Copyright And The Legal Environment For Digital Publishing :: Laurence Kaye

‘COPYRIGHT & THE LEGAL ENVIRONMENT FOR DIGITAL PUBLISHING’ led by Laurie Kaye, Laurence Kaye Solicitors Hugh Jones, Copyright Counsel to The Publishers Association & Brian Green ISBN/EDitEUR April 9th 2008

AGENDA • Overview • ONIX & ACAP: ‘human readable’ and ‘machine readable’ • UK GOWERS REVIEW: proposed changes to © exceptions • EUROPE: What’s on the horizon? • Digital media law hotspots (2)

OVERVIEW

FOUR AREAS OF CHANGE “What and how do you regulate?” “Who carries the can?” Drawing the boundaries between the public and private domains Making the transition from analogue to digital

OVERVIEW

“DIGITAL MEDIA” New delivery channels New services

OVERVIEW

STATE OF THE DIGITAL MEDIA MARKETS “Is the consumer willing to pay?” Shift in advertising revenue to digital media outlets Impact of Internet on traditional distribution models Counterfeiting and piracy

ONIX for Licensing Terms and ACAP

Brian Green EDItEUR

ONIX for Licensing Terms (OLT) • A “family” of XML document schemas • Sharing an underlying data model for permissions and prohibitions • Using common data elements and composites • With application-specific dictionaries of controlled values • Applicable to many types of licensor and licensee, many types of licensed content, and many types of usage

OLT: current projects • ONIX for Publications Licenses (ONIX-PL): expressing the licenses agreed between publishers, hosting services, libraries and consortia • ONIX formats for IFRRO (International Federation of Reproduction Rights Organisations): expressing the rights delegated from publishers and authors to an RRO, and from one RRO to another • Also being used as one form of expression for the Automated Content Access Protocol (ACAP) project to express usage permissions for web content in a form that can be interpreted by search engine crawlers and others

Licensing terms - the problem • Growth of digital collections in libraries • Need to automate electronic resource management • Variation in licence terms • What are library users permitted to do? • Under what conditions? • Which classes of users are permitted to do what? • What exceptions are there to what they are permitted to do?

• Licenses are, typically, negotiated then filed away • How can libraries and users know what rights have been negotiated and avoid saying “no” just in case?

What libraries said they wanted • Expression of rights • all usage rights expressed in machine readable form • Dissemination of rights information • ensuring that whenever a resource is described its associated rights can also be described • Exposure of rights • user sees the rights information associated with a resource Intrallect report for JISC

Not a “Technical Protection Measure” • Other standards (XrML / ODRL) are designed to control rights “enforcement technologies” (i.e. technical protection) • They don’t have the flexibility we need • Libraries and publishers prefer to rely on compliance to licences • Our focus is entirely on the communication of usage terms (rights metadata), not technical protection • Library policies can over-ride message (e.g. fair use)

Benefits for publishers • Helps libraries comply with licensing terms • Precise clarification of usage conditions, prohibitions and conditions • Reinforces trust-based relationships between publishers and their library customers

• Facilitates publishers’ management of licences • Libraries aren’t the only ones with electronic resource management problems • Enables a knowledge base of licence agreements

ONIX-PL Editing Tools (OPLE) • Most publishers cannot be expected to draft XML versions of their licences without tools • JISC funded specification of drafting tool to enable publishers to produce ONIX-PL expressions of their licences, with input from publishers: • Wiley, CUP, OUP, RSM, RSC, Rockefeller UP

• JISC and PLS (Publishers Licensing Society) cofunded development of early version of OPLE • More work needed to make them widely usable • Will be open source – freely available to all

JISC Collections: first OPLE user • JISC Collections identified a priority requirement by UK academic libraries for all it’s existing licenses with publishers (around 80) to be available in machine-readable form • require full representation of the licence with all clauses and usage rights expressed • using ONIX-PL and the OPLE editing tools to do this • this is what the ONIX-PL license looks like

Next steps • U.S. ONIX-PL pilot • Consortium (SCELC) • Publishers (including Springer, OUP, Nature, Elsevier and others to be confirmed) • Systems vendor (Serials Solutions)

• Further European pilots • Working with other publishers, libraries and consortia to extend dictionary of terms (never-ending task) • Fully tested ONIX Version 1.0 and updated OPLE tools 2nd quarter 2008

ACAP • Goal: to define ways in which publishers can communicate policies for access and use of online content to search engines and other aggregators and business users • Leadership and funding: • World Association of Newspapers • European Publishing Council • International Publishers Association

Technical Framework… • a toolkit for communicating content access and usage policies • built upon existing standards and technologies • tested in real use cases • initial use cases in news, journal and book publishing

ACAP Version 1.0 • Extensions to Robots Exclusion Protocol • robots.txt • HTML META tags • Dictionary of common terminology for content access and use by search engines • Conversion tool for robots.txt • converts existing robots.txt files to ACAP • available online on the ACAP website

Next steps • Development of ACAP XML format • already drafted • will be tested in syndication use cases • NewsML / NITF • RSS?

• Specify formats for embedding ACAP policies in nontext resources • including PDF, images, audio, video,…

What can OLT and ACAP do for you? • For communicating licenses for use of online content to institutional subscribers: ONIX-PL • For communicating policies for use of online content to search engines: ACAP Version 1.0 • available now

• For communicating usage rights to customers for syndicated content: ACAP XML format • OLT-based, available 2008

EDItEUR: ONIX for Licensing Terms http://www.editeur.org/onix_licensing.html ACAP http://www.the-acap.org

Green, B and Earney, L, ONIX for Licensing Terms Serials – 20(3) November 2007 Brian Green [email protected]

EXCEPTIONS (1) • Distance learning (sections 35 & 36) • Personal copying for format shifting • Libraries and archives • Parody, pastiche and caricature?

EXCEPTIONS (2) • Nothing on “transformative use” • Frequent references to “3-step test” • Guidelines on Fair Dealing? • PA/British Academy Joint Guidelines

EUROPE (1): CONTENT ONLINE COMMUNICATION Fostering interoperable DRM systems Multi-territory rights licensing Legal offers and piracy improving stakeholder cooperation The French MOU? Filtering measures?

EUROPE (2): ORPHAN WORKS • US Copyright Office Report • i2010: European Digital Library • Gowers Review: “Diligent search” > Due acknowledgement > Remuneration? • A collective solution?

DIGITAL MEDIAL LAW HOTSPOTS

Liability of intermediaries

Legal deposit

LIABILITY OF INTERMEDIARIES ISPs • Legislate or do a deal? • To filter or not to filter? • Social Network sites

LEGAL DEPOSIT • Joint Committee/JCLD • Advisory Panel/LDAP • Offline/e-journals • Web harvesting

THANKS FOR YOUR ATTENTION! Laurie Kaye, Laurence Kaye Solicitors – www. Laurencekaye.com http://laurencekaye.typepad.com/laurence_kayes_blog/ www.linkedin.com/in/laurencekaye Hugh Jones, Publishers Association, [email protected] Brian Green, [email protected]; http://www.editeur.org/onix_licensing.html