LC/CLIR report on pre-1972 sound recording copyright

Excerpted from the press release:

Sound recordings were not protected by federal copyright law until 1972. A Library of Congress report indicates that the miscellany of state laws protecting pre-1972 sound recordings will extend copyright protection until 2067, creating a situation where some recordings dating to the 19th century are not available in public domain.

The Library announced today the completion of a commissioned report that examines copyright issues associated with unpublished sound recordings. This new report from the Library of Congress and the Council on Library and Information Resources addresses the question of what libraries and archives are legally empowered to do, under current laws, to preserve and make accessible for research their holdings of unpublished sound recordings made before 1972.

The report, "Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives’ is one of a series of studies undertaken by the National Recording Preservation Board (NRPB), under the auspices of the Library of Congress. It was written by June Besek, executive director of the Kernochan Center for Law, Media and the Arts at Columbia University. The report is available free of charge at www.clir.org/pubs/abstract/pub144abst.html.

copyright registries

I attended a great presentation by Siva Vaidhyanathan and James Grimmelmann at Georgetown University last Friday on the Google Book Search settlement. The question that I most wanted to raise during the discussion period (why did the facilitator never call on me?) was about their opinions on the proposed registry. This seems to me to be one of the topics most in need of clarification in the settlement.

I chatted with both of them afterwards. I worry about a potential lack of transparency of the registry's contents and its mode of operation. I have heard Dan Clancy from Google say that it will not be made fully publicly available.

While there a student from the University of Michigan School of Information mentioned Michigan's IMLS grant supported effort to create a Copyright Review Management System to increase the reliability of copyright status determinations of books published in the United States from 1923 to 1963. Last week Lorcan Dempsey was blogging about the OCLC Copyright Registry Evidence Initiative. Stanford has a Copyright Renewal Database. John Mark Ockerbloom at the University of Pennsylvania researched periodicals renewals in addition to posting scans from many volunteer institutions (including Carnegie Mellon's and Project Gutenberg's extensive work) in his Catalog of Copyright Entries. The U.S. Copyright Office has records from 1978 onward online.

So, where does a Library (or anyone, for that matter?) go to research the copyright status of a published work? One of these places? All of these places? And where might the ownership status of orphan works someday be researched and recorded and made public? What will be the most authoritative source? Will there be open resources and less open resources? This looks like an area where there might be too much competition, almost a splintering of attention that calls out for a sense of coordination in the community.

oclc summary of proposed google book settlement

Ricky Erway from OCLC has distilled the proposed Google Book Settlement, its appendices, and the three library registry agreements from 320 pages to a 4 1/2 page summary. It's an excellent overview of the proposal.

presidential records and donation reform

On January 7, 2009, the U.S. House of Representatives approved H.R. 35, the "Presidential Records Act Amendments of 2009," and H.R. 36, the "Presidential Library Donation Reform Act of 2009." These were chosen by the House leadership as the first pieces of substantive legislation passed in 2009 as a symbol of government transparency.

The Presidential Records Act Amendments restores meaningful public access to presidential records by nullifying a 2001 Bush executive order, and the Presidential Library Donation Reform Act requires the disclosure of big donors to presidential libraries. The Senate still has to pass its versions of the bills before they can go to soon-to-be-President Obama to be signed, which he has apparently indicated that he would.

The National Coalition for History provides a good overview of the Records Reform Act. The House Speaker's site provides an overview of both.

creative commons wants feedback on licenses

Creative Commons is conducting a study to collect feedback on the term “noncommercial” and how it should be covered in its licenses. The hope is that what’s learned from the survey can improve the licenses that allow or restrict noncommercial uses. The questionnaire has to be completed by this Sunday, December 14, 2008. Everyone who has taken advantage of CC licenses as a creator or a user should take some time to answer the questions.

Jamie Boyle on public domain

Jamie Boyle's book The Public Domain: Enclosing the Commons of the Mind has been published by Yale University Press, and is also available for free download under a Creative Commons license.

I've seen Jamie Boyle speak two or three times, and I consider him a very important voice in the discussions on the public domain, intellectual property, patents, the economics of same, and their place in technology and culture.

Read this book.

arl guide to the google book search settlement

The Association of Research Libraries has created "A Guide for the Perplexed: Libraries & the Google Library Project Settlement," a 23-page document intended to help libraries understand the impact of the proposed Google Book Search settlement.

creative commons non-commercial use session at dlf

My somewhat unstructured notes from a presentation by Virginia Rutledge, an attorney from Creative Commons, at the DLF Fall 2008 Forum.

• Copyright is a bundle of rights. She went over this in some detail for those who are less familiar.
  
• Creative Commons exists to support the ability to share, remix, and reuse, legally.
• Example of recent Library use: the entire UCLA Library web site is under a CC license to clarify its content re-use status.
• The Creative Commons definition of non-commercial is tied to the intent of the user -- no intent towards commercial advantage or private monetary compensation. BUT, there is no single definition of non-commercial.
• There are undertaking a research project in many phases. 1st (done) – focus groups. Identified 4 communities: Arts, education, web, and science communities. This proved to be a VERY bad idea, as the boundaries are actually way too fuzzy and interdisciplinary. The work invalidated the assumption that they could do this on a community-based basis.
• A number of issues of importance to rights holders in allowing non-commercial use were identified in the discussions: Is there a perceived economic value? Who is the user-- an individual or an organization? Non profit or not? Is any money generated? Is access supported by advertising or not? Is the use for the “public good” -- for charity/education? What is the amount of distribution? Will the work be used in part or in whole? Is this use by a “competitor?”
• There are also subjective issues: Is it an objectionable use? Is it perceived as fair use?
• Personal creator and personal use versus institutional ownership and use is a distinction that really makes a difference to people, but has no meaning in US law.
• Some of the confusion over how to define "non-commercial" is not understanding what activities the prohibition of non-commercial use actually prohibits. Most rights holders don’t really want to prohibit all commercial uses, just some, and it varies wildly by person/organization.
• Based on the research so far, there is no checklist they can come up with.
• As of November 17, a poll will be available online, and they are encouraging librarians to participate.

google book search session at dlf

I was going to spend some time transforming my notes from Dan Clancy's session on Google Book Search from the DLF Fall 2008 Forum into more coherent prose, but for the sake of timeliness, I'm going to post them as is.

• 20% of the content in Google Book Search is in the public domain, 5% is in print, and the rest is in an unknown “twilight zone” -- unknown status and/or out-of-print.
• 7 million books scanned, over 1 million are public domain, 4-5 million are in snippet view.
• Early scanning was not performed at an impressive rate, and it took way longer than expected to set up.
• Priorities are working search quality, and exposure to google.com.
• Search is definitely not solved and “done,” and is harder given the big distribution of relatively successful hits.
• They are working to improve the quality of scanning and the algorithm to process the books and improve usability. They admit that they still have work to do, especially with the re-processing of older scans.
• Data to support Long Tail model is right.
• Creating open APIs, including one to determine the status of a book, and a syndicated viewer that can be embedded.
• Trying to identify the status of orphans, and release a database of determinations. But institutions need to use determinations to guide their decisions, not just follow them because “Google said so.”
• On the proposed settlement agreement: Google thought they would benefit users more to settle than to litigate.
• The class is defined as anyone in the U.S. with a copyright interest in a book, in U.S. use. (no journals or music)
• For all books in copyright, Google is allowed to scan, index, and provide varying access models dependent upon the status of the book -- if in print or out-of-print. Rights holders can opt out.
• 4 access models: consumer digital purchase (in the cloud, not downloads – downloads are not specifically included in agreement); free preview of up to 20% of book; institutional subscription for the entire database (site license with authentication, can be linked into course reserves and course management systems); public access terminals for public libraries or higher ed that do not want to subscribe (1 access point in each public library building, some # by FTE for high ed institutions) which allows printing (for 5 years or $3 million underwriting of payments to rights holders).
• Books Rights Registry to record rights, handle payments to rights holders. It can operate on behalf of other content providers, not just Google.
• Plan to open up government documents, because they feel that the rights registry organization will deal with the issue of possible in-copyright content included in gov docs, which kept them from opening gov docs before.
• Admits that publishers and authors do not always agree if publishers have the rights for digital distribution of books. Some authors are adamant that they did not assign rights, some publishers are adamant that even if not explicit, it's allowed. The settlement supposedly allows sharing between authors and publishers to cover this.
• What is “Non-consumptive research”? OCR application research. Image processing research. Textual analysis research. Search development research. Use of the corpus as a test corpus for technology research, not research using the content. 2 institutions will run data centers for access to the research corpus, with financial support from Google to set up the centers.
• What about their selling books back to the libraries that contributed them via subscriptions? They will take the partnership and amount of scanning into account and provide a subsidy toward a subscription. Stanford and Michigan will likely be getting theirs free. Institutions can get a free limited set of their own books for the length of the copyright of the books. They can already do whatever they want with their public domain books.
• They will not necessarily be collecting rights information/determinations from other projects for the registry. In building the registry, they are including licensed metadata (from libraries, OCLC, publishers, etc), so they cannot publicly share all the data that will make up the registry. But they will make public the status of book that are identified/claimed as in copyright.
• If Google goes away or becomes “evil Google,” there is lots of language in contracts and settlement for an out.
• The settlement is U.S. only because the class in the suit was U.S. only. Non-U.S. terms are really challenging because many countries have no concept of class-action, and there is a wide variation of laws.
• A notice period begins January 5. Mid 2009 is the earliest time this could be approved by the court.

google book search settlement agreement announced

Today it was announced that Google has reached a settlement in the lawsuit filed by the Authors Guild, the Association of American Publisher, and a group of individual authors.

Some of the details are available at Google. The changes that I am the most interested in are these:

"Until now, we've only been able to show a few snippets of text for most of the in-copyright books we've scanned through our Library Project. Since the vast majority of these books are out of print, to actually read them you'd have to hunt them down at a library or a used bookstore. This agreement will allow us to make many of these out-of-print books available for preview, reading and purchase in the U.S.. Helping to ensure the ongoing accessibility of out-of-print books is one of the primary reasons we began this project in the first place, and we couldn't be happier that we and our author, library and publishing partners will now be able to protect mankind's cultural history in this manner."

...

"The agreement will also create an independent, not-for-profit Book Rights Registry to represent authors, publishers and other rightsholders. In essence, the Registry will help locate rightsholders and ensure that they receive the money their works earn under this agreement. You can visit the settlement administration site, the Authors Guild or the AAP to learn more about this important initiative."

I'm all for more access to these books and for rightsholders to get their due, but what does it mean to assign a value to them?

They also plan to offer subscriptions: "We'll also be offering libraries, universities and other organizations the ability to purchase institutional subscriptions, which will give users access to the complete text of millions of titles while compensating authors and publishers for the service." I have mixed feelings -- the subscription model is not an unusual one, and libraries have certainly provided digitized materials from their collections for paid subscription services before, i.e., with ProQuest. I wonder if the partners will get any share in the compensation for providing the content for the service?

I'm currently at an Open Content Alliance meeting and I'm looking forward to what I am sure will be many discussions among the attendees today.

EDIT: There's now a joint press release from the University of Michigan, the University of California, and Stanford University, a FAQ from the American Association of Publishers, a Google rightsholders site, a Google blog post, in addition to the site above and the press release.

First Monday article on Google Books and OCA

The newest issue of First Monday (volume 13, number 10, 6 October 2008) has an interesting article by KalevLeetaru -- "Mass book digitization: The deeper story of Google Books and the Open Content Alliance."
The article compares what is publicly known about the Google Book and OCA projects.

From the conclusions:

While on their surface, the Google Books and Open Content Alliance projects may appear very different, they in fact share many similarities:

• Both operate as a black box outsourcing agent. The participating library transports books to the facility to be scanned and fetches them when they are done. The library provides or assists with housing for the facility, but its personnel are not permitted to operate the scanning units, which must be staffed by personnel from either Google or OCA.

• Neither publishes official technical reports. Google engineers have published in the literature on specific components of their project, which offer crucial insights into the processes they use, while talks from senior leadership have yielded additional information. OCA has largely been absent from the literature and few speeches have unveiled substantial technical details. Both projects have chosen not to issue exhaustive technical reports outlining their infrastructure: Google due to trade secret concerns and OCA due to a lack of available time.

• Both digitize in–copyright works. Google Books scans both out–of–copyright books and those for which copyright protection is still in force. OCA scans out–of–copyright books and only scans in–copyright books when permission has been secured to do so. Both initiatives maintain partnerships with publishers to acquire substantial in–copyright digital content.

• Both use manual page turning and digital camera capture. Large teams of humans are used to manually turn pages in front of a pair of digital cameras that snap color photographs of the pages.

• Both permit libraries to redistribute materials digitized from their collections. While redistribution rights vary for other entities, both the Google Books and OCA initiatives permit the library providing a work for digitization to host its own copy of that digitized work for selected personal use distribution.

• Both permit unlimited personal use of out–of–copyright works. While redistribution rights vary for other entities, both the Google Books and OCA initiatives permit the library providing a work for digitization to host its own copy of that digitized work for selected personal use distribution.

• Both enforce some restrictions on redistribution or commercial use. Google Books enforces a blanket prohibition on the commercial use of its materials, while at least one of OCA’s scanning partners does the same. Google requires users to contact it about redistribution or bulk downloading requests, while OCA permits any of its member institutions to restrict the redistribution of their material.

From the section on "Transparency"

A common comparison of the Google Books and Open Content Alliance projects revolves around the shroud of secrecy that underlies the Google Books operation. However, one may argue that such secrecy does not necessarily diminish the usefulness of access digitization projects, since the underlying technology and processes do not matter, only the final result. This is in contrast to preservation scanning, in which it may be argued that transparency is an essential attribute, since it is important to understand the technologies being used so as to understand the faithfulness of the resulting product. When it comes down to it, does it necessarily matter what particular piece of software or algorithm was used to perform bitonal thresholding on a page scan? When the intent of a project is simply to generate useable digital surrogates of printed works, the project may be considered a success if the files it offers provide digital access to those materials.

To me, that paragraph gets at the key issue in discussing and comparing the projects -- are books being scanned in a consistent way and being made accessible through at least one portal, enforcing current rights restrictions? Yes? Then both these projects are, at a basic level, successful and provide a useful service.

Yes, there are issues to quibble with for both projects. More technical transparency is desirable for both projects. Both have controlled workflows that limit what can be contributed to the projects in different ways. There are aspects of the Google workflow that Google contractually requires its partners to keep secret. That's their right to include in their contracts, and a potential partner's decision to make if they find it objectionable and therefore choose not to participate. Each documents and enforces rights in different ways and to different extents -- we should be looking to standards in that area. Each sets different requirements for allowing reuse. If only there could be agreement.

One note on preservation. Neither projects are preservation projects -- they're access projects. Even if there were something we could point to and say "that's a preservation-quality digital surrogate" -- if such a concept as "preservation-quality" exists -- neither project aims for that. Both projects do, however, allow the participating libraries to preserve the files created through the projects. These files should and must be preserved because they can be used to provide digital modes of access, and, in some cases, they may be the only surrogates ever made if the condition of a book has deteriorated. Look at the HathiTrust for more on the topic of preserving the output of mass digitization projects.

And one note about the Google project providing "free" digitization for its participants. Yes, Google is underwriting the cost of digitization. But each partner library is bearing the cost of staffing and supplies for project management, checkout/checkin, shelving, barcoding, cataloging, and conservation activities, not to mention storage and management of the files. The overall cost is definitely reduced, but not free.

grapes need a eula?

From Serious Eats, an image of an empty bag of grapes ... with a EULA.

The recipient of the produce contained in this package agrees not to propagate or reproduce any portion of the produce, including (but not limited to) seeds, stems, tissue and fruit.

To me this is particularly amusing because they're seedless grapes ...

Cory Doctorow book of essays

I am a big fan of Cory Doctorow's writing -- his fiction and his essays on technology, rights, and privacy. Via BoingBoing, comes word of his new book of essays -- Content: Selected Essays on Technology, Creativity, Copyright, and the Future of the Future.-- which he is making available as a free Creative Commons licensed PDF download.

I you haven't read Cory Doctorow yet, you should. I don't always agree with everything he says, but he is thoughtful and technologically savvy and writes thorough essays on very relevant topics in an entertaining style.

I've read some of these essays before, but having them together in one beautifully-designed volume that I can always refer to is the proverbial good thing.

Mickey Mouse copyright

Via Techdirt and the L.A. Times, an interesting overview on the copyright status of Mickey Mouse. The Virginia Sports and Entertainment Law Journal article by Douglas Hedenkamp mentioned is available online through the "Opposing Copyright Extension" site, as is the original student work by Lauren Vanpelt.

Patry restoring old posts

William Patry has decided to restore many of his posts which he deleted when he closed down his blog. He has been laboriously identifying the posts and plans to restore them very soon.

free copyright licenses upheld

Great news from Larry Lessig:

I am very proud to report today that the Court of Appeals for the Federal Circuit (THE "IP" court in the US) has upheld a free (ok, they call them "open source") copyright license, explicitly pointing to the work of Creative Commons and others. (The specific license at issue was the Artistic License.) This is a very important victory, and I am very very happy that the Stanford Center for Internet and Society played a key role in securing it. Congratulations especially to Chris Ridder and Anthony Falzone at the Center.

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Important clarity and certainty by a critically important US Court.

LibraryThing covers

Last week LibraryThing announced that they were making a million free book covers available. A LibraryThing Developer Key is required, which any LibraryThing member can get.

There are some rules:

• Retrieve no more than 1,000 cover per day.
• If covers are fetched through an automatic process (e.g., not by people hitting a web page), you may not fetch more than one cover per second.
• Do not make LibraryThing cover images available to others in bulk. You may cache bulk quantities of covers.
• Use must not involve or promote a LibraryThing competitor.

Tim Spalding admits that this service competes with Amazon web service and other commercial vendors, but LibraryThing’s Terms of Service are far more open.

After the announcement I wondered how this was legally possible for such a large number of covers since there are so many variations of rights regarding cover designs. Who holds the rights? The publishers? The designers? Third parties? It's likely it's a wide variety of all of the above. Should we start talking about orphan work book cover designs?

Yesterday Mary Minow posted about this at LibraryLaw Blog. She posits an interesting possibility that this could fall under section 113. Read the comments for more discussion from Peter Hirtle about whether this might also be transformative use of thumbnails that could possibly be covered under fair use. Peter also rightly mentions the market for cover images, since effect on the market is one of the tests for fair use.

time for links and nothing more

I'm really swamped these days, and only have time to post some links to things that caught me eye during the past week:

vi.sualize.us seems like a really interesting social bookmarking tool for images. Perhaps they'll learn what delicious learned and give up the tortured . 's.

William Patry stopped blogging. I'm not surprised if folks thought his personal blog was the word of Google. It's sad that he also decided to erase his archives, but I understand that he didn't want his past postings to live on and continue to be misunderstood.

It seems that Google is making some of its machine-translation technologies and translation management tools available to human translators, at least as a beta. I'm working with a project that requires translation into 7 languages. Managing this process is very challenging, and I've seen some very bad tools for the process.

Following the Digitization and the Humanities Symposium, Jennifer Schaffner and Merilee Profitt wrote a brief report, The Impact of Digitizing Special Collections on Teaching and Scholarship: Reflections on a Symposium about Digitization and the Humanities. The report acts as a summary of the symposium, and also gives some calls to action, especially about metrics for success.

Duke has launched its Open Library Environment Project with Mellon support. Its focus on back-end open tools is worhtwhile, but I'm not sure I know how this will be integrated with other activities in the community.

international copyright law and digitization

In one of those great synchronicities, I've encountered two publications on international copyright law and digitization, both of which are worth reading.

The first is an Information World Review article entitled "Scan and Deliver" about how issues of copyright clearance have affected the British Library's digitization program. (I keep hearing Adam Ant's "Stand and Deliver" in my head)

The second is the International Study on the Impact of Copyright Law on Digital Preservation just released by the Library of Congress. The report is a joint effort of the Library of Congress National Digital Information Infrastructure and Preservation Program, the Joint Information Systems Committee, the Open Access to Knowledge (OAK) Law Project, and the SURFfoundation.

is Google identifying more full text works for GBS?

Barbara Quint at Information Today wonders -- Is Google Book Search Targeting More Books for Public Domain?

Pretty much no U.S. library will make post-1922, probably in-copyright digitized material from their collections available on the open web without varying levels of risk assessment that includes a review of copyright renewal records. Now that Google has developed its own copyright renewal data, will it use that data to identify works that should be in the public domain? And will they make those works available as full-text in Google Book Search? And will they share their research results with the rest of the community so we can free our digitized copies, too?