Copyright Holders Will Define Details Of UK's Orphan Works Bill, But Not The Public

The UK's new orphan works legislation allows works to be classed as orphans only after a "diligent search" has been conducted to find the owner. The fear expressed by some is that this "diligent" search won't be very diligent, allowing publishers to use materials that aren't orphans. That's actually wrong for a number of reasons, as Techdirt explained recently, but the continuing furor from photographers in particular has been such that the UK's Intellectual Property Office (IPO) felt compelled to issue a document entitled "The Enterprise and Regulatory Reform Act 2013 –Your photos and you" (pdf) explaining how the system would work, and why the fears were unjustified. 

On Techdirt.

USPTO Says Copies Of Academic Articles Submitted As Prior Art Are Covered By Fair Use

With all the heat that publishers are starting to feel from the academic community, you might have thought that they'd avoid upsetting anyone else. But it seems that some publishers have decided to go after lawyers who make patent applications that include copies of academic articles as prior art. As the PatentlyO blog explains: 

On Techdirt.

The Arrogance of Artists (and Publishers)

You wouldn't expect much else from a meeting organised by WIPO, but this is pretty rich even for them:

Copyright is necessary to allow authors to live from their trade and to guarantee their independence, and exceptions should be decided by authors and publishers, according to panellists on a copyright dialogue held at the World Intellectual Property Organization this week.

Amusingly, this was a "copyright dialogue": but I bet there weren't many people from the *other* side of the equation - the readers. The readers, you see, don't really count in this - "exceptions should be decided by authors and publishers" as the above insists. The fact that copyright is supposed to be a balanced quid pro quo - a time-limited monopoly in return for works entering the public domain afterwards, and that such a balanced of necessity requires both parties to agree, seems not to have entered the heads of those authors and publishers.

The very idea that "exceptions should be decided by authors and publishers" betrays the deep-seated arrogance and contempt that both of these now have for their readers. And that's all part and parcel of the publishing industry's problems: it sees readers as the enemy, something that must be fought and vanquished in order for it to be forced to buy books on the terms of authors and publishers - forced, if necessary, by ever-more Draconian laws that criminalise willy-nilly.

What is so regrettable about this depressing vision is that at the very same conference where these extraordinarily insulting comments about readers were made, another publisher revealed the wonderful truth:

For Richard Charkin, executive director of Bloomsbury Publishing, publishing is also investing in the future. Copyright is a flexible system, he said, giving an example of Bloomsbury Academic’s business model. The publishing company publishes social sciences and humanities research publications. They are available online under a Creative Commons non-commercial licence, and for sale as printed books. The publications are thus widely available, Charkin said, but surprisingly, he said that sales of books seem to be higher when they offer free downloads than if they do not.

Go that? "Surprisingly", when people can freely share books, they *buy more* - exactly as many of us have been saying for years, and in diametric opposition to the dogma of the same authors and publishers who insist that they know best, and that readers must be brought to heel like recalcitrant curs rather than treated as equals in a pleasant colloquy.

How to make money in the age of digital abundance is there for all that have eyes to see; sadly, even the most basic optical equipment seems lacking in this singularly benighted profession. Looks like they will have to learn the hard way....

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Won't Somebody Please Think of the Orphans?

This is droll: the European Commission is finally waking up to the copyright orphans problem - thanks to some healthy panic induced by Google's book digitisation plans [.pdf]:

Orphan works are works that are in copyright but whose right holders cannot be identified or located. Protected works can become orphaned if data on the author and/or other relevant right holders (such as publishers, photographers or film producers) is missing or outdated. A work can only be exploited only after obtaining prior permission from the right holders. In the case of orphan works, granting such authorisation is not possible. This leads to a situation where millions of works cannot be copied or otherwise used e.g. a photograph cannot be used to illustrate an article in the press, a book cannot be digitised or a film restored for public viewing. There is also a risk that a significant proportion of orphan works cannot be incorporated into mass-scale digitisation and heritage preservation efforts such as Europeana or similar projects.

Libraries, universities, archives, some commercial users and several Member States claim that the problem of existing instruments, such as the Commission Recommendation 2006/585/EC 7 or the 2008 Memorandum of Understanding on Orphan Works and the related diligent search guidelines, is that these are not legally binding acts and that the issue of mass digitisation has not been addressed. Since non-legislative initiatives neither provide sufficient legal certainty nor solve the fact that using orphan works constitutes a copyright infringement, they advocate a legislative approach at the European level to allow different uses of orphan works. It is also stressed that obstacles to intra-Community trade in orphan works may emerge if each Member State were to adopt its own set of rules to deal with the problem.

For publishers, collecting societies and other right holders, orphan works are a rights-clearance issue. They are sceptical about introducing a blanket exception to use orphan works. For them, the crucial issue is to ensure that a good faith due diligence search to identify and locate the right holders is carried out, using existing databases.

The utter cluelessness and fatuity of the publishers' response is breath-taking: the problem is that the rights-holders *cannot be found* - that's why they're called "orphans". Demanding "due diligence" just misses the point completely.

At least this proves that publishers simply have no credible arguments against introducing an "exception" to use orphan works, for example in digitisation projects. And against their non-existent downside, the upside is just immense. Let's hope the European Commission is beginning to understand this.

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Hamburg Declaration = Humbug Declaration

You may have noticed that in the 10 years since Napster, the music industry has succeeded in almost completely ruining its biggest opportunity to make huge quantities of money, alienating just about anyone under 30 along the way (and a fair number of us old fogies, too).

Alas, it seems that some parts of the newspaper industry have been doing their job of reporting so badly that they missed that particular news item. For what does it want to do? Follow the music industry's lemming-like plunge off the cliff of "new intellectual property rights protection":

On the day that Commissioner Viviane Reding unveils her strategy for a Digital Europe during the Lisbon Council, and as the European Commission's consultation on the Content Online Report draws to a close this week, senior members of the publishing world are presenting to Information Society Commissioner Viviane Reding and Internal Market Commissioner Charlie McCreevy, a landmark declaration adopted on intellectual property rights in the digital world in a bid to ensure that opportunities for a diverse, free press and quality journalism thrive online into the future.

This is the first press communiqué on a significant meeting convened on 26th June in Berlin by news group Chief Executives from both the EPC and the World Association of Newspapers where the 'Hamburg Declaration' was signed, calling for online copyright to be respected, to allow innovation to thrive and consumers to be better served.

This comes from an extraordinary press release, combining arrogant self-satisfaction with total ignorance about how the Internet works:

A fundamental safeguard of democratic society is a free, diverse and independent press. Without control over our intellectual property rights, the future of quality journalism is at stake and with it our ability to provide our consumers with quality and varied information, education and entertainment on the many platforms they enjoy.

What a load of codswallop. What makes them think they are the sole guardians of that "free, diverse and independent press"? In case they hadn't noticed, the Internet is rather full of "quality and varied information, education and entertainment on the many platforms", most of it quite independent of anything so dull as a newspaper. As many others have pointed out, quality journalism is quite separate from old-style press empires, even if the latter have managed to produce the former from time to time.

Then there's this:

We continue to attract ever greater audiences for our content but, unlike in the print or TV business models, we are not the ones making the money out of our content. This is unsustainable.

Well, at least they got the last bit. But if they are attracting "ever greater audiences" for their content, but are not making money, does this not suggest that they are doing something fundamentally wrong? In a former incarnation, I too was a publisher. When things went badly, I did not immediately call for new laws: I tried again with something different. How about if newspaper publishers did the same?

This kind of self-pitying bleating would be extraordinary enough were it coming out of a vacuum; but given the decade of exemplary failure by the music industry taking *exactly* the same approach, it suggests a wilful refusal to look reality in the face that is quite extraordinary.

Speaking personally, the sooner all supporters of the Humbug Declaration are simply omitted from every search engine on Earth, the better: I'm sure we won't miss them, but they sure will miss the Internet...

Follow me @glynmoody on Twitter or identi.ca.

Blooks Like the Future

Blooks are generally blogs turned into books, but I suppose we can stretch the term to include books that are available from blogs. Here's a heartening story about the latter type.

A novelist became fed up waiting for an agent or publisher to deign to acknowledge his existence (don't we all know it?). So he did the obvious thing: bunged it up on his Web site for anyone to download. His reasoning?

I'm putting this full-length novel online and encouraging you to read it, send it to your friends, blog about it, distribute it on your blogs, etc. and we'll all see what happens. Maybe nothing. But maybe ... something. In fact after weighing the pros and cons of doing this, I can't find any actual downside.

I wrote The Agency Delta because I had a story. Now I want people to read it. I think it's a great story. Now tell me what you think.

This is the future, you writer people. (Via Self Publish Blooks.)

The Open Research Web

Aside from the strong moral arguments for open access - based on the fact that much of the research published in journals has been paid for by the public, who therefore have a right to see the stuff - there are also strong utilitarian grounds for making materials freely accessible.

A group at Southampton, including the irrepressible Stevan Harnad, have put together an excellent discussion of some of the amazing things that thoroughgoing open access will permit in the future.

Many of them - there are 28 in all - are positively gob-smacking, and make explicit the way in which the open access revolution will render ordinary impact factors, one of the great bugbears of academic research, obsolete by bringing in far richer metrics for measuring influence and achievement.

This is the sort of stuff that will make traditional publishers break into a cold sweat at night; but it will warm the cockles of the growing band of OA supporters because it breaks the vicious circle of "high-impact" journals being favoured by top researchers simply because they are "high-impact", not because they are the best vehicles.

There's No INSTEDD without Open Access

An interesting story in eWeek.com. Larry Brilliant, newly-appointed head of the Google.org philanthropic foundation, wants to set up a dedicated search engine that will spot incipient disease outbreaks.

The planned name is INSTEDD: International Networked System for Total Early Disease Detection - a reference to the fact that it represents an alternative option to just waiting for cataclysmic infections - like pandemics - to happen. According to the article:

Brilliant wants to expand an existing web crawler run by the Canadian government. The Global Public Health Intelligence Network monitors about 20,000 Web sites in seven languages, searching for terms that could warn of an outbreak.

What's interesting about this - apart from the novel idea of spotting outbreaks around the physical world by scanning the information shadow they leave in the digital cyberworld - is that to work it depends critically on having free access to as much information and as many scientific and medical reports as possible.

Indeed, this seems a clear case where it could be claimed that not providing open access in relevant areas - and the range of subjects that are relevant is vast - is actually endangering the lives of millions of people. Something for publishers and their lawyers to think about, perhaps.