Copyright & Public Domain

EVENT ANNOUNCEMENT: Q&A with Peter Suber 10/26

October 14th, 2011 in Copyright, Open Access, Scholarly Communication.


This year, BU is again participating in Open Access Week, an international event sponsored by the Scholarly Publishing & Academic Resources Coalition (SPARC). BU Libraries will sponsor a Q&A with Peter Suber, widely regarded as one of the originators of the Open Access movement.


The conversation will take place WEDNESDAY, OCTOBER 26 at 4PM in Stone B50 (basement of the CAS building, 675/685 Commonwealth Ave.)

Peter Suber is a Fellow at Harvard’s Berkman Center for Internet and Society, Senior Researcher at SPARC, the Open Access Project Director at the Public Knowledge Project, and Research Professor of Philosophy at Earlham College. He earned his MA and PhD in philosophy, as well as his JD cum laude, from Northwestern University. Suber serves on numerous steering committees and advisory boards for high-profile open access projects. His homepage is here.


Open access is an important and growing area of concern among BU faculty, according to the 2010 Faculty Library Survey Report. The academic publishing industry is in the midst of a complex upheaval, as authors begin to pressure publishers to change copyright-related practices and institutional libraries buckle under astronomically increasing subscription prices for academic periodical literature. Many publishers have changed their standard practices to allow your work to be freely disseminated after a certain period following publication. Some others are in the process of implementing similar changes. Still others are holding fast to practices that ultimately obstruct the dissemination of knowledge.


If you have published articles, and intend to do so again, you are affected. At stake is whether your work will effectively reach your audience. As an author, you have a say in this. BU has resources to help clarify your rights, the current state of academic publishing, and venues for disseminating your research.

You are affected as a reader, as well. Open access directly influences how much material is available to you for research, irrespective of library budget constraints.


You spoke, and BU listened. The 2010 Faculty Library Survey Report indicates that there is a growing interest in open access among our faculty. Please come with questions about open access and what it means for you and your research. After a brief introduction, we will open up the floor for the Q&A.

Sponsored by BU Libraries’ Digital Initiatives and Open Access Group

Johanna Blakely: Lessons from fashion’s free culture

December 8th, 2010 in Copyright.

Copyright law’s grip on film, music and software barely touches the fashion industry … and fashion benefits in both innovation and sales, says Johanna Blakley. At TEDxUSC 2010, she talks about what all creative industries can learn from fashion’s free culture.

Lessig Calls for Copyright Overhaul

November 8th, 2010 in Conversations, Copyright.

The following article written by Kaitlin Mara was originally posted to Intellectual Property Watch on November 5, 2010 and is placed here under a Creative Commons license. (Some rights are reserved.)

Lessig Calls For WIPO To Lead Overhaul Of Copyright System

Kaitlin Mara

Influential copyright scholar Larry Lessig yesterday issued a call for the World Intellectual Property Organization to lead an overhaul of the copyright system which he says does not and never will make sense in the digital environment.

A functioning copyright system must provide the incentives needed for creative professionals, but must also protect the freedoms necessary for scientific research and amateur creativity to flourish.

In the digital environment, copyright has failed at both, said Lessig.

Reading, lending, or reselling a book
is not “fair use” – it is free use.
They are unregulated acts.
-Larry Lessig

“And its failure is not an accident,” he said. “It’s implicit in the architecture of copyright as we inherited it. It does not make sense in a digital environment.”

The copyright system will “never work on the internet. It’ll either cause people to stop creating or it’ll cause a revolution,” said Lessig, citing a growing system of copyright “abolitionism” online in response to a worrying tendency to criminalise the younger generation.

“If and only if WIPO [the World Intellectual Property Organization] leads in this debate will we have a chance” at fixing the copyright system, he said.

Lessig spoke at the 4-5 November WIPO Global Meeting on Emerging Copyright Licensing Modalities – Facilitating Access to Culture in the Digital Age. This event is a part of the ongoing implementation of the WIPO Development Agenda. Lessig is a professor at Harvard Law School.

He also spoke on video with Intellectual Property Watch after his speech, which can be seen below.

Larry Lessig: WIPO Must Lead Overhaul of Copyright System from Intellectual Property Watch on Vimeo.

Larry Lessig speaking to Intellectual Property Watch at the World Intellectual Property Organization, 4 November 2010.

Copyright Online: What has Changed?

Reading a book in physical space is unregulated, said Lessig: reading, lending, or reselling a book is not “fair use” – it is free use. They are unregulated acts.

But online, every use is a copy. This is “not about a generation that can’t respect the rules, it’s a problem in the design of the system.”

“Most of us can no longer spend even an hour without colliding with the copyright law,” Lessig said, quoting University of Michigan Law School Professor Jessica Litman.

“At the turn of the century, US copyright law was technical, inconsistent and difficult to understand, but it didn’t apply to very many people or very many things.… Ninety years later, the US copyright law is even more technical, inconsistent and difficult to understand; more importantly, it touches everyone and everything,” Litman wrote.

Francis Gurry, WIPO director general, said in his opening speech that the technical infrastructure of the digital environment is both key to the description of what is lacking about copyright and key to the solution.

“An idea whose time has come” is a global database of repertoire, which called “an essential piece of global infrastructure or as an essential global public good.” This was mentioned frequently in subsequent panels at the event.

WIPO Blue Sky Commission

Creative Commons licences, a suite of licences that build on copyright law by allowing a user to select allowed freedoms, have helped but are not enough, said Lessig.

WIPO needs to form a “blue sky commission,” a “group that has the freedom to think about what architecture for copyright makes sense.”

This architecture must be: simple – “if it’s going to regulate 15-year-olds it should be something that 15-year-olds can understand”; and targeted – regulation makes sense in some areas, such as protecting professionals, but not in others, such as in amateur remixing. It also must be effective, and realistic in consideration of “actual human behaviour.”

This realism involves acknowledging what has changed since the advent of the internet, and also what has not.

For all of human history, Lessig said, human culture was “read-write.” That is, people participated in the creation and recreation of culture. The 20th century has been unique in human culture, because the development of technologies of broadcasting and vinyl records produced an environment which enabled “efficient consumption, but inefficient amateur production.” This created a world that was “read only,” a “passive, consuming culture.” The internet has brought back that read-write environment.

The war on piracy has been going on for 10 years. “For some, the response to a totally failed war is to up the stakes, to punish more vigorously.” But this will only fuel the copyright “abolitionist” movement, said Lessig, adding he was “against extremisms, because both lead to destruction of core value of copyright.”

“We are not going to kill these technologies,” Lessig said. “We can’t stop the kids’ creativity, only drive it underground. [We] can’t make our kids passive, we can only make them pirates.”

In Praise of Copying

October 26th, 2010 in Copyright, Open Access, Scholarly Communication.

Harvard University Press has recently published Marcus Boon’s book, In Praise of Copying, under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported license, and it is available as a hardcover as well as a freely available PDF file. Below is a brief excerpt:

Boon, Marcus. 2010. In praise of copying. Cambridge, Mass: Harvard University Press.

I know that people reading this book will expect to find here an ethics of copying—but from the outset, I would like to call such a desire into question. Can we really identify an area of human activity outside copying which would make it possible for us to choose or decide whether to copy or not? I will argue that there is no such area, that we are always entangled in the dynamics of mimesis, and I write “in praise of copying” as an affirmation of copying rather than as an ethics. The word “copyright” (nearly 3.8 billion hits on Google) itself sounds a little desperate, as though one had to actually suture the words “copy” and “right” together in order for them to associate consistently. Just to put that number in perspective, “freedom” gets only 315 million Google hits and “truth” 312 million—a factor of ten less than “copyright.” Even “sex” gets only 876 million hits, in case you’re wondering. Don’t you think that the concept of “copy- right” is a little overdetermined? (p. 6)

Victory: Internet Censorship Bill is Delayed, For Now

October 13th, 2010 in Copyright.

This from the Electronic Frontier Foundation

September 30, 2010

Deeplink by Tim Jones

This morning’s Politico brought with it great news for those who care about free speech and fair use online:

A markup on SJC Chairman Leahy’s IP infringement bill was postponed late Wednesday, as staffers anticipated the chamber would finish legislative work and adjourn for recess before the hearing could commence. The change in plans should delight some of the bill’s critics, at least, who expressed concern that the legislation was moving forward quickly.

Translation: The Senate Judiciary Committee won’t be considering the dangerously flawed “Combating Online Infringement and Counterfeits Act” (COICA) bill until after the midterm elections, at least.

This is a real victory! The entertainment industry and their allies in Congress had hoped this bill would be quickly approved by the Senate Judiciary Committee with no debate before the Senators went home for the October recess.

Massive thanks to all of you who used our Action Center to write to your Senators to oppose this bill. Thanks as well to the 87 Internet scientists and engineers whose open letter to Congress played a key role in today’s success, and to all the other voices that helped sound the alarm.

Make no mistake, though: this bill will be back soon enough, and Congress will again need to hear from concerned citizens like you. So stay tuned to for any new developments.

Related Issues: The COICA Internet Censorship and Copyright Bill


Going forward with Georgia State lawsuit

October 7th, 2010 in Copyright.

Originally posted by Kevin Smith
Scholarly Communication Officer, Duke University
to the Scholarly Communications @ Duke blog

October 1, 2010

Judge Orinda Evans of the Federal District Court in Atlanta issued her ruling yesterday on the cross motions for summary judgment in the copyright infringement lawsuit brought by three publishers against Georgia State University over course readings provided to students through e-reserves and the campus course management system. The text of her decision is here.

When a party moves for summary judgment, the hope, of course, is to avoid trial altogether and win your case outright on the basis of the motions and evidence submitted. I had already said that I thought neither side would succeed at that level, and I was right. But I have to admit to being surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community.

For those who are keeping score, the Judge has granted the defense motion for summary judgment on two of the three claims — direct and vicarious infringement — and denied it in regard to the third claim, which is contributory infringement. The plaintiff’s motion for summary judgment has been denied in its entirety. The net result is that the case will go forward on the single issue of contributory infringement.

There are lots of complicated legal issues at work in the judges order. Many have to do with the specific way in which this case is structured to deal with the issue of sovereign immunity and the particular things that have to be proved to avoid dismissal on those grounds. But putting all of that aside for a moment, there are three points that I think are very significant and indicate how the rest of the academic community should regard this case.

First, in her discussion of the type of “indirect” copyright infringement call vicarious infringement, Judge Evans includes a substantial discussion of the economics that underlie providing course materials to students. She acknowledges statements from several faculty depositions that they would not ask students to buy the books excerpted in e-reserves if that option were not available and also that they would not use many of the readings if a licensing fee were necessary. This testimony seems to confirm the fear that a ruling against fair use would dramatically limit the course materials available to students; the upshot seems to be that a ruling against fair use would have significant negative social consequences and little real benefit for the plaintiffs. The fact that Judge Evans is engaging the issue on this pragmatic level bodes well for a decision about fair use that genuinely address the social value of the particular activity and does not simply apply a mechanical analysis.

Second, the judge seems to indicate that the plaintiff publishers have a pretty narrow window for proving infringement. They may not argue either direct or vicarious infringement, but have to focus their claims on contributory infringement. They cannot argue that contributory infringement is shown by the mere provision of systems that may be used for infringing activities; here the Judge is following the Supreme Court precedent that says that a technology does not show “culpable intent” if it is “capable of significant non-infringing uses.” Since e-reserves and course management systems clearly are capable of such uses, the Judge declines to hold that merely making those systems available renders GSU liable for contributing to copyright infringement. So the plaintiffs will have to prove “ongoing and continuous misuse of the fair use” by producing evidence of “a sufficient number of instances of infringement.” The defendants — Georgia State — will then have the burden of proving fair use as to each alleged infringement. It is worth noting that this standard of “ongoing and continuous” infringement is a specific requirement of the exception to sovereign immunity on which the plaintiff’s rely.

Finally, and this is what really caught my attention, is the ruling that the Georgia State copyright policy, which was adopted in 2009, after the case began, “on its face does not demonstrate an intent by defendants to encourage copyright infringement; in fact, it appears to be a positive step to stop copyright infringement.” Since the policy looks quite a bit like those used on many other campuses, this is good news. The case regarding contributory infringement will go forward, the Judge says, on the issue of whether the policy is implemented in a way that encourages improper application of fair use. This emphasis on the local practices rather than the policy itself will certainly make it easier for other campuses to learn from an eventual ruling and, if necessary, adjust their own implementations to meet whatever standards arise, but it decreases the likelihood that large and dramatic changes will be needed.

It is possible, of course, that this ruling on the summary judgment motions will inspire the parties, especially on the publishers’ side, to seek a settlement. I have a hard time envisioning what the grounds for such a settlement would look like, but motivated parties can often find a way forward. If, however, a trial and verdict is in the future, this order increases my confidence that the focus will be on a realistic and pragmatic evaluation of activities that, in my opinion, ought to be considered fair use. Even if the court ultimately agrees with me, we will have a lot of work to do to make sure that we understand the reasoning behind such a verdict and are able to apply it to our own institutional situations. And, of course, an appeal would probably be inevitable. But at this early stage (and it is early, even after two and a half years) it is better to have events trending in your favor than otherwise.

Creative Commons BY-NC-SA license

“Who owns our work?

July 14th, 2010 in Copyright, Scholarly Communication.

Salo, Dorothea. “Who owns our work?” Serials 23:3, 2010.

abstract: Much turmoil in the scholarly-communication ecosystem appears to revolve around simple ownership of intellectual property. Unpacking that notion, however, produces a fascinating tangle of stakeholders, desires, products and struggles. Some products of the research process, especially novel ones, are difficult to fit into legal concepts of ownership. As collaborative research burgeons, traditional ownership and authorship criteria are stretched to their limits and beyond, with many contributors still feeling short of due credit. The desire for access and impact brings institutions and grant funders into the formerly exclusive relationship between authors and publishers. Librarians, stripped of first-sale rights by electronic licensing, wonder about both access and long-term preservation. Emerging solutions to many of these difficulties threaten to cut publishers out of the picture altogether, perhaps a welcome change to those stakeholders who find publishers’ behavior to block progress.

Do Copyright Laws Stifle Creativity? – Lawrence Lessig

June 1st, 2010 in Conversations, Copyright.

Complete video at:

Using examples from YouTube, Stanford law professor and copyright activist Lawrence Lessig discusses the influence of “remixes” and “mashups” of existing art on culture as a whole, and ponders the fate of participatory media in the face of out-of-date copyright laws.


What is the future for art and ideas in an age when practically anything can be copied, pasted, downloaded, sampled, and re-imagined?

LIVE from the NYPL and WIRED Magazine kick off the Spring 2009 season with a spirited discussion of the emerging remix culture.

Our guides through this new world–who will take us from Jefferson’s Bible to Andre the Giant to Wikipedia–will be Lawrence Lessig, author of Remix, founder of Creative Commons, and one of the leading legal scholars on intellectual property issues in the Internet age; acclaimed street artist Shepard Fairey, whose iconic Obama “HOPE” poster was recently acquired by the National Portrait Gallery; and cultural historian Steven Johnson, whose new book, The Invention of Air, argues that remix culture has deep roots in the Enlightenment and among the American founding fathers. – New York Public Library

Lawrence Lessig is a professor of law at Stanford Law School and founder of the school’s Center for Internet and Society. He teaches and writes in the areas of constitutional law, contracts, and the law of cyberspace. Prior to joining the Stanford faculty, he was Berkman Professor of Law at Harvard Law School and a professor at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and for Justice Antonin Scalia on the United States Supreme Court. For much of his career, he has focused on law and technology, especially as it affects copyright. Recognized for arguing against interpretations of copyright that could stifle innovation and discourse online, he is CEO of the Creative Commons project, and he has been a columnist for Wired, Red Herring, and The Industry Standard.

Copyright & Privacy Guidelines for Recording Lectures

May 24th, 2010 in Copyright.

Kevin Smith, Duke University’s Scholarly Communications Officer outlines the copyright and privacy issues to consider when recording lectures or classes for Internet distribution.

WIPO: Scoping Study on Copyright and Related Rights and the Public Domain

May 24th, 2010 in Copyright.

WIPO has released the report from the study: Scoping Study on Copyright and Related Rights and the Public Domain as part of the Thematic Project on Intellectual Property and the Public Domain, dealing with the Development Agenda Recommendations 16 and 20 (document CDIP/4/3 Rev)

Excerpt from the report:

The public domain is one of the most debated issue in intellectual property today. As Jane Ginsburg aptly said, “the public domain is all the rage”. Which is rather paradoxical as the public domain is by definition no subject to intellectual property.
The topic of the public domain, and of its necessary preservation, has become the emblem of a wider critique against intellectual property and what this critique perceives as its increasing extension. The public domain is mainly considered as an endangered species, subject to an enclosure and commodification process. This discussion mainly revolves around the threats that the public domain has to face, such as the extension of the duration of copyright or related right, the encroachments brought by the technological protection measures or the new protection of databases. (p.4)