RE: digital-copyright Digest 18 Nov 2003 16:00:00 -0000 Issue 291

["Harper, Georgia" <GHARPER@xxxxxxxxxxxx>]

John: I can see where you might like a little help in understanding this. It
certainly is a novel interpretation.  Hmmm. Let's see, they don't think they
have to police 17 USC 107 (or so I infer from their position that reliance on
it is ok). I assume they don't think they have to police 17 USC 108, 109, 121,
117 etc. They just think there is something about 110(2) that requires
policing. Hmmm. I can't imagine what that could be. I've certainly read the
whole thing, even the legislative history.

I wonder if maybe they just don't want to get started down the road of
complying with all the conditions, limitations and exclusions? I certainly
understand that. And, reliance on fair use with its totally different
mechanism for determining whether a use is authorized certainly makes a lot of
sense. But to understand their reasoning with regard to the policing claim, I
would have to have them point to the place in the statute where they base
their conclusion. There is nothing there that causes me to conclude such
policing is necessary.

Georgia Harper
Univ. of Tx. System
Office of General Counsel
gharper@xxxxxxxxxxxx
512/499-4462

 -----Original Message-----
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Subject:	digital-copyright Digest 18 Nov 2003 16:00:00 -0000 Issue 291

digital-copyright Digest 18 Nov 2003 16:00:00 -0000 Issue 291

Topics (messages 662 through 665):

TEACH Act Interpretation
	662 by: Olga Francois

Re: Copyright: Form, Content, and Prepublication Incarnations
	663 by: Stevan Harnad

The Technology of Copyright: Digital Rights Management
	664 by: Olga Francois

In The News
	665 by: Olga Francois

Administrivia:

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----------------------------------------------------------------------
Date: Tue, 18 Nov 2003 10:12:02 -0500
To: "digital-copyright@xxxxxxxxxxxxxx"
  <digital-copyright@xxxxxxxxxxxxxx>
From: "Olga Francois" <ofrancois@xxxxxxxx>
Subject: TEACH Act Interpretation
Message-ID: <3FBA36C2.4052B1A8@xxxxxxxx>

John, you pose a good question. I hope responses are sent to the list,
if not could you please give us a recap of the responses you receive?
Thanks! -Olga

> ----------------------------------------------------------------------
> Date: Thu, 13 Nov 2003 14:14:50 -0800
> To: <digital-copyright@xxxxxxxxxxxxxx>
> From: "John Farquhar" <John.Farquhar@xxxxxxx>
> Subject: TEACH Act Interpretation
> Message-ID: <395749A1C093EC47B8ADF2C8F7360E79013BA768@xxxxxxxxxxxxxxxxxxxx>
>
> Could I receive some insight from this list concerning a particular
> interpretation of the TEACH Act?
>
> My institution has decided not to rely on the exemptions provided by the
> TEACH Act because we believe that doing so substantially increases
> institutional liability for actions performed by our faculty. Our
> understanding has been that should we "open the door" to such use, we
> would have to implement procedure to police and control all materials
> posted by faculty to Blackboard and other central servers. With an
> obvious unwillingness to perform such policing, we have decided not
> adopt TEACH Act policy and instead tell faculty that their only options
> are to get permission or abide by Fair Use.
>
> It appears to me that many universities ARE implementing TEACH Act
> policy. Are we being overly cautious, or are there schools that share a
> similar concern?
>
> Thanks,
>
> jf
>
> ________________________________
> John D. Farquhar, Ph.D.
> Manager, Instructional Development
> Academic Technology & User Services
> Western Washington University
> Bellingham, WA 98225
>
> (O) 360.650.6538
> (F) 360.650.2816
> _______________________________

------------------------------

Date: Mon, 17 Nov 2003 20:42:07 +0000 (GMT)
To: BOAI Forum <boai-forum@xxxxxxxxxxxxxxx>
From: Stevan Harnad <harnad@xxxxxxxxxxxxxxx>
cc: september98-forum@xxxxxxxxxxxxxxxxxxxxx, cni-copyright@xxxxxxx,
  Digital Copyright <digital-copyright@xxxxxxxxxxxxxx>
Subject: Re: Copyright: Form, Content, and Prepublication Incarnations
Message-ID: <Pine.GSO.4.10.10311171954590.5624-100000@pandora>

On Mon, 17 Nov 2003, Troy McClure wrote:

> ive been browsing through the citebase and quite a few of such messages came
> up:
>
> "This paper has been withdrawn by the authors due to copyright."
>
http://citebase.eprints.org/cgi-bin/citations?id=oai%3AarXiv%2Eorg%3Anlin%2F0
301018

I have to admit that this is the first I've ever heard of any papers
being removed from Arxiv for copyright reasons. I will ask Tim Brody (creator
of citebase) to see whether there is a more sensitive way to do a count,
but using "copyright" and ("remove" or "withdraw") I found 6 papers out
of the total quarter million since 1991.

(That doesn't sound like many to me! Some of it seems to have been
3rd party stuff, with someone other than the author himself doing the
archiving. And some, as noted recently in this Forum, was removed because
it had been plagiarized! Note also that in a sense ArXiv itself is a
3rd party, for it is not the author's own institional archive, but that
distinction is trivial, as many times noted in this Forum.)

> in practise, how often is this the case that papers of self archives are
> withdrawn due to copyrights? ive read about the 55% which allow self
> archiving. but what about the other 45% (even though the actual number might
> be lower after having asked the publisher)?

If it stands at something like 6 papers out of a quarter million across 12
years, I would say the incidence is not worth giving a second thought to.

> three (perhaps interesting) things in this matter: (a) copyright laws are a
> trade-off between the interests of the public and the interest of the
> copyright holder in access to intellectual work; (b)  copyright laws main
> function is to secure long term creation of work by protecting up front
> investment necessary for the creation and production of work (it also
> obliges to acknowledge the author's moral rights by requiring citations and
> thereby protecting his non-monetary incentive to create - but without
> stringent access restrictions).  (c) what is the effect of copyright
> protection on future creation of work (scientific writings)?

Refereed research is and always has been anomalous among writings because
it is an author give-away. The open-access author wants protection only
from theft-of-authorship (plagiarism) and text-corruption, but not from
theft-of-text (reading, copying, printing).
http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#5

> as for (a), this trade-off is reflected in the exceptions (fair usage) for
> non-copyright holders (the more exceptions, the "better" for society and
> non-copyright holders; fair use is not a static concept; those exceptions
> develop over time; Q: "is self archiving fair use?"). given the importance
> of self-archiving for the society as a whole, one could argue that the
> interests of the society should be given more attention (by expressively
> giving the author the right to self archive; despite that it is "making
> available" which normally requires authorization by the publisher and the
> contractual agreement not to publish the paper somewhere else)

That's more or less what the green publishers are doing: formally
agreeing that the author can self-archive.
http://www.lboro.ac.uk/departments/ls/disresearch/romeo/Romeo%20Publisher%20P
olicies.htm

> as for (b), copyrights protect (publishers) investment in order to secure
> long term creation of work. given the new distribution possibilities, and
> the actually - counterproductive - imlications of copyrights (see (c)), does
> the need to protect the publishers investment justify the prohibtion of
> self-archiving?

Of course not, and the white publishers will become green.
http://www.ecs.soton.ac.uk/~harnad/Temp/self-archiving_files/Slide0028.gif

> as for (c), access barriers (in form of the possibility to prohibit
> self-archiving) actually PREVENT the creation of new work. hence, the
> rationale of copyrights (to secure creation of work) is basically the
> opposite from the actual effects that copyrights have on the future creation
> of work with respect to scientific writings.

All these copyright details, invented for non-give-away writing (in
Gutenberg days) ill-fit give-away writing in the online era.

> my concrete question: has there been a case in which a court expressively
> ruled that publishers can prohibit self archving? while it might seem that
> it is a clear violation of the contractual agreement between the publisher
> and the author, given the high interest of the society (a), and the function
> of copyrights (b), and (c) the highly counterproductive effects a
> prohibition of self-archving has, it is debateable  (at least to me) whether
> publishers can legally enforce a prohibition of self archving (i am aware
> that publishers could perhaps find other ways to prevent self archiving;
> nevertheless a court ruling would create certainty)

No, it has not been attempted and it will not be. But fussing about it
notionally has needlessly held back self-archiving for years (among
non-physicists!).

> Prof. Wilson writes that "4... at least in the UK, there has been no court
> case to determine whether or not the assignment of copyright (which is a
> personal right) to a publisher is valid - as far as I am aware, no publisher
> has taken an author to court for breach of copyright that was originally
> vested in that author."
> (http://threader.ecs.soton.ac.uk/lists/boaiforum/230.html)
>
> has someone else additonal insights?

Only that these very same questions have been ruminated over, passively,
and with endless repetition, in the American Scientist Forum for at
least 6 years now -- while the physicists (and representatives of other
disciplines too) have instead been sensibly self-archiving. Quo usque
tandem... patientia nostra abutere?

Stevan Harnad

------------------------------

Date: Tue, 18 Nov 2003 10:03:44 -0500
To: "digital-copyright@xxxxxxxxxxxxxx"
  <digital-copyright@xxxxxxxxxxxxxx>
From: "Olga Francois" <ofrancois@xxxxxxxx>
Subject: The Technology of Copyright: Digital Rights Management
Message-ID: <3FBA34D0.8BDF3819@xxxxxxxx>

-------- Original Message --------
Subject: fyi
Date: Thu, 13 Nov 2003 08:18:53 -0500
From: "Elizabeth Mulherrin" <emulherrin@xxxxxxxx>
Organization: University of Maryland University College
To: Stephen Miller <smiller@xxxxxxxx>,Yu-Hsiu Wang <ywang@xxxxxxxx>,
Neal Pomea <npomea@xxxxxxxx>,Olga Francois <ofrancois@xxxxxxxx>

The Public Service Collections Directorate of the Library of Congress is

sponsoring a talk by Karen Coyle on November 19, 2003 [in-person and via

live webcast]:

Karen Coyle, a Digital Library Specialist with over two decades of
experience in digital libraries will be presenting a lecture entitled,
"The Technology of Copyright: Digital Rights Management" at the Library
of Congress on Wednesday, November 19th, from 10:30am - 12:00pm in the
Pickford Theater on the 3rd floor of the Library of Congress' James
Madison Building, located at First Street and Independence Avenue SE,
Washington, D.C.  No reservations are necessary.  All lectures are free
and open to the public.  This lecture will be broadcast live via the
Internet at  http://www.loc.gov/rr/program/lectures/coyle.html on the
morning of the lecture, EST, and will be viewable with Real Player
software.

Without technological controls, digital documents are easily copied.
Publishers of texts, music and video are looking to digital rights
management (DRM) technology to allow them to distribute and sell their
goods in digital format with a limited risk of piracy. DRM technologies
in development today range from simple password control to elaborate
models of trusted systems. They all exercise some control over the use
of materials they protect. What will it mean to writers, publishers,
readers and libraries to work with documents that are protected by
technology? How does DRM interact with copyright law? Can we live with
it? Can we survive without it?

Karen Coyle has most recently worked for the Division of Library
Automation at the University of California and the California Digital
Library. She is a well-known metadata expert, and has served on the MARC

standards committee, the NISO OpenURL committee, and has advised in the
development of MODS and other metadata efforts.

------------------------------

Date: Tue, 18 Nov 2003 10:38:05 -0500
To: "digital-copyright@xxxxxxxxxxxxxx"
  <digital-copyright@xxxxxxxxxxxxxx>
From: "Olga Francois" <ofrancois@xxxxxxxx>
Subject: In The News
Message-ID: <3FBA3CDD.968B496D@xxxxxxxx>

---------------------------------------------------------------

CD burning okay: musicians
Chris Jenkins, AustralianIT.com, NOVEMBER 17, 2003
http://australianit.news.com.au/articles/0,7204,7890987%5E15330%5E%5Enbv%5E15
306-15319,00.html

"WHILE record companies prepare for the sentencing of three Sydney men
convicted of music piracy by the Federal Court, a new survey shows most
musicians and other music professionals believe copyright laws are too
harsh."
-----------

Bill's death opens diaries of Canadian notables
By JAMES ADAMS, November 15, 2003 - Page R16
http://www.globeandmail.ca/servlet/ArticleNews/TPStory/LAC/20031115/MONT15

 A controversial bill that would have extended copyright protection of
unpublished works by deceased authors is probably dead unless Parliament
is recalled sometime between now and the end of the year, a scenario
most observers consider highly unlikely. "
-------------

Free trade at a price
By Nathan Cochrane, November 11, 2003
http://www.smh.com.au/articles/2003/11/10/1068329472356.html

"Librarians warn a free trade deal with the US may result in a massive
transfer of wealth from the Australian public and performers to US
monopoly copyright holders."
------------

Digital Preservation and Copyright
By Peter B. Hirtle, Stanford University
http://fairuse.stanford.edu/commentary_and_analysis/2003_11_hirtle.html

 "If all information in the world was written on clay tablets or carved
into marble, its preservation would be greatly simplified. Even paper,
when manufactured and stored properly, can have a life measured in
hundreds of years."
---------

Senate Bill Targets Internet Pirates
By David McGuire, washingtonpost.com , November 13, 2003
http://www.washingtonpost.com/wp-dyn/articles/A33028-2003Nov12.html?referrer=
email

"People who steal copies of films and albums and post them on the
Internet before their official release dates could face felony charges
under legislation scheduled to be introduced Thursday in the U.S.
Senate."
*
Statement by Senator Dianne Feinstein
On Cornyn-Feinstein Legislation to Crack Down on Video and Audio Piracy
November 13, 2003
http://www.senate.gov/~feinstein/03Releases/r-piracy.htm
*
http://www.wired.com/news/politics/0,1283,61237,00.html/wn_ascii

------------------------------

End of digital-copyright Digest
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