Category: Policies, Legislation, & Treaties (page 1 of 2)

Copyright Roundup, Part III

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis.  The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library.  In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development.  In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work.  Take for example, the simple task of printing this blog post.  Think about what’s really happening.  The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer.  Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies.  However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development.  Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration.  This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

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New DMCA Exemptions

In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) to implement the terms of two international treaties: the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. Included in the DMCA is a provision that prohibits individuals from circumventing access controls that have been placed on copyrighted works. Every three years the Librarian of Congress engages in a rulemaking process to carve out exemptions to this general prohibition. This blog will look at the most recent exemptions, with particular focus on the exemptions most likely to impact teaching and learning activities of faculty, staff, and students.

Section 1201: Prohibition Against Circumvention

Section 1201(a) of the U.S. Copyright Law prohibits individuals from circumventing technological protection measures (TPMs) that are in place to effectively control access to a copyrighted work. Under this anti-circumvention rule, a person could face civil and in some cases criminal penalties for bypassing, decrypting, descrambling, removing, deactivating, impairing, or otherwise avoiding protection measures that are commonly placed on all types of media, if the circumvention is done without the authority of the copyright owner. These penalties may exist even if the circumvention is done to access and use a work in a non-infringing manner (e.g., making a fair use of the work).

Every three years, however, the Librarian of Congress identifies classes of copyrighted works that may be exempt from this anti-circumvention rule. Exemptions are based on recommendations from the Register of Copyrights and are valid only for a three-year period. At the end of the three year period, the exemption expires, unless successfully renewed in the next rulemaking cycle. Exemptions cover classes of works for which the Librarian of Congress has determined non-infringing uses of the work would be adversely affected by the circumvention prohibition.

2015 DMCA Exemptions

On October 28, 2015, the final rules from the most recent triennial proceeding were announced.[1] The final rules included a total of ten exemptions (a summary of all of the exemptions may be found here):

  1. Motion pictures (including television shows and videos)
  2. Literary works, distributed electronically, protected by TPM interfering with assistive technologies
  3. Computer programs that enable devices to connect to a wireless network (“unlocking”)
  4. Computer programs on smartphones and all-purpose mobile computing devices (“jailbreaking”)
  5. Computer programs on smart TVs (“jailbreaking”)
  6. Vehicle software to enable diagnosis, repair, or modification
  7. Computer programs to enable good faith research of security flaws
  8. Video games requiring server communication
  9. Software to limit feedstock of 3D printers
  10. Patient data from implanted networked medical devices

As seen in previous rulemaking proceedings, the final exemptions are narrowly crafted, coming with restrictive details on their appropriate application.  A few of the exemptions, however, may provide useful for the educational activities undertaken by faculty, staff, and students of the University.

Motion pictures (including television shows and videos): This exemption is similar to the exemption granted in the previous rulemaking process. Under this exemption, non-circumventing screen capture software may be used to copy short portions of lawfully acquired motion pictures. These short portions must be used for the purposes of criticism or comment and may only be used in a limited number of specific settings, including use by college and university faculty and students for educational purposes. Short portions may also be used by faculty of MOOCs (provided other restrictions are met) and educators and participants in face-to-face nonprofit digital and media literacy programs offered by libraries and museums.

In some situations, screen capture technology may not be capable of capturing the level of high-quality detail needed for commentary or criticism. For these situations, circumvention may be permitted by college and university faculty and students, but only for film studies or other courses requiring close analysis of film and media excerpts. Circumvention in these situations is also limited to circumvention of TPMs on DVDs protected by Content Scrambling System, Blu-ray videos protected by Advanced Access Control System, or digital transmissions. As with screen capturing, mentioned above, only short portions of the motion picture can be used and only for the purpose of criticism or comment.

Literary works, distributed electronically, protected by TPM interfering with assistive technologies: This exemption permits a blind or other person with disability to circumvent TPMs on e-books when those TPMs interfere with read-aloud functionality or other assistive technologies. Copyright owners must be appropriately remunerated for the price of the mainstream copy of the work. This exemption was a renewal of a 2012 exemption and received no opposition.

Video games requiring server communication: This exemption permits circumvention of lawfully acquired video games when access to an external server that is needed for local gameplay is no longer provided. Circumvention must be made solely for the purpose of restoring access for personal gameplay or to allow preservation of the game by eligible libraries, archives, or museums.[2]

Software to limit feedstock of 3D printers: This exemption permits the circumvention of computer programs in 3D printers in order to use alternative feedstock. The exemption does not extend to 3D printers capable of producing goods or materials for use in commerce or goods and materials whose production is subject to legal or regulatory oversight, making the exemption extremely limited in scope.

What does it all mean?

For the next three years, you may rely on the exemptions listed above to circumvent TPM on various forms of copyrighted works. If you would like to descramble, decrypt, remove, or deactivate an access control on a copyrighted work and you cannot rely on one of the exemptions to do so, you must seek permission from the copyright owner of the work.

These exemptions have the effect of promoting access to works, helping to facilitate the non-infringing use of these works in everyday teaching and learning activities. In three years, however, all exemptions will expire and proponents will have to petition to receive new exemptions as part of a new rulemaking process.

It is also important to remember that these exemptions only cover the circumvention of TPMs that are placed on a work to control access. Once TPMs have been circumvented, you must still ensure that your intended use of the copyrighted work is permissible under the law (e.g., meets all requirements of the TEACH Act or qualifies as a fair use).

Conclusion

Many have voiced the opinion that the DMCA exemption process, as designed, is in need of reform.[3] The process is time-consuming, involving multiple rounds of public comments, hearings, and opportunities for response. The result is a handful of exemptions that only remain valid for a relatively short amount of time. In this rulemaking round, for example, multiple exemptions were sought to simply renew already existing exemptions. To address this issue and streamline the rulemaking process, the Register of Copyright has suggested that a presumption be made in favor of the renewal of exemptions when no meaningful opposition to the renewal has been raised. Further public input on the DMCA rulemaking process is currently being sought by the U.S. Copyright Office.[4]

DMCA’s anti-circumvention rule continues to impact many different types of works and is increasingly impacting activities that don’t fall neatly into the realm of the U.S. Copyright Office’s area of expertise (e.g., the modification of software in motor vehicles or software within patient medical devices). As noted by the Copyright Office, these activities may be more properly handled by Congress or relevant regulatory agencies.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Full text of the final rules, public comments, hearing transcripts and exhibits, and the Register’s recommendations may be found at http://www.copyright.gov/1201/.

[2] While this exemption is applicable to museums, it is worth noting that museums must have permission or rely on fair use to make copies of games for purposes of preservation. Unlike libraries and archives, museums do not enjoy special protection for reproductions under Section 108.

[3] See, e.g., “Re:Create Coalition Reacts to Copyright Exemptions Released By The Library of Congress,” Press Release (October 28, 2015).

[4] Section 1201 Study: Notice and Request for Public Comment, 80 FR 81369 (Dec. 29, 2015), available at https://federalregister.gov/a/2015-32678.

TPP Update: Private negotiations favor corporate interests and restrict public rights

We previously voiced concerns that the secretive negotiations surrounding the Trans-Pacific Partnership (TPP) could negatively impact copyright, privacy, free speech and the application of fair use online. Unfortunately, WikiLeaks’ release of the TPP Intellectual Property Rights Chapter earlier this month confirmed suspicions that a treaty negotiated in secret under the supervision of corporate advisors would favor corporate interests and neglect or infringe on public rights.

What is TPP?

TPP is a broad multinational trade agreement with significant implications for intellectual property rights. A series of leaked documents (Feb. 2011, Aug. 2012, Nov. 2013) provide the only information to date regarding the specific contents of the agreement. Negotiations are conducted behind closed doors and access to the treaty proposal is restricted to select representatives from the participating countries and several hundred corporate advisors. The list of participating countries presently includes the United States, Canada, Mexico, Chile, Peru, Malaysia, Singapore, Japan, Vietnam, Brunei and Australia.

How would TPP affect copyright?

U.S. negotiators claim that TPP would merely export existing U.S. copyright policies. However, the recent leak of the IP chapter exposes this statement as a misrepresentation of the actual agreement. Though TPP draws heavily on U.S. policies, it tends to codify the most restrictive aspects while forgoing many of the existing exceptions that permit some flexibility in the use of intellectual property.

The Electronic Frontier Foundation (EFF) and Knowledge Ecology International (KEI) have both provided thoughtful analyses of the latest leaked IP chapter that delve into the copyright ramifications of TPP. Although many elements apparently remain under discussion, the leaked document provides some insights regarding what may be in store. For instance, TPP as written would:

  • Extend the international baseline for copyright terms from life plus 50 years for individuals and 50 years for corporate authorship to emulate the U.S. terms of life plus 70 years and 95 years for corporate authorship
  • Limit governments’ abilities to legislate exceptions to copyright law
  • Restrict fair use through a three step test that places an upper limit on rights
  • Implement further prohibitions on breaking technical protection measures or DRM even in cases where the material is not protected by copyright
  • Expand the potential damages that rights holders could claim in copyright disputes
  • Shift liability for infringing websites to ISPs, prompting ISP filtering and blocking of websites alleged to infringe or facilitate infringement (n.b. this is a very serious risk to intellectual freedom; for instance, a critic could be silenced via filtering/blocking after three complaints of alleged infringements)

KEI summarizes the situation thus: “Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement. The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.”

This push to export American copyright policies is also problematic because it assumes that our current laws are desirable and effective. On the contrary, there is growing sentiment that existing U.S. copyright terms are already too restrictive, and that policies such as the DMCA are in need of reform or repeal. Earlier this year, the head of the U.S. Copyright Office testified before Congress and proposed a long list of issues in need of attention and possible reform, such as copyright term length, DMCA efficacy, statutory damages, licensing, and digital transmission of copyrighted materials. However, current domestic policies would become intractable if codified in an international treaty such as TPP; Congress would be unable to amend U.S. legislation without running afoul of international obligations and would face extreme pressure to conform to the treaty requirements. Techdirt’s critical commentary examines many of these issues in greater detail.

How did this happen?

Concerns rightly persist over the process and presumptively biased outcome of these surreptitious negotiations. Policymakers have favored powerful corporate interests by actively soliciting their guidance while simultaneously obstructing public participation. It is no surprise, then, that the leaked IP chapter caters extensively to Big Content and does little to protect public interests. By excluding the public from negotiations, policymakers forgo the opportunity to reach a balanced arrangement and invite significant damage to public rights that will be very difficult to repair in the future.

Further efforts to insulate TPP from public debate are underway. Almost all requests from members of Congress to review the proposal have been denied despite congressional jurisdiction over international trade agreements.  The Obama administration’s request for “trade promotion authority” or “fast track authority” seeks to further erode congressional oversight by requiring Congress to vote on trade agreements within 90 days without the opportunity to request amendments.

It is extremely implausible that TPP would emerge intact from Congress under normal circumstances, but with fast track authority in effect Congress could be enticed to swallow the many unsavory aspects of TPP in order to obtain the more desirable components.  EFF argues that “this is a classic example of policy laundering, whereby corporate interests use secretive international forums to trump the democratic process at the national level.” It remains to be seen whether Congress will approve the request for trade promotion authority and essentially forfeit their constitutional checks and balances over the Executive Branch.

What can you do to help fix TPP?

Public attention and involvement is critical at this time to dispute the furtive deal making and restrictive IP terms of TPP as President Obama and U.S. negotiators have expressed a desire to sign the trade agreement by the end of the year.

  1. Visit EFF’s action page for TPP where you can contact your representatives and ask them to oppose trade promotion authority and the secret negotiations surrounding TPP.
  2. Sign the petition at Stop the Trap opposing TPP secrecy, restrictions on Internet use, copyright, and privacy.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Public Access Policies (Part 3): Proposed strategies for implementation

Welcome back to our three part series on the public access initiatives of 2013: FASTR, PAPS, and the OSTP directive. Part 1 provides an introduction to the three initiatives, and Part 2 explores their copyright implications and potential effects on researchers and libraries. Overall, these initiatives appear quite attractive for proponents of public access, but how might they work in practice? This final segment will evaluate the two most prominent proposals from the publishing and library communities on how federal policies might be applied.

Proposed Strategies for Implementation

Keep the following points in mind while we consider how the OSTP directive (and FASTR and PAPS, if passed) might be applied in the field:

  • FASTR, PAPS, and the OSTP directive all lean towards green open access by requesting deposit of the accepted, peer-reviewed version of an article
  • Researchers would likely be the ones actually depositing papers in the system, unless publishers entered into an agreement with authors and funding agencies to deposit on their behalf
  • Individual funding agencies are ultimately responsible to develop and/or designate a suitable repository for funded articles which satisfies the mandated criteria for accessibility, preservation, and interoperability with computational analysis

The NIH model with PubMed Central is frequently mentioned in discussions regarding next steps and agency compliance. PubMed Central is a good example of a successful public access repository due to its proven track record for success, but this strategy is just one of several options. Federal agencies are not required to develop their own repositories in response to FASTR, PAPS, or the OSTP directive. Agencies could designate existing institutional systems or another third party system as suitable repositories in lieu of building something in house. Thus far, two such models have garnered significant attention: CHORUS and SHARE.

Clearinghouse for the Open Research of the United States (CHORUS)

See the June 5, 2013 proposal here and the August 30, 2013 proof of concept here.

  • Developed by the Association of American Publishers
  • Funded research articles would remain on publishers’ existing platforms with CrossRef used to link between publishing platforms
  • Articles would be available for public access following an embargo period determined by funding agency and/or subject discipline
  • Publishers favor CHORUS as it allows them to retain and monitor site traffic

Proponents contend that CHORUS would fulfill public access requirements with the fewest changes or expenditures on the part of research institutions or the federal government because it makes use of existing, privately funded systems. Secondly, CHORUS streamlines article handling; CrossRef would link back to original items on the publishers’ websites rather than requiring deposit in an outside repository. This would allow publishers to fulfill many of the researchers’ compliance requirements on their behalf. The plan also incorporates FundRef: an identification service that tracks article funding. Early critics noted that CHORUS did not mention text or data mining, however the proof of concept released August 30, 2013 now proposes text and data mining through CrossRef’s Prospect service, which could also include a license registry and click-through license agreements as needed.

Skeptics, however, perceive a conflict of interest in this arrangement and suggest that publishers have little incentive to develop a robust, user-friendly system; for instance, the system would not generate revenue for publishers and could detract from pay-per-view revenue streams. Secondly, funding agencies and researchers are the ones bound to comply with federal public access policies—not publishers—and CHROUS takes the means to comply out of their hands. Limited scope is another issue: CHORUS would only support public access for articles under the umbrella of participating publishers with alternate solutions required for other publishers. Lastly, detractors believe the cost-savings presented by CHORUS as one of its greatest advantages may not be so significant; they argue that alternatives, such as the NIH model, don’t actually cost that much to implement and suggest that publishers could pass on the costs of CHORUS by raising subscription and pay-per-view prices.

Find more information on CHORUS here:

Shared Access Research Ecosystem (SHARE)              

See the proposal here.

  • Developed by library associations: Association of American Universities (AAU), Association of Public and Land-grant Universities (APLU), and Association of Research Libraries (ARL)
  • Recommends that research universities participate in a cross-institutional repository
  • Universities’ existing repositories could be integrated or linked into the system assuming that participating institutions adopt a common metadata scheme

SHARE supporters favor the use of existing institutional repositories to fulfill public access policies. Such institutions possess a strong interest in facilitating discovery and would therefore be motivated to develop a flexible, user-friendly system. Placing development and oversight in the hands of those closest to the end users provides greater opportunities and incentives to build in desired functionality. Secondly, a cross-institutional repository would be able to accommodate all federally funded research as organizations without their own repository would be able to designate a participating repository to hold their funded research. SHARE proposes roll-out in four phases with the system operational for article deposit and access following Phase I. The plan also contains provisions for preservation, text mining, data sharing, semantic data, and APIs. Proponents note that many suitable institutional repositories and relevant infrastructure (e.g. Digital Preservation Network) already exist.

Critics of SHARE note that the system would require significant investment from research institutions to develop and maintain. Limited resources in terms of staffing, funding, and software currently in use could severely undermine libraries’ ability to get SHARE up and running in the proposed time frame of 12-18 months for Phase I.

Find more information on SHARE here:

While the fates of PAPS and FASTR are yet to be determined, the OSTP directive has been in effect since February. If funding agencies adhered to the directive’s timeline, they should already have submitted drafts of their policies to the OSTP. In the future, we can expect to see negotiations with stakeholders (especially publishers and libraries) regarding the terms of the final policies and the selection of suitable repositories.

This concludes our series on pending public access policies. Still have questions? Visit the Copyright Resources Center or email us at libcopyright@osu.edu for more information.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Public Access Policies (Part 2): Copyright implications and impact on researchers and libraries

Welcome back to our series on current public access initiatives. If you’re just joining us, consider clicking over to Part 1 for an introduction to the three initiatives under discussion:

  • Fair Access to Science and Technology Research Act (FASTR)
  • Public Access to Public Science Act (PAPS)
  • Office of Science and Technology Policy (OSTP) Directive

In this installment, we will take a look at what these initiatives have to say about copyright, and we will also consider how the proposed policies could affect researchers and libraries.

Copyright Implications

As written, the OSTP directive, FASTR, and PAPS would have little impact on copyright issues. None of the proposals amend existing copyright or patent law, and all require federal agencies to develop their public access policies in accordance with existing copyright law. However, only FASTR actually advises agencies on how to avoid copyright infringement while the OSTP and PAPS are silent on the matter. FASTR instructs that agencies “shall…make effective use of any law or guidance relating to the creation and reservation of a Government license that provides for the reproduction, publication, release, or other uses of a final manuscript for Federal purposes” (section 4.c.3). This essentially suggests a model like the one in place for NIH and PubMed Central. Funding agencies would possess a non-exclusive license to store and distribute funded manuscripts through designated repositories. The Scholarly Publishing and Academic Resources Coalition (SPARC) suggests in its FAQ for FASTR that this could ultimately prompt adjustments in the publishing agreements between researchers and publishers so that exclusive rights are not transferred to the publisher, but notes that “the government’s license precedes any such copyright transfer and so would override it.”

Impact on Researchers and Libraries

This collection of public access proposals is good news for the research community. Public access policies will facilitate knowledge sharing, new research, and preservation of federally funded research. The proposals are also forward thinking, with provisions for system functionality including text or data mining and other computational analysis. Outside of generating opportunities for conducting new research, the effect on researchers is likely to be fairly minimal: researchers would need to deposit the accepted version of their article in a designated repository, but the time investment is expected to be very minor. Each proposal requests that federal agencies coordinate their policies, making it easier for researchers who receive funding from multiple sources to comply.  As mentioned previously, the OSTP directive is the only initiative to suggest public access to data. This could precipitate a philosophical shift for disciplines that are unaccustomed to sharing data if federal agencies developed policies which required public access to data from funded studies.

So where do the libraries come in? Librarians are well-positioned to liaise with researchers, administrators, and IT departments within their institution regarding public access and data-sharing requirements of new legislation. Secondly, federal agencies could identify institutional repositories as the destination for federally funded research. Libraries would feel the greatest impact should the agencies go this route.  This strategy would require additional investment in library staff and infrastructure to support increased demands on staff time and to develop system capabilities that comply with the federal policies. A coalition of library associations has already proposed one such model; their system, called SHARE, will be discussed in our next post.

To be Continued… The final chapter (Part 3) of our series on pending public access policies will introduce the two most prominent models that have been proposed to fulfill federal requirements for a suitable repository.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Public Access Policies (Part 1): FASTR, PAPS, and the OSTP Directive

Two new public access bills and a directive from the White House have rekindled public access discussions in 2013, with some immediate implications for federally funded research and many details yet to be determined. This is the first in a three part series exploring (1) what these initiatives entail, (2) what they could mean for copyright, libraries, and researchers, and (3) the proposed next steps for implementation. Without further ado, Part 1 will provide a brief introduction to the three public access initiatives.

Fair Access to Science and Technology Research Act (FASTR)

See the full text of the bill here.

  • Introduced in both the House and the Senate on February 14, 2013
  • Requires public access for research funded in part or in whole by federal agencies with extramural research budgets in excess of $100 million per year (~11 agencies at current count)
  • Six month embargo for most articles; no embargo for works by government employees

FASTR is considered to be a new, improved version of the Federal Research Public Access Act (FRPAA), which was last seen in Congress in 2012 but never voted upon.  If you are familiar with FRPAA, then much of FASTR will sound the same; however, FASTR improves on its predecessor by requiring federal agencies to coordinate their policies and introducing open licensing as a desired outcome. Specifically, open licensing is requested to further support text mining, data mining, and other computational analysis of materials in the repository.

Public access would be provided through one or more designated digital repositories. One option could resemble the NIH Public Access Policy and PubMed Central, however FASTR allows agencies to identify a suitable repository whether that results in the development of a new central system or the use of existing institutional repositories. Funding agreements would require researchers to deposit the accepted version of a peer reviewed paper in the designated repository, but this legislation would not require publishers to deposit the final published version.

Find more information on FASTR here:

Office of Science and Technology Policy (OSTP) Directive

See the full text of the directive here.

  • Issued on February 22, 2013
  • Known as the OSTP directive, the White House directive, or the Obama directive
  • Instructs federal agencies that spend more than $100 million per year on research and development to develop public access policies for funded research
  • Twelve month embargo for all funded articles

The OSTP directive on “increasing access to the results of federally funded scientific research” requires federal agencies with annual research and development expenditures exceeding $100 million per year to draft public access policies for funded research within six months. If this sounds familiar, that’s because the OSTP directive is very similar to FASTR in scope and objectives. Peter Suber’s excellent article provides a detailed discussion of the ways in which FASTR and the OSTP directive overlap and complement one another; two of the most salient points are:

(1)    The OSTP directive has already gone into effect, whereas FASTR would not come into play for another year if and when it passed. Federal agencies affected by the OSTP directive (a larger group than FASTR) had six months from the publication of the directive to submit drafts of their public access policies to OSTP; drafts were due in August 2013 and interested parties are calling for OSTP to make them publically available for comment by the open access community and other stakeholders.

(2)    Enacting one does not devalue or unnecessarily duplicate the work of other. FASTR and the OSTP directive together would result in a stronger, more comprehensive package in favor of public access and greater system functionality, especially where the finer details related to metadata, data, and embargo periods are concerned. For instance, the OSTP directive is the only proposal to include public access to data (FASTR and PAPS do not mention it). Secondly, while the OSTP directive could be revoked by the next President, FASTR would codify these public access policies and enjoy more longevity.

Find more information on the OSTP Public Access Directive here:

Public Access to Public Science Act (PAPS)

See the full text of the bill here.

  • Introduced in the House on September 20, 2013
  • Requires public access for research funded by federal agencies under the jurisdiction of the House Science Committee
  • Twelve month minimum embargo for all articles, with possible extensions in six month increments

PAPS pertains to four agencies under the jurisdiction of the House Science Committee. Like FASTR and the OSTP directive, PAPS requires public access for federally funded research and emphasizes accessibility, preservation, and functionality to support data and text mining of the funded articles. Funded research articles would be deposited in a public access repository with immediate publication of article metadata and subsequent full-text open access. PAPS differentiates itself with a request for retroactive inclusion of covered works in designated public access repositories where practicable, and a requirement that federal agencies negotiate policies with stakeholders.

Find more information on PAPS here:

Stay tuned for the next installment of our series on public access initiatives; Part 2 will discuss the potential effects of the pending policies on researchers and libraries, and explore the copyright implications of each initiative, while Part 3 will examine two proposed strategies for implementing these policies.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center at OSU Libraries

Private Negotiations Could Affect Public Internet Use

The Trans-Pacific Partnership (TPP) is a free trade agreement that is currently being negotiated on behalf of United States citizens by Assistant U.S. Trade Representative Barbara Weisel. There are currently nine countries involved in the negotiations; an invitation was extended to Mexico and Canada in summer 2012. The TPP includes a section on intellectual property (IP) law and enforcement that could affect privacy, free speech and even the application of fair use online. It is being negotiated entirely in secret and could affect copyright law in all eleven participating countries should they ratify this agreement.

Concerns over the process, as well as the potential outcome, of this trade agreement have been expressed at Electronic Frontier Foundation (EFF), Ars Technica, and Techdirt.  Many concerns about the TPP have to do with the perception that this is yet another attempt to create wide-reaching policies in order to protect the intellectual property of private companies (one of the major issues with the failed SOPA and PIPA proposed bills in Congress).

Another common complaint is about the high level of secrecy under which the negotiations are being held. So far there has been no official release of any text of the TPP draft agreement, although a copy of the U.S. proposed IP chapter was leaked in February 2011. On August 3, 2012, the proposed text of the Exceptions and Limitations section of the IP chapter of TPP was leaked, as well.

Members of Congress, who have jurisdiction over all international trade agreements, have repeatedly requested access to the text of the TPP . So far they have been continuously denied. U.S. House Representative Darrell Issa (R-CA), whose constituency includes San Diego, requested permission to sit in on the round of negotiations that was held there in July 2012, but he was also denied.

Although Mexico and Canada were both invited to join the TPP agreement, they were required to sign on without seeing the agreement first and without having the option to negotiate any already agreed upon portions. Additionally, a 90 day probationary period kept both countries from participating in the last two rounds of negotiations which were held in June and September 2012. Michael Geist, a law professor at the University of Ottawa and expert on Canadian copyright law, has expressed concern that if Canada signs on to the TPP, the newly updated Canadian copyright law would have to be drastically rewritten.

The public is also being locked out of the TPP negotiation process. On September 9, 2012, at the most recent round of negotiations held in Leesburg, Virginia, the public was invited to speak with negotiators and ask questions. Unfortunately, the public groups were not given access to the text on which they were supposed to provide feedback. According to EFF and Techdirt, the negotiators also refused to respond to questions based upon the leaked texts, which are the only versions available to the public.

If ratified, the terms of the TPP could require Congress to change U.S. law, including copyright law. The American public should have the opportunity to give input on any changes to U.S. law. These secret negotiations continue to block public discourse and may cause irreparable harm to the individual use of the Internet.

For a more complete look at the TPP itself, take a look at Public Knowledge’s TPP Info page and EFF’s TPP page. If you would like to express concern about the lack of transparency involved in the TPP negotiations, you can go to the EFF’s Take Action page, or you can sign the petition at Stop the Trap.

DMCA Rulemaking–Submit Examples by October 31

Recently the U.S. Copyright Office issued  a “Notice of inquiry and request for comments” with regard to anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).  See the Federal Register for the full text of the notice.

Sections of the DMCA forbid breaking copy-protection mechanisms on digital media, even for non-infringing uses, such as those allowed under fair use.  However, the law also allows the Register of Copyrights to recommend that the Librarian of Congress issue exemptions to the anti-circumvention statutes every three years.  Exemptions that are in place from previous rule-making must be renewed every three years as well.  In the summer of 2010, the Librarian issued a number of exemptions, including one to allow de-encryption of educational video under certain circumstances.

Here is an example of the situation the exemption is intended to address:  A faculty member wants to show some short video clips in class to make an educational point or perhaps comment on a social situation.  He or she would like to copy clips from a legally-obtained commercial DVD so that they could easily be taken into the classroom and shown as a compilation.  Without the exemption, if the DVD was encrypted with  the commonly-used Content Scrambling System (CSS), it would be illegal to break that system and copy parts of the video, even if everything else about the copying would fall under fair use.  Before the summer of 2010, an exemption that would allow copying high-quality video was available only if the faculty member was teaching in the area of film or media studies and the DVD was part of a collection in that subject area.

Under the rules announced in the summer of 2010, the exemption was extended to all university and college professors and to college and university film and media studies students.  The same exemption is available for documentary film-making and noncommercial videos.  The copier must reasonably believe that the circumvention is necessary in order to fulfill one of the above purposes. (In other words, a lower-level resolution screen capture video that did not circumvent would not fulfill the intended purpose.)  In all cases, the DVD from which the copy is made must be legally-acquired and the copier must still perform a fair use analysis.  This exemption states that it is for “short portions” only; it does not allow copying of entire works.  The exemption only covers DVD and CSS technology, not systems such as Blu-Ray, video streaming, or others.

The Library Copyright Alliance is an organization made up of three library associations that deal with intellectual property matters and “communicate with lawmakers…to express [the need for] changes that enhance, rather than harm, the ability of libraries and information professionals to serve the needs of the general public.”  They are preparing comments showing why it is important to extend this exemption for another three years.  The Library Copyright Alliance is asking those of us involved with university teaching to send them as many examples as possible of how this exemption is helpful in teaching.  From one staff member:  “We need LOTS of examples of faculty in all disciplines using clips and examples of film students using clips.”  Examples cannot be speculative; they must be real-life situations.

Ohio State folks, please send me examples by October 31.  I will compile them for the Library Copyright Alliance.  The final date to submit comments is December 1, but the Library Copyright Alliance will need some time to compile all the examples they receive.

Recording Termination of Transfer Notices in “Gap” Situations

Under U.S. copyright law, there are some situations where a creator can transfer his or her copyright and later get it back.  Section 203 of the Copyright Act (17 USC  §203)  gives the requirements for a termination of transfer of copyright when the author executed the transfer on or after January 1,1978. (Other sections of the law govern termination of transfer when the author executed the transfer prior to January 1, 1978.)

The termination provisions are also called “recapture rights” or “the second bite of the apple.”  They are designed to give equitable relief when an author transferred copyright in a situation where there was an imbalance of power between the author and another entity, such as a publishing house or a recording company.  After time has elapsed—it is 35 years for works governed by §203—the author or his or her heirs (as defined by the statute) has a chance to take back the copyright.  This right does not apply to works for hire, derivative works the grantee made, or non-U.S. rights.  The provisions of §203 are due to take effect in 2013, but starting next year in 2011, authors may begin filing notices of termination.

A number of formalities must be observed in order to accomplish the termination of transfer, including filing a notice of termination with the Copyright Office.  Without the formalities, the termination of transfer cannot occur.

One issue that is causing controversy is the situation where the creator signed a transfer agreement before January 1, 1978, but created the work on or after that date.  Is that work governed by §203, with its 35-year termination clause or by the earlier provisions with longer periods before termination can be accomplished?  In March, the Copyright Office sought comments on the issue .  Many of those who submitted comments argued in favor of treating the “gap” works under §203, with the argument that copyright cannot vest until a work is created  The Recording Industry Association of America argued otherwise, asserting that Congress’s intent was to use the terms “executed” and “signed” interchangeably and analyzing the way the terms were used in the previous Copyright Act.

Although the courts will decide litigation around termination of transfer under §203, the U.S. Copyright Office is in charge of regulations around the filing of notices.  The Copyright Office must decide how to handle recording notices of termination for works created in this “gap” situation, and it must make the decision soon, before the courts have acted.

Under the proposed rule making, the Copyright Office is planning to allow notice of termination of transfer agreements in this gap situation to be recorded and indexed.  The authors will use the date of creation as the date of the execution of the grant, but may, for the purposes of clarity, also include the earlier date when the grant was signed.

The Copyright Office is taking comments on this proposal until December 27, 2010.

In the longer term, it is clear that, as the RIAA pointed out in their comments last spring,  “assessing the impact on authors and grantees with interests in multiple works from different time periods under different agreements is very complex” and “significant money is clearly at stake, because many works remain commercially important 35 years after their publication and many works are first published more than five years after the relevant contract is signed.”

Stevie Wonder @ WIPO

Stevie Wonder urges the World Intellectual Property Organization to adopt copyright rules that facilitate information access for the disabled.

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