|Christmas 2007||Christmas 2008|
Archive for the ‘copyright’ Category
Wednesday, December 10th, 2008
This blog post attempts to show that the new OCLC Policy (blogged here) effectively anulls a longstanding principle of US law, that work performed by government officials and employees is forever in the public domain.
In a library context, this has always meant that Federal libraries are not only free but compelled to share their information with the public that pays for it.
Many continue to hold that this is still true. As one AUTOCAT poster wrote:
“I find it hard to believe OCLC would attempt to assert an intellectual property right over things such as LC cataloging, which by statute is in the public domain.”
Unfortunately, this conception confuses two areas of law. By crafting the Policy as a license, which is perpetual, retroactive and viral, OCLC can effect a sort of ownership–US citizens still own it, but the don’t have a right to get it (except, if the qualify, with an OCLC license around it).
Thus, OCLC transforms an expensive service–access to a repository of data that, even OCLC employees admit, would fit on an iPod, with room for 5,000 songs!–into effective ownership. This state of affairs obtains even when all the cataloging and editing was done by other Federal agencies and employees. It is only broken when the library in question itself did the original cataloging. As we shall see, that doesn’t help much.
Three Federal Libraries. The OCLC affiliate for Federal libraries, FEDLINK, maintains a list of its members–libraries like the Library of Congress, NASA, Justice, the Smithsonian, the National Library of Medicine, the Supreme Court, etc.
From this list I plucked three that have public catalogs–the Department of Defense, Commerce, and Labor–and carefully examined the first ten MARC records for three common English words. I checked these against the 001, 035 and 994 fields recommended in the Policy FAQ, “How can I determine if a record was derived from WorldCat?”* The results are depressing.
Of the Department of Defense‘s ten books on “Freedom,” zero will be free after the Policy takes effect. None were originally cataloged by the Department of Defense, and all had 035 fields showing they were at one point “derived” from OCLC. In every case, the original cataloger was the Library of Congress, and many were edited by the Department of Defense. But that doesn’t count. They aren’t DoD original cataloging and they bear the mark of OCLC. As far as the Policy is concerned, that’s the end of the story.
Of the Department of Labor’s ten “Copyright” books, zero again are free. All ten were cataloged and edited by Federal employees (mostly the LC and the Congressional Information Service). But none were cataloged by the Department of Labor, and all have fatal 035 fields.
The situation at the Department of Commerce was slightly better. Here I searched for “Openness” and got only eight results. Five are clear-cut OCLC records. Two might be free–they lack 001 and 035 fields, although OCLC appears in the 040. I think, however, that they aren’t currently held by the library though, and, in an overlooked provision, the OCLC Policy prohibits transfer of records when a library doesn’t hold the book. But one is free–cataloged by the University of Alabama and lacking any trace of OCLC transfer.
Don’t think the OCLC Policy affects Federal libraries? Think again.
Data. Here's what I found. Prove me wrong.
Department of Defense: first ten records with title starting "Freedom."
- Freedom by Orlando Paterson (035 has ocm; cataloged by LC, edited by Department of Defense)
- Freedom by William Safire (035 has ocm; cataloged by LC, edited by Department of Defense)
- The Destruction of slavery (035 has ocm; cataloged by LC, edited by Department of Defense)
- Freedom : a history (035 has ocm; cataloged by LC, edited by Department of Defense)
- Freedom and foreign policy (035 has ocm; cataloged by LC; OCLC edits)
- Freedom and information (035 has ocm; cataloged by LC, edits by Baker & Taylor, Connecticut State Libray and Department of Defense)
- Freedom and the Law (035 has ocm; cataloged by LC, edited by Department of Defense)
- Freedom at Issue (035 has ocm; cataloged by LC and about a dozen other instittions, not including OCLC)
- Freedom at Midnight (035 has ocm; cataloged by LC, edited by Brown, OCLC and Department of Defense)
- Freedom betrayed (035 has ocm; cataloged by LC, edited by Department of Defense)
Department of Labor: first ten records with title starting "Copyright."
- Intellectual property and trade (035 has ocm; cataloged by US International Commission, editded by Government Printing Office and the Congressional Information Service)
- Berne Convention Implementation Act of 1987 (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- Berne Convention Implementation Act of 1988 (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- Record rental amendment extension (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- Satellite Home Viewer Copyright Act of 1988 (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- Berne Convention (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- General oversight on patent and trademark issues (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- Copyright issues presented by digital audio tape (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- Legal issues that arise when color is added to films originally produced, sold, and distributed in black and white(035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
- The Berne Convention (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
United States Department of Commerce: first eight records starting "Openness" (only 8 records total)
- Globaphobia: confronting fears about open trade (001 incldes ocm; cataloged by LC and Colgate)
- Regulatory reform and international market openness (035 includes ocm; cataloged by Stony Brook)
- Financial policies and the world capital market : the problem of Latin American countries (001 contains ocm; cataloged by DLC)
- +A vision for the world economy : openness, diversity, and cohesion (040 includes OCL; cataloged by LC, with edits by National Agricultural Library)
- Regulatory reform in the global economy (035 includes OCM; Cataloged by University of Georgia)
- +Globalization and progressive economic policy (040 includes OCL; cataloged by Library of Congress, edited by British Library)
- Regulatory reform in Spain (cataloged by University of Alabama)
- Challenges to globalization (001 contains ocn; cataloged by University of Texas)
*The FAQs are not, however, determinative of anything. The Policy makes this clear:
“This Policy is the final, complete and exclusive statement of the agreement of the partiwith respect to the subject matter hereof.”
Similarly problemmatic is the claim that OCLC will not be asking libraries to shut down Z39.50 connections. The Policy makes it clear that libraries cannot “Transfer” records to companies or for “Unreasonable use” (ie., building up a free database of library records). Since companies and entities like the Open Library aren’t going to agree to the Policy, how exactly can a library avoid violating their contractual agreement if they don’t shut down Z39.50 connections?
Sunday, February 10th, 2008
The New York Times has an interesting piece on Rowling’s attempt to stop the publication of the Harry Potter Lexicon, based on the website of the same name. Needless to say, the internet has transformed the cultural background of copyright law. As Lessig put it in the article, if claims like Rowlings’ are valid, the web is turning out a “whole generation of criminals.”
I’d be interested to read some specifics about the HPL’s approach, and Rowling’s charges there. In legal arguments over copyright, details matter. Commentary and criticism are one thing; excessive copying is another.
From the website, it seems that long quotations are rare or absent, and that many of the entries are synthetic or analytical in nature. Some of the essays, like “Wizard Banking” or “British Schooling in the 1970s?” read like those deadly mini-articles from the Transactions of the American Philological Society. And can anyone claim that the analytical and speculative “Religion in the Wizarding World” isn’t protected?
One of the key notions of US copyright law is the distinction between fact and expression. At its most basic, this means that you can write about the dimensions of the pyramids or the life of JFK, but you can’t describe them in the same words as I did. In this way, nobody “owns” a fact, no matter how much trouble it took to collect or how interesting it is. It doesn’t even have to be a true fact. It just has to intend or purport to be one.
When it comes to fiction, however, the line is blurry. That J. K. Rowling wrote a series of books about a character named Harry Potter is certainly a fact. But where do we draw the line? Is it a fact that, as the HPL explains, the diadem of Ravenclaw is “etched with the words, ‘Wit beyond measure is man’s greatest treasure.’”? The diadem doesn’t exit. It’s a product of Rowling’s imagination. And does it matter that the HPL uses “etched with the words” and Rowling used “there were tiny words etched into it”?
I would love to see the fact-expression extended to cover “literary facts,” to allow authors to write about Albus Percival Wulfric Brian Dumbledore as they would JFK—stick to the facts and avoid pulling a Doris Kearns Goodwin. Unfortunately, that’s not where the law is.
Hat tip: David Weinberger.