Copyright – Copyright Clearance Center Rights Licensing Expert Fri, 17 Nov 2017 17:09:39 +0000 en-US hourly 1 Copyright – Copyright Clearance Center 32 32 Open Access in the Corporate Context Tue, 24 Oct 2017 08:00:06 +0000 In honor of Open Access Week, discover how this alternative publishing model impacts content users in the business world.

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In honor of Open Access Week, discover how this increasingly popular alternative publishing model impacts content users in the business world.

Can you Trust It? Using Open Access Materials in the Corporate World

Can you Trust It? Using Open Access Materials in the Corporate World

Do you understand the economic underpinnings of each Open Access model? Here’s your guide.

There are various flavors, meanings and models of Open Access, but once you have the basic differences down, it’s worth exploring the economic underpinnings of each model.

Understanding Open Access Research Content in the Corporate World

Understanding Open Access Research Content in the Corporate World: 4 Need-to-Know Terms and Their Definitions

To best understand what advantages can be gained from the use of Open Access content, here is a mini-primer in four areas of OA.

On March 23, 2017, the New York Times reported on a story originally published in Nature about a sting operation against predatory open access (OA) publishers. The sting was organized by a researcher whose assumed name translated to “Dr. Fraud.”

Finding a cure for cancer: open data, open collaboration and open minds

Finding a Cure for Cancer: Open Data, Open Collaboration and Open Minds

Every step towards creating a medical environment with access to anonymized open data is a step in the right direction.

“Let’s make America the country that cures cancer once and for all.”

It was this statement from former President Barack Obama’s 2016 State of the Union address that prompted the creation of a national initiative to fight cancer – the Cancer Moonshot bill


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Join CCC at 2017 ACC Annual Meeting Wed, 11 Oct 2017 08:00:34 +0000 Join CCC and the world’s largest gathering of in-house counsel at the 2017 Association of Corporate Counsel (ACC) Annual Meeting… Read more

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Join CCC and the world’s largest gathering of in-house counsel at the 2017 Association of Corporate Counsel (ACC) Annual Meeting and take your copyright knowledge further.

At the 2017 ACC Annual Meeting this 15-17 October in Washington D.C., legal counsel can stay current on the latest developments in the law that may affect their organizations, and pursue continuing legal education.  Part of that education should always include copyright and corporate policies regarding compliance.

While there are over 100 worthy sessions to choose from, CCC’s top pick regarding copyright in the workplace is:

Hot Topics in Copyright Law – Tuesday, 17 Oct (2:30-4:00pm)

Presented by the ACC Intellectual Property Committee

This session will provide a review and analysis of major recent cases and trends in copyright law, with particular emphasis on how they impact in-house practice. Panelists will address recent developments in copyright law and enforcement challenges, including a review of fair use and public domain, trends in licensing and distribution, terminating grants, enforcement of copyrights online and across platforms, and fighting copyright trolls.

And while not specifically designed around copyright, here are some other sessions to consider attending which may be relevant to your practice on behalf of your company:

Technology and IP License agreements – Tuesday, 17 Oct (9-10:30am)

Presented by the ACC Intellectual Property Committee

This session will host a discussion of the best practices and recent developments in IP and technology licensing, with a focus on how to draft and structure licenses. Topics addressed will include the licensing of technology versus IP (i.e., patents and copyright); trademark licensing to channel and distribution partners and resellers; and the licensing of content and customer/user data. Panelists will discuss legal defaults and key international jurisdictional differences. The discussion will review sample clauses, identify potential pitfalls that licenses can contain, and provide practical advice to avoid unintended consequences and safeguard clients from risk.

ACC Regulator Session: Corporate Compliance and Enforcement – Sponsored by Bloomberg Law – Wednesday, 18 Oct (9-10:30am)

Presented in cooperation with Baker & McKenzie LLP

Senior staff from the Department of Justice will discuss the current state of corporate compliance and enforcement with in-house and outside counsel panelists. Topics will include recent prosecutions, top enforcement priorities, and where the agency is looking to in the future.

Business Education for In-house Counsel: Leading in Turbulent Times

  • Part I: Wednesday, 18 Oct (9-10:30am)
  • Part II: Wednesday, 18 Oct (11:00am-12:30pm)

Presented by the Association of Corporate Counsel

We live in a time where everything and everyone is connected. Ever-changing technology, the speed of communication, eroding boundaries, and political and socioeconomic realities are driving the need for change and transformation everywhere. To ascend the ranks, in-house counsel must be prepared to anticipate and drive constant change and transformation, and set appropriate strategies and action plans that will propel their organization forward. This two-part session will explore the changing business environment, the leadership capabilities required to survive, improve performance, and remain relevant, and the skills necessary to drive your organization’s success.

Test Your Copyright IQ with CCC at Booth #218

Do you know your copyright IQ?  Be sure to visit CCC at Booth #218 to find out.  Attendees can stop by our booth to:

  • Test your knowledge of copyright, CCC, and more at our daily trivia game and receive a Bluetooth speaker.
  • Enter to win one of two copyright education sessions onsite at your business courtesy of CCC and let our team of trained professionals guide you through the complex world of copyright (minimum $2500 value).
  • Receive 10% off a future OnCopyright Education Certificate Program.

Can’t make it to D.C.? Stay up to date and join in the conversation on Twitter, using the hashtag #ACCAM17

View a complete 2017 ACC program schedule and other conference information here.

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The Boundaries of Fair Use: The KinderGuides Case Wed, 11 Oct 2017 08:00:22 +0000 Recent court case: KinderGuides condensed and simplified classic American novels - without the rightsholders' permission.

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It’s been a few weeks now, but publishers and authors are probably still celebrating their decisive victory in Penguin Random House v. Colting (aka the KinderGuides case). In holding that the KinderGuides books published by defendants Colting and Medina were infringing, the court decision establishes clear and reasonable boundaries between the exclusive rights Congress secured to creators and the ability of others to comment on and build on copyrighted works.

The case began earlier this year when Penguin Random House filed a lawsuit against the publishers of KinderGuides. KinderGuides is a series of children’s books presenting “a condensed, simplified version” of classic American novels, such as The Old Man and the SeaOn the Road, Breakfast at Tiffany’s, and 2001: A Space Odyssey. The estates of renowned authors and publishers were also plaintiffs in the suit, including the estates of Jack Kerouac, Ernest Hemingway, and Truman Capote.

The defendants argued that their condensing and simplifying of copyrighted classic American novels was permitted under the copyright law as a transformative use under the first factor of the fair use test. Judge Rakoff of the U.S. District Court for the Southern District of New York ruled in favor of the estates and book publishers, holding that the series of children’s books “infringe[d] upon plaintiffs’ exclusive right to reproduce their novels … and [their] exclusive right to exploit the market for derivative works based on their novels.” In reaching his decision, Judge Rakoff explained that “tacking on” a few pages of analysis is not enough to establish a transformative purpose. To hold otherwise would allow the transformative use fair use exception to swallow whole a copyright owner’s exclusive right to control the making of derivative works.

In upholding the limitations of fair use by clearly articulating the distinction between a “transformation” and a derivative work, the Judge reasoned “[t]he doctrine of fair use furthers [the goals of copyright] by permitting others to use existing works in ways that their owners would not ordinarily use them,” but “what fair use law does not protect is the right of others to produce works that [creators] might choose to produce themselves.”

Judge Rakoff goes on to explain that “Congress did not provide a use-it-or-lose-it mechanism for copyright protection. Instead, Congress granted a package of rights to copyright holders, including the exclusive right to exploit derivative works, regardless of whether copyright holders ever intend to exploit those rights.”

In a world where it seems like almost every day, there is another person or company claiming to have “transformed” a creative work, when in reality all they’ve done is repackage its content, this decision is incredibly important not only to the publishing community but also to the entire copyright community. For years, the copyright law has been thrown off-balance due to an undue broadening of the fair use exception and the transformative use doctrine. Hopefully, the “KinderGuides” opinion will serve as a guidepost as other judges are confronted with similar cases in the future, so that we can once again achieve balance in our copyright system.

For additional blogs by Keith and the Copyright Alliance, please click here.

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Copyright Perspectives: “Appropriation Art” – Transformative Use, or Derivative Abuse? Tue, 29 Aug 2017 10:25:27 +0000 Richard Prince is a visual artist, working in photography. His images are exhibited in galleries and sell for thousands of… Read more

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Richard Prince is a visual artist, working in photography. His images are exhibited in galleries and sell for thousands of dollars. There’s no ambiguity about that. For decades, his work has been celebrated and highly regarded by many in the art world.

Prince – not to be confused with the recently deceased musical artist known as Prince – often works in a style referred to as “appropriation art” in which images from an earlier, underlying source are re-used, re-purposed, and re-contextualized. Andy Warhol was famous for this, half-a-century ago, as are others since. Visual parody also works in this vein —parody draws from an underlying work to make a new, expressive point about it.

A few years ago Mr. Prince was sued for copyright infringement in a case which became famous, Cariou v. Prince (714 F. 3d 694; 2d Cir. 2013; case settled, March 2014). This also involved “appropriation art,” where Prince used an underlying image by Cariou as the basis for a different image.

“Transformative” Instagram images land Prince back in court

As it turns out, Mr. Prince has now been haled into court again due to another alleged misappropriation, in the “New Portraits” case. In this instance, Mr. Prince put up a gallery exhibition of images that had been posted to Instagram by other people, re-captioning them or otherwise changing them very slightly. He also sold prints from this exhibition. He – and the gallery owners – argued that his use was transformative (and, therefore, should be permitted). Donald Graham, who has brought the suit, is a working photographer who advertises his work on Instagram. Prince simply took Graham’s photograph and added a short, “cryptic comment,” as described by the court.

The Judge in the case, Sidney Stein of the Southern District of New York, has responded with an interim ruling that – given the facts and the law – he doesn’t buy this argument. He denied Prince’s initial motion to dismiss, and the case appears headed for a jury.

To what does this term “transformative” refer?

Good question. “Transformative use” is a recently developed concept, (Pierre Leval, “Toward a Fair Use Standard”, 103 Harv. L. Rev. 1105 (1990)) brought into copyright law as a refinement on the concept of fair use, especially of the first factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” (U.S. Code Title 17, Chapter 1, § 107).

Although the standard applied in the earlier Richard Prince case – a substantive change to the actual work, seems more in keeping with a traditional transformative use argument, the outcome there was arguably troubling, and took the relative fame of the photographers and the higher market value of the “transformed” work into account to favor the well-known “transformer” over the lesser known author of the original works. The current case has all these elements and more.

Transformative vs. Derivative

It seems to many commentators that there is a tension in copyright law (and copyright theory) between “transformative use” and the older concept of “derivative works.” A derivative work is defined as one:
…based on or derived from one or more already existing works.

Common derivative works include:

  • Translations
  • Musical arrangements
  • Motion picture versions of literary material or plays
  • Art reproductions,
  • Abridgments, and
  • Condensations of preexisting works.

(Source: Circular 14, “Copyright in Derivative Works and Compilations” U.S. Copyright Office.”)

The right of the original author of a work to authorize – or to restrict the creation of – derivative works is well-established under the Berne Copyright Convention and other relevant law, including the US Copyright Act, US Title 17.

Absent some special consideration such as fair use, or the work being in the public domain, the permission of that original author is required for the older work to be used as part of another (derivative) work.

But transformative use necessarily entails the creation of works which, at least, verge on the right to authorize/deny the creation of derivative works
In short, and contrary to some advocates, simply claiming “transformative use” is not a free pass to anything, and the guidance of various precedents should be helpful in this regard. Recent courts have expanded the span of valid applications of this legal construct. In no case should transformative use be a sufficient rationale for creating a derivative work which then may be utilized as a substitute for the original, without the permission of the rightsholder /author in the underlying work. To do so subverts one of the core purposes of copyright, which is to enable creators to commercially exploit the works of their creation. Another is to bring these works to public.

Ought Prince’s uses of the works of other photographers be seen as legitimate, under a traditional copyright analysis, using transformative use as the basis for the argument? At this point, why what Prince is has done here with other people’s images should not be recognized as creating a derivative work, and therefore infringing, is beyond me. We’ll see if, after due consideration and presentation of argument and evidence, the law agrees.

Related Reading:

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What Does a Court Case Regarding Cheerleading Uniforms Have to Do with Copyright? Tue, 15 Aug 2017 09:00:19 +0000 Why is a case involving two cheerleading uniforms so important to those outside the fashion industry?

The post What Does a Court Case Regarding Cheerleading Uniforms Have to Do with Copyright? appeared first on Copyright Clearance Center.

Imagine a Warhol painting. It’s an original work of art, protected by copyright. Now, imagine the painting printed on a shirt. Is it still a copyrightable work? Absolutely. Now, imagine the shirt came first. If you could magically remove the design to a canvas, would you still have a functional shirt? Of course.

The Supreme Court recently considered separability of creativity from functionality in Star Athletica v. Varsity Brands. In July 2010, Varsity Brands, the world’s largest manufacturer of cheerleading and dance team uniforms, sued its competitor, Star Athletica, for copyright infringement of five of its designs for cheerleading outfits. Star Athletica fought back, asserting that the chevrons and stripes on the uniforms served a “utilitarian function.”

The U.S. District Court for the Western District of Tennessee sided with Star, agreeing that the design elements were inseparable from the garments’ function. However, following Varsity’s appeal, the Court of Appeals for the 6th Circuit reversed, stating that the chevrons and stripes that decorated the garment were just that, decoration, and not an element that was essential to the uniform.

The Court of Appeals reviewed and considered at least nine different tests to determine when graphics included in the design of a useful article can be separate from the functional aspect of the article. The court asked whether “a cheerleader is still a cheerleader if their outfit has no designs.” Their verdict: yes.

Star appealed to the Supreme Court, which had previously considered copyrights in useful articles in the context of statuettes on lamp bases during the 1950s in the case of Mazer v. Stein. In that case, the court held that a lamp manufacturer could copyright the statuettes that served as lamp bases.

At this point, you might be wondering why a case involving two cheerleading uniforms is important to those outside the fashion industry, who stand to gain (or lose) the most from the decision. To answer, we need to look back at how separability was previously applied to copyright claims.

Copyright protects art, among other things. In the US, when that expression is part of a useful object, it only protects to the extent that the creative part is “separable” from the functional part. Thus, in Mazer v. Stein, the addition of statuettes to a useful article did not magically deprive the statuettes of copyright protection. They were creative works.

However, industrial design does not follow the same rules of copyright as art. For instance, an architecturally interesting bike rack is not copyrightable if the design is necessary for the function. On the other hand, if you put a lampshade on a sculpture, it is still a sculpture. Good for Baroque design, bad for Bauhaus where “form follows function.” “Separability” is key. In the past, when faced with similar cases, some courts have looked literally at separability, as in, “can one physically separate the feature, and if so separated, can it stand on its own as a copyrightable work?” Other courts looked at it conceptually, as in “can the design stand on its own as a work, even if technically it cannot be separated?”

Considering these tests in Star Athletica, the Supreme Court held: “design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”

Since one could imagine the designs as a separate work which could be hung on the wall, and could still wear the clothes without the designs, copyright protection was upheld.

The ruling opens new opportunities for industries that previously relied on design patents, which are expensive and of shorter duration than copyrights, to protect their works. Because conceptual separability is the undisputed law of the land, infringement is more likely to be found than under a more stringent test such as literal separability.

Why this Matters More than Ever—3D Printing

Historically, cases involving copyrightability and useful objects usually took place between two manufacturers (of lamps, belt buckles, etc.), and had little application to the public at large. The average consumer does not manufacture useful objects. That is, the average consumer does not manufacture useful objects yet. With 3D printing, individuals will be able to produce useful articles, creative works, and works that combine both, which is why the Star Althetica case caught the attention of 3D printing companies Formlabs, Matter and Form and Shapeway, who together filed an amicus brief for Star, encouraging the Supreme Court to hear the case.

3D printing, also known as additive manufacturing, is a process that creates three-dimensional objects. The printers interact with software and print objects layer by layer. These objects are made from a variety of materials, from basic plastics to metals, chemicals and even proteins. 3D printers can be used to print prosthetic, limbs, airplane parts, art and even medicine. As 3D printing becomes universal and easier to use, it has the potential to radically shape how goods across industries are manufactured—as complex products, like medicine or mechanical parts, may be simple to produce at home. That means practically any business that makes physical objects will potentially face a scenario in which easy access to digital files, whether legal or not, moves the means of production to individuals at home. This will have implications for copyrights, patents, design patents and trademarks. In the case of copyright, many of the items printed will combine copyrightable and non-copyrightable elements.

As the rules around 3D printing develop, litigation now will affect the trajectory of the industry. Thus, the 3D printing companies filed an amicus brief asking the Supreme Court to hear the case. Formlabs is a 3D printing company dedicated to creating desktop printers, giving the public greater access to 3D printing. Matter and Form creates affordable high-resolution 3 scanners. Shapeway provides an online shopping service on which people can buy and sell 3D printed objects, which Shapeway prints and ships. All three of these companies are at the forefront of the 3D printing industry, albeit from different sides, and have an interest in defining copyright and intellectual property regulations for 3D printing in the future. It is in these companies’ best interest for regulations to be lax and clear, as it will enable them and other printing companies to produce goods with greater legal certainty.

In their brief, the companies argued that uncertainty, including the nine tests mentioned by the Circuit Court, had left 3D printing in a state of confusion, causing stagnation. As 3D printing allows more people to create and develop projects on a smaller scale, they argued the need for a single test.

With the ruling of the Supreme Court, a single test has been created. However, this is only the first step in what will likely be an ongoing battle over intellectual property and copyright in 3D printing. While uniformity throughout the courts will be helpful for identifying infringement, the strength of the law will likely be debated for years to come. As it currently stands, the test allows for a broad range of designs and objects to be considered copyrightable. This will benefit designers and producers, as it allows a certain degree of protection; however, this may also lead to an increase in infringement cases. For companies like Shapeway, who sell products on their online server, this could become problematic, as they may see an influx of infringement complaints from designers. It will be interesting to see how firms like Formlabs, Matter and Form, and Shapeway respond to the decision, as their actions, as well as the decision, may very well affect the future of 3D printing.

This post originally appeared on TechCrunch.

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US Copyright Office Releases a Big New Report on Section 1201; So, What Happens Next? Tue, 01 Aug 2017 09:00:51 +0000 How might a recent Copyright Office report affect the Digital Millennium Copyright Act (DMCA) and copyright related to the Internet and other technologies?

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The Digital Millennium Copyright Act (DMCA) was enacted by Congress in 1998 to, among other things, encourage the growth of the Internet and many other related technologies. At the time, Congress set up some relatively “big-picture” rules of the road for how the rights and privileges of copyright holders, technology providers, Internet service providers, consumers, businesses, government agencies, and others would be managed. The intent was to minimize friction among all the parties and still encourage new technologies.

One of the things Congress realized at the time of the DMCA—and something Congress realizes all too infrequently—is it was likely technology would develop more quickly than laws and rules could be written to manage how the new technology would interact with everyone else’s rights and privileges. So, Congress included within the DMCA Section 1201, under which the Copyright Office is supposed to update some of the ways in which technology and the law interact, by undertaking a rulemaking process every three years. That means hearing evidence and then identifying specific exemptions from the limitations of copyright and the DMCA, which the Office is given the power to enact.

The Copyright Office is already in the middle stages of the seventh cycle of Section 1201 rulemakings (conclusions due at the end of October, 2018). In past cycles, the number of exemptions granted has gradually grown from a small handful to about a dozen.

The multiple cycles have proven a few things:

  1. Some exemptions (such as certain ones for the disabled), once granted, tend to be granted over and over.
  2. A few other exemptions (such as the right to jailbreak an iPhone) have been granted in one cycle and then retracted in a later one (although the jailbreaking exemption, once retracted by the Copyright Office, was later reinstated by Congress).
  3. A few exemptions have been turned down repeatedly.

But the law requires each rulemaking must look anew at each exemption (given changes in technology and society) if someone in the public asks for it and the Copyright Office considers it a serious request. As a result, over time, the rulemaking process has become longer and longer and taken more and more Copyright Office resources to administer.

On June 22, 2017, the Copyright Office itself announced in a Report that it has some suggestions for changing the rulemaking process (click here to access the full report). The Office would like to hear public comments on its suggestions by September 13, 2017, and then will shape them into a final set of suggestions for Congress to change the law (and, at a minimum, streamline the rulemaking process). It is not clear how long it will be before legislation is introduced, but experience suggests it will not be before mid-2018.

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Practical Steps for Creating a Corporate Copyright Policy Wed, 12 Jul 2017 09:00:54 +0000 Ordinary office exchanges can violate copyright rights and result in costly lawsuits or settlements. Here's how to respect copyright in the workplace.

The post Practical Steps for Creating a Corporate Copyright Policy appeared first on Copyright Clearance Center.

Any original work of expression written, recorded, or otherwise captured in some fashion is protected by copyright. That includes art, music, and literature, as well as research, news, blogs, and e-books.

Copyright is an essential tool in the spread of new ideas, and the workplace has become ground zero for violations of the exclusive rights of the copyright holder discussed above – otherwise known as copyright infringement. Ask employees up and down the corporate hierarchy, and they’ll tell you that sharing information electronically with co-workers is integral to their jobs. Their employers will emphatically agree.

But unauthorized swaps of information also carry enormous potential risk: Ordinary office exchanges, so natural to the digital world, can easily violate the copyright rights of others and result in costly lawsuits or settlements. So, any time employees share content, there’s not only risk—potentially substantial legal and financial exposure—but ethical aspects to consider as well.

So how does a company teach all its employees about copyright and protect itself against copyright infringement? An important first step is taking responsibility to educate employees about compliance and then putting protections in place, including a copyright policy.

The following five steps will help get you started in crafting a copyright policy that meets your company’s needs and decreases your risk of infringement. Please feel free to use these sample guidelines for your organization, but be sure to consult legal counsel, and understand that the following suggestions are not legal advice.

1) Tap your organization for input

Helpful suggestions for issues to address in your policy can come from a variety of departments. In addition to legal, compliance, and library/information services, expand the policy team to include IT, marketing, and corporate communications.

2) Establish your policy objective

Be clear on why your organization is implementing a copyright policy. Maybe the goal is for your company to fulfill its obligations under copyright law. Perhaps it is to provide employees with a uniform approach to addressing copyright issues. Whatever the reason, state it concisely.

3) Define copyright

Explanations of copyright law and what it covers don’t have to be complex. Be sure your policy includes concise definitions and examples of information that is and, equally important, is not copyright protected.

4) Demystify “fair use”

Fair use’s premise—to allow limited use of copyrighted material without permission—is often misunderstood. Be sure your policy includes details on the factors to be considered when deciding whether a particular use is a fair use and your organization’s policies for balancing fair use and copyright holders’ rights.

5) Address international copyright issues

Each country has its own copyright laws, and therefore there is no such thing as international copyright law. The differences in the national copyright laws present a challenge for global organizations with employees working in worldwide offices and sharing content across borders. Nevertheless, more than 160 countries have ratified a treaty—the Berne Convention, administered by the World Intellectual Property Organization (WIPO)—that aims to protect the rights of creators around the world by “harmonizing” the participating nations’ copyright laws to some degree.

If your organization employs workers in multiple countries, provide information to ensure they comply with the copyright laws of the country in which they are based.

For more information

We invite you to download CCC’s complimentary white paper, The Risky Business of Information Sharing, to learn more about corporate copyright compliance—including the five remaining steps for creating an effective copyright compliance policy.

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Copyright Office Modernization Bills Wending Their Way Through Congress Wed, 05 Jul 2017 08:30:49 +0000 5 things you should know about Bill H.R. 1695, “The Register of Copyrights Selection and Accountability Act,” as it makes its way to Senate for final vote

The post Copyright Office Modernization Bills Wending Their Way Through Congress appeared first on Copyright Clearance Center.

The US House Subcommittee on Intellectual Property has held many hearings over the past five years, leading to what the Subcommittee has announced will be several proposals for change to US copyright law in pursuit of updating it for the 21st century context. Among the proposals most likely to pass is a series of measures called, collectively, “modernization of the copyright office.”

On April 26, 2017 the US House of Representatives passed bill H.R. 1695, “The Register of Copyrights Selection and Accountability Act,” which, if enacted, would change the way in which the Register of Copyrights is appointed. Instead of the current process of appointment for indefinite terms by the Librarian of Congress, the Register would become an independent presidential appointee—nominated from a short list of mostly Congressionally-recommended individuals and confirmed by the Senate—for a fixed term of 10 years. The bill would also increase the directness of the relationship between the Register and Congress, which by statute relies on the Register for both technical and practical copyright advice.

If you haven’t been staying up to date on the discussions around the legislation, here are five things you should know about the bill as it makes its way to the Senate for a final vote:

#1 – Publishers, Creators and the Copyright Industry are all Championing the Bill

The Copyright Alliance, as well as organizations such as the National Music Publishers Association and Songwriters of North America, are among the most vocal supporters, while the Motion Picture Association of America and the Software & Information Industry Association have also championed its passing.

#2 – On the Other Hand, Not Everyone Is a Fan

The American Library Association’s Library Copyright Alliance has voiced its opposition to the legislation, as have some Silicon Valley-related trade groups, including Public Knowledge, the Electronic Frontier Foundation and the Re:Create coalition. The alignment of organizations for and against the bill is typical for copyright legislation.

#3 – Previous Registers of Copyright Support It

Former Registers Marybeth Peters (in office 1994-2010) and Ralph Oman (in office 1985-1993) voiced their concerns about the relationship between the Copyright Office and the Library of Congress. Both lend support to the bill, asserting that Congress should have access to “independent copyright advice straight and true from the expert agency” as opposed to “filtered through the lens – and shaped by the perspective – of the head of the national library.”

#4 – A Step Toward Modernizing the Copyright Office

Core copyright businesses contribute more than $1.2 trillion to the U.S. economy and create more than 5 million jobs, so it’s no surprise that so many are invested in the outcome. Other groups intended to be beneficiaries of the copyright system, including singer-songwriters, photographers, novelists, etc., often struggle to navigate the complexities of the copyright registration process, sometimes foregoing it altogether. Many are hoping that a Copyright Office with separate budget authority from Congress would swiftly introduce operational reforms that match the speed of innovation and creation in the U.S. For those with that end in view, this bill represents a first step.

#5 – There is No Timeframe for Passage

The bill was introduced in the Senate at the beginning of May 2017 and was referred to the Committee on Rules and Administration. There is currently no scheduled consideration of the bill by the Rules Committee on the calendar and it may even receive a sequential referral to the Judiciary Committee (responsible for copyright-related legislation). This means it still needs to clear all committees with jurisdiction before it can be voted on by the full Senate.

Regardless how the Senate votes, this bill has brought attention to the importance of modernizing the Copyright Office. It has encouraged various industry and private sector groups to consider what the most important issues in copyright are, and continuing these conversations and debates will be vital in the evolution of copyright in the U.S.

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What Is Real Art? The Debate Continues Fri, 23 Jun 2017 08:30:22 +0000 “Aerosol art” is at the center of a court case that could set a precedent for what qualifies as “real art” protected under the Visual Artists Rights Act.

The post What Is Real Art? The Debate Continues appeared first on Copyright Clearance Center.

If you ever took the 7 train through Queens before 2014, you probably rode right past 5Pointz. And depending on your artistic leanings, you might have been impressed by the splashes of color and paint, or you might have been upset by the graffiti plastered across a five-story, block-long industrial building. Ah, artistic interpretation!

5Pointz Aerosol Art Center was an outdoor exhibition space in New York City, founded by graffiti veteran Jonathan Cohen. For nearly two decades, it was a graffiti “museum” attracting visitors, artists, musicians, filmmakers, photographers and admirers of all sorts. Brands like Deutsche Bank and Heineken even collaborated with artists for specific advertising campaigns featuring 5Pointz work.

As gentrification swept the city and the housing market demand increased, owner Gerald Wolkoff, who initially gave permission to the artists to paint on his building, whitewashed the graffiti in 2013, upsetting the artists who had curated the mass collection of works. The building was torn down a year later to make way for condominiums.

While this institution of “aerosol art” no longer exists, it is at the center of a New York court case. The plaintiffs – 23 graffiti artists whose work was displayed at 5Pointz – claim their work deserved special protections under the Visual Artists Rights Act (VARA), and, as such, are seeking damages from Wolkoff and his company, G&M Realty.

Initially, in 2013, the plaintiffs sought a temporary restraining order to prevent the destruction of their murals. After the murals had been painted over, the artists argued they were not given the proper 90-day notice of removal. These motions were ultimately denied. However, when the artists refiled the case in 2015, claiming that VARA was on their side, a judge ruled there was enough evidence to warrant a trial because G&M Realty’s argument discrediting the graffiti as not of “recognizable stature” wasn’t strong enough. The widespread awareness of 5Pointz and the visitors it attracted, coupled with the use of the graffiti in the Heineken and Deutsche Bank advertising campaigns, might have swayed him.

At the center of the current case lie the issues of whether graffiti can be considered visual art of “recognized stature” and whether THIS graffiti is “meritorious” and “recognized” by art experts and the artistic community; if so, then it qualifies for protection under VARA. Depending on whom you ask, the answer varies widely.

However this case turns out – it will proceed to a jury trial, but has not yet been assigned a trial date – it will have implications moving forward that could set a precedent for what qualifies as “real art.” Congress debated this precise issue during the passing of VARA but without resolution; if the plaintiffs prove successful in their lawsuit, those who initially opposed VARA will likely again argue that the statute is too far-reaching and broad.

The post What Is Real Art? The Debate Continues appeared first on Copyright Clearance Center.

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Can you Trust It? Using Open Access Materials in the Corporate World Wed, 21 Jun 2017 07:47:40 +0000 Do you understand the economic underpinnings of each Open Access model? Here's your guide.

The post Can you Trust It? Using Open Access Materials in the Corporate World appeared first on Copyright Clearance Center.

There are various flavors, meanings and models of Open Access, but once you have the basic differences down, it’s worth exploring the economic underpinnings of each model.

In the non-OA world, when you pay for a subscription, you are helping to fund the publishing process and the value that process brings—a value that includes a full peer review of the articles to ensure the science is up to snuff and that the research is original and new. The subscription fee also pays for copyeditors who make sure the i’s are dotted, the t’s crossed, and the decimal points are all in the right places. Publishers have an incentive to do these things. They want you, the readers and buyers, to find real value and keep subscribing. The existence of a “buy” side in this economic model ensures a certain level of quality. OA articles published in hybrid journals also benefit from the “buy” side pressure on quality.

Pure Gold Road & Green Road Publication– The Benefits and Challenges

The fundamental challenge for publishers of pure gold road journals arises when the financial incentive switches entirely to the “supply” side (i.e., the authors) and away from the “buy” side (e.g., the researchers, librarians, etc.).  When accepting an article for publication, the pure gold road OA publisher doesn’t have to be as selective about its novelty or fit as subscription or hybrid journals do.  Pure gold road OA publishers earn revenue from the OA fees paid by authors. They aren’t under pressure to retain or grow subscription income, they are under pressure to publish more articles. So long as the author wants to publish in a pure gold journal and pay the fee, the publisher can be less concerned with the article’s novelty, or whether it aligns perfectly within the journal’s editorial scope. The content may still of course be very valuable to the corporate user, and if it is interesting to the researcher, then it may not matter whether it is truly innovative or “in scope.”

The pure-gold approach provides several benefits.  Without page limitations, more content can be published, creating an outlet for articles about topics that are immensely valuable to researchers (such as negative results—or failed experiments—for example) that might not otherwise make it into prestigious subscription journals.  Recent arrangements between the Gates Foundation, the Wellcome Trust, and publisher f1000 are advancing this concept further, to the benefit of users.

Without an independent business model for green road OA, economic complications arise. The costs of green road publication are essentially paid for by the publishers and underwritten by the subscribers. If anything, the business model is self-destructive, as its ultimate goal is to replace the subscriptions that sustain it. (Some will argue that this is not the “goal” of green OA, but if the objective is not to avoid fees, what is the point?) This is not to say that all green road content is of poor quality; rather that without a publisher’s quality control, you simply do not always know if what you are reading is the version of record, or that it has been properly peer reviewed, retracted, modified, or corrected. Some repositories are simply more trustworthy than others, and few have the same processes as publishers.

Predatory publishers and sham journals

When it comes to OA content, the gold road offers advantages, with a caveat: When your incentive is to publish (because the more articles you put out, the more money you make), the door opens for those who care less about quality than they do about profits. Sadly, this has given rise to a few predatory publishers, who have low (or no) standards and are interested in one thing only: Getting money from the author, regardless of the quality of their work. These predatory publishers have no editorial standards. They publish junk science, plagiarized science, and pseudo-science. Compounding this is the fact that some so-called OA “publishers” are actually just marketing scams, who will steal the names of existing journals (or adopt confusingly similar names), falsely identify respectable scientists as editorial board members, and seek to trick authors into making payments. As an author, you need to worry about being scammed. As a user, you need to worry about relying on bad published information. Either way, this requires vigilance.

How to protect your usage in an Open Access world

How does the corporate researcher or library professional make sure that open access content is trustworthy? Here are some suggestions:

  1. Check a publisher’s credentials. Make sure that the publisher of whatever you’re reading belongs to either one or more of the leading societies for science publishers, such as the International Association of Scientific, Technical, and Medical Publishers (STM) , the OA Scholarly Publishers Association (OASPA), or The Association of Learned & Professional Society Publishers (ALPSP). These associations have standards for membership, and they are well-placed to vet and monitor their members.
  2. Visit org. Think. Check. Submit. is a campaign to help researchers identify trusted journals for their research, and it is supported by many leading publisher organizations. While it is designed primarily for authors, anyone can use the methodology to assess the credentials of a journal or publisher.
  3. Consider your use. For green road content especially, ask yourself, “What use am I making of this content?” If you are merely reading an article to find cited references, the version of record is probably not that important. If you are making a multi-million dollar research investment or a dosing decision for a patient, you had best check the official, latest, publisher-maintained copy. Check for the journal on the Directory of Open Access Journals at  The aim of the DOAJ is to increase the visibility and ease of use of open access scientific and scholarly journals, thereby promoting their increased usage and impact. DOAJ reviews journals for inclusion based on a number of factors, including “openness” and quality, and actively accepts and removes journals from its list that do not adhere to documented best practices.  DOAJ has received widespread endorsements by universities and research funders as being the authoritative list of “good” Open Access journals.

Like any other disruptive force, OA offers both risk and reward for its stakeholders – authors, publishers, and content consumers. That risk can be mitigated, and the likelihood of reward increased, by staying informed when making content use decisions.

Want to learn more? Check out Understanding Open Access Research Content in the Corporate World: 4 Need-to-Know Terms and Their Definitions

The post Can you Trust It? Using Open Access Materials in the Corporate World appeared first on Copyright Clearance Center.

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