Lunchtime Listen: Lawrence Lessig, speaking at CERN, talks about how hard, expensive, and limited our access is to scholarly information and how we have created this system.

• The architecture of access to scientific knowledge: just how badly we have messed this up, Lawrence Lessig CERN Colloquium and Library Science Talk, Streaming video (18 April 2011)

He mentions the problem of prohibiting access to an individual chart in an article posted for free on the internet. (Around the 16 minute mark: slide 189 et seq. [don't be intimidated by the number of slides; Lessig's presentation style is wonderful and clear and fast and enjoyable and no slide stays on the screen for more than a couple of seconds].)

We see this same problem in government information that incorporates copyrighted information with the results being anything from limited access to prohibited access to the non-copyrighted information. This is the poison pill problem of copyright.

CRS Report Withheld By USTR Confirms That ACTA Language Is Quite Questionable, by Mike Masnick, TechDirt, April 26, 2011.

We're happy to announce that we've been able to get our hands on the -- until now -- secret Congressional Research Service analysis of ACTA.... [I]t shows that the language used by the USTR in ACTA has lots of weasel words that let them claim it doesn't impact US law, but the interpretations of the language could very much impact US law.

"...The Committee concludes that Congress intended to retain control over this document and that it is not an agency record subject to FOIA."

"Potential Implications For Federal Law Raised By The October 2010 Draft Of The Anti-Counterfeiting Trade Agreement - ACTA" CRS Memorandum To Honorable Ron Wyden From Brian T. Yeh, Legislative Attorney, American Law Division, 7-5182 October 29, 2010 7-5700 Redacted.

Here is an interesting case study on the confusing nature of government information in the digital age.

The publication, The Presidents of the United States of America has been published in eighteen editions from 1964 through 2009 by the White House Historical Association "with the cooperation of the National Geographic Society."

First question: Is this a government publication? At least one edition (the 8th, 1981) was "distributed" by GPO (Item No. 1089. SuDocs No. Y 3.H 62/4:2 P 92). (My old copy of "Andriot" shows the White House Historical Association [1961- ] under Y3.H62/4.)

The White House web site has pages from the current publication online, but quick searches of CGP and the GPO bookstore do not show it as currently available in print as a depository item or for sale or distribution by GPO.

The White House Historical Association has its own website and has the paperback current (18th, 2009) edition for sale. The title page of the sample pdf of this edition says:

Copyright © 1964, 1969, 1970, 1973, 1974, 1975, 1978, 1981, 1982, 1985, 1987, 1989, 1994, 1995, 1999, 2001, 2006, 2009 by the White House Historical Association. All Rights Reserved

All presidential portraits contained in this book belong to the White House collection. Requests for reprint permissions should be addressed to Rights and Reproductions Manager, White House Historical Association, 740 Jackson Place, NW, Washington, D.C. 20006.

This raises more questions. Is the book really copyrighted? Is the website? (The White House copyright notice says "Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.") What happens if someone harvests this website? (Is harvested material subject to a takedown notice?)

But wait! There's more! All of this was prompted by an article about how the books is bad history.

• Historians question White House presidential bios, By HILLEL ITALIE, AP (Apr 5, 2011).

  "...the White House biographies offer an unusual history lesson. Some are examples of blatant boosterism and outdated scholarship. Others are oddly selective or politically incorrect."

I often hear people complain about the accuracy of government information and sometimes those complaints segue into an argument that such information shouldn't be made available at all. Government agencies often take down "out of date" information because it is no longer accurate -- and that leaves us with a big problem of how to preserve such information when the only copy was the one on the government web server. But I think it is important for libraries to preserve what a government says about itself, how it summarizes raw data, how it presents policy arguments, and so forth. This is the historical record. We cannot evaluate the record unless we have a record to evaluate.

Giving context to government information is very important, however. That is something that libraries can do by providing metadata describing the source of the information, but also by providing other (non-government) information that puts the government information in a wider context. That is something libraries can do (but government agencies cannot) by building collections that contain both government and non-government information.

But how can libraries do that when we are faced with inconsistent signals about copyright and the status of information produced by the government? How can we do that when we are forced to "harvest" information from the web rather than receive official deposits of government information? And, if libraries don't do this, who will preserve the historical record of our government?

There is no so-called illegal download! (Jinbonet)

by Oh Byoungil, Staff coordinator of Korean Progressive Network 'Jinbonet' (translated by Shinjoung Yeo)

Popular celebrities (Ahn Seong-gi, Park Joong-hoon, etc.) in South Korea have launched a public campaign called “good downloader.” The message of this “public campaign” is that films and animations where these actors/actresses and singers are starring are in danger due to illegal downloading.

The dominant perception among many Koreans is that any downloading activities without the copyright owner’s permission is considered “illegal.” In fact though the Copyright Act of South Korea recognizes that reproduction of copyrighted works for private use is regarded as “fair use” under Article 30 of the Copyright of Act. Article 30 the Copyright Act states:

“A user may reproduce by himself a work already made public for the purpose of his personal, family, or other similar uses within a limited circle, not for profit purposes: provided that this shall not apply to reproduction by a photocopier set up for public use.”

Examples of reproduction for private use could include: recording TV drama to watch later, copying part of a textbook and converting a CD to MP3 for personal use. Downloading a movie from the Internet for private viewing is also protected under Article 30.

The idea behind the Reproduction for Private Use provision is that non-commercial activities within a limited circle hardly affect the profits of copyright owners; furthermore, getting permission from copyright owners for each private use could be more costly. In addition, it is unrealistic to regulate private activities that could easily lead to invasion of privacy. Up until now, most copyright regulation had been exercised not via the downloading of content but rather on the uploading side of the equation; in fact copyright violation cases have been against people who were uploading materials rather than downloading. In addition, the South Korean Government’s copyright enforcement has primarily been against Internet Service Providers -- including portal sites, webhard services, P2P services, etc. Thus, under article 30, there is no so-called “illegal downloading” in Korea -- all reproduction for private use is perfectly legal.

In 2008 there was a controversial ruling in regards to reproduction for private use. In August 2008, the Seoul Central District Court ruled that even if a user downloaded a work for personal use, it could not be considered fair use under article 30 if the work was an illegal file. This is a first round ruling which has received much criticism from copyright experts because there is no clear statement in the Copyright Act on which the ruling can be grounded and there is no basis to deny the intent of reproduction for private use provision.

As legal disputes have arisen, the South Korean government has attempted to legislate “illegal download” as an exception under article 30. In February of 2010, the Ministry of Culture, Sports and Tourism announced a legislative proposal to amend the current copyright law. The proposed amendment includes a clause whereby if a person makes a reproduction of an illegally reproduced work with knowledge of the illegality of the reproduced work, s/he shall not be protected by the reason of Private Use.

This proposed amendment has been criticized by many civil society organizations and copyright experts. In March of 2010, IP Left and Korean Progressive Network Jinbonet had a joint press release and expressed concern that, “not only does this amendment not have an actual effect but it also would lead to the monitoring of users’ activities” and demanded that the amendment be abolished. As mentioned before, considering the intent of reproduction for private use provision, even if this amendment is adopted, it will be extremely difficult to enforce the law by finding out users’ illegal downloading activities.

These civil society organizations additionally argue that in order to enforce this amendment effectively, there is a possibility that it will lead to additional laws that justify the invasion of privacy and the collection of private information. The purpose of copyright law is to promote culture and arts by providing temporary exclusive right to the copyright owner. While this is an artificial right, privacy is a basic right that is guaranteed by the Korean Constitution and the United Nations’ Universal Declaration of Human Rights.

The invasion of citizens’ privacy should not be rationalized in the name of the protection of copyright; there is a danger that the amendment could justify the exercise of government power over citizens’ privacy. Neither the creation of an ineffective law nor the monitoring of internet users for effective enforcement of the law is desirable.

Another criticism on the proposed amendment is the ambiguity of the clause. The question is how law enforcement will judge and prove whether a user has knowledge of the illegality of the reproduced work. This ambiguity could discourage the use of works and bring a chilling effect where users may decide not to exercise their right to use the work for private purposes due to fear of possible copyright infringement. In reality, lots of works on the Internet are wrongly marked or unclear whether they are legally or illegally attained. It is not easy to verify the legality of a work. If the South Korean government puts this law into effect then every time one receives an email from a friend that includes a work s/he might need to verify the legality of the work.

Like many other countries in the World, South Korea has been strengthening their copyright law. The IP section of the Korea and U.S. Free Trade Agreement (KORUS FTA) -- waiting to be approved by the South Korea National Assembly -- requires a bolstering of current Korean IP law. Yet, this goes against the will of South Korean citizens and contradicts the purpose of copyright which intends to foster culture, art and science. Citizens’ right to access to information and freedom of expression on the Internet is being increasingly threatened.

ARL reports that House of Representatives Bill 5704 "would amend title 10 of the US Code (Armed Forces) to allow faculty members at Department of Defense service academies and schools of professional military education to secure copyrights for certain scholarly works that they produce as part of their official duties.... Currently, there is no copyright protection for government works (with a few exceptions) including those prepared by an officer or employee of the US Government as part of that person's official duties."

It is not clear why this is necessary or useful, but even more surprising is this provision of the bill that the author shall (not "may") transfer the copyright to the publisher:

Upon acceptance for publication of a work for which copyright protection exists by reason of subsection (a), the person holding the copyright shall transfer the copyright to the owner or publisher of the medium in which the work will be published.

Wish I could be in Washington DC next tuesday for CopyNight when Carl Malamud will speak at ALA Washington Office. If any of our readers go, please leave comments here on your thoughts/ideas/brainstorms/concerns etc. Thanks!

On Tuesday, May 25, the ALA Washington Office will host DC’s “CopyNight” group for an evening with special guest Carl Malamud about the future of public information.

Malamud is the founder of Public.Resource.Org, a foundation dedicated to making public information accessible. His latest project is an effort to bring all of the United States primary legal sources, such as legal codes and case law, online for free public access. Currently, access to many legal sources is only available through commercial databases that are extraordinarily expensive to use – making these materials inaccessible to most of the public. Malamud has been holding a series of public workshops and symposia, with help from a variety of thought leaders in law and technology, presenting the issues and challenges facing the project.

He’ll also talk about the International Amateur Scanning League, a group of DC-area volunteers digitizing government-produced DVDs currently only available from the National Archives in College Park, which he is making available through YouTube, the Internet Archive, and Public Resource’s own Public Domain Stock Footage Library.

In the course of my work of maintaining the Lost Docs Blog, I came across the following publication:

Substance Abuse and Mental Health Services Administration. After an [suicide] Attempt: A Guide for Taking Care of Yourself After Your Treatment in the Emergency Department. (SMA 08-4355; CMHS-SVP06-0157), Rockville, MD:
Center for Mental Health Services, Substance Abuse and Mental Health Services Administration, U.S. Department of Health and Human Services, 2006. Reprinted 2009.

I noticed it had this public domain notice that I've seen on some government publications:

Public Domain Notice
All material appearing in this publication is in the public domain and may be reproduced or copied without permission from SAMHSA. Citation of the source is appreciated. This publication may not be reproduced or distributed for a fee without the specific, written authorization of the Office of Communications, SAMHSA, HHS.

As a general rule, publications produced by the federal government are in the public domain and copyright free. There are exceptions that you can read about in our online library.

It is a fact that not enough people realize the public domain nature of most government materials and so my reaction to this notice was initially very positive. I instinctively like the idea of labeling govdocs as public domain so that people and organizations (Google, I'm talking to you!) would feel free to reuse and remix without fear of consequences and not lock up content not meant to be locked up.

On the other hand, if only a handful of agencies use such notices for public education, it is conceivable that an environment would be created where only govdocs with public domain notices would be treated as public domain. I'm not sure if that's a danger, but I worry. The possible danger would be less if a public domain notice was required governmentwide.

What do you think? Are public domain notices on govdocs a good idea? Are they a good idea whether done governmentwide or by a few agencies? Would we be better off if there was a governmentwide policy to label the minority of copyrighted material in govdocs?

---

Note: Thanks to Vicki Tate for reporting this document to GPO and sending a copy of her receipt to the Lost Docs blog.

ArsTechnica reports today that a new GAO report debunks the many private industry- and govt agency reports on the economic impact estimates of information and industrial "piracy." GAO states that the "lack of data hinders efforts to quantify impacting of counterfeiting and piracy." They go on to highlight in particular 3 reports often linked to the government and commonly cited by industry groups that are bogus.

Three commonly cited estimates of U.S. industry losses due to counterfeiting have been sourced to U.S. agencies, but cannot be substantiated or traced back to an underlying data source or methodology.

First, a number of industry, media, and government publications have cited an FBI estimate that U.S. businesses lose $200-$250 billion to counterfeiting on an annual basis. This estimate was contained in a 2002 FBI press release, but FBI officials told us that it has no record of source data or methodology for generating the estimate and that it cannot be corroborated.

Second, a 2002 CBP press release contained an estimate that U.S. businesses and industries lose $200 billion a year in revenue and 750,000 jobs due to counterfeits of merchandise. However, a CBP official stated that these figures are of uncertain origin, have been discredited, and are no longer used by CBP. A March 2009 CBP internal memo was circulated to inform staff not to use the figures. However, another entity within DHS continues to use them.

Third, the Motor and Equipment Manufacturers Association reported an estimate that the U.S. automotive parts industry has lost $3 billion in sales due to counterfeit goods and attributed the figure to the Federal Trade Commission (FTC). The OECD has also referenced this estimate in its report on counterfeiting and piracy, citing the association report that is sourced to the FTC. However, when we contacted FTC officials to substantiate the estimate, they were unable to locate any record or source of this estimate within its reports or archives, and officials could not recall the agency ever developing or using this estimate. These estimates attributed to FBI, CBP, and FTC continue to be referenced by various industry and government sources as evidence of the significance of the counterfeiting and piracy problem to the U.S. economy.

Read on at:

Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods
GAO-10-423 April 12, 2010

[Thanks @ArsTechnica!]

The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed international trade agreement for establishing international standards on intellectual-property-rights enforcement throughout the participating countries. Many copyright activists are extremely worried about ACTA because it will have wide ranging impact on digital rights, is being negotiated in secret meetings with no transparency and will most likely include substantive provisions such as three strikes, anti-circumvention rules, and statutory damages.

Dr. Michael Geist, law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law, has been a leading voice on education about and advocacy vs ACTA. Geist gave a very interesting talk on ACTA entitled "The Truth About ACTA" at the PublicACTA conference in Wellington, New Zealand (the Wellington Declaration is a must-read and a must-sign!!). You can also follow his ongoing advocacy on his twitter account (@MichaelGeist).

White House Makes Full Copyright Claim on Photos, by Kathy Gill The Moderate Voice (Feb 6th, 2010).

The U.S. government policy on photographs and copyright is pretty straightfoward: photos produced by federal employees as part of their job responsibilities are "not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work."

Why, then, is the Obama White House asserting that no one but "news organizations" can use its Flickr photos? Why is it asserting that manipulation is prohibited? Why is it asserting that photos may not be used in "commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House"?

http://www.flickr.com/photos/whitehouse/4331402906/