A recent piece in the NYTimes Bits Blog points out a study from the University of Washington which showed that the technologies Big Media uses to investigate illegal file sharing regularly produce false positives.

From the Bits blog:

In two separate studies in August 2007 and May of this year, the researchers set out to examine who was participating in BitTorrent file-sharing networks and what they were sharing. The researchers introduced software agents into these networks to monitor their traffic. Even though those software agents did not download any files, the researchers say they received more than 400 take-down requests accusing them of participating in the downloads.

The researchers concluded that enforcement agencies are looking only at I.P. addresses of participants on these peer-to-peer networks, and not what files are actually downloaded or uploaded — a more resource-intensive process that would nevertheless yield more conclusive information.

In their report, the researchers also demonstrate a way to manipulate I.P. addresses so that another user appears responsible for the file-sharing.

An inanimate object could also get the blame. The researchers rigged the software agents to implicate three laserjet printers, which were then accused in takedown letters by the M.P.A.A. of downloading copies of “Iron Man” and the latest Indiana Jones film.

This is not the first time flaws in the RIAA/MPAAs’ strategy have been revealed, and librarians and other concerned parties have been calling for more transparency in their tactics for quite some time. Now opponents of file-sharing lawsuits - not to mention the defendants in those lawsuits - have scientific evidence that these tactics implicate innocent people. And laser printers.

The news coming from Redmond the Friday before Memorial Day didn’t look promising. Microsoft reported that it was ending its book digitization efforts and scanning collaboration with libraries. Microsoft shut down its Live Book Search portal, which provided access to digitized out-of-copyright books. The materials are still available for search through Microsoft’s main engine, Live Search.

Satya Nadella, Senior Vice-President for Search, Portal and Advertising at Microsoft said the company is “encouraging libraries to build on the platform we developed with Kirtas, the Internet Archive, CCS, and others to create digital archives available to library users and search engines.” Microsoft will remove all contractual restrictions placed on the digitized library content and make the scanning equipment available to former digitization partners and libraries to continue the scanning programs.

Brewster Kahle, director of the Internet Archive and supporter of the Open Content Alliance (the consortium that worked with Microsoft on the book scanning project) said that Microsoft’s exit is inconvenient in the short term, since libraries will now have to scramble to find funds to keep the work going. But Kahle said that over the long term, having library digitization project supported by public infrastructure is the right thing to do. “The idea that the intellectual discourse of humanity should be on only one or two corporations’ shoulders is…Orwellian,” he said. Paul Courant, Dean of Libraries at the University of Michigan, said it’s always desirable when there’s a diversity of players–and money–backing up digitization initiatives. He writes, “I continue to wish that there were folks with deep pockets lining up to provide free digitization of the world’s library collections. Alas, there is no one in line that I know of, and with Microsoft’s departure, the only serious player is Google.”

Kahle, who praised Microsoft for providing a kick-start to the library system in opening up public domain materials to the public, said that it’s now up to the public sphere to take over the operations. The Sloan and MacArthur Foundations, as well as libraries in Boston and the Library of Congress are funding their own scanning projects. The British Library reported that their scanning efforts won’t slow down significantly, even though they will no longer receive Microsoft funds.

With proposed orphan works legislation in Congress, libraries, archives, and museums continue to gauge the impact that a positive law could have in making available to the public thousands of orphan works. A favorable law could open the floodgates to more digitization projects and support further discovery of texts once darkened by fears of copyright infringement. With Microsoft now gone, public investment in large scale scanning projects may be necessary in moving forward.

Though Peter [Hirtle, my co-blogger at the LibraryLaw blog] has just posted on the Georgia State lawsuit on fair use, the AAP’s risk, and end users, my post will focus more on the difficulty in defining the boundaries of fair use for libraries and institutions that are attempting to make owned works available online, the potential options libraries have at this point, and why moving towards open access might (eventually) help to solve this impasse.

Fair Use

According to the complaint, “Georgia State’s general copyright primer …affords “fair use” parameters — that is guidelines as to allowable copying without permission — that plainly exceed legal boundaries.” And what are these so-called illegal policies (so-called because there is no statutory boundary of fair use)? Georgia State

“endorses up to twenty percent of a work — a benchmark that would countenance unlicensed excerpts of dozens or even hundreds of pages from a given work.”

As Peter points out, Georgia State’s percentage is based on “the state’s guide to understanding copyright - developed by a committee of experienced lawyers and educators.”

While the percentage allowed under Georgia State’s interpretation is larger than that of more conservative standards at other libraries, as Northwestern University copyright blog (Claire Stewart) states,

“It is interesting that the publishers [in this lawsuit] are not at all specific about their thresholds for acceptable use, leaving us to wonder whether they would consider any reserve use fair.”

Some publishers do have stated guidelines for what they consider to be “fair use” for both e-reserves and use of materials in the classroom, often with stated percentages. However, from what I was able to easily discern (corrections are welcome!), the three publishers involved in this lawsuit do not have stated fair use guidelines readily accessible on their websites or elsewhere. (“Except as provided under national law, written permission is required to photocopy all Cambridge publications” and stated guidelines for reuse of materials by their own authors)

So what about using more restrictive guidelines than those at Georgia State, as done by other libraries, say not more than ten percent of a work? While that would allow for less use, it still doesn’t address the elephant in the room — that the library has already paid a great deal for the materials placed on either physical or electronic reserve. Either through purchase of usually a physical book or journal, or through licensing, libraries have paid, are paying, and will continue to pay publishers for the use of materials. Of course, ownership of physical copies does not allow for copying without fair use consideration – but the way libraries have been and continue to buy physical copies demonstrates their willingness to pay for copyrighted information.

In the case of licensing, often publishers tie the price of licensing a database to the enrollment numbers for the entire institution — not just for those likely to be using the product, increasingly switching from a per-simultaneous user license to a full-time enrollment (FTE) license.  So academic libraries frequently have to choose to license a database to the entire institution rather than just for the small number of interested users – or do without. So it is probable that at least for some of the items in the complaint Georgia State has already licensed and paid for access to those items for more than those students who are using the e-reserves version of those articles.

One of the additional complicating issues revolves around who is responsible for creating and maintaining e-reserves. As my co-blogger Peter Hirtle stated in a Library Journal article last year,

“Since our AAP agreement, we don’t even have separate e-reserve policies any more,” explains Peter Hirtle, intellectual property officer for the Cornell University Library. “We have electronic course content copyright guidelines.” That change, he says, reflects the recognition that “electronic course content” can reside in a system managed by the library, or in the Blackboard course management system, or on an entirely separate system maintained by the faculty, including personal web sites.”

Effect on the market?

The fourth fair use factor is definitely in play here — the effect of the use upon the potential market. As these three publishers see it, the market for academic materials used for classes is student classroom use, and therefore individual students should purchase any book or journal article that in any part is being used for a class. And as Peter points out in his blog post on this case, at present, the market is not seen as being impacted when individual students make copies of the same chapter in a book during the same semester or over years. From the perspective of the publishers, by hosting e-reserves, libraries are acting as the agents of individual students and professors and therefore the libraries should be required to purchase licenses for every single individual use of these materials. As Peter expresses “does fair use really disappear whenever there is a market that licenses reproductions?”

However, libraries view their “market” differently – to make materials accessible through being the consumers and collectors of academic materials, to be used in the short term and the long term, for the benefit of both individual users and for all possible users. This viewpoint allows libraries to serve both traditional library roles (purchasing physical items for subsequent theoretically unlimited loaning) and for newer library roles (licensing of materials for an entire institution or for a specific class). 

If the publishers’ view of the market wins, it will decimate much of library-based fair use.

Possible Options for libraries

So let’s think about where this leaves libraries and institutions before there is a settlement or decision:

Option 1: Pay for everything posted online through the CCC or some other service. While the upside is that the institution won’t likely get sued, the strong downside is paying again for items owned or licensed by the library — and the abandonment of fair use.

Option 2: Have the entire institution carefully redo its entire policy on online posting of materials. Include information about percentages of material available to be posted (though that didn’t save Georgia State) and how long materials will be posted (many libraries will only post materials for one semester/quarter based on fair use before asking for permission). 

Option 3: Only have links to online content licensed by the library and limit information beyond links in e-reserves to public domain materials. Require that all licenses either explicitly allow or do not forbid the use of links in course reserves. The upside is that no copyrighted content is copied, but once again, fair use loses out.

Option 4: And then there’s the most difficult option for an academic library — saying no to faculty members by not having any e-reserves at all. Dorothea Salo at Caveat Lector states that “If I were the Georgia State library, I’d play hardball. No e-reserves for anybody, and let faculty go whine at the AAP.”

She previously posted in 2005 that libraries should say no to e-reserves until professors and authors understand the cost of publisher-directed “no fair use”:

“Call out the AAP from behind the curtain, Look faculty in the eye and say, calmly, ‘no, we can’t put this on e-reserve, because fair-use is endangered everywhere and the AAP is making lawsuit noises-but why don’t you and I contact the article authors and ask if they’ll post a preprint we can link to? And by the way, are you posting your own preprints for others?” Salo said libraries must “draw a thick black line connecting what faculty do and what they have access to, because right now they don’t see it.” (via Open Access)

Open Access?

Option 5: The most difficult option of all is to change the dynamic between libraries, authors, and publishers. This more than the other options is a dramatic overall policy shift and therefore has little to do with copyright or fair use, but rather changing the question. Here the question is “How can professor authors help to make their work available for professors and students to use in the classroom and for scholarly work?”

One means of making more information accessible is through open access, defined by Peter Suber as “Putting peer-reviewed scientific and scholarly literature on the internet. Making it available free of charge and free of most copyright and licensing restrictions.” Harvard University and other institutions are moving in that direction. In an era where more and more information is seemingly available for free on the internet, placing peer-reviewed information where “anyone, anywhere, with access to the Internet may read, download, copy, and distribute that article” seems like a great idea. But as Peter Suber states, open access is not a panacea; creating works still takes the efforts of authors and others.

Open Access leaves the beginnings of changing the dynamic in the hands of authors, but there is still a role for publishers (who can help with the selection, peer review, and editorial process), and libraries. Libraries can serve as institutional repositories for works written by their faculty and staff, help institution-based publishers, and will continue to purchase works.

As a great example of the possibilities of open access in practice, with a publisher working with an author and libraries, MIT Press has John Willinsky’s The Access Principle: The Case for Open Access to Research and Scholarship published in 2005, available for downloading, purchasing, and has a link for finding in a library. And at the time I’m writing this, the library copy nearest to me is checked out!

Open Access is not a cure-all, but thinking about access to e-reserves only as a copyright versus fair use issue obscures the present imbalance in the world of scholarly publication. The Duke Scholarly Communications blog puts this issue bluntly:

“The real irony is that [the lawsuit] is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.” (emphasis added) 

The promise of moving into an Open Access system for publishing scholarly works will take years. However, fair use is designed to be flexible enough to fit many different types of uses, such as the idea of e-reserves. I hope fair use continues to be as flexible after this case either settles or is decided.

Cross-posted on the LibraryLaw blog

Two new versions of an orphan works bill were introduced last week in the House (H.R. 5899) and Senate (S. 2913). PDFs of the bills, along with a clear and detailed overview of the orphan works problem and the proposed solutions, are available at Public Knowledge.

The bills are a mixed bag. There are some substantial changes from the Orphan Works Act of 2006, several of which are clearly intended please copyright holders who fear that orphan works legislation will erode their ability to control uses of their work. Some of these concessions are only in the House bill.

The first is a new requirement that users of an orphan work must register a “notice of use” with the Copyright Office. According to the House bill:

Such filings shall include—

‘‘(A) the type of work being used, as listed
in section 102(a) of this title;
‘‘(B) a description of the work;
‘‘(C) a summary of the search conducted
under paragraph (1)(A)(i)(I);
‘‘(D) the owner, author, recognized title,
and other available identifying element of the
work, to the extent the infringer knows such in
formation with a reasonable degree of certainty;
‘‘(E) a certification that the infringer per
formed a qualifying search in good faith under
this subsection to locate the owner of the in
fringed copyright; and
‘‘(F) the name of the infringer and how
the work will be used.”

This will make is much easier for concerned copyright holders to keep an eye on things, because anyone who hopes to make a legitimate, protected use of an orphan work will register that use with the Copyright Office. The downside is that the process of registering the use of an orphan work may turn out to be difficult and expensive.

Georgia Harper’s take on the new orphan works legislation, especially the notice of use registry, is quite negative, and well worth a read. She says:

The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the “yes!” responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill.

Another new addition is a requirement that the Register of Copyrights will develop a certification process for electronic databases that will “facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.” This by itself is not bad news - we need resources that make it easier to find information about copyrighted works, and the Copyright Office should be leading the way in promoting the development of those resources. Unfortunately, these registries are likely to be run by private entities, and will likely charge fees for use. Furthermore, in order to have time to develop standards for these image databases, the House bill will not take effect for pictorial, graphic, and sculptural works until after the Copyright Office has certified no fewer than two “independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet,” or on January 1st, 2013, whichever comes first. January 1st 2013 is not soon. And pictorial and graphic works are some of the most notoriously difficult orphans to track down, as well as some of the most fragile.

Other observations… The new draft has language that explicitly exempts non-profit educational institutions, libraries, and archives from having to pay monetary damages, as long as their use is noncommercial and “primarily educational, religious, or charitable in nature.” There was similar language in the old bill, but it didn’t single out any particular kind of institution; I’m not sure if the new phrasing is better or worse, or just different.

And a last note to the illustrators and photographers who have been up in arms about orphan works legislation: the following language was in the 2006 version of the bill as well, and it still negates any claims that orphan works legislation will permit people to steal all unsigned photographs and images:

LACK OF IDENTIFYING INFORMATION.—The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions [for eligibility] under paragraph (1)(A)(i)(I).

In other words, the mere lack of a copyright notice or name attached to the work is not enough for someone to declare a work orphaned.

Overall, I think the orphan works bills, especially the Senate version, are a small step in the right direction, but ultimately their effectiveness will depend a great deal on how they are implemented. Too many concessions to the anti-orphan works lobby, and meeting the requirements to protect users of orphan works will be too difficult, rendering the legislation essentially useless.

[Cross posted, sort of, at Multi-Purpose Librarian]

On April 17th, the Berklee College of Music (in Boston, MA) hosted “Envisioning 21st-Century Music Business Models,” part of a series of discussions at Berklee on the future of the recording industry. A standing room-only audience of primarily young men listened to music business executives and Marybeth Peters, U.S. Register of Copyrights.

Understanding music licensing and the collection and payment of royalties is not terribly simply for those not part of this business. Ms. Peters spoke a bit on the history of copyright and sound recordings, noting that sound recordings were not covered by federal copyright law until 1972. She positively did not discuss the status of recordings issued before 1972. They will not be covered by federal copyright until 2067, unless the law is revised.

New ways of generating revenue for the music business (oh, and for artists also), was the subject of this Berklee discussion. Someone mentioned Rhapsody, the online subscription music service that provides streaming access to a library of digital music. Albhy Galuten of Sony BMG Music Entertainment then spoke of a proposed larger and interoperable system being considered by Sony and Universal Music Group called Total Music. (Here is a CNET blog post on this possible venture). The initial goal of the project would seem to be to establish a subscription music service that would of course be an iTunes competitor. But Mr. Gahluten spoke of the interoperability of systems as key to the enterprise, with the goal of generating revenue from the sheer convenience of providing users the delivery and management of music via cell phone, iPod, laptop, home server, etc. A service aggregator such as Verizon was mentioned as theoretically capable of providing this integrated service.

Aside from the technical feat of the cross-platform provision of one’s digital music on a variety of devices, what about the licensing of the music? Discussion participant Susan Butler, Billboard’s legal correspondent, asked if a compulsory license would be required to do this, and asked how likely this would be to happen. Possibly some other form of automatic licensing by a performing rights or collecting agency could serve. Marybeth Peters asked who would pay to make the Harry Fox Agency more efficient (sufficiently efficient, that is, to actually successfully manage licensing for a venture like Total Music).

For the outside observer, a “take-away” from the Berklee discussion was the IMPRESSION that portions of the music business are prepared to let people listen to as much music as they wish, at any time, on as many devices as they wish, in exchange for a reasonable, regular fee. In truth though, listeners will have to wait and see what sort of digital rights management would be employed by a business like Total Music and what choices listeners will have then.

[Hopefully, this post is not too far afield from copyright and librarians].

A recent blog post discusses the interaction between the public domain materials and contracts signed by libraries (either as the contract providers or as license holders).

Think about how this bizarre situation has turned public domain on its head – a government employee has created public domain documents, a company has acquired them, and the public now needs to go through that company to see those documents. And if you are a subscriber who has paid for access and then you attempt to download all of those public domain documents to make them publicly available – look out! If you do this, you’ve likely violated your contract / license with the company to access those public domain documents, even though those public domain documents have no copyright protection. The commercial vendor considers the license to trump public domain status.

The post talks mostly about the Government Accountability Office’s legislative histories and Google Books, but the issues discussed apply not only to government publications, but to all public domain documents (such as all materials published in the United States pre-1923).

I understand the practical difficulty for librarians in coping with the daily interaction between copyright and licensing. Especially when there is no actual copyright! But the difficulties in thinking about this situation won’t stop libraries from continuing to serve patrons by purchasing access to databases that mostly or entirely contain public domain materials.

There’s been quite a buzz on the internet about the recent suit against Einstein’s Notes, a company in Florida that sells notes from university classes. One professor whose class is impacted has applied to register his class notes with the US Copyright Office, and has transferred copyright to Faulkner Press, the publisher of textbooks by the same professor. Now, Faulkner Press is suing Einstein’s Notes for creating unauthorized derivative works.

Three questions interest me in this situation:

1. Are the class lectures or notes copyrightable?
2. If they are, is there a sort of social contract that allows for notetaking, in this and other contexts?
3. What are people’s opinions on the case, and how do those vary by cultural or educational background?

Of course, since the suit was just recently filed, it will be a while before these questions are really answered completely, but let’s not let that stop us! I’ll take this opportunity to add that I’m not a lawyer, so if I use terms incorrectly, perhaps in their plain English sense rather than their legal sense, please be kind.

1. Are the class notes copyrightable? Well, in this case, my vote would be maybe. In order to be copyrightable, the lectures need to show some creativity (although not a lot), not just facts and ideas. In addition, they need to be fixed in some way. The complaint indicates that the plaintiff considers most of the lectures to be fixed by handwritten notes that the professor made as he was lecturing. If these handwritten notes were what Einstein’s Notes was providing, then that seems pretty slam dunk. I’ve been in classes, though, where this was just a very small portion of the content of the lectures, so if that were the case here, I’d have some issue with that limited portion fixing the entire lecture.

In addition to handwritten notes, some of the lectures were audiotaped. This seems like it would, indeed, fix the lecture. However, would that still impact the ability of others to do the same? Imagine that you were on the street of a busy city, and you saw a street performer plying his trade. Impressed by his skill and talent, you whipped out your cell phone and took a few shots. Unbeknownst to you, at the same time the artist was being filmed for an upcoming documentary. Certainly, the performance would be fixed by the filming, but would that limit your ability to fix it at the same time, and to enjoy copyright in your pictures? The situations are certainly not identical, but I think that concurrent fixing like this may be an interesting argument against this portion of the complaint.

2. If the notes are copyrightable, how would that impact students’ ability to legally take notes? Well, according to Lawsuit Claim: Students’ Lecture Notes Infringe on Professor’s Copyright, by Ryan Singel, posted on the Wired Threat Level blog, Faulkner Press’s attorney, James Sullivan, insists that students are infringing copyright, but that they are allowed to do so because of fair use. This argument may work here, but it seems like a slippery slope to me. Fair use is wide open to interpretation. What if the class is more creative than scientific? What if it’s open to the general public? What if it’s not a class at all, but rather a city council meeting?

My third area of interest is that of people’s opinions of the case, but since this post is already getting pretty long, I’ll save that discussion for later. I should mention, however, that there is more to this case than what I’ve described here. In part, the complaint also alleges that study questions were copied from the professor’s electronic textbook and website. It will be interesting to see the plaintiff’s responses to all of the charges, but at this point, for me, the notetaking is the most intriguing aspect. What do you think?

Molly Kleinman recently reported on the Orphan Works hearing held on March 13, 2008 by the House Committee on the Judiciary’s Subcommittee on Courts, the Internet, and Intellectual Property. Molly wrote that “a reasonable orphan works bill would have a tremendous public benefit overall, and a particularly strong impact on libraries and their users”.

The problem of orphan works truly plagues archives as well as libraries. Archives deal primarily in unpublished work and a university archive, for example, may contain collections of university publications of indeterminate publication date or photographs acquired somehow but for which copyright information has been lost or was never clear in the first place. Particularly in a university archive with old materials, what does an archivist do about digitizing undated publications or ones that may have been self-published (when?) by faculty or by university departments or class members? For grey literature, it is thoroughly difficult to know whether the copyright timer still ticks or if it’s even begun to tick.

For an archive with massive amounts of materials for which copyright ownership once seemed reasonably clear – how much control (vigilance?) must the archive attempt to maintain over materials put online, let’s say photographs, or theses citations that users could possibly use in ways that make life difficult for the archive.

In truth, perhaps the greatest chilling effect of copyright and orphan works for an archive lies in its prospective collecting of materials. A collection might be available to an archive, but it could be declined if the archive does not see how it could provide access if copyright ownership is unclear. This is a sad outcome, because many archives, including mainstream ones, are waking up to demographic changes and alternative culture in the United States, and there are so many excellent collections that could be made available to the public now!

In anticipation of upcoming legislation, what are some possible remedies for the vagaries and unease of digitizing and having to take responsibility for the acquisition and use of materials for which knowledge of copyright ownership is not precise or does not exist? The possibility of a United States Copyright Office database or registry of works of content holders is not palatable to that office, according to testimony of Marybeth Peters, Register of Copyrights. However, Stanford University maintains and is building its Copyright Renewal Database which hopefully will grow and be a model for additional or allied databases. There is also image recognition/digital content monitoring technology that can help identify the rights holders of some images.

For archives, those that are not-for-profit and which serve education and culture, the creation of best practices for the use of orphan works may be of great use in guiding what can be done with such material. Guidelines can certainly help produce strength of numbers and make many more resources available to the public.

Tomorrow, April 4, Stanford Law School professor Lawrence Lessig will speak at Harvard on the Building the Change Congress Movement. Perhaps he can be encouraged to say a few words on the subject of copyright.

It looks like we might get an orphan works bill after all. Finally.

I’ve been interested in the orphan works problem since my first year of grad school, when I gave a presentation about it in my copyright class. This was right around the last time it looked like we might get an Orphan Works bill, and I remember checking the Copyright Office website every week to make sure I hadn’t missed anything good. Three years later, still nothing. Progress on orphan works has taken a very long time.

First there was the recognition that orphan works were a problem that was only going to get worse. That happened when? Shortly after the Sonny Bono Copyright Term Extension Act (a.k.a. the Let’s Extend Copyright Terms Again Because Almost Infinity Isn’t Long Enough Act) in 1998? Earlier? Then Eric Eldred filed his complaint in 1999, and the Eldred v. Ashcroft verdict was finally handed down in 2002. Three years passed before the Copyright Office’s Notice of Inquiry in 2005. Then the Orphan Works Act of 2006 went nowhere. Now it’s 2008, and the Subcommittee on Courts, the Internet, and Intellectual Property held a hearing.

Here’s hoping something comes of it. Photographers and illustrators have been objecting strongly to all orphan works legislation, and I think they have some legitimate concerns about the ease with which their works can be separated from their names, but a reasonable orphan works bill would have a tremendous public benefit overall, and a particularly strong impact on libraries and their users. It’s long overdue.

[Cross posted at Multi-Purpose Librarian]

Catherine Candee, Executive Director of Publishing and Strategic Initiatives at the University of California’s Office of Scholarly Communication, recently spoke at Harvard on the topic of “Whose Knowledge Is It? UC Takes On IP.” Ms. Candee spoke of universities’ need to fulfill their mission to disseminate scholarship and create knowledge [in a timely manner]. In order to do this, the UC system must create economically sustainable alternatives to highly costly licensing agreements with outside publishers. Those agreements grant outside publishers the copyright to faculty scholarly articles and research.

After wobbly opening steps, the University of California has now regrouped to begin to establish a clear Open Access Policy through which the university’s faculty retain copyright to their work, work which will be deposited in a UC open access repository (unless faculty opt-out under straightforward guidelines). The university would then distribute the scholarly work worldwide and manage copyrights on behalf of faculty.

Ms. Candee also spoke of other innovations in scholarly communication. She spoke of an evidence-based approach in determining research and open access needs, emerging publishing needs and ways the UC Press (and by extension other university presses) together with the university can evaluate non-traditional means of disseminating information and generating knowledge. Ms. Candee also spoke of the recent vote of Harvard’s Faculty of Arts and Sciences to proceed with establishing an Office of Scholarly Communication to widely disseminate the scholarly work of Harvard faculty, while retaining copyright for faculty. Ms. Candee concluded that if Harvard can do this, so assuredly can the University of California.

The presentation was given on March 17, 2008.