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Copyright Conference Day 2

Thursday, June 5, 2008 2:38 pm

Center for Intellectual Property in the Digital Environment

Conference: Day 2

A long and very theory driven day…

Keynote Address: Georgia Harper

“The Economics of Copyright and the Impact on Academia: Mass Digitization and Copyright Law, Policy and Practice”

Georgia Harper started her speech with a bang, proposing that anyone who is looking for change in the arena of copyright should “forget Congress.”(This won her some derisive remarks about her position in subsequent sessions.)Since the methodology that is employed by Congress when evaluating change in Copyright Law is to put the powerless (those that represent the public interest) together with the powerful (copyright holders) and then implement recommendations that come forth, the powerful continue to increase the length of time that copyright will reign over works.Congress is, by virtue of this scheme, also marginalizing its own hold over the issue.

Market response: So in this vacuum, markets are growing that will sidestep the law.Steve Jobs is providing for demand for legitimate online entertainment.Creative Commons repudiates the overly broad scope of protection, and Google Books, some say, confronts it head on.Television has put its own full length episodes on the web.New York Times has abandoned its online subscription program.NIH has mandated that all publications written as a result of its funding will be provided electronically, full text to users regardless of copyright leading to greater access.

Orphan Works:The orphan works bills that are in Congress will not be passed, according to Ms. Harper.Some solutions might include the following. Construct the copyright evidence base, (OCLC is working on this.)Or register works after the first term by paying a single dollar to continue copyright.If the owner of the copyright won’t even pay a dollar to continue to enforce it, then it truly is not commercially viable enough to keep under copyright protection, and it should be in the public domain.In the arena of digitized photgraphs, utilize the web to publish photos and have people add info they know about them to identify copyright.(“Supply what information you have, and also tell us how you know what you know about the image.”)Work with the strength of the digital environment, instead of against it.Libraries know that convenience wins.Markets will come up with ways to step aside the copyright law if the copyright law won’t step aside.The copyright holders will maintain that “if there is value to be created from my work it should go into my pocket.”But business models would suggest that if you erect barriers of time and expense, and compete with tons of free legal stuff, and you want attention, don’t make it hard for people to give it to you.

Scanning full text for indexing, is it a violation of copyright?If you put your work online it will be indexed.Courts have found that, when creating images, thumbnails are fair use.Still to be determined are issues where indexing companies are linking to infringing copies (Perfect 10 v Google & Amazon).Google Book Search is stepping up the pressure to put full-text online, and change copyright law. Users want search results to yield clickable links.

We don’t know how the legal issues will settle.Google’s position, open access trumps copyright.This is good for Google, and good for readers, and maybe good for authors, publishers and libraries, too.What publishers and creators should realize is that what is difficult to find or inconvenient in an increasingly digital environment, is what is NOT getting read.

In 3 and a half years in this business model, there is evidence that openness beats armor.The benefits of convenience outweigh the weight of law and what results is a massive disrespect for the law.Congress and copyright law is a one way ratchet:it will always be more restrictive and longer.The market actors come up with solutions to future problems.In a free market they can try new things.They will either fail or succeed, but we will always learn something.

Panel One:Response to Keynote Address

Paul Jaeger, Director of the Center for Information Policy and Electronic Government and an Assistant Professor in the College of Information Studies at Univ of Maryland. (Moderator)

Bill Carney, Content Management, Business Development, OCLC, Inc. spoke first.OCLC is going to launch a new initiative in July, 2008 that will create a copyright registry that can be utilized by all libraries much the same way as cataloging responsibility is shared among the consortium.Libraries can search the registry for evidence of copyright in works they are interested in.If found, they can use the information therein.If not found, and the library worker continues to search for the information, they can add it into the database.Some of the librarians in the audience balked during question and answer about utilizing the hard work of librarians to populate OCLCs database.Mr. Carney responded that he was aware of that, but wanted to use the power of OCLC to unify this data, and they were uniquely poised to do that.

Jon Orwant spoke next.He is the engineering manager of Google in the Boston office.He said that Google is good at indexing.Sometimes answers to a particular question are on the web.Sometimes the answers are in newspapers and books.Where rights permit—let them read!The hard part is how to codify legal code into C++ code.When the book was published + 14 is easy to codify.When the author died + 70 is less easy to codify.And if the author died “for France” they get death plus 100 years.So now Google needs to know when they died, and how they lived in order to know what the copyright restrictions are.Strong DRM that eliminates options to cheat does not exist.Metadata can be created that will give the rights history.The Orphan Works legislation that is currently before Congress includes how to deal with graphic as well as written works.Photographers, graphic artists and fabric producers are most afraid of this legislation because their works are so hard to identify.Metadata can be used to discern copyright registry even without the actual book, CD or image.Even the copyright owner can add description.Image matching software that will let us match image even allowing for differences in size and shading is now possible.The registry of copyright will allow us to decouple evidence from policy.And decouple policy from procedure.How many members of the public will equal one NACO certified librarian?

Third on the panel was Patrick Ross, executive director of Copyright Alliance.He stated that people who value copyright law to protect their work are seen as obstructionists who are frozen in the last century.Creators are inspired because of copyright protection, to create works…(not sure I agree with that particular analysis.)Without copyright, creators will not create.He was most vehement in his criticism of Georgia Harper’s assertion that Congress will not solve the problem.Copyright holders continue to assert that copyright protection is necessary to have creative works continue to be produced.But while you can’t eliminate copyright OR lock all content down, we should accept the principle of copyright.In responding to the sentence “If the law doesn’t step aside, we will side step the law” he responded that the end doesn’t justify the means.

Luncheon Speaker: Gigi Sohn, Public Knowledge

“Discussion of ‘Public Knowledge’ Copyright Principle

For the past 35 years, copyright policies have been expanding in an unmitigated fashion.It is a clear mis-match between policy (which was written pre-VCR) and our current technology and the law.The pendulum has been swinging ever farther away from our digital reality and we need to swing the pendulum back.She outlined six points to better align the needs of people in the digital age with the copyright law:

.Fair use reform: expanded to add transformative and non-commercial use of content, and making a digital copy for indexing as not an infringement.

. Limits on secondary liability: on manufacturers of technology who have substantial non-infringing use

.Protections against copyright abuse: deter copyright holders from filing frivolous requests to take material down from websites, and provide legal relief for legitimate users of a work.

.Fair and Accessible Licensing: simplify rights to a musical work.

.Orphan works reform: limit damages for the use of works which a copyright holder cannot be found after a “good faith” search.

.Notice of Technological and Contractual Restrictions on Digital Media: require copyright holders to provide a clear and simple notice to users of any limitations on their ability to make a fair use of a product.

Panel Two:Changing Cultural Definitions and the Impact on Copyright and Scholarship

Karla Hahn: Director of Office of Scholarly Communication at ARL. (Moderator)

Michael Newman: Georgetown University; Kenneth Hamma, J. Paul Getty Trust; Stuart M. Shieber, Harvard University

“Boats against the Current: Students Rights, University Policy and Next-Generation Social Networking”

Universities are fighting a losing battle trying to stay current and update policy in the face of changes in technology.Our understanding is always obsolete by the time policy is written.Faculty want to incorporate more and richer resources into their courses, (online only or online supported).They utilize media in course management systems, without knowing if it’s reasonable or legal.Scan in documents of former students to use as examples of best practices; add YouTube videos; snippets from encrypted DVDs.

Students have rights to their Academic IP by default, but some universities try to circumvent those rights by having students sign agreements that hand over some or all rights to the university that supported their research.Can they refuse?It is unclear.Others secure rights for their students explicitly and make no claim to their work, and it’s written into policy.Still others say that faculty can ask to make use of their work, but students can refuse to comply.And some make provisions that are equally strong for students, faculty and staff of institutions to allow the author to maintain copyright ownership.

Increasing use of social networking sites to be the locus for learning and distribution of material is also challenging.Social networking is used to being disinterested in copyright issues; personal content, external to the university, few policy implications.But increasingly it will become necessary to confront these issues if it becomes the place for course content.There is potential to become a sharable space for group projects, digital rights management necessary, personal file and storage management.G-mail explicitly states that content posted through their service transfers all licenses to use to Google.

Universities need a policy for how much substantive access faculty members have for student’s work.A Pugh Initiative recommended that faculty be given great license to access and maintain their copyright over work created while on staff.But universities maintain that a substantial use of their resources went into the creation and therefore they can and should be able to claim copyright.This could extend to course material and course content that is in a course management software environment.

Panel Three:

P2P, virtual worlds, wikis, blogs, vlogs etc: Are these technologies dismantling copyright?

Moderator Lateef Mtima, Professor of Law and the Founder and Director of the Institute for Intellectual Property and Social Justice at Howard University School of Law.

Mary Madden, Pew Internet and American Life Project.

Patricia Aufderheide, Professor in School of Communication at American University in Washington DC and Director of Social Media.

(the fourth panelist, who was supposed to appear through Second Life on the big screen, couldn’t present due to technical difficulties.)

This panel discussed emerging technologies in use on college campuses and their impact on copyright.Horizon Report available at

Copyright was written to keep people from gaining by illicit uses of others’ work.Now, copying, mixing, and re-mixing is a form of creative expression.People are doing it to take creativity to a higher place, but no one will actually profit from it.

Students at the college level are demanding more content delivered electronically, not just to desk tops and lap tops but to cell phones, ipods, mobile devices.This presents both an opportunity to creatively respond to this need, but also has serious implications on digitization of materials to be delivered this way.Students are “always on”, and expect instant access and immediate response.

Some statistics on how we use the web:70% of adults use the internet, but 90% of teens do.Ninety-two % of kids aged 12 to 18 use the internet.57% of online adults have used the internet to watch or download video, and 19% do so daily.Frequency and amount is correlated to the speed of the users’ connection to the internet.Three out of 4 young adults, (18-29) use the internet to download video daily.Educational videos are frequently watched or downloaded, too.One in 5 users are downloading educational video content every day.One in ten young adult have created blogs, 4 times that many read it.Teen content creators have initiated conversations on the web.They experiment without fear.Today’s kids are tomorrows innovators.

Ownership and authorized use is peripheral to them.Users interests take a back seat.Are these technologies dismantling copyright?Under the right pressure, copyright will be reformed.The benefit to the culture is greater than the harm to individuals who have been victimized.

Panel 4:Legislative Panel

Kim Bonner, Executive Director of the Center for Intellectual Property in the Digital Environment.(Moderator)

Oliver Metzer, Policy Planning in the Office of Policy and International Affairs at the US Copyright Office.

Robert Samors, Associate VP for Research and Science Policy and Director of Information Technology at National Association of State Universities and Land Grant Colleges.

Jonathan Band, legislative and appellate advocate.

Discussed the Orphan Works legislation currently before Congress.Orphan Works are defined as works that are protected by copyright law, but are unable to be used or cited because the copyright owner is unable to be found even after a diligent search.The legislation before Congress will limit liability of those users who searched for but could not find the owner of a copyrighted work, who then go ahead and use the material anyway.The settlement amount is limited to the value the original agreement would have been if the copyright holder had been found.Statutory damages and court costs would not be involved in the transaction.Some versions of the bills before congress include a checklist to determine when a diligent search is completed.

This legislation does not affect “fair use.”It takes steps to assure that each party will negotiate in good faith.(Ie that neither the infringer will be able to “low ball” the copyright holder and the copyright holder will be unable to “high ball” the infringer, just to have the other one have to go through the hassle of taking them to court.)

Copyright Conference Day 3

Thursday, June 5, 2008 2:16 pm

Center for Intellectual Property in the Digital Environment

Conference: Day 3

Round Table Discussions: Georgia Harper and Carrie Russell

Our table discussed: University, Innovation & Copyright: How to Become an Effective Advocate and Move Your Community from Baltic Avenue to Park Place

As students and faculty begin to use new technologies (flickr, facebook, second Life, etc) we are charged with understanding the associated copyright concerns.Barriers we have run into when promoting the proper use of copyrighted materials to the campus community include:inability to get in front of an interested audience and not being aware of what they are doing that might be infringing.Challenges are different now with new technologies, online classrooms, online course content.Being an effective advocate includes being an effective copyright educator and a point person on copyright issues.

One strategy is to try to talk to the admin assistants in each department instead of the faculty themselves.Develop user policies that are timely and extend beyond the reach of the library…policies at the institution level.Advocate for fair use.Get a copyright component into all of the classes so that the students (and faculty) can be aware of their rights as producers, and their responsibilities as users.We should start a copyright education movement on our campuses.

Additional information from all of the tables on all of the roundtable discussions will be forthcoming from the conference.

Center for Intellectual Property in the Digital Age: Conference, Day One

Thursday, May 29, 2008 7:39 am

Pre Conference Seminar: 1:00pm to 4:00pm

“The Public Domain and Fair Use” Lolly Gasaway

Lolly Gasaway discussed the purpose of copyright laws, namely to promote learning to the public, and encourage authors to create new works. The US Constitution gives Congress “the power to promote the progress of science and useful arts, (aka anything worth learning), by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The constitution was adopted in 1787 and just three years later, in 1790, the first copyright law was adopted. THAT’s how important it is.
Copyright can be affixed to any work that is creative and original, not facts or ideas. Before the copyright act of 1976, copyright needed to be applied and paid for. Copyright became automatic in 1976. The length of copyright continues to expand from 14 years, with one 14 year renewal in 1790, (and 85% of copyrighted works were not even renewed for copyright), to the present standard with the1998 amendment which allows for life of the author plus 70 years. She presented us a nifty schedule of when things pass into Public Domain at . The rights of the copyright holder include the right to limit reproduction and distribution, adaptation, performance, display. Once it passes into the Public Domain, it becomes available for any of these uses, without needing to seek permission from copyright holder.
Works become public domain: 1.) when the copyright has expired, 2) if published before copyright law was enacted. 3) for materials where the author never claimed copyright (pre 1976), 4) never entitled to copyright protection because they are not “original or creative”, 5) things created by the federal government, (but surprisingly, many states DO copyright and control distribution of their works.) 6) earlier statutes put all works by foreign nationals into the Public Domain, (ie, Charles Dickens works were never covered by copyright here in the US since they were published in Britain.) When a new preface is written on a work that has passed into the Public Domain, (ie a new edition of Jane Eyre is published) then only the preface is covered by the copyright. The work is still in the Public Domain.
To determine if a work is in the Public Domain, start with the chart of copyright dates. If it pre dates those cut offs, it is in the Public Domain. Then use Copyright Office online records, and then contact the publisher/author. Services, ie Thomson, also exist, and, while expensive, can get the answer much faster than the copyright office. Restoration of copyright once something has progressed into the Public Domain is also possible, but it isn’t automatic. Restoration requires an action on the part of the copyright holder. If a work was adapted from a work that was in the Public Domain and then was pulled back into a Copyrighted status, (ie a movie was made of a CS Lewis book while it was in the Public Domain, but now the book has copyright protection again) the adapter must pay reasonable royalties to the copyright holder for future sales, but not past sales.
Orphan works (works which no one can discern who owns the copyright even after a significant search), legislation is in congress now, and may pass. It will allow for users of orphan works to use the work as they intend, but will have to pay reasonable royalties should any copyright holder come forth in the future. Photographers and textile designers object to this legislation, but it seems to be enjoying enough support in Congress to pass before Summer, 08.
Fair use is described as the safety valve of copyright. Determining if a work is useable for your purposes under the terms of “fair use” an evaluation must be done to see if the use predominately meets the criteria of the four “fair use factors”: Purpose and character of the use, (ie is it for education or profit); Nature of the copyrighted work, (book, article, digital media); amount and substantiality used, (ie a chapter of a book, a line of a poem); and the Market effect, (ie will the author suffer a loss of profit.) Determining “fair use” has problems because it is so often claimed, and so few court decisions have been made to evaluate. Guidelines have been established to assist with determining fair use, but they are not case law and it’s still all hard to establish. Libraries who are utilizing “fair use” to make an argument to use copyrighted materials should strive to find an exception in ss 108 of the copyright law instead.
The future? Congress listens to money and the copyright industries of publishers and authors have it…not the libraries. So expect that Copyright terms to continue to lengthen.

Notes from the Keynote: 7:00pm
James Boyle, Duke University School of Law
Copyright 2.0? Re-emagining Copyright in a World of User-Generated Content

James Boyle was a very interesting speaker and he had the audience engaged and involved and laughing at the painful truths of exactly how un-helpful current copyright law is and how inadequate it is to control use and distribution in a digital age. These are pieces of his keynote. He was too quick and my fingers are too slow to do him justice.

As technologies of reproduction and production have advanced, so has the number of infringements of copyright. In the 1940s, copyright infringement was virtually impossible, or at least difficult, because even copy machines weren’t invented yet or widely available. Since the 1970s and 1980s and into today, producers of unique content have had many more opportunities to have their copyright rights infringed upon. Jessica Litman noted that copyright law is always written by those that are most affected: publishers, movie makers, song writers.
What’s wrong with copyright law? People believe that the limitations of copyright are unjust. And copyright holders frequently don’t pursue violators because an individual violator is too insignificant. Content is unprotected. Quite profound social and cultural goods are involved, and they have no real protection.
When copyright law was first written, copyright holders had exclusive use over their works for a very short period. Fourteen to 28 years. Now ALL works are protected for a much longer time, on average 95 years. All works are automatically protected even if they are not commercially viable. Two percent of copyrighted works are actually commercially successful. Ninety eight percent are held hostage, even the 50% of works that are orphaned during that time.
Copyright law undermines its own goals. It always says no, and harms its own legitimacy. Like an adolescent kid testing his parents, the public reacts to his by saying, “if you are always saying “no” then it must be worth it to me to not listen to you.” Morality is a better enforcer than the police. We don’t have the tools to be everywhere and control every infringement.
Two conflicting paths are before us. One allows for increases in new technology to be met with increases in monitoring and enforcement. This supports those that feel that their copyright rights are just as protectable today as they were in the 1940s. The other thought is to adjust copyright to allow non-commercially viable materials to pass immediately into the Public Domain. If the copyright holder isn’t making money on it, then why can’t the rest of us copy, distribute and use the material now. Secondarily, for the 2% that are commercially viable, let others use the material and alter or change it to their own liking (ex: the YouTube video “George Bush Don’t care about black people” that was released with 4 days work and $5 in materials, and criticized the governments failed policy to respond to Katrina in a powerful and timely way. The video, which violated copyright because it used samples of music still under copyright, began the movement to get greater assistance for victims, and was viewed over 1million times on the internet.), if money is made in such an alteration, allow for royalties to freely flow back to the original copyright holder.
James Boyle’s views were refreshing and had a hopeful tone. He sounded so logical and took into consideration all of today’s digital copyright issues. I long for the day when such views as this will dominate Congress’ discussions on copyright.

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