Talk:Draft issues page

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Note: Raw notes and other materials not used have been moved to Draft_issues_page_notused.

Simon Spero's comments on US rights/licensing issues

Well-said, Simon! I suggest that we crib from what you've written On 17 Mar 2011, at 20:09, Simon Spero wrote: <trim>


http://liber.library.uu.nl/publish/issues/2010-3_4/index.html?000512 It is important to note that the cited article is published in LIBER : The Journal of European Research Libraries.

The article states that "The content of a data base is protected by copyright when its producer can prove that he has made substantial investments to create and maintain the database (financial, technical and human resources)." (Bérard 2011, p. 326)

This statement is correct within the EU, as a result of a specific EU directive (EC 1996), which granted a sui generis copyright in databases under the sweat-of-the-brow theory.

This statement is not correct as a statement of US law. Copyright on the basis of Sweat-of-the-brow was rejected by the United States Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the touchstone of copyright protection in directories and other fact-based works. Nor is there any doubt that the same was true under the 1909 Act. The 1976 revisions were a direct response to the Copyright Office's concern that many lower courts had misconstrued this basic principle, and Congress emphasized repeatedly that the purpose of the revisions was to clarify, not change, existing law. The revisions explain with painstaking clarity that copyright requires originality, § 102(a); that facts are never original, § 102(b); that the copyright in a compilation does not extend to the facts it contains, § 103(b); and that a compilation is copyrightable only to the extent that it features an original selection, coordination, or arrangement, § 101. (Feist v. Rural, supra)

The claim and grant of copyright in OCLC's database were made in 1982 and 1984 respectively, prior to the decision in Feist. As Brown (1985) makes clear, OCLC's claim was based on "sweat of the brow". It is thus questionable the 1984 copyright grant survived that decision.

It is possible to assert property rights in databases through licensing contracts; OCLC's guidelines and contracts do constrain certain uses, but explicitly exempt "online access provided to end-user patrons of a library in authorized possession of the records". Guidelines §II.6.

This exemption was not present in the proposed revisions to the usage guidelines; however, since these controls are a matter of contract rather than copyright, applying revised guidelines would require requiring libraries to impose similar restrictions on all patrons accessing their catalogs, since contracts are only binding on the parties privy to those contracts.

OCLC has made no statements against interest that I am aware of in regards to this issue.

Senior management at OCLC has directly stated that they consider maintaining and supporting both Worldcat and DDC to be a duty to the community, and that if there were an open, distributed platform for maintaining those databases, that would not reduce availability, reliability, and data quality, they would be more than willing to pass on the burden. Since the copyright in DDC is unquestionably valid (AMERICAN DENT. ASSN. v. DELTA DEN. PLANS ASSN., 126 F.3d 977 (7th Cir. 1997), bringing up both products in the same breath indicates that the availability of copyright is not the deciding factor.

I am not a lawyer, nor did I stay at a Holiday Inn Express last night.

Simon // IMHO, The proper purpose of OCLC is to fund OCLC Research :-P

Bérard, Raymond (2011). "Free Library Data?". Liber 20.3/4.

Brown, Rowland C. (1985). “OCLC, Copyright, and Access to Information: Some Thoughts”.: Journal of Academic Librarianship 11.4. P. 197.

EC (1996). Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

UK rights/licensing (copied from Owen's email)

Following some conversation with a helpful UK copyright specialist on Twitter (@copyrightgirl) I've got some further information - two cases regarding database right that were heard by the European Court of Justice.

The interesting thing about these cases is that in both cases the court ruled the databases were not protected by the database right because there had not been 'substantial investment' in creating the databases. My reading of the judgement suggests to me not that the databases hadn't cost a large amount of resource to create (in one case the figure £4million is mentioned) but that the creation of the database was intrinsically linked with the cost of doing business for the companies concerned - almost that the creation of the database was a seen as a side effect of doing business.

There is a very good summary of the cases at http://www.out-law.com/page-5698 including some key points to note: Protection given to the maker of a database by a database right is not as wide as was previously thought. Database rights only arise where the maker of the database has invested substantially in obtaining or verifying data from independent sources. Investment in actually creating data which forms part of a database will not automatically result in a database right. Organisations creating data must make separate investment in the organisation and arrangement of the database itself in order to gain protection. Remember that a database can attract copyright as well as database rights. The reduction in the scope of protection under database rights may mean that the makers of databases seek to rely more on copyright in order to protect their investment. The same site has a fuller case report on the two cases if you want more detail at http://www.out-law.com/page-392

For me this case law suggests that a database of articles from a publisher, without any other significant investment around the organisation/arrangement etc. would probably not attract a database right, while a database created by a pure A&I company working from source material probably would.

Need I say IANAL?

Owen

This was a reply to this earlier email

I don't claim any legal expertise but here is my take on the rights conveyed in the EU directive mentioned by Simon - this is more to generate discussion than an attempt to be definitive - so please challenge anything that doesn't look right!

COPYRIGHT Under Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996, databases can be protected by copyright in EU member states. This right applies to databases which: "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" (Article 3 of http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML) While there are no hard and fast tests for 'originality', a clear example of a database not considered worthy of Copyright protection is Television Listings (seehttp://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf - page 8, which in turn references "Judgment of 6 April 1995, Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission of the European Communities, Joined cases C-241/91 P and C-242/91 P)". The current interpretation in Wikipedia suggests further than no database which aims to be 'complete' ("that is where the entries are selected by objective criteria") would qualify as "the author's own intellectual creation" (http://en.wikipedia.org/wiki/Database_Directive). While I'm not sure the statement from Wikipedia is accurate it would seem unlikely that most databases of bibliographic data would be seen as 'original' in the sense of the directive. SUI GENERIS DATABASE RIGHT As well as covering copyright in databases, Directive 96/9/EC also establishes a 'sui generis database right'. This provides a right: "for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database." (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML) Colloquially this is a 'sweat of the brow' right - essentially this is saying if creating the database had a cost (i.e. some signficant effort was involved), the database is automatically protected by the database right which prevents another party copying all, or a substantial part of the database. The Television Listing example above is one that would not be protected by Copyright, but would be protected by this Sui Generis Database Right. It is highly likely that any substantial data sets we are dealing with within Lucero are protected by the Sui Generis Database right, although very small data sets might be excluded. Certainly we could be pretty sure that the library catalogue would protected in this way. The Database right applies for only 15 years from the completion OR first publication of the database. However, where a database is published, any significant update to the database (whether through a single action, or ongoing changes) refresh the term of the database right, starting at 15 years again (see 'Term of Protection' in http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML) The main two areas of uncertainty (IMO) are: What might constitute a 'substantial part' of a database What might constitute a 'significant update' of a database in order to refresh the 15 year term of the database right It seems likely to me that case law will provide the only route of establishing guidance on these issues

Finally just to note that from v3.0 the CC licenses include provision for both works protected by copyright AND works protected by the EU Sui Generis Database Right (see http://wiki.creativecommons.org/images/f/f6/V3_Database_Rights.pdf). Therefore as far as I can see it is valid to apply CC licenses to bibliographic datasets, and the outcome is essentially the same whether the dataset is protected by Copyright or by both Copyright and Database Right

Owen

On Fri, Mar 18, 2011 at 10:42 AM, Jodi Schneider <jodi.schneider@deri.org> wrote: Well-said, Simon! I suggest that we crib from what you've written for our report. Do you mind?

To that end, I've pasted your comments into the Talk page of our Draft issues wiki page: http://www.w3.org/2005/Incubator/lld/wiki/Talk:Draft_issues_page#Simon_Spero.27s_comments_on_US_rights.2Flicensing_issues

-Jodi

On 17 Mar 2011, at 20:09, Simon Spero wrote: <trim>


http://liber.library.uu.nl/publish/issues/2010-3_4/index.html?000512 It is important to note that the cited article is published in LIBER : The Journal of European Research Libraries.

The article states that "The content of a data base is protected by copyright when its producer can prove that he has made substantial investments to create and maintain the database (financial, technical and human resources)." (Bérard 2011, p. 326)

This statement is correct within the EU, as a result of a specific EU directive (EC 1996), which granted a sui generis copyright in databases under the sweat-of-the-brow theory.

This statement is not correct as a statement of US law. Copyright on the basis of Sweat-of-the-brow was rejected by the United States Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the touchstone of copyright protection in directories and other fact-based works. Nor is there any doubt that the same was true under the 1909 Act. The 1976 revisions were a direct response to the Copyright Office's concern that many lower courts had misconstrued this basic principle, and Congress emphasized repeatedly that the purpose of the revisions was to clarify, not change, existing law. The revisions explain with painstaking clarity that copyright requires originality, § 102(a); that facts are never original, § 102(b); that the copyright in a compilation does not extend to the facts it contains, § 103(b); and that a compilation is copyrightable only to the extent that it features an original selection, coordination, or arrangement, § 101. (Feist v. Rural, supra)

The claim and grant of copyright in OCLC's database were made in 1982 and 1984 respectively, prior to the decision in Feist. As Brown (1985) makes clear, OCLC's claim was based on "sweat of the brow". It is thus questionable the 1984 copyright grant survived that decision.

It is possible to assert property rights in databases through licensing contracts; OCLC's guidelines and contracts do constrain certain uses, but explicitly exempt "online access provided to end-user patrons of a library in authorized possession of the records". Guidelines §II.6.

This exemption was not present in the proposed revisions to the usage guidelines; however, since these controls are a matter of contract rather than copyright, applying revised guidelines would require requiring libraries to impose similar restrictions on all patrons accessing their catalogs, since contracts are only binding on the parties privy to those contracts.

OCLC has made no statements against interest that I am aware of in regards to this issue.

Senior management at OCLC has directly stated that they consider maintaining and supporting both Worldcat and DDC to be a duty to the community, and that if there were an open, distributed platform for maintaining those databases, that would not reduce availability, reliability, and data quality, they would be more than willing to pass on the burden. Since the copyright in DDC is unquestionably valid (AMERICAN DENT. ASSN. v. DELTA DEN. PLANS ASSN., 126 F.3d 977 (7th Cir. 1997), bringing up both products in the same breath indicates that the availability of copyright is not the deciding factor.

I am not a lawyer, nor did I stay at a Holiday Inn Express last night.

Simon // IMHO, The proper purpose of OCLC is to fund OCLC Research :-P

Bérard, Raymond (2011). "Free Library Data?". Liber 20.3/4.

Brown, Rowland C. (1985). “OCLC, Copyright, and Access to Information: Some Thoughts”.: Journal of Academic Librarianship 11.4. P. 197.

EC (1996). Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.




-- Owen Stephens Owen Stephens Consulting Web: http://www.ostephens.com Email: owen@ostephens.com

Regarding deduplication

Owen Stephens suggests this regarding deduplication:

"The work of the JISC 'RDTF' (Resource Discovery Task Force) in the UK is looking at the strategy of 'publish' and 'aggregate' - although this doesn't dictate the use of Linked Data or RDF, many of the project falling into this area are adopting that approach, so hopefully we will see a good exploration of some of the issues from this area soon. See http://rdtf.mimas.ac.uk/ for more information on this." Jodi Schneider 02:35, 24 March 2011 (UTC)

style/discussion questions from the top of the page

General style questions:

  • Do we refer to "data" or "metadata", in general? Or use the terms interchangeably? When should we specify "bibliographic data"?
  • Is there a clear distinction between "the library community" and "libraries"?
  • Headings should encapsulate a complete thought
  • Content under a heading should be one (more rarely, a couple) paragraph


For discussion

  • Do we need a separate issues section on library data? We could cover redundancy, models, sharing... maybe some history (or should that go into an introduction?)

Ray Denenberg's review

Review (most likely temporary location): http://www.loc.gov/standards/sru/w3clld/ Jodi Schneider 13:48, 20 June 2011 (UTC)