Explainer: What will the new EU copyright rules change for Europe’s Cultural Heritage Institutions | Europeana Pro

“On 17 May 2019 the Directive on Copyright in the Digital Single Market was published in the Official Journal of the European Union. Member States have until the 7 June 2021 to implement the new rules into national law.  In this explainer, Paul Keller, Policy Advisor to Europeana Foundation breaks down the changes these new rules bring to Europe’s Cultural Heritiage insitutions. …

Article 14 of the directive clarifies a fundamental principle of EU copyright law. The article makes it clear that “when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original”. In other words, the directive establishes that museums and other cultural heritage institutions can no longer claim copyright over (digital) reproductions of public domain works in their collections. In doing so the article settles an issue that has sparked quite some controversy in the the cultural heritage sector in the past few year and aligns the EU copyright rules with the principles expressed in Europeana’s Public Domain Charter….

Finally the DSM directive introduces not one but two new Text and Data Mining exceptions (Articles 3 & 4) that will need to be implemented by all Member States. The first exception (Article 3) allows “research organisations and cultural heritage institutions” to make extractions and reproductions of copyright protected works to which they have lawful access “in order to carry out, for the purposes of scientific research, Text and Data Mining”. Under this exception cultural heritage institutions can text and data mine all works that the have in their collections (or to which they have lawful access via other means) as long as this happens for the purpose of scientific research. 

The second exception (Article 4) is not limited to Text and Data Mining for the purpose of scientific research. Instead it allows anyone (including cultural heritage institutions) to make reproductions or extractions of works to which they have lawful access for Text and Data Mining regardless of the underlying purpose. …”

What happens when books enter the public domain? Testing copyright’s underuse hypothesis across Australia, New Zealand, the United States and Canada by Rebecca Giblin :: SSRN

Abstract:  The United States (‘US’) extended most copyright terms by 20 years in 1998, and has since exported that extension via ‘free trade’ agreements to countries including Australia and Canada. A key justification for the longer term was the claim that exclusive rights are necessary to encourage publishers to invest in making older works available — and that, unless such rights were granted, they would go underused. This study empirically tests this ‘underuse hypothesis’ by investigating the relative availability of ebooks to public libraries across Australia, New Zealand, the US and Canada. We find that books are actually less available where they are under copyright than where they are in the public domain, and that commercial publishers seem undeterred from investing in works even where others are competing to supply the same titles. We also find that exclusive rights do not appear to trigger investment in works that have low commercial demand, with books from 59% of the ‘culturally valuable’ authors we sampled unavailable in any jurisdiction, regardless of copyright status. This provides new evidence of how even the shortest copyright terms can outlast works’ commercial value, even where cultural value remains. Further, we find that works are priced much higher where they are under copyright than where they in the public domain, and these differences typically far exceed what would be paid to authors or their heirs. Thus, one effect of extending copyrights from life + 50 to life + 70 is that libraries are obliged to pay higher prices in exchange for worse access.

This is the first published study to test the underuse hypothesis outside the US, and the first to analyse comparative availability of identical works across jurisdictions where their copyright status differs. It adds to the evidence that the underuse hypothesis is not borne out by real world practice. Nonetheless, countries are still being obliged to enact extended terms as a cost of trade access. We argue that such nations should explore alternative ways of dividing up those rights to better achieve copyright’s fundamental aims of rewarding authors and promoting widespread access to knowledge and culture.

Countries with longer copyright terms have access to fewer books (pay attention, Canada!) / Boing Boing

Rebecca Giblin (previously) writes, “We’ve just dropped a new study we’ve been working on for a year. You know how it keeps being claimed that we need longer copyrights because nobody will invest in making works available if they’re in the public domain? Heald and some others have done some great work debunking that in the US context, but now we’ve finally tested this hypothesis in other countries by looking at the relative availability of ebooks to libraries. It’s also the first time anyone has been able to compare availability of identical works (by significant authors) across jurisdictions. The books we sampled were all in the public domain in Canada and NZ, all under copyright in Australia, and a mix in the US (courtesy of its historical renewal system).”

“So what’d we find? That Canada and NZ (public domain) have access to more books and at cheaper prices than Australia (copyright) and the US (mixed). Also that publishers don’t seem to have any problem competing with each other on the same popular titles. And, sadly but not surprisingly: 59% of our sampled ‘culturally significant’ authors had no books available to libraries in any country regardless of copyright status. That’s because even the shortest terms wildly outlast most books’ commercial life (even where they still have cultural value). …”

Accused of ‘Terrorism’ for Putting Legal Materials Online – The New York Times

“Carl Malamud believes in open access to government records, and he has spent more than a decade putting them online. You might think states would welcome the help.

But when Mr. Malamud’s group posted the Official Code of Georgia Annotated, the state sued for copyright infringement. Providing public access to the state’s laws and related legal materials, Georgia’s lawyers said, was part of a “strategy of terrorism.”

A federal appeals court ruled against the state, which has asked the Supreme Court to step in. On Friday, in an unusual move, Mr. Malamud’s group, Public.Resource.Orgalso urged the court to hear the dispute, saying that the question of who owns the law is an urgent one, as about 20 other states have claimed that parts of similar annotated codes are copyrighted….”

LawArXiv Papers | Who Owns the Law? Why We Must Restore Public Ownership of Legal Publishing, 26 J. Intell. Prop. L. 205 (2019)

Abstract:  Each state has its own method for officially publishing the law. This article looks at the history of legal publishing for the fifty states before looking at how legal publishing even in moving to electronic publishing may not ensure public access to the law. The article addresses barriers to free access to the law in electronic publishing including copyright, contract law, and potentially, the Computer Fraud and Abuse Act. The article concludes with prescriptions for how different actors, including state governments, publishers, libraries, and others can ensure robust public access to the law moving forward.

Can the law be copyrighted? | TechCrunch

UpCodes wants to fix one of the building industry’s biggest headaches by streamlining code compliance. But the Y Combinator-backed startup now faces a copyright lawsuit filed against it by the International Code Council, the nonprofit organization that develops the code used or adopted in building regulations by all 50 states….

UpCodes’ first product, an online database, gives free access to codes, code updates and local amendments from 32 states, as well as New York City. For building professionals and others who want more advanced search tools and collaboration features, UpCodes sells individual and team subscriptions. In 2018, UpCodes released its second product, called UpCodes AI. Described as a “spellcheck for buildings,” the plug-in scans 3D models created with building information modeling (BIM) data and highlights potential errors in real time….

It argues that its use of building codes is covered by fair use. The ICC, on the other hand, claims that products like UpCodes’ database harm its ability to make revenue and continue developing code. The ICC wants UpCodes to take down the building code on which it claims copyright, and has also sued for damages….”

Government Data as Intellectual Property: Is Public Domain the Same as Open Access?

Key points to highlight: U.S. federal government data is released into the public domain. This raises concerns about:

  • privacy and security of data about individuals
  • the potential for enclosure if the U.S. government does not maintain human readable interfaces, i.e. if the open data is used by commercial companies to create toll access services and the government does not provide free end user services, this would be an instance of open commercial use effectively creating enclosure (or privatizing what is currently free government services)

Abstract

Public domain and open data policies and how they are made. Current status of open data policies in the Federal government are changing with new laws. What is HR4174/S4047 and what does it say and mean? What are trends in government data policies regarding access to that statistical data? This article will give the reader an understanding of federal policies and laws regarding data.

We need a Public Domain Day for drug patent expirations

“This Jan. 1, readers, archivists, and creatives in the United States celebrated a special holiday: the largest Public Domain Day in 21 years. The legal ownership of hundreds of works of classic literature — this year including well-loved Robert Frost poems like “Nothing Gold Can Stay” and “Stopping by Woods on a Snowy Evening” — was transferred into the hands of the people.

We suggest a plot twist: Let’s celebrate the same way when drug patents expire.

Every year, patents on high-profile branded drugs expire and these compounds “go generic,” allowing competitors to make and sell these same treatments at lower prices. Unlike literature, where copyright protection can last a whopping 95 years or more after initial publication, most drugs are under patent protection for just 10 to 15 years. Companies that successfully bring a drug to market have only that time to charge high prices before the drug goes generic. Patent protection is their window to profit from their investments and to plow some of that money back into developing new treatments. This system of incentives keeps the biotechnology innovation engine churning, rather than allowing it to milk cash-cow drugs forever….

Public Domain Day is clearly something to celebrate. The expiration of a copyright on a literary work merits a moment to admire its beauty, contemplate our gratitude to its creator, and mark the place it has held and will continue to hold in our collective human story.

 

We should do the same when branded drugs enter the public domain. These therapies keep working just as well as before, but they become much less expensive. In the case of oral drugs, there’s an average 90 percent drop in price within a few years as multiple generics come into the market. By anticipating when a branded drug is set to enter the public domain and publicizing the date as it approaches, the public might not only show innovators that they are appreciated but also apply some healthy social pressure to let them go generic with grace, instead of tying up patent expirations in complicated legislative battles that delay the entry of generics. In short, we need a Public Domain Day for drugs….”