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Center for Intellectual Property in the Digital Environment

Conference: Day 2

A long and very theory driven day…

Keynote Address: Georgia Harper

“The Economics of Copyright and the Impact on Academia: Mass Digitization and Copyright Law, Policy and Practice”

Georgia Harper started her speech with a bang, proposing that anyone who is looking for change in the arena of copyright should “forget Congress.”(This won her some derisive remarks about her position in subsequent sessions.)Since the methodology that is employed by Congress when evaluating change in Copyright Law is to put the powerless (those that represent the public interest) together with the powerful (copyright holders) and then implement recommendations that come forth, the powerful continue to increase the length of time that copyright will reign over works.Congress is, by virtue of this scheme, also marginalizing its own hold over the issue.

Market response: So in this vacuum, markets are growing that will sidestep the law.Steve Jobs is providing for demand for legitimate online entertainment.Creative Commons repudiates the overly broad scope of protection, and Google Books, some say, confronts it head on.Television has put its own full length episodes on the web.New York Times has abandoned its online subscription program.NIH has mandated that all publications written as a result of its funding will be provided electronically, full text to users regardless of copyright leading to greater access.

Orphan Works:The orphan works bills that are in Congress will not be passed, according to Ms. Harper.Some solutions might include the following. Construct the copyright evidence base, (OCLC is working on this.)Or register works after the first term by paying a single dollar to continue copyright.If the owner of the copyright won’t even pay a dollar to continue to enforce it, then it truly is not commercially viable enough to keep under copyright protection, and it should be in the public domain.In the arena of digitized photgraphs, utilize the web to publish photos and have people add info they know about them to identify copyright.(“Supply what information you have, and also tell us how you know what you know about the image.”)Work with the strength of the digital environment, instead of against it.Libraries know that convenience wins.Markets will come up with ways to step aside the copyright law if the copyright law won’t step aside.The copyright holders will maintain that “if there is value to be created from my work it should go into my pocket.”But business models would suggest that if you erect barriers of time and expense, and compete with tons of free legal stuff, and you want attention, don’t make it hard for people to give it to you.

Scanning full text for indexing, is it a violation of copyright?If you put your work online it will be indexed.Courts have found that, when creating images, thumbnails are fair use.Still to be determined are issues where indexing companies are linking to infringing copies (Perfect 10 v Google & Amazon).Google Book Search is stepping up the pressure to put full-text online, and change copyright law. Users want search results to yield clickable links.

We don’t know how the legal issues will settle.Google’s position, open access trumps copyright.This is good for Google, and good for readers, and maybe good for authors, publishers and libraries, too.What publishers and creators should realize is that what is difficult to find or inconvenient in an increasingly digital environment, is what is NOT getting read.

In 3 and a half years in this business model, there is evidence that openness beats armor.The benefits of convenience outweigh the weight of law and what results is a massive disrespect for the law.Congress and copyright law is a one way ratchet:it will always be more restrictive and longer.The market actors come up with solutions to future problems.In a free market they can try new things.They will either fail or succeed, but we will always learn something.

Panel One:Response to Keynote Address

Paul Jaeger, Director of the Center for Information Policy and Electronic Government and an Assistant Professor in the College of Information Studies at Univ of Maryland. (Moderator)

Bill Carney, Content Management, Business Development, OCLC, Inc. spoke first.OCLC is going to launch a new initiative in July, 2008 that will create a copyright registry that can be utilized by all libraries much the same way as cataloging responsibility is shared among the consortium.Libraries can search the registry for evidence of copyright in works they are interested in.If found, they can use the information therein.If not found, and the library worker continues to search for the information, they can add it into the database.Some of the librarians in the audience balked during question and answer about utilizing the hard work of librarians to populate OCLCs database.Mr. Carney responded that he was aware of that, but wanted to use the power of OCLC to unify this data, and they were uniquely poised to do that.

Jon Orwant spoke next.He is the engineering manager of Google in the Boston office.He said that Google is good at indexing.Sometimes answers to a particular question are on the web.Sometimes the answers are in newspapers and books.Where rights permit—let them read!The hard part is how to codify legal code into C++ code.When the book was published + 14 is easy to codify.When the author died + 70 is less easy to codify.And if the author died “for France” they get death plus 100 years.So now Google needs to know when they died, and how they lived in order to know what the copyright restrictions are.Strong DRM that eliminates options to cheat does not exist.Metadata can be created that will give the rights history.The Orphan Works legislation that is currently before Congress includes how to deal with graphic as well as written works.Photographers, graphic artists and fabric producers are most afraid of this legislation because their works are so hard to identify.Metadata can be used to discern copyright registry even without the actual book, CD or image.Even the copyright owner can add description.Image matching software that will let us match image even allowing for differences in size and shading is now possible.The registry of copyright will allow us to decouple evidence from policy.And decouple policy from procedure.How many members of the public will equal one NACO certified librarian?

Third on the panel was Patrick Ross, executive director of Copyright Alliance.He stated that people who value copyright law to protect their work are seen as obstructionists who are frozen in the last century.Creators are inspired because of copyright protection, to create works…(not sure I agree with that particular analysis.)Without copyright, creators will not create.He was most vehement in his criticism of Georgia Harper’s assertion that Congress will not solve the problem.Copyright holders continue to assert that copyright protection is necessary to have creative works continue to be produced.But while you can’t eliminate copyright OR lock all content down, we should accept the principle of copyright.In responding to the sentence “If the law doesn’t step aside, we will side step the law” he responded that the end doesn’t justify the means.

Luncheon Speaker: Gigi Sohn, Public Knowledge

“Discussion of ‘Public Knowledge’ Copyright Principle

For the past 35 years, copyright policies have been expanding in an unmitigated fashion.It is a clear mis-match between policy (which was written pre-VCR) and our current technology and the law.The pendulum has been swinging ever farther away from our digital reality and we need to swing the pendulum back.She outlined six points to better align the needs of people in the digital age with the copyright law:

.Fair use reform: expanded to add transformative and non-commercial use of content, and making a digital copy for indexing as not an infringement.

. Limits on secondary liability: on manufacturers of technology who have substantial non-infringing use

.Protections against copyright abuse: deter copyright holders from filing frivolous requests to take material down from websites, and provide legal relief for legitimate users of a work.

.Fair and Accessible Licensing: simplify rights to a musical work.

.Orphan works reform: limit damages for the use of works which a copyright holder cannot be found after a “good faith” search.

.Notice of Technological and Contractual Restrictions on Digital Media: require copyright holders to provide a clear and simple notice to users of any limitations on their ability to make a fair use of a product.

Panel Two:Changing Cultural Definitions and the Impact on Copyright and Scholarship

Karla Hahn: Director of Office of Scholarly Communication at ARL. (Moderator)

Michael Newman: Georgetown University; Kenneth Hamma, J. Paul Getty Trust; Stuart M. Shieber, Harvard University

“Boats against the Current: Students Rights, University Policy and Next-Generation Social Networking”

Universities are fighting a losing battle trying to stay current and update policy in the face of changes in technology.Our understanding is always obsolete by the time policy is written.Faculty want to incorporate more and richer resources into their courses, (online only or online supported).They utilize media in course management systems, without knowing if it’s reasonable or legal.Scan in documents of former students to use as examples of best practices; add YouTube videos; snippets from encrypted DVDs.

Students have rights to their Academic IP by default, but some universities try to circumvent those rights by having students sign agreements that hand over some or all rights to the university that supported their research.Can they refuse?It is unclear.Others secure rights for their students explicitly and make no claim to their work, and it’s written into policy.Still others say that faculty can ask to make use of their work, but students can refuse to comply.And some make provisions that are equally strong for students, faculty and staff of institutions to allow the author to maintain copyright ownership.

Increasing use of social networking sites to be the locus for learning and distribution of material is also challenging.Social networking is used to being disinterested in copyright issues; personal content, external to the university, few policy implications.But increasingly it will become necessary to confront these issues if it becomes the place for course content.There is potential to become a sharable space for group projects, digital rights management necessary, personal file and storage management.G-mail explicitly states that content posted through their service transfers all licenses to use to Google.

Universities need a policy for how much substantive access faculty members have for student’s work.A Pugh Initiative recommended that faculty be given great license to access and maintain their copyright over work created while on staff.But universities maintain that a substantial use of their resources went into the creation and therefore they can and should be able to claim copyright.This could extend to course material and course content that is in a course management software environment.

Panel Three:

P2P, virtual worlds, wikis, blogs, vlogs etc: Are these technologies dismantling copyright?

Moderator Lateef Mtima, Professor of Law and the Founder and Director of the Institute for Intellectual Property and Social Justice at Howard University School of Law.

Mary Madden, Pew Internet and American Life Project.

Patricia Aufderheide, Professor in School of Communication at American University in Washington DC and Director of Social Media.

(the fourth panelist, who was supposed to appear through Second Life on the big screen, couldn’t present due to technical difficulties.)

This panel discussed emerging technologies in use on college campuses and their impact on copyright.Horizon Report available at http://www.nmc.org/pdf/2008-Horizon-Report.pdf

Copyright was written to keep people from gaining by illicit uses of others’ work.Now, copying, mixing, and re-mixing is a form of creative expression.People are doing it to take creativity to a higher place, but no one will actually profit from it.

Students at the college level are demanding more content delivered electronically, not just to desk tops and lap tops but to cell phones, ipods, mobile devices.This presents both an opportunity to creatively respond to this need, but also has serious implications on digitization of materials to be delivered this way.Students are “always on”, and expect instant access and immediate response.

Some statistics on how we use the web:70% of adults use the internet, but 90% of teens do.Ninety-two % of kids aged 12 to 18 use the internet.57% of online adults have used the internet to watch or download video, and 19% do so daily.Frequency and amount is correlated to the speed of the users’ connection to the internet.Three out of 4 young adults, (18-29) use the internet to download video daily.Educational videos are frequently watched or downloaded, too.One in 5 users are downloading educational video content every day.One in ten young adult have created blogs, 4 times that many read it.Teen content creators have initiated conversations on the web.They experiment without fear.Today’s kids are tomorrows innovators.

Ownership and authorized use is peripheral to them.Users interests take a back seat.Are these technologies dismantling copyright?Under the right pressure, copyright will be reformed.The benefit to the culture is greater than the harm to individuals who have been victimized.

Panel 4:Legislative Panel

Kim Bonner, Executive Director of the Center for Intellectual Property in the Digital Environment.(Moderator)

Oliver Metzer, Policy Planning in the Office of Policy and International Affairs at the US Copyright Office.

Robert Samors, Associate VP for Research and Science Policy and Director of Information Technology at National Association of State Universities and Land Grant Colleges.

Jonathan Band, legislative and appellate advocate.

Discussed the Orphan Works legislation currently before Congress.Orphan Works are defined as works that are protected by copyright law, but are unable to be used or cited because the copyright owner is unable to be found even after a diligent search.The legislation before Congress will limit liability of those users who searched for but could not find the owner of a copyrighted work, who then go ahead and use the material anyway.The settlement amount is limited to the value the original agreement would have been if the copyright holder had been found.Statutory damages and court costs would not be involved in the transaction.Some versions of the bills before congress include a checklist to determine when a diligent search is completed.

This legislation does not affect “fair use.”It takes steps to assure that each party will negotiate in good faith.(Ie that neither the infringer will be able to “low ball” the copyright holder and the copyright holder will be unable to “high ball” the infringer, just to have the other one have to go through the hassle of taking them to court.)