美国对数字出版中侵权现象的应对措施

美国现有的版权法律条文不能有效地应对数字出版商们的忧虑.尽管数字作品可以享受和印刷作品同等的版权保护,我们似乎仍然需要新的法律条文和理论来应对数字作品和技术的特殊性质.在面对与数字侵权有关的问题上,美国通过立法、改进美国版权署的职能以及签订国际条约或协定,缓慢开始颁布一些关于数字侵权的条文.数字侵权虽然在庭审中得以应对,但法庭运用的是传统版权概念中的"合理使用"来分析数字侵权.目前,人们只能通过诉讼的方式迫使美国法庭建立一套能充分解决电子侵权的法律体系.     

“I own it,don’t I?” The Rules of Academic Copyright Ownership and You

Abstract

This article delves into a few areas of copyright law that academic authors often overlook: joint author’s rights and the work made for hire doctrine. Scholarly publications produced by university professors often include more than one author. The default copyright laws apply to any such works if there is no specific written agreement to the contrary. Thus, it is important to understand what those default rules are in order to determine whether it is appropriate to deviate from them in an author agreement. Similarly, the work made for hire doctrine would normally apply to make all work produced by professors owned by the university. Luckily, many universities do not wish to own such work and give it back to professors through university statutes and other governing documents. However, it is crucial to understand whether the default rules apply or the university permits professors to negotiate their own author agreements with publishers. Finally, if authors own their own scholarly works, publishers can expect that they will negotiate their rights in the publishing agreements to benefit the terms most favorable to the author. And yet, many faculty members simply sign a standard authorship agreement without asking for concessions on the part of the publisher. Thus, this article empowers professors to exercise their copyright rights to the full extent of the law and to negotiate their author’s agreements to benefit themselves and society as a whole through open access and the use of Creative Commons licenses.     

维基知识库版权许可模式研究

文章从GNU自由文档许可证以及创作共用两种主流的开放内容版权许可模式出发,分析维基知识库的版权管理模式,并探讨了两种许可模式在现行版权制度下的兼容性。     

Only with your permission: how rights holders respond (or don’t respond) to requests to display archival materials online

Archival repositories are increasingly considering mass digitization as a means of meeting user expectations that materials be available online, remotely. Copyright is frequently noted as a significant obstacle to these efforts, but little empirical data exist on the copyright permissions process in archives. This article reports the findings of a study of the copyright permissions process for the Jon Cohen AIDS Research Collection at the University of Michigan. Specifically, the study sought to reveal how much effort is required to seek copyright permissions, what the results of those efforts would be, and whether or not there were traits of documents or copyright holders that were associated with accept or denial status. The study found that significant time is required to contact and negotiate with rights holders and that the biggest obstacle to getting permission is non-response. Of those requests that get a response, the vast majority are to grant permission. While few of the requests were met with denial, the data suggest that commercial copyright holders are much more likely to deny permission than other types of copyright holders. The data also show that adherence to the common policy of only displaying online those documents with explicit permission will likely result in substantially incomplete online collections.     

Between Two Worlds: Australian Publishing on the Horns of an Import Dilemma

This article looks at the consequences of the 1991 amendment to the Australian Copyright Act, which meant that, for the copyright owner or authorised distributor to attain the right to control imports, it had to make the book available in Australia within 30 days of first publication overseas; and, to retain that right, it had to notify the retailer within 7 days of receiving an order whether it could be fulfilled within 90 days, and then in fact do so (. Accessed 28 June 2008). The article discusses the background to that change, what has happened since and what arguments are marshalled by those in favour of the status quo (restrictions that must be qualified for), and those in favour of a completely open market. The arguments used say much about the current preoccupations of those in Australian publishing. The debate around whether booksellers should be free to import copies of a new book from any supplier willing to sell them boils down to four issues: the availability in Australia of books published overseas; the price of books in Australia; the preservation of Australian publishing; and the protection of the rights of copyright holders. Those in favour of the open market believe that it would improve the first two without diminishing the latter two; those who support the status quo, that changing would bring no substantial benefits, and hurt both publishing and the rights of copyright holders. In summary, the reasons for maintaining the status quo are that things work fine as they are; that Australian literature (authors, bookshops, publishers) would suffer if things changed; and that the publisher is entitled to protect its investment through territorial control of copyright. The reasons for going to a completely open market are that only an open market can determine market price; that booksellers are unfairly disadvantaged competing against online sellers, on whom parallel importing restrictions are effectively not imposed; that copyright holders lose their rights when they sell something, and shouldn’t get a secondary chance to protect their investment; there is already a de facto open market, which unfairly restricts those who obey the law; there is a narrow window of opportunity for selling a book, which the current restrictions don’t serve; and the current situation is a poor compromise that doesn’t achieve the benefits of the open market.     

An examination of institutional policy on copyright and access to research resources in Uganda***

Education and research are the cornerstones of Africa's socioeconomic and political development. Yet several barriers stand in the way of Africa's education and research institutions in realizing their full potential. This paper examines copyright as a barrier in the access and use of electronic resources in Africa's education and research contexts. This paper addresses this policy question by examining the extent to which the draft policy on research and intellectual property rights management of Makerere University advances access to resources and the open sharing of knowledge. Based on the critical analysis of Makerere's policy, this paper notes that openness should trump other institutional interests in the copyright system. The position taken in the paper is that institutional policies should advance open sharing of information and knowledge (internal or external to the institution). Short-term legal remedies are proposed based on various Creative Commons' licenses that are designed to advance openness within existing national copyright statutes. Long-term remedies suggested involve reforming national and international laws and instruments to advance openness including protecting existing provisions for education and research. Protection of education and research activities can be attained by not simply availing the existing exceptions and limitations but also precluding statutory exceptions and limitations from being overridden by contractual licenses. The proposed short and long-term remedies are expected to be addressed by institutional policies to facilitate in the access and use of e-resources (and other research and educational resources).     

Library reserves and copyright: Thirty years on and still changing

Since the passage of the 1976 Copyright Law, library reserve services have had to define continuously the nature of their services within the context of copyright. Lacking professional guidance, librarians reacted to the 1976 Law with a largely conservative set of guidelines for reserve copying due, in large part, to a vacuum of guidelines from the library profession and despite the prevalence of progressive rhetoric. Court cases (NYU, Kinko's and Texaco) have reinforced a conservative approach. However, the environment for reserve remains fluid. Electronic reserves and a recent court decision (Michigan Document Services) offer the profession another opportunity to redefine the reserve/copyright dynamic. Librarians need to avoid past strategic failures and take full advantage of the current environment to press the expansion of reserves into the new electronic library paradigm.     

深度链接的版权问题及应对策略

根据深度链接所引发的版权纠纷案例,分析了深度链接可能引发的版权问题。结合我国实际情况,从著作权行政管理部门、深度链接服务提供者及权利人三个角度提出了应对策略。     

数字图书馆建设中的版权许可与著作权集体管理组织

版权许可是数字图书馆建设中的核心法律问题，著作权集体管理是解决版权许可的可行之路，在此基础上，进一步探讨了著作权集体管理组织与权利人之间是一种信托关系。     

Libraries,copyright and the electronic environment

This paper was prepared for the International Publishers Association and adopted by its international committee in April 1996. The paper stresses that the new electronic environment will require mature international standards of copyright protection. Publishers have concerns over how copyrighted works should be protected and welcome the opportunity to work with libraries and library associations to consider the uses of digitized formats that will preserve the rights of copyright holders while ensuring that publishers reach their intended audience. copyright and new technology of the Association of American Publishers.     

A Primer on Copyright Law and the DMCA

Abstract

Presents the basics of modern copyright law and ways in which the 1998 Digital Millennium Copyright Act (DMCA) changed the law. Focuses on the DMCA's prohibition of circumvention and file sharing and how this has impacted libraries. Discusses efforts to re-establish a copyright balance between creators, publishers and consumers, especially through proposed legislation and the open access movement. The impact of the DMCA on libraries is weighed, and calls for librarians to be more vigilant in opposing efforts to legalize digital rights management software.     

创作共用协议在机构知识库建设中的应用与意义

介绍创作共用协议的起源、包含的基本权利及可以保留的权利,分析当前IR建设中存在的版权问题,列举创作共用协议在开放存取资源中的应用,并阐述创作共用协议在IR建设中的意义。     

Copyright complicance in the electronic age: Conceptual issues

This article focuses on several conceptual and structural issues that are central to copyright compliance in the electronic age. It presumes the development of a national electronic network for storing, organizing, accessing, managing, and charging for information. The article first discusses the implications of constructing a comprehensive electronic “highway,” or Digital Library System (DLS), which would link information to the widespread community of users. It then presents the ramifications of a highly decentralized set of subsystems serving rights holders and users, linked by protocols established by the DLS. A discussion of the implications of digital interchangeability for copyright follows. The article ends with an analysis of alternatives to existing intellectual property rights conveyance systems, and concludes that current ownership structures, and systems for conveying rights and royalties, will remain the foundation for copyright in the electronic world. This article appeared in a slightly different form in theProceedings of the Twelfth National Online Meeting—1991, and is published here with the permission of Learned Information, Inc., Medford, N.J.     

信息网络传播权保护对开放存取的影响及版权策略

网络传播权保护对信息的开放存取具有重要影响。文章分析了《信息网络传播权保护条例》的背景、目的、范围和网络传播权的内涵与特点。《条例》在保护权利人权益的同时,通过“合理使用”和“法定许可”方式对权利人权益附加各种限制,维系信息网络传播权保护与信息公共获取的平衡。提出应尽可能地扩大“合理使用”与“法定许可”的范围,为开放存取出版争取更大的发展空间,实现知识和信息传播的社会效益最大化。最后,探讨提出在现行版权法框架下以授权协议为核心的开放存取版权策略。     

开放数据的著作权解决方案——ODC协议研究

[目的/意义] 研究ODC协议对处理开放数据著作问题、降低数据利用侵权风险、预防数据权益纠纷发生、实现开放数据可持续发展具有重要意义。[方法/过程] 以法律关系分析方法,厘清覆盖于数据之上的著作权法律关系;以字面解释等法律解释方法,对ODC协议及其重要条款进行解读;以案例调研、比较研究等方法,对ODC协议的适用问题进行归纳并提出解决方案。[结果/结论] ODC协议通过将数据的著作权法律关系解构为单个数据、数据内容、数据库、衍生数据库、集成数据库、数据产出等部分来设计授权使用条款,将开放数据的使用者扩展至所有主体,技巧性地回避了对事实数据进行授权的法理难题,同时从多个方面实现了协议的明确性、全球性和前瞻性。ODC协议是开放数据著作权问题的有效解决方案之一,适用时建议同时建立数据许可权限管理机制、科学发现权的承认与保护机制,并建议在未来的ODC协议更新版本中完善对被许可人恶意重复违约的规制问题。     

A new look at the constitution's copyright clause: Copyright by government contractors is unconstitutional

Through a new interpretation of the Copyright Clause of the Constitution and the Application of the Ninth and Tenth Amendments, the author concludes that it is unconstitutional for (1) the Congress to authorize Federal agencies to permit copyright by Federal contractors on works they were commissioned by Federal contract to produce for compensation, and (2) the Copyright Office to register a copyright application from such a Federal contractor.There are two provisions in the Copyright Clause, the commonly cited one on promoting science and the arts, and the generally ignored permissible-means provision limiting copyright to providing incentive to authors to create works. The latter one is a threshold requirement for copyrightability.Since there is no constitutional authority to motivate an author by the Federal Government's permitting him to copyright a work he was commissioned under Federal contracts to produce for compensation, Schnapper v. Foley was wrongly decided.     

Book Review: Deborah Hurley and James H. Keller (Eds.), The First 100 Feet: Options for Internet and Broadband Access

Enforcement of copyright and related intellectual property rights is designed to halt loss of economic value to the rights holders. This article explores the nature of losses when protected works are stolen, infringed, or pirated and how the losses differ significantly for materials in physical and virtual form. The author shows unauthorized uses create both supply and demand issues and reveals that different forms of illegitimate use produce varying types and levels of economic loss. The author shows how unauthorized uses potentially affect the producers' marginal and average costs, consumer demand, and revenues. The author considers those effects separately for theft, infringement, and piracy of physical and virtual products and shows that negative effects of losses are rarely inevitable and that less harm tends to occur when virtual rather than physical products are involved.     

Publishing,copyright, and the public good

For centuries publishers have acted as intermediaries between author and audience. Copyright, like freedom of expression, is an essential element of freedom in this role, because without it authors' rights are not fully protected. Only when they are protected against theft and other economic or moral infringements are authors free to express themselves without fear. Publishers, too, rely on copyright to protect their investments and their freedom Paul Nijhoff Asser has been secretary of the International Group of Scientific, Technical and Medical Publishers (STM), Amsterdam, since 1970. He has been active in publishing and bookselling for more than forty years. This article was adapted from a presentation at the seminar “East Meets West: Copyright and the Publisher in a Market Economy”, Hamburg, March 1991.     

Exploring copyright knowledge in relation to experience and education level among academic librarians in Kenya

Since the year 2001, Kenya’s copyright regime has extensively been shaped by Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement; World Intellectual Property Organization Copyright Treaty; Africa Growth Opportunity Act (AGOA); and The Cotonou Agreement, which have advocated for effective copyright administration and management structures in addition to stiffer penalties for those who violate copyright laws. Despite better administrative structures being put in place, copyright infringement in Kenya has persisted. Being able to balance the needs of rights owners and information consumers becomes a critical role librarians have to play. Knowledge about copyright, thus, becomes critical. Despite the fact that librarians in Kenya are not a homogenous group, how knowledgeable the different librarian cadres are concerning copyright issues is least understood. The raison d’être for this study is to find out whether different cadres of librarians based on academic qualifications differ in the level of knowledge on copyright issues. A questionnaire was used to collect data. Results indicate no statistically significant difference in self-reported knowledge of copyright among the five librarian cadres based on their education level and neither is there a statistically significant difference based on librarians’ years of service. Statistically significant differences among the five librarian cadres exist when we compare “tested knowledge” of copyright issues. Evidence of insufficient mastery of provisions in the Kenyan copyright law does exist.     

European Publishers Council: making copyright work on the Web

• An overview of the EPC's work to collaborate with the EU regulators to achieve a fully copyright‐enabled Internet
• How we address the need for technological solutions to make copyright work on the Web; to facilitate the dissemination of online content; to encourage innovation by content providers; to facilitate the legal use and sharing of online content
• Why in June 2014, in preparation for the next round of EU regulatory reform on copyright due in 2015, the EPC published a new ‘Copyright Vision’ including recommendations to help realize the potential of the media and publishing ecosystem to the benefit of all creators and users