Campus Copyright

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Welcome to the West Chester University "Copyright on Campus" blog.

Plagiarism Plague Preventative

On Oct. 21 the User Education Committee of the NJACRL/NJLA College
and University Section will present "Quarantine the Plagiarism Plague:
Collaborative Consciousness Raising". The featured speakers are Vibiana
Bowman, editor of The Plagiarism Plague with chapter authors Luis
Rodriguez, Leslie Murtha, Robert Lackie and Michelle D'Angelo-Long. The
program will be at Brookdale Community College. Registration from at:
http://www.njla.org/programs/plagiarism.pdf

Courts Can't Stop Google Copying

By Christopher T. Heun

Copyright law appears to be on Google's side, legal experts say. The social value of Google's initiative to digitize library books, including those protected by copyright, will likely weigh heavily in the search engine's favor.
Although Google may appear to violate the law by scanning, without permission, entire copies of books protected by copyright, such an act is not illegal if it is considered “fair use” of the material. How a court interprets that doctrine will decide the fate of the company’s ambitious plans, according to lawyers and law professors with knowledge of intellectual property and copyright statues. They say the most important issues for a court would be the character of Google’s activity, its adverse economic impact on the copyright holder, and the amount of material it uses in proportion to the whole and if that is key to the work. Of lesser concern is whether the company makes a reasonable effort to contact copyright holders before copying their books.

A potential legal battle is slowly gathering strength. The Text and Academic Authors Association this week joined the Association of Learned and Professional Society Publishers in publicly stating it is ready to take on Google in the courtroom.

The two sides are playing a game of chicken over who should dictate what works are digitized: Google says it will not scan any titles publishers tell it not to; publishers insist it should work the other way around. “The solution we’d like to see [Google] heading toward is to say here is a list of books we’d like to include, may we have permission to do so,” says Peter Givler, the executive director of the Association of American University Presses. The scanning has stopped temporarily but will resume in November.

One law professor doesn’t think that’s necessary. “The principle that Google should have to ask [for permission] is proving untenable,” says Jessica Litman, a professor at Wayne State University Law School who has published a book on protecting intellectual property on the Internet, “Digital Copyright.” “The opt-out mechanism is pretty reasonable.” The source of the squabble is the Google Print Library Project, which aims to scan and store in the company’s search database copyrighted books from the libraries of Harvard, Stanford, the University of Michigan, the University of Oxford and the New York Public Library. Google’s ultimate goal, according to its Web site, is to build a “comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers find new readers.”

If a work included in a search query is covered by a copyright, Google limits the amount of text shown to a few sentences adjacent to the search term; the full text is available for any book with an expired copyright now considered public domain – for instance, a novel published in 1905.

“If copyright law worked the way Google would like to see it working, then everyone in the world would be able to use the material unless the copyright holder explicitly told them not to, and even then it would be OK,” says Allan Adler, the vice president for legal and government affairs for the Association of American Publishers. “That would be a very strange copyright system.”

Regardless, there is a clear legal precedent for any potential court battle between publishers and Google, and it favors the Mountain View, Calif., company. In Kelly v. Arriba Soft Corp., a 2003 case in which a photographer sued a search engine, claiming copyright infringement for displaying thumbnail images of work originally posted on his site, the Ninth Circuit found in favor of the search engine: the act of copying the material, even though it was for commercial purposes, was not exploitative and therefore was fair use.
“Everything the Ninth Circuit stated with respect to Arriba applies with equal force to the Print Library Project,” Jonathan Band, a copyright lawyer in Washington, D.C., who represents Internet companies and library associations on intellectual property matters, wrote recently in a copyright analysis of the dispute. Google’s copies of books will not replace the originals, and the company does not profit from the sale of any books it scans, he wrote. Band does not represent any entity with respect to the Google Print project.

“The Google Print Library Project will make it easier than ever before for users to locate the wealth of information buried in books,” Band concluded. “By limiting the search results to a few sentences before and after the search term, the program will not conflict with the normal exploitation of works nor unreasonably prejudice the legitimate interests of rights holders. To the contrary, it will often increase demand for copyrighted works.”

Complicating the debate over copyright is the fact that publishers often don’t even know who has it. Their records can be incomplete, particularly if an author is deceased, in which case an estate or family member could hold the rights. A book with an unknown copyright status is known as an “orphan work.” Most works published prior to 1923 are now in the public domain, because the term of protection, the life of the author plus 70 years, is likely over. Conversely, works published in the last 30 years or so probably have an ISDN number and are tracked through a database, “so there should be little question about who holds the copyright,” Adler says. The tough part is determining the status of books published in those five decades in between. “Were talking about millions of books,” he says. “Orphan works are not in the public domain.”

In the end, winning a fair use argument against Google could be tough, since its entire business model revolves around the principle. “Google couldn’t exist at all without making copies,” Litman says. “It’s a search engine. It makes copies in order to index content.”

Google gets Slapped over Copyright

Three authors have sued Internet services firm Google, US, on the grounds that the company’s plans to create a database of searchable e-books sourced from university libraries amounts to “massive copyright infringement”. Though trouble has been brewing between the company and authors over the Google Print Library programme, this marks the first-ever lawsuit triggered by the tiff. The three authors, Daniel Hoffman, Herbert Mitgang and Betty Miles, are joined by the Authors Guild, which comprises over 8,000 published authors. Each of the three authors holds copyright to at least one work from the University of Michigan library that is being covered by the Google project. Apart from Oxford University and the New York Public Library, the libraries of Stanford, Michigan and Harvard have allowed Google to form searchable databases. The plaintiffs have sought class-action status for the suit, which was filed in the United States District Court in Manhattan. Google insists that its programme respects copyrights. It has frozen the project till November 2005, after which it plans to re-launch it with an opt-out option for authors. However, authors want an opt-in option, whereby the user needs to seek approval before using copyrighted work.

NEW JOURNAL ON COPYRIGHT ANNOUNCED

COPYRIGHT is a new open-access, peer-reviewed journal that will publish papers on "all aspects of copyright in the Internet age." Topics covered will include: digital rights management, scholarly communication and open access, collaborative authorship, blogs and other new media, and the social implications of copyright. For more information and for paper-submission guidelines, link to http://www.copyrightjournal.org/index.php/Copyright

Copyright is published quarterly. For more information contact: Ari Friedman, Managing Editor, University of Pennsylvania, 3910 Irving Street Philadelphia, PA 19104 USA; tel: 215-284-5196; email: arib@stwing.upenn.edu; Web

Digital Watermarks - a way to protect Copyright

Digital watermarks provide an electronic stain on digital images to confirm ownership rights. An example of a digital watermark is frequently seen on television programs on the lower left side of the screen. A company, Watermark Factory, announced the release of a version of an image-protection tool, supplied with new effects and image processing technologies.

Watermark protection has earned the reputation of the most effective weapon against copyright abuse. Once a watermark is created and saved, it can be easily retrieved and used. The program operates with single images, as well as with image folders. Three modes of positioning allow the user to adjust the watermark position according to the image size and margins, and set a desired tilt angle.

Visit http://www.escholarlypub.com/cwb/oaw.htm - Open Access Webliography

http://www.escholarlypub.com/cwb/oaw.htm

This webliography presents a wide range of electronic resources related to the open access movement that are freely available on the Internet as of April 2005.
In basic terms, the goal of the open access movement is to make scholarly articles freely available in digital form worldwide with minimal restrictions on their use (e.g., proper attribution of authorship). In reality, it's more complex than this because of differences of opinion about what open access should or shouldn't try to achieve. Some advocates say free access to scholarly articles is enough, minimal restrictions are not needed. Others say that the basic goal is correct, but permanent archiving is also required. Still others say why stop at scholarly articles, make all types of scholarly literature freely available in digital form. Such doctrinal differences are normal and healthy in such an important and dynamic movement.

This very brief discussion will focus strictly on digital versions of scholarly articles; however, the reader should understand that digital archives and repositories may contain other types of digital materials.

As outlined "Budapest Open Access Initiative" (http://www.soros.org/openaccess/read.shtml), there are two basic strategies used to achieve open access: (1) self-archiving (making electronic preprints and postprints available on author home pages or depositing them in digital archives and repositories), and (2) open access journals. Metadata about electronic versions of articles can be retrieved by use of the Open Archives Initiative Protocol for Metadata Harvesting (OAI-PMH) so that it can be used in search systems or for other purposes.

Minimal use restrictions can be realized by use of the Creative Commons Attribution License (or similar licenses). (See http://creativecommons.org/licenses/by/2.0/.) This license is used by several major open access journal publishers and others. Scholars may also use it for their e-prints, but this is not currently typical.

For a more detailed explanation, see Peter Suber's "Open Access Overview: Focusing on Open Access to Peer-Reviewed Research Articles and Their Preprints," which is in the "Starting Points" section of this document or Charles W. Bailey, Jr.'s "Key Open Access Concepts" section of his Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals, which is in the "Bibliographies" section of this document.

More comments on Kansas

University as Author? — David Epstein

The Kansas Supreme Court will soon decide whether the Kansas Board of Regents has to negotiate its intellectual property policy in the future, or whether it can simply hand down a decree – even one that asserts ownership of all faculty work.

If the court upholds the decision of a lower court, public institutions in Kansas will have the right to claim ownership of any faculty work, including books. In the current policy, faculty members keep their book rights, and revenue sharing is built in for technology copyrights, but, “if [the board] can unilaterally enact a policy, then tomorrow they could turn around and say ‘we own it, we get all the royalties,’” said John Mazurek, a lawyer representing the Kansas National Education Association.

The intellectual property policy was designed unilaterally by the board, which governs all public four-year colleges and universities, in 1998. Before the board passed it, KNEA, an affiliate of the National Education Association, requested the chance to negotiate the policy, to no avail, according to court papers. So KNEA filed a complaint with the Public Employee’s Relations Board on behalf of faculty members at Pittsburg State University, the only four-year college in Kansas at which it has members that it represents in collective bargaining. The public employee board upheld the board’s right to institute an intellectual property policy sans negotiations, saying that the university owns work done by employees. The decision was reversed in district court, and then reversed back to the original decision in Kansas appellate court, based on the finding that the university, which was held by the court to be the rightful author of faculty members’ work, cannot be forced to negotiate away its intellectual property rights.

In making the decision, the court treated faculty work as “work for hire,” under federal copyright law. Much the way Microsoft owns computer codes written by its employees, the court classified scholarly work as within the scope of employment of a faculty member, and thus granted ownership to the institution.

Experts say that lucrative biotechnology patents, computer codes, and distance learning material have made intellectual property an issue of growing importance to faculty members. Earlier this year, the City University of New York was told by a state court that it had to bargain with faculty members over intellecutal property policy.

Some experts say that granting ownership of all intellectual property to an institution will harm academic freedom. Ann Springer, associate counsel for the American Association of University Professors, which filed a brief on the dispute, said that if colleges own their professors’ works, then they are also responsible for the content. “They would have to review everything that is written,” she said, adding that if the university were considered responsible for content, it might seek to contain controversial content. “I don’t think [the University of] Colorado wants to be responsible for all of Ward Churchill’s writing, but they would be.” She added that faculty members would have far less incentive to innovate if the institution could claim full ownership of their work.

In court proceedings, the Board of Regents maintained that, because faculty members are expected to produce intellectual property as part of their employment, the “work for hire” provision of copyright law guides intellectual property policy, and it need not be negotiated. The current intellectual property policy does have revenue sharing built in. For example, a faculty member who develops software gets “no less than twenty-five percent” of revenues, after development costs are covered. Under the policy, the ownership of books, articles, maps, charts, and artistic works are given fully to the creator, with the institution taking only “royalty-free use” within the institution.

Still, it is the fact that the policy can change at any moment that worries some people. “It ultimately hurts the university setting,” said David Schauner, the general counsel for KNEA. “If I’m a professor that’s about to invent a plastic that will revolutionize the world, and the university can take full ownership, I’ll do it in the private sector.” Schauner said that at the University of Kansas and Kansas State University, faculty members have been able to negotiate individual deals with the Board of Regents over commercially viable products. But Pittsburg State, which he said doesn’t produce a lot of lucrative scholarly work has been left with no bargaining power. “A professor at Kansas can cut a good deal,” Schauner said. “But what if I’m a lesser somebody that stumble on something big?”

Said Springer, “Work-for-hire just doesn’t fit here. These aren’t Ford employees writing a company brochure. If our interest in a few lucrative computer programs leads us to where the only scholarly voice is that of institutions, not scholars, we undermine what makes our education system strong.”

Watermark protection has earned the reputation of the most effective weapon against copyright abuse. Once a watermark is created and saved, it can be easily retrieved and used. The program operates with single images, as well as with image folders. Three modes of positioning allow the user to adjust the watermark position according to the image size and margins, and set a desired tilt angle.