oppenheim_rkcsi_10_07 by cookdojo

VIEWS: 7 PAGES: 40

									 COPYRIGHT LAW AND INSTITUTIONAL
REPOSITORIES: NEWS AND VIEWS FROM
        ACROSS THE WATER
           Charles Oppenheim
       Loughborough University, UK
        C.Oppenheim@lboro.ac.uk
    Rob Kling Center for Social Research
       2005-2006 Colloquium Series, 7
                October 2005
STRUCTURE OF THIS TALK
• Recent developments in
  copyright law in the UK and EU
• Developments in Open Access
  and Institutional Repositories in
  the UK
BACKGROUND TO RECENT
  CHANGES IN EU LAW
• Copyright has always been a tension
  between owners and users
• Up until recently, that tension was
  controlled by limitations in technology
• Machine readable materials pose
  particular problems for copyright
  owners
          PROBLEMS POSED
•   Easy to copy
•   High quality copies
•   Easily sent to many other people
•   Low cost copying
•   Difficulty in policing such actions
•   Different countries have different rules
    and traditions regarding copyright
E-Content Protection:
The Triple Lock         3. Technological
                        Protection Systems




                  E-Content
 1. Copyright /
 Database Right

                        2. Contract and
                        Licensing
WHERE IS THE PRESSURE TO CHANGE
    THE LAW BEING APPLIED?


• International - World Trade Organisation
• Regional – EU – my focus today
• National - USA
• Days have long gone when UK has been in the
  forefront in developments in the law
• Last time was the Copyright Act 1988….when
  someone made his name!
     OVERALL TREND IN UK AND
             EUROPE
• Same as the USA, that is……
• An increase in powers of rights owners and a decrease in the
  ability of users to gain access to materials
• Music, moving picture and software industries are in the
  forefront of lobbying, with publishers close behind
• Examples – increased lifetime of copyright; explicit protection
  for software; proposed increased penalties for infringement;
  proposed extension of protection for popular music; plus
  changes to database and copyright law described now
          EU DIRECTIVE ON
             DATABASES
• USA doesn’t really have protection for
  databases, but EU does have some
• “Collection of independent works, data or
  other materials that are arranged in a
  systematic or methodical way and are
  individually accessible by electronic or other
  means”
• Each individual item may or may not be
  subject to copyright
            DATABASES
• If by reason of selection or
  arrangement there is an intellectual
  creation, then database gets copyright
• If nothing creative, but there has been
  substantial investment in creating the
  database, then it gets database right
• If nothing creative, and no substantial
  investment, then no database right
    IMPORTANT COURT CASE
• British Horseracing Bureau versus William Hill
• Decided by European Court of Justice – no further
  appeal
• Restricted application of database right – only applies
  if you spent significant effort in creating the database
  in its own right; no right if database just fell out of
  other activities that were being done
• Do White Pages directories enjoy database right? It
  seems there is little difference between EU and US
  law now
 BEFORE I DISCUSS RECENT EU
        DIRECTIVE…..
• Note the difference between fair dealing in
  UK and fair use in USA
• Fair dealing is very restricted defence –
  allows copying ONLY if it does not damage
  the legitimate commercial interests of the
  copyright owner AND is for one of a few
  restricted purposes
• Fair use is much more flexible and is for a
  much wider range of purposes
EU DIRECTIVE IMPLEMENTATION IN
      UK: MAJOR FEATURES
 • Reduced fair dealing and library privilege (now only
   allowed for non-commercial purposes) – like US law
 • New civil/criminal offences to by-pass or de-activate
   copyright management information or to by-pass or
   de-activate TPS, with the intention of infringing, or
   concealing infringement – like US law
 • New restricted act of “communicating information”
   (e.g., placing on Intranets, Internet) – like US law
          WHAT IS COMMERCIAL
              COPYING?
• Has to do with making money – either for you personally or for
  your employer
• Makes no difference who your employer is – commercial
  companies may need copies for non-commercial purposes, and
  non-commercial organisations may need copies for commercial
  purposes
• No need to apply foresight
• What was the reason that you wanted the copy at the time you
  asked for it?
• Onus is on patron to make an honest declaration
• Lots of controversy about what is, or is not, “commercial” – no
  Court cases yet
TECHNOLOGICAL MEASURES
• Protection against acts designed to circumvent
  technological measures where a person does so with the
  intention to infringe or conceal infringement
• Protection against the manufacture, import, distribution,
  sale, rental, advertisement for sale or rental, or possession
  for commercial purposes of devices such
• Similar in scope to USA’s DMCA, but not quite as strong
        RIGHTS MANAGEMENT
           INFORMATION
• Legal protection for rights management
  information:
    – prohibiting removal or alteration of rights management information

• rights management information is:
• “any information provided by rightholders which identifies the work, the
  author or any other rightholder, or information about the terms and
  conditions of use of the work or other subject-matter, and any numbers
  or codes that represent such information.” For example, “All rights
  reserved. © Charles Oppenheim 2005”.
         GOOGLE’S INITIATIVES
•   Google Publisher – scan books that publishers voluntarily offer to scan
•   Google Library – scanning books in major libraries around the world
    without the consent of publishers
•   Google Print – combination of the two
•   Costs borne by Google, and they give a free copy of the digitized
    material to the contributing library to use as they see fit
•   Authors Guild and some publishers have objected to Google Library
    and are threatening legal action; interesting argument as to whether
    Google Library is “fair use” in US law, especially as only snippets will be
    displayable, but it is certainly infringement under UK law
•   Google’s wealth makes it worth suing, but also means it can afford the
    best lawyers to defend itself
•   Risk is that the case will go against Google, thereby preventing other
    useful initiatives in the foreseeable future
          YAHOO’S INITIATIVE
• “Open Content Alliance” with University of California, University
  of Toronto, University of Michigan, Internet Archive, National
  Archives (UK), O’Reilly Media, Adobe, HP Labs….
• No books in copyright will be scanned unless publishers agree –
  therefore, more administration costs than for Google Library
• Will also include technical and scholarly papers, multimedia,
  movies, audio recordings world-wide – as long as there is
  permission
• Metadata will be added and will be searchable through the OAI-
  PMH protocol that is already widely used
• Costs borne by host institutions rather than Yahoo
• Was conceived at same time as Google Print and not as a
  response to it
• Let battle commence!
CREATIVE COMMONS

http://creativecommons.org/
                 Contributing
                   to high-
                   quality
                    digital
                   content
                    online




   ©
  All rights
  reserved;      Some rights    No rights
  stringent       reserved      reserved
copyright laws
Three Expressions:


  Human-Readable: Commons Deed

  Lawyer-Readable: Legal Code

  Machine-Readable: Metadata

  Logo + Link
  FOUR SYMBOLS ARE USED
• Each one can be used either on its own
  (permitted) or with a line through it
  (not permitted)
• The creator decides what he or she
  wants for each of the four
• Anyone can copy; the restrictions are
  on what they can do with that copy
   Attribution insisted on

No Commercial Use allowed

Derivative Works allowed

   Share Alike insisted on
        WHAT THEY MEAN
• Attribution – I want my name associated with
  this
• Commercial use allowed – you can exploit
  this material in any way you want
• Derivative works allowed – you can amend
  and/or incorporate this into other materials
• Share alike – you must impose the same
  terms and conditions on everyone else that I
  have imposed on you
 JURISDICTIONAL ISSUES
• The original licences were drafted under
US law and in English
• Local versions now exist for Japan,
Brazil, UK, Finland, Holland and Germany
• CC is collaborating with local project
leads (mostly academic institutions) in
target countries
• The porting process must follow
guidelines issued by CC, but the local body
can use its own initiative where necessary
     MY THANKS TO
Creative Commons UK
Centre for Socio-Legal Studies
Wolfson College
Oxford OX2 6UD


Who let me use a number of their slides –
under a Creative Commons
Attribution/Sharealike licence!
 THE FUTURE OF COPYRIGHT
• Continued pressure world-wide to strengthen the law, to
  develop TPS and to aggressively sue infringers
• Continued efforts by users to retain exceptions to copyright and
  to by-pass restrictions imposed on them
• Too many rights owners see the new technology as a threat
  rather than an opportunity
• Controversy over Google Print gives a flavour of the problems to
  come
• Overall, a rather depressing situation for library and information
  professionals, caught as they are in no man’s land of this war
  OPEN ACCESS: BACKGROUND

• 20,000 peer-reviewed scholarly journals
  around
• No library can afford to buy them all
• So access to information is problematic
• Serials crisis – prices go up faster than
  budgets
      THE GROWTH OF OPEN
            ACCESS
• A key development has been the growth of e-journals
• In 1989, the first toll-free (I.e., no subscription) e-
  journal was set up – Psycoloquy. Edited by Stevan
  Harnad, THE exponent of Open Access/Open
  Archives (and a previous Rob Kling invited speaker)
• Followed in 1991 by the arXiv e print archive
• 1999 – e-Biomed, now PubMed Central – abstracts
  and full text of over 100 biomedical journals, with full
  text deposited 5-12 months after publication of
  original article – in some cases at the same time
PUBLIC LIBRARY OF SCIENCE
          (PLoS)
• Open letter signed by 30,000 scientists
  in 2000
• Grant of $9 million from Gordon and
  Betty Moore Foundation (as in Moore’s
  Law)
• PLoS Biology in 2003; PLoS Medicine in
  2004
         OTHER DRIVERS
• Governments around the world -
  publicly funded research should lead to
  free of charge access
• Initiatives in Canada, Australia. UK
  House of Commons Select Committee
  looked at it.
• Recent RCUK statement
• Recent Wellcome Foundation rules
 SO WHAT IS OPEN ACCESS?
• Electronic copies available free of
  charge to anyone who can read them
• Two routes – open access journal (toll-
  free, i.e., without subscription charge)
  and electronic repository
• In both cases, they are searchable from
  remote locations
      ADVANTAGES OF OPEN
            ACCESS
• Return to core value of scholarship – free exchange
• Number of accesses for OA e journals higher than for
  toll-access e journals
• Evidence that OA articles get more citations than
  those in toll access journals
• Moral/ethical argument – everyone around the world
  can get access
• Impact argument – more eyeballs means greater
  spread of ideas
• A standard (OAI-PMH) for all OA materials makes for
  easy searching
   HARNAD’S FORMULA FOR THE
       ADVANTAGE OF OA
• OA Advantage = EA + QB + CA + UA
• EA is “Early Advantage” – if it is a preprint, the research
  appears earlier than a toll access article
• QB is “Quality Bias” – higher quality articles are most likely to be
  so archived. I disagree!
• CA is “Competitive Advantage” – not clear what Harnad means
  by this
• UA is “Usage Advantage” – more downloads, more citations
  than toll-access articles
• Even if one ignores the bits in italics, the advantage is
  significant
  DISADVANTAGES OF OPEN
         ACCESS
• Scholars as authors have concerns – peer
  review; cost; prestige; archiving; information
  overload
• Intellectual property rights issues
• Not everyone has access to the Web –
  especially in developing countries
• OA journals merely shift the costs from
  libraries to the funding agencies or employers
         PUBLISHER MOVES
• Many commercial publishers antagonistic
• Threatens their well-established and profitable
  business model
• They argue for the strong value added they give –
  managing the process, rights and permissions,
  subscription management, printing, finance,
  customer service, business planning, marketing -
  results in a high quality, established product
• Add to that the Big Deal, with cheap access to wide
  range of materials
• However, some publishers are actively experimenting
  with OA journals
    OVERVIEW OF OA IN UK
• Major push for OA from JISC (Joint
  Information Systems Committee)
• JISC funds work in developing OA journals
  and repositories; in preparing advocacy
  materials; in exploring business models and
  motivational issues; in developing information
  architectures; in negotiating with publishers,
  etc.
• Some joint work with SURF in Netherlands
  MY PREVIOUS OA/IR WORK
• Project Romeo
• Work on disciplinary differences in attitudes
  to repositories
• Work on the ideal way of handling
  repositories in the UK – totally centrally,
  totally laissez faire, or a managed approach
• Work on copyright and other legal issues
  associated with repositories
MY CURRENT WORK ON OA AND
            IR
• JISC/SURF-funded work on creating advocacy
  materials to promote OA
• JISC-funded work on blended IRs, including both
  research and e-learning materials
• JISC/SURF-funded work on improving the ROMEO
  database
• JISC-funded work comparing what managers intend
  for the IR versus who is linking to them
 MY VIEWS ON THE FUTURE OF
            OA
• OA journals (author pays) will form a small niche
  market
• OA journals (no charge) will rely on enthusiasm of
  individuals and their employers – a struggle
• Repositories will grow significantly
• Some toll access journals will die as libraries switch
  from “nice to have” journals to OA alternatives
• “Must have” journals will continue to thrive
• Future for small publishers and scholarly societies
  could be grim
• Librarians will be able to offer access to far more
  materials than hitherto
         THE FINAL SLIDE!
• My overall opinion – on copyright, the trend is
  depressing and I worry about “war” breaking
  out between owners and users
• Owners showing great lack of imagination in
  seeing the Internet as a threat rather than an
  opportunity
• I believe OA will soon be a significant part of
  the scholarly publishing scene, but existing
  commercial journals will not wither away

								
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