested in promoting open access policies at their respective institutions.

Thinh Nguyen, Science Commons counsel, wrote the paper, which explains why the policy adopted by the Harvard Faculty of Arts and Sciences breaks new ground in the movement toward open access. The paper then suggests practical steps that faculty can take to promote adoption of a similar deposit policy and institutional copyright license.

Creative Commons Ecuador

2008-04-25T08:55:00.005-04:00

On Tuesday, April 22, 2008, I spoke at the launch of Creative Commons Ecuador, which was held in the context of a conference on measuring quality in distance education hosted by the Universidad Technica Particular de Loja. It was a great event attended by about 300 people. Video is here.

There's great enthusiasm for CC here, and the project team, led by Dr. Juan Jose Puertas, has done a great job. In the photo, Juan Jose is accompanied by the other team members, Veronica Granda Gonzalez (left) and Dra. Patricia Pacheco, all from the UTPL legal department. Carlos Correa Loyola, Director of the IT program, also provided support as did the Chancellor and Rector of the university, Fr. Luis Miguel Romero.

The university also announced its "Open UTPL" program, through which it will be putting course materials online under a CC Attribution Non Commercial Share Alike 3.0 license.

Ecuador joins an active Creative Commons community in Latin America. Check this out.

Felicidades!

Copyright in Higher Education

2008-04-16T10:19:00.002-04:00

The first copyright statute was adopted by the English Parliament for the "encouragement of learning." How well is copyright doing that job today? Two stories from today's news provide different answers.

If learning is best encouraged by relying on for-profit academic publishing entities that compile educational materials, then it is proper for educators who create educational materials to transfer copyright to these publishers. These publishers can then use the author's copyright as a defense against incursions by professors who are sharing published materials with their students without requiring their students to pay. See http://www.nytimes.com/2008/04/16/technology/16school.html?ex=1366084800&en=d5bc680387807b8c&ei=5088&partner=rssnyt&emc=rss

If, on the other hand, in the age of the Internet learning is better encouraged by authors using their copyrights to create open educational resources designed for global, royalty-free sharing, then it is better for educators to hold on to their copyrights and license their materials accordingly. See http://www.insidehighered.com/news/2008/04/16/textbooks.

RFA 1: Copyright, Defamation, and Liability for Business Models

2008-03-20T12:44:00.001-04:00

In the wake of the Supreme Court's Grokster opinion, legal scholars are analyzing when a business can be held secondarily liable for copyright infringement based on the likelihood or actuality that a business model requires a certain amount of infringing activity to be financially sustainable.

I would be interested to read an article considering the policy options related to business models that foreseeably attract, and apparently rely on, defamatory content. Shielded by Section 230 of the Communications Act, sites like Auto Admit, Juicy Campus, and Rotteneighbor invite users to post comments about other members of their respective communities. Relying on the pseudonymity offered by these sites, users have apparently been fairly brazen in posting defamatory comments harming the reputations of others.

Assuming Section 230 generally gets it right with respect to service provider liability, should a different standard apply when one starts a site that foreseeably attracts defamatory statements? Are these businesses using the reputations of others as part of their start-up capital? Is this just the price of free speech? This inquiring mind would like to know.

Reader-Generated Content?

2008-03-20T12:33:00.003-04:00

I'm about to experiment with a new practice - the RFA (request for article). This is analogous to an RFC (request for comment) or RFP (request for proposal).

There are so many new developments related to the law and the Internet that I cannot pursue every idea that comes to mind about an interesting law review article. But I'd like to see the article get written. I'm not an Internet standard setting body, so an RFC, is in appropriate. And, I'm not in a position to commission an article, so an RFP doesn't work.

Hence, the RFA, which is backed only by a promise to read. If enough other readers make similar requests, perhaps we will generate the article we'd like to read.

NIH Public Access Policy - University Compliance

2008-02-29T10:21:00.002-05:00

The revised NIH Public Access Policy goes into effect on April 7, 2008, and universities, medical research institutions, and other grantees have a compliance issue on their hands. If, after the effective date, NIH-funded investigators continue to sign many journal publisher's copyright agreements for articles reporting NIH-funded research, these institutions will be non-compliant with the new policy and continued funding will be at risk.

To mitigate that risk, I've written a White Paper on behalf of SPARC, Science Commons, and the Association of Research Libraries explaining the nature of the new copyright-related risk that NIH grantees face and identifying six options they have for managing that risk.

The White Paper, Complying with the National Institutes of Health Public Access Policy: Copyright Considerations and Options, is now available for download at http://www.arl.org/sparc/advocacy/nih/copyright.html.

Copyright and OA - Response to Stevan Harnad

2008-02-20T12:37:00.003-05:00

Prompted by differences of opinion about the Harvard FAS policy, I want to clarify where Stevan Harnad and I agree and disagree about the relationship between copyright and open access.

I understand Stevan's position to be:

1. Open Access policies should conceptually separate a requirement to deposit an electronic copy of a post-peer-review manuscript in a repository from a requirement that the repository make that copy publicly accessible on the Web.

2. Deposit at the time the manuscript is accepted for publication should be unconditionally required.

3. Public access should be allowed any time the publisher's agreement says it may be.

4. If the publication agreement does not permit posting of the manuscript, a repository may still distribute copies by email whenever requested to do so by a user.

5. The combination of 3 and 4 effectively provide open access.

6. Those who argue that open access should also include an explicit public copyright license giving the public more than the right to read (e.g., the rights to republish or to translate or otherwise adapt the work) are mistaken. Either (a) these rights have already been implicitly granted by the public posting of the work; (b) they are not necessary to effective scholarly communication; or (c) even if they would marginally improve scholalry communication, the costs of negotiating copyright with publishers is not worth this benefit.

My response:

Points 1 and 2 are exactly right. Under U.S. copyright law, it is a fair use for an author to send, and for a repository to make, an archival copy of the post-peer-review manuscript. I think it's also a fair use to make an archival copy of the published version of the article. Copyright law in many other parts of the world also would deem this to be legal.

Deposit mandates are highly desirable. Please note that under the Harvard policy, even if a faculty author feels it necessary to seek a waiver of the copyright license to Harvard, there is no reason that author couldn't and shouldn't deposit a copy of the manuscript in the repository.

With respect to public access, I disagree that faculty authors should simply adapt themselves to the arrangements that publishers offer/demand. Moreover, I have have a different view about what those arrangements permit.

So, on point 3, I agree insofar as authors should use all legal rights they have to make their work freely accessible on the Internet. If a publication agreement gives the author the right to post the work in a repository, the author should do so and the repository should make the work freely accessible.

However, I don't think that the starting point for the analysis should be what the publisher's form says. I think authors have an obligation to consider whether signing the publisher's form is ethical behavior.

Copyright is an author's right granted to the author by the public to achieve a public purpose - the promotion of science and useful arts. (I realize that many have a natural rights view of copyright's purpose. I don't share that view.) With rights come responsibilities. Authors of scholarly journal articles do not need the promise of a royalty to have an incentive to perform research or report the results and their analysis of that research. So although the premise of one-size-fits-all copyrights is that authors need exclusive rights to be stimulated to create, that premise is largely false with respect to much scholarly research.

Journal article authors know that they will not receive a royalty nor will those who provide referee services. Instead, the progress of science and useful arts is driven by these authors' desire to achieve broad dissemination of their research. The Internet opens up a (not so) new avenue of scholarly communication. Thus, journal article authors have a duty to consider whether they are making proper use of the copyrights that the public has given them when they agree to the terms of a publisher's agreement that limit how, when or where the author may provide free access to their work on the Internet.

I have a different understanding about the legal consequences of number 4, and therefore I also do not agree with number 5.

As for number 6, clarifying re-use rights through public licensing is desirable. If his view is (a) or (b) I disagree. If his view is (c), however, I agree that the effort necessary to achieve this goal should be subject to cost-benefit analysis. Under current circumstances, where subscription-funded publishers have shown some willingness to permit free access to post-peer-review manuscripts but have not been willing to agree to public licensing, I think an author could responsibly decide to be satisfied with a copyright agreement that permits free access but does not provide for re-use licensing.

Harvard policy - Response to Stevan Harnad

2008-02-20T11:46:00.002-05:00

Stevan Harnad is a forceful advocate for open access, and I agree with most of what he advocates. I do have a different view than he does about the connection between open access and copyright and his analysis of the Harvard policy calls this to the fore.

My response is essentially the same as Peter Suber's. I'll add that Stevan characterizes the policy as reservation of rights. I think that's mistaken. Under the policy, the author continues to own all of the exclusive rights under copyright and remains free to transfer all of them to a journal publisher.

What the Harvard policy calls for is a non-exclusive license, which is the same thing as permission. All that the FAS have done is agreed that they have granted Harvard permission to post their work in the repository and that Harvard may grant others similar permission so long as copies are not being sold for a profit.

NIH and Harvard - It's About Values

2008-02-20T11:17:00.003-05:00

If it hasn't started yet, there's going to be grumbling soon enough when the reality of the NIH and the Harvard Faculty of Arts & Sciences ("FAS") policies set in. These policies require that faculty authors treat that moment when they are about to sign a journal publisher's copyright transfer agreement as an Aretha Franklin moment. The author has to hear the members of the underserved audience who will be denied access if that form is signed. The author has to hear, "You better think (think) think about what you're trying to do to me."

We should expect that under the NIH and FAS policies, some faculty will chafe when they can't just sign the publisher's form and have have to start using a contractual addendum or some other legal notice in response. They'll become even more exasperated if publishers respond by amending the amendments. As masters within their respective domains, faculty are likely to feel some frustration reflecting discomfort with the unfamiliar, and perhaps alienating, legal language in both the publisher's form and the addendum.

The key point is that this really is not a technical conversation. It's a conversation about values. Contractual language is designed to capture a shared understanding among the parties, and the likely back-and-forth about copyright reflects a difference of opinion about the value of public access to scholarly thought and research. The point of the back-and-forth over copyright is to persuade the publisher to accept NIH's and FAS commitment to equitable access to scholarly research or to force the publisher to reveal that it operates under a different set of values.

So while it may be tedious or uncomfortable for a faculty author to have to carefully read the language of any agreement or addendum, that author must do so to effectively express the shared values of the Faculty of Arts & Science in Harvard's case and the American people's in the NIH case.

Open Access - Who's Next?

2008-02-13T14:40:00.003-05:00

Among universities in the United States, Harvard has just increased its competitive edge by adopting a faculty resolution to grant the university a license to make faculty scholarship freely accessible online. (Funders and institutions elsewhere in the world are already on a roll, and a recent report from the European University Association recommends self-archiving in 791 European universities.) What are the competitive advantages?

1. There is reason to believe that the impact of, and citations to, Harvard scholarship will increase because it is freely accessible.

2. Harvard researchers will be able to use the rich archive of Harvard scholarship to experiment with for a variety of purposes, including developing new research tools.

3. Harvard librarians will get greater expertise than exists at competing institutions at developing, managing, and adding value to the university's digital library because they will have a regular flow of new scholarship to manage.

4. Young academics should be attracted to the institution as prospective faculty members, graduate students or other kinds of researchers for the signal that this initiative sends. The Faculty of Arts and Sciences, at least, seems to get the Web.

Faculty at competitor institutions should take note. There's an early mover advantage to be had here. Who's next?

Open Access - Harvard - Author Education

2008-02-13T14:31:00.002-05:00

The power of the Harvard policy is that the authors are precommitting themselves to open access (subject to the waiver option), and that means when it comes time to publish an article, they must alert their publishers to the fact of the previously granted license to Harvard.

One way they can do this is to use one of the author's addenda available through the Scholar's Copyright Addendum Engine, which specifically requires publishers to acknowledge previously-granted licenses to a funder or to the author's employing institution.

The risk of not doing is so is that it may be that the author is making a misrepresentation to the publisher by purporting to transfer more rights than s/he can.

But, there's really nothing new here except that the licensee is the university instead of a funding agency. Government-funded researchers have been in this situation for decades. All government funding agencies (not just NIH) are required by OMB regulation to take a non-exclusive copyright license to any works created under a grant or cooperative agreement with a university. The government receives this license at the moment the work is created, just like under the Harvard license.

These government funded authors have been routinely signing copyright forms that appear to conflict with the government's previously-granted license. Legally, there are two options for characterizing what's been happening all these years. (1) These authors have routinely been breaching their contracts or have routinely been guilty of fraudulent inducement to contract by misrepresenting the rights they have; or (2) even though the text of the publisher-drafted copyright form says that the author represents that s/he is transferring all rights under copyright free from any licenses, that explicit text is actually subject to an implied term recognizing the previously-granted license.

Under the second interpretation, the boilerplate in the one-size-fits-all form is not controlling so long as the publisher is aware that the author is a government-funded researcher. The publisher should be aware of the government's license, and so by accepting the article, the publisher impliedly acknowledges that it is taking copyright subject to the government's license.

I prefer interpretation #2, and I think this is how a court would apply the law, but this is just an opinion. So we've been living in a world where authors should have been alerting their publishers to previously-granted licenses for a long time. Perhaps this new attention by faculty to their copyrights will lead them to address this practice as well.

Open Access - Harvard - Impact on Librarians

2008-02-13T14:20:00.002-05:00

One reason why the Harvard Faculty of Arts and Sciences was wise to pre-commit themselves to grant a license to the university in articles they will write in the future is that this license empowers the librarians to seed and to manage the institutional repository in a much more robust way.

The license applies going forward so that at the moment a faculty member finishes the first draft of an article, the university has a license. Any subsequent transfer of copyright to a publisher is subject to this license unless the faculty member requests that the university waive the license with respect to that particular article.

So the librarians at Harvard will no longer have to decipher publisher agreements or the RoMEO/Sherpa list or the OAKlist to know whether an artictle can go up in the IR. Unless the policy has been waived, any article written henceforth by an FAS faculty member can and should go in the IR. (The details of how this will work in practice have to be ironed out, but this motion establishes the legal framework for moving forward.)

[Note, this legal framework (except for the waiver) is exactly how it works with the NIH Federal purpose license (45 CFR 74.36(a)) for any NIH-funded authors.]

Open Access - Preliminary comments on the Harvard Initiative

2008-02-13T14:07:00.003-05:00

[Disclosure: I've been a supporter of the Harvard initiative since its inception and have provided informal input to its proponents periodically along the way.]

How big a deal is this initiative by the Harvard Faculty of Arts and Sciences? It's huge.

First, this is a bottom-up initiative. Open access advocates have been working hard over the years to get faculty authors to pay greater attention to their copyrights. While faculties at various institutions have adopted resolutions supporting open access as a principle and as a goal, this is the first time that faculty authors as a group have stepped up and really acknowledged that the Internet matters and that business-as-usual publishing fails to take advantage of the Internet as a means for spreading knowledge throughout the world.

Second, by precommitting themselves in this fashion, the faculty has recognized that copyright is an author's right. With rights come responsibilities. These authors have committed to each other that they will take greater responsibility for managing their copyrights and for providing the public with free access to their work.

There are a number of heroes in this story. Within the administration, Steve Hyman, the provost, set up a faculty committee to study scholarly communication issues and practices. Stuart Shieber (Computer Science) chaired that committee and, along with his committee members, labored for more than a year to make this happen.

It is now up to faculty on other campuses to reflect on whether they too are willing to be responsible authors in the twenty-first century.

Open Access - Harvard Makes History

2008-02-13T13:36:00.002-05:00

On Tuesday, February 12, 2008, the Harvard Faculty of Arts and Sciences came together as scholarly authors and collectively agreed that in the age of the Internet they have a responsibility to manage their copyrights differently than they have been to date.

Specifically they unanimously voted in favor of this motion:

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.

Open Access - NIH

2008-02-13T12:31:00.002-05:00

I'll have a lot more to say about the NIH mandate in the coming weeks. For now, here are the basics.

As part of the Consolidated Appropriations Act, 2008, Congress directed:

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

Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. G, tit. II, Section 218.
NIH's response to this command is here: http://publicaccess.nih.gov/.

This policy requires two big changes in behavior to business-as-usual biomedical publishing. First, universities as NIH grantees can no longer remain indifferent to how their faculty authors manage their copyrights. Beginning in Fiscal Year 2008, it is a term and condition of an NIH grant award that the grantee (the university) will ensure that NIH receives (1) the electronic manuscript and (2) a copyright license to publicly distribute that manuscript no later than 12 months after the date of publication.

These are contractual commitments made by the university to NIH. The issue for the university is that both the manuscript and the copyright start out in the hands of the Prinicpal Investigator or author(s) working under the PI's direction. So universities have to get a process in place quickly for ensuring that the PI's or their authors don't take any action that puts the university in a position in which the university cannot comply with this term and condition of the grant award.

The biggest risk for universities and the PI's themselves is that authors will continue to routinely sign away copyright without reading the publisher's copyright transfer form.

The NIH requirement forces authors to take greater responsibility for their own copyrights. Some universities and some authors are likely to grumble about this. If it's really a problem, perhaps they should ask Congress to declare that federally funded research articles get no copyright at all - which is true for articles written by NIH employees. This was what Congressman Sabo proposed some time ago.

If these authors want the privileges of copyright protection, then they can't be heard to complain when NIH requires them to also accept the duty of managing their copyrights responsibly.

Big News for Open Access - Harvard and NIH

2008-02-13T11:59:00.002-05:00

There are two big developments for Open Access going on right now. In December, Congress directed NIH to make its Public Access Policy mandatory, and NIH has set an effective date of April 7, 2008 for its new mandate.

Yesterday, the Harvard Faculty of Arts & Sciences adopted a historic open access policy by which they agreed to grant Harvard permission to post their scholarly works in the institutional repository and to make their work publicly available through other means.

I'll provide more details on each in separate posts, but we are now living in interesting times as far as the future of scholarly communication goes.

Please support Creative Commons

2007-12-07T10:58:00.000-05:00

This has been a big year for Creative Commons:

The amount of cultural works shared under a CC license continues to grow rapidly;
Volunteers from more countries have ported CC licenses to work within their respective legal systems;
Technology companies increasingly want to incorporate CC licenses into their business models;
Our Science Commons project has made substantial progress on a tool for standardizing the exchange of biological materials for research and on demonstrating the power of the Semantic Web for open access; and
We launched our ccLearn initiative with generous support from the Hewlett Foundation to give particular focus to the role that CC licenses play and can play in the creation and sharing of educational materials.

All of this requires the time and energy of our very talented staff, who, it turns out, require food, clothing, and shelter in order to do the great work they do. For that reason, I ask that you please contribute to the Creative Commons annual campaign and help spread the word. http://support.creativecommons.org/supportcc

We have great projects in the pipeline, but we can only bring these to fruition with your support. Thank you and seasons greetings.

Tax Problem for Commercial Publishers?

2007-11-14T14:40:00.000-05:00

In arguments about open access, commercial publishers do their utmost to minimize rhetorically the value they receive from free articles and free labor by referees or peer reviewers and some editors.

When the audience changes, these same publishers have suggested to investors in the past that it is precisely because they don't have to pay for these critical inputs and that demand for their publications is relatively inelastic that their business is so profitable.

I wonder what story they tell the taxing authorities about whether these free inputs are part of their gross income? In the United States, "gross income means all income from whatever source derived," 26 U.S.C. s. 61(a). "Any source" would seem to include in kind inputs such as free articles of value and free labor. right?

There he goes again - Allan Adler on the NIH Policy

2007-11-14T13:47:00.000-05:00

Once again, Allan Adler's back with the private market canard. Mr. Adler is vice president for legal and government affairs at the Association of American Publishers, which has organized efforts to quash the Open Access movement. Despite his best efforts, Mr. Adler and his allies failed to persuade Congress that it is good policy to make taxpayers pay twice for research articles that they fund.

Here's the packaged sound bite that he once again unwrapped and delivered to the Washington Post's Rick Weiss: "[T]here are some very serious questions to examine as to whether this is an unwarranted government intrusion into the private-sector publishing industry."

Government intrusion? Hmmm. Let's look at the facts. For this argument to make any sense one would have to ignore copyright law and forget that taxpayers are part of the picture. Mr. Adler has to do this because he's arguing that there's something wrong with a world in which he who pays the piper calls the tune. Because that's all that's going on here.

NIH funds the research and, under the bill language, would require public access to resulting research articles as a condition of funding. Under copyright law, the author starts out with the rights, and the NIH policy deals with the relationship between authors and funders. Mr. Adler's members operate in a market comprised of authors and publishers that depends for its very existence on research funded by other sources. Intrusion indeed.

NIH Policy - Action needed

2007-11-14T13:18:00.000-05:00

First the good news. After years of work, Open Access advocates successfully persuaded both houses of Congress to include a provision in the Labor-HHS appropriations bill that would require NIH to make federally-funded research articles publicly available on the Internet no later than 12 monts after publication.

This victory should not be underestimated because the American Association of Publishers and its allies had pulled out all the stops, making repeated office visits at which they pedaled a broad range of legal and economic arguments that were rightly rejected by members on both sides of the aisle.

Now, the not-so-good news. As was expected, and as Peter Suber reports, for unrelated reasons, President Bush has vetoed the bill.

Passage of the LHHS bill was by close to a veto-proof majority, and it is now time to urge your representatives and senators to vote to override the veto of the LHHS Appropriations measure. Contact details for members of Congress are at: http://www.congressmerge.com/onlinedb/index.htm

Lucky Dube - R.I.P.

2007-10-20T12:59:00.000-04:00

Awful news today. South African reggae star, Lucky Dube, was killed in a carjacking in South Africa in front of his 15-year-old son. He was very big when I lived in Zimbabwe, and his popularity has not waned. I hope that some good can come from this tragedy, and that the government of South Africa will address the causes and effects violent crime.

In "Victims," Dube wrote:

Didn't know she was crying
Until now as she turns to look at me
She said boy o' boy you bring tears to my eyes
I said what, she said
Boy o' boy you bring tears to my eyes

Bob Marley said
How long shall they kill our prophets
While we stand aside and look
But little did he know that
Eventually the enemy
Will stand aside and look
While we slash and kill
Our own brothers
Knowing that already
They are the victims of the situation

Radiohead and Pay What You Will

2007-10-20T12:49:00.000-04:00

Radiohead has made an interesting move by releasing its new album on a pay-what-you-will basis. In an article I started drafting in 2000, I suggested that musicians can succeed under this model so long as purchasers think of the transaction as a show of support. Whether characterized as the "warm glow" of do-gooder consumption or as a refletion of the restitutionary impulse that Wendy Gordon argues is at the base of copyright law, it is not surprising that people are paying for something they can download for free.

The risk in this model is that the frame of the transaction depends on perceptions and norms. If the frame switches to that of neoclassical economics, in which consumers and producers are adverse parties competing for a larger share of surplus, then the model fails. Stephen King seemed to think his experiment along these lines was a failure, and if it was, it may be because he charged a specific price ($1) for each installment of his serialized novel.

Amateur Hour Conference - 11/2/07

2007-10-20T12:45:00.000-04:00

On November 2, 2007, New York Law School’s Institute for Information Law & Policy will host the inaugural Amateur Hour Conference to bring together leaders in business, law and technology to focus on the opportunities and challenges of user-generated content to traditional media & entertainment businesses.

A number of very interesting speakers are lined up, and this looks like a promising gathering to begin a new series of conversations about the changes that the Internet brings to media and entertainment. For conference schedule and registration please visit: www.nyls.edu/amhr

NIH Policy - Urgent

2007-10-20T12:05:00.000-04:00

In a last ditch effort to undermine the public interest, Senator Inhofe (R-OK) has introduced amendments to pending legislation with the intent of denying American taxpayers access to medical journal articles reporting research funded with American tax dollars.

It is urgent that American readers contact their Senators to OPPOSE amendments that strike or change the NIH public access provision in the FY08 Labor/HHS appropriations bill.

The Senate is currently considering the FY08 Labor-HHS Bill, which includes a provision (already approved by the House of Representatives and the full Senate Appropriations Committee), that directs the NIH to change its Public Access Policy so that participation is required (rather than requested) for researchers, and ensures free, timely public access to articles resulting from NIH-funded research. This provisions requires public access within 12 months of publication - a very generous lead time for journal publishers.

On Friday, Senator Inhofe (R-OK), filed two amendments (#3416 and #3417), which call for the language to either be stricken from the bill, or modified in a way that would gravely limit the policy’s effectiveness. Amendment #3416 would eliminate the provision altogether. Amendment #3417 is likely to be presented to your Senator as a compromise that “balances” the needs of the public and of publishers. It does nothing of the sort because the current voluntary policy is a failure and this amendment is designed to maintain the status quo.

Please contact your Senators TODAY and urge them to vote “NO” on amendments #3416 and #3417. (Contact must be made before close of business on Monday, October 22). Contact information and a tool to email your Senator are online at http://www.taxpayeraccess.org/nih/2007senatecalltoaction.html. No time to write? Call the U.S. Capitol switchboard at (202) 224-3121 to be patched through to your Senate office.

House to Vote on NIH Policy

2007-07-16T11:47:00.000-04:00

Tomorrow, Tuesday, July 17, 2007, the House of Representatives is set to vote on an important appropriations bill that contains a provision that would require NIH to make publicly accessible on the Internet the authors' manuscript of peer reviewed journal articles researched and written with NIH support.

Peter Suber provides the details for taking action at http://www.earlham.edu/~peters/fos/2007_07_08_fosblogarchive.html#6618575816753534506.

I cannot emphasize enough how modest a measure this is. NIH already has a copyright license from the authors of these articles to post them in PubMed Central database. All that this legislation would do is direct NIH to put its license to use.

Open Access Law - Pennsylvania

2007-07-16T11:12:00.000-04:00

As Peter Suber reports, the Pennsylvania legislature is considering joining the movement for open access law. The House of Delegates unanimously approved a bill, introduced by Rep. Lisa Bennington, (D-Allegheny) As this editorial in the Altoona Mirror says: "Your tax dollars paid to create and enforce the laws. You should not have to pay again to view the statutes at your leisure. It’s time for Pennsylvania to catch up to the rest of the nation."

Patent Injunctions after eBay

2007-07-16T06:00:00.000-04:00

I've recently posted a new piece: "Patent Injunctions and the Problem of Uniformity Cost."

Here's the abstract:

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often will have an industry-specific cast. This Essay identifies these patterns and summarizes the guideposts that courts and litigants should look for when conducting the traditional analysis in patent cases.

The Article is available on the Web from three places:

http://www.mttlr.org/volthirteen/carroll.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=992275
http://works.bepress.com/michael_carroll/

Need a New Word

2007-04-03T10:57:00.000-04:00

The English language, as spoken in the United States, is missing a word. Think about the ways in which we refer to the female and male members of our society. Girl/Boy; Woman/Man; Female/Male; (Ladies/Gentleman) (although Gentlewoman is preferable). But a funny thing happens on the way from elementary to middle school. The “boys” become “guys” while the “girls” stay “girls.” And this doesn’t change even as these “girls” proceed well into adulthood.

It makes me cringe when my students refer to a female classmate as a “girl” for all the standard feminist reasons, but what is the alternative? If we want to use gendered informal designations, and maybe we shouldn’t, we’re missing an informal, but non-judgmental, designation for “woman.” To my ears “doll” (as in Guys and . . .), “gal,” “grrrl,” “chick,” “chica,” “babe,” “young’un,” “shorty,” and the like are non-starters.

Feminist friends to whom I’ve posed this problem are pessimistic that a new word would do anything to change the routine practices designed to infantilize and marginalize women. Maybe. But why make it difficult for a conscious person looking for an alternative to “girl”?

So, I’m looking for a word. Preferably one syllable. Probably a fanciful (made-up) word to use trademark parlance since most existing terms are likely to be loaded with sexist baggage. Ideas?

P.S. One inspiration for the idea of campaigning for a new word is the book “Frindle,” by Andrew Clements targeted at a pre-pubescent audience. It’s a charming tale that teaches a little semiotics and reminds about the power of language. The only drawback comes at the end, in which the author presents an erroneously overbroad understanding of the scope of trademark law in relation to a newly-coined term. But let’s not forget the basic semiotic lesson – words start out their careers as arbitrary signifiers and they derive meaning from our collective agreements. So let’s amend the social contract and get a better deal for all the ____ out there.

Open Access and the Newspaper Business

2007-03-31T11:33:00.000-04:00

Newspapers are facing a serious financial strain. (I'm not sure it's truly a crisis). Advertising and subscription revenues fell significantly over the summer, and they do not appear poised to rebound.

Does this mean that open access to professional writing cannot survive at current levels of advertising support? Doc Searls thinks not, and has a great post explaining why at http://doc.weblogs.com/2007/03/24#howToSaveNewspapers.

Open Access Law - Access to Congressional Information

2007-03-31T10:02:00.000-04:00

Two recent developments have helped highlight the general problem caused by application or implementation of copyright law to restrict access to federal information and federally-funded information and with policies that otherwise restrict access to such information.

First, as many readers may know, Speaker of the House Nancy Pelosi launched a blog in February 2007, and she posted a video taken by a C-SPAN camera of a committee hearing on the blog. The House Republican Study Committee accused her of infringing C-SPAN's copyright in the video and misusing it for partisan purposes.

There was some question of whether this video was in the copyright public domain as a government work under Section 105, which withholds copyright protection from works of authorship created by federal employees within the scope of their employment.

C-SPAN takes the position that video of proceedings on the floor of the House is in the public domain but that its committee footage is under copyright because it is taken by non-federal employees. However, C-SPAN has adopted a policy (i.e. a license) that "permits" non-commercial use of certain footage with attribution. (See also http://www.lessig.org/blog/archives/003718.shtml.)

Too many folks have assumed too quickly that all video is copyrightable. To be an "original work of authorship," the C-SPAN video must reflect a minimal spark of creativity on C-SPAN's part. If, as is likely, C-SPAN has little real choice about where to place its camera or how the room is lit, then there is a very real question about whether this video is in the public domain for lack of originality.

Second, capitolizing on the moment, a public interest coalition is rightly calling upon Congress to provide open access to the reports of the Congressional Research Service. These are U.S. Government works under copyright law, so this is not a copyright issue but a straight access issue.

This is an important step for the Movement for Open Access Law. For those who define open access as being solely about access to the scholarly literature, should appreciate and embrace this related movement for access to government-funded information.

CC Learn - Employment Opportunity

2007-03-17T16:54:00.000-04:00

Creative Commons is looking for an Executive Director to head up our newly launched division, CC Learn. The position is located in the San Francisco office, working with the astounding CC staff. Details are here. http://creativecommons.org/about/opportunities#ccl Please pass this information along to the networks you are a part of and encourage qualified people to apply.

CC Learn - Announcement

2007-03-17T16:41:00.000-04:00

Creative Commons is pleased to announce that we are launching a new division called CC Learn, which will extend the work we've been doing to support open educational material and repositories - kindergarten through lifelong learning. This initiative is made possible by the generous support of the William and Flora Hewlett Foundation and the MacArthur Foundation.

CC Learn's immediate goal is to work with those who already provide open educational resources to remove or mitigate barriers to combining or remixing content from different open collections. In other words, our goal is to make material more "interoperable," to speed up the virtuous cycle of use, experimentation and reuse, to spread the word about the value of open educational content, and to change the culture of repositories to one focused on "helping build a usable network of content worldwide" rather than "helping build the stuff on our site."

Please help us spread the news!

Petition for Public Access to Research

2007-03-14T10:42:00.000-04:00

It's time to let policymakers in the United States know that you support open access. Following a very successful petition drive in the EC to support an open access mandate, a broad coalition of libraries, health groups, students, and consumers is jointly supporting a Petition for Public Access to Publicly Funded Research in the United States.

This petition, which is open to supporters around the world, will demonstrate clearly to U.S. policymakers the depth and breadth of support for access to federally funded research in the United States. Even if you signed the European petition, it’s important that you sign the US petition as well. Here’s why:

The European Commission petition was designed to support specifically Recommendation A1 of the EC’s Study on the Economic and Technical Evolution of the Scientific Publication Markets of Europe.
The U.S. petition is written to support public access to research funded by the U.S. government as well as the reintroduction and passage of the Federal Research Public Access Act.
The U.S. petition collects state-specific information, which is essential to making the case for public access to individual lawmakers.

The Petition for Public Access to Publicly Funded Research in the United States (http://www.publicaccesstoresearch.org) is open to individuals and organizations of all types.

If you are a researcher whose work is funded by the federal government, your signature is especially important since it shows that you want your work to be shared and used.

Please distribute this message and invite your members, friends, and colleagues to sign the petition as soon as possible in order that as much progress as possible may be made in the 110th Congress.

Show Support for Open Access

2007-01-24T13:29:00.000-05:00

In the wake of the publication of the report from the "EU Study on the Economic and Technical Evolution of the Scientific Publication Markets of Europe" a consortium of organisations working in the scholarly communication arena is sponsoring a petition to the European Commission to demonstrate support for Open Access and for the recommendations in the report. Signatures may be added on behalf of individuals or institutions.

Please register your support for Open Access in this way. To sign the petition, please go to http://www.ec-petition.eu/

The sponsoring organisations are JISC (Joint Information Systems Committee, UK), SURF (Netherlands), SPARC Europe, DFG (Deutsches Forschungsgemeinschaft, Germany), DEFF (Danmarks Elektroniske Fag- og Forskningsbibliotek, Denmark).

Patry on Copyright

2007-01-15T13:19:00.000-05:00

William Patry has substantially revised his thoroughgoing treatise on copyright law. For more details, please visit Bill's entry describing the work in his insightful and informative blog. http://williampatry.blogspot.com/2007/01/my-treatise-is-now-available.html.

This is a welcome addition to the discourse.

Outrageous!

2007-01-15T10:45:00.000-05:00

The coordinated attack by some in the Bush administration and some of its allies on pro bono lawyers representing Guantanamo detainees is beyond the pale. Charles D. Stimson, an official in the Defense Deparment and an attorney, argues that CEOs should withdraw their firm's legal business from law firms that are representing detainees. I don't use this blog to express political opinions, and the point here is non-partisan. It is an outrage for public officials of any party to use or threaten to use regulatory and purchasing power leverage to retailate against a lawyer for representing a party that is in active litigation adverse to the government.

There are so many things wrong with Stimson's position that it is hard to know where to begin. The most troubling is how deeply unpatriotic and unAmerican the sentiments Mr. Stimson expresses are. He rejects the fundamental values that make us American, including a presumption of innocence and the right to due process. While Mr. Stimson's statements are understandably politically embarrassing, the Justice Department's tepid distancing effort is equally troubling because it indicates a lack of full blooded commitment to the American conception of justice. Shame.

The Dream/It's Time

2007-01-15T10:12:00.000-05:00

Dr. King's "I Have a Dream" speech is one of the most moving and powerful exhibitions of public oratory one can experience. I hope that it remains a part of public memory for at least as long as Pericles' funeral oration has. While Dr. King's speech by itself has memorable rhythmic and lyrical intensity, for me, these features are rendered sublimely by Max Roach's posthumous duet "The Dream/It's Time," in which Roach accompanies King on drums.

The piece is on the out-of-print album Chattahoochie Red (Columbia). There's a partial video clip here. It's time for the album to be re-released on CD.

We Need You!

2006-12-21T09:55:00.000-05:00

The annual fundraising drive for Creative Commons is in its final days. Progress has been good, but we need a final push to make our goal. If you're looking for last-minute holiday gifts, there are some nice shirts and swag in the store. http://creativecommons.org/support/.

This has been a big year for the commons, and there's more exciting news expected in the new year. For those who have already shown their support, thank you!

Fencing Mozart In

2006-12-14T11:57:00.000-05:00

A good news story for some classical music fans. A bad news story for champions of copyright's public domain. Digital copies of Mozart's scores are now "freely" available here. These works are in the public domain for copyright purposes, which means you are free to copy them without restriction.

However, the International Mozarteum Foundation, which has provided this service, has imposed a click-through agreement requiring visitors to agree to limit their use of the public domain to personal and fair use copies.

Digitizing copyright's public domain is to be applauded. Locking it behind contractual fences is not. There are other and better cost recovery models for this kind of transitional effort.

Open Systems

2006-12-05T11:50:00.000-05:00

Two important pieces from the traditional press are worth noting.

First, Sir John Sulston, a Nobel laureate who serves on the Science Commons Advisory Board, has written a persuasive editorial in the Financial Times about the connection between openness and informational justice.

Second, Clive Thompson has a nice piece in the New York Times magazine about the adoption of open systems within the U.S. intelligence community.

Both demonstrate the importance of developing what we might call a "network consciousness". By this I mean an awareness of our own role as nodes in a host of overlapping social and material networks and an awareness of the potential and pitfalls of open systems.

Fixing Fair Use

2006-11-21T16:54:00.000-05:00

I've posted a preprint of my latest article, Fixing Fair Use, here and here. Here's the abstract:

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.

Open Access and Incremenatlism

2006-11-20T10:58:00.000-05:00

Arthur Sale has posted a very nice paper called The Patchwork Mandate that is directly in line with the advice I have been giving to open access advocates and institutional repository managers on a number of campuses.

He argues that if conditions are not ripe for putting an institution-wide deposit mandate in place, advocates should target department heads or faculties and similarly-situtated officials who could mandate deposit of research papers produced within the unit into the institutional repository. He is exactly right.

He is right for the broader reason that open access advocates have to be incrementalists. Open access has occurred thus far and will continue to grow through the combination of top-down and bottom-up strategies that have been working thus far. There are still a number of skeptics who need persuading that granting access to marginal audiences is a valuable goal. It is more feasible to win some of these skeptics over in small group settings and by shifting behavioral and attidunal norms within more local settings - such as an academic department.

Of course, we continue to work hard to support top-down initiatives, such as the FRPAA, which is itself an incrementalist measure that applies to only a subset of funding institutions. But we have to be pragmatic about where the opportunities are. If you are in a university that is not in a position to adopt institution-wide open access policies, look for other opportunities. One department at a time.

The Broadcast Treaty and Open Access

2006-09-11T10:28:00.000-04:00

Copyright. Michael Geist has a nice column today once again reminding us about why the WIPO negotiations over a Broadcast Treaty are trouble. See also the CPTech blog. A number of technology companies and public interest organizations oppose the treaty for these reasons.

One quick point about the Treaty and then a point for Open Access advocates. In my view, representatives of copyright-owning organizations have made the wrong bet in either supporting or staying neutral on this issue. They have bet that broadcasters will, on balance, help them enforce their rights against those who transmit copyrighted works that have been broadcast. As technology evolves, and broadcasters use the rights created by the Treaty to protect their business model, these copyright owners will regret the choice they make today.

Some Open Access advocates, librarians in particular, have been active in opposing the treaty. For those who have not tuned in, the important thing to watch is how the policy debate is conducted. Who has the burden of persuasion? Ben Ivins of the National Association of Broadcasters argues that because other countries give broadcasters a distinct right in their signal, it is opponents of the treaty who must show that the treaty would be harmful. This argument is exactly backward. In the United States, a proponent of a law that restricts speech has the burden to show that the restriction will advance an important governmental interest. The NAB has failed to meet this burden. Even though the executive branch has signed on, Congress and the courts should demand to see evidence that the treaty would address a real harm without interfering with legitimate communication. So far the evidence does not even come close.

Allocating the buren of persuasion is just as important with respect to the Federal Research Public Access Act (FRPAA). The AAP is doing its best to argue that proponents of the legislation must prove that the benefits of open access outweigh the costs. That, I am afraid, is not the way it works in any society that embraces a principle of freedom of expression. Thus, the first response from the open access community should be that the burden is on those who would restrict public distribution of publicly-funded research to show that such restrictions advance an important public interest. Then, we can take up the question of how to measure benefits and costs.

Future of Music?

2006-08-30T09:14:00.000-04:00

Music. Copyright. There's little doubt that the music industry is in a period of transformation. Today's news is that Universal Music is willing to "compete with free" by letting a site called Spiral Frog experiment with an ad-supported distribution model, permitting "free" downloads that are tethered to the site with technological protection measures (a.k.a. DRM).

Meanwhile, the debate about business models has gone audiovisual. For the defense of the traditional model, watch the RIAA's latest, Campus Downloading, at http://www.campusdownloading.com/dvd.htm

For the opposing case, watch MC Lars', "Download This Song," at http://www.mclars.com/v2/media.html#VIDWIN or at http://www.myspace.com/mclars (points for those who can identify the song this is built on or the guest vocalist).

And for parody's sake, there's always Weird Al, at http://www.dontdownloadthissong.com/