Membership Matters A – November 2014

CEO Column 

STM’s Annual Frankfurt Conference and the fallout from Swets

Despite being understandably overshadowed by the Swets bankruptcy, for which STM is providing various levels of member support and advice, STM’s annual round of Frankfurt activities managed to break new ground with the highest preregistration ever for the conference, the introduction of a smart phone app for the meeting materials and the first occasion that three of STM’s standing committees held simultaneous in person meetings.

Regular readers will know that the week of Frankfurt is probably one of the busiest in the whole year for publishing trade associations and for many colleagues at our member companies too. This year STM’s preparations and the execution of all our meetings was overshadowed by the Swets bankruptcy, which with exquisite timing came to a head in the ten day run up to the Book Fair.

I well remember the chaos that ensued ten years ago when RoweCom went under and the important role that the trade bodies had in trying to smooth over the crisis for publishers and their customer librarians. History never repeats itself exactly. In the case of Swets the failure had been sign-posted for a while and luckily when the end occurred it happened swiftly and earlier in the renewals cycle than the RoweCom collapse. As in many areas of life, timing is everything. For Swets and its subsidiaries to slide into insolvency in the early days of October (and as I write the last remaining parts are being gazetted as dead) at least meant that only 6% of the renewals had started to occur. This will still be a disaster for those publishing companies and libraries affected – assuming we can get data on what had been collected from whom and for what.

STM quickly set up a special email list for the legal representatives of member companies providing an information service from one of our retained legal counsels, Andre Myburgh of Lenz & Cammerer. As the broad sweep of issues became apparent we also set up an irregular series of STM Heads of House Swets Information Letters to ensure our business leaders were also appraised. At the end of Frankfurt week we set up a single place on the members only part of the STM website where members can see all the documents and reports on Swets together in reverse date order: https://www.stm-assoc.org/swets-liquidation/.

When the failure was only a high probability rather than a certainty, I wrote to the acting CEO of Swets to suggest that he should meet with STM members during our annual meeting. Shortly after he wrote back and agreed to meet with a delegation of STM members, Swets went into administration, making the originally planned meeting redundant. Prudently we retained the meeting room we had reserved for the latter half of the morning of our Annual Meeting, and this became the venue for an emergency meeting of STM Heads of House to discuss their response to the crisis. Thirty six of our publishing member Heads of House or their representatives attended. Minutes were sent out to the rest later that day.

Meanwhile, back at the STM meetings at the Westin Grand… we carried on as normal, or at least as normal as one can as the situation evolved in real time. Monday saw the first occasion that three of STM’s standing committees held simultaneous in person meetings. The copyright committee has long done this and its success in getting a collegiate and collaborative dynamic in its usually teleconferenced meetings as a result of its members meeting occasionally in the flesh inspired us to try this with the other standing committees. We hope to do this twice a year associating these meetings with the two member meetings of the Association in Spring in the US and at Frankfurt. Another innovation was the evolution of the copyright committee dinner into a bigger thank you dinner for all standing committee members present in Frankfurt. Feedback from the Tuesday evening event was positive but perhaps next year we will strive for a less formal event at a local restaurant.

Monday afternoon continued with the usual statutory meeting of the STM Board where the newly elected members were introduced, and the chair and treasurer for 2014-15 were elected. At the AGM the election of the new board members and the re-election of Jayne Marks of Wolters Kluwer Health as STM Chair and Andrea Powell of CABI as STM Treasurer were ratified.

Tuesday was a complicated day. We had the highest preregistration ever for our annual meeting and 350 turned up in the end. At the same time, as I mentioned earlier we were running an invitation-only meeting of our business leaders on Swets. This Frankfurt Annual Meeting saw the introduction of our smart phone app on which all of the materials included in the registration packs could also be found. After the conference we sought feedback via an electronic survey (thank you to those who have already responded, four times as many as we used to get for paper evaluation forms). Next year we hope this may form part of the smart phone app so that real time evaluations can occur.

Last year I commented on how gratified we were that so many members made it through a long and busy day to attend the Members Forum. This year was no exception and if anything the numbers had grown a little to well over one hundred. As a result, Members Drinks was very well attended.

Wednesday saw the opening of the Book Fair, with all that entails for publishers. For the trade bodies it usually means a sequence of meetings to attend or run. In the morning I attended the IPRO Board Meeting (International Publishers Rights Organisation), an RRO started by STM to deal with the copying of members’ materials and their use in readers at Dutch Universities. IPRO has proved an important organisation for collecting money for our members and for helping distribute damages from the court cases we have won on your behalf. I then chaired the biannual “summit” meeting of all the trade bodies dealing with research publishing to help coordinate our activities.

Thursday saw STM staff meeting with members at their stands all over the Book Fair, as well as meetings organised by our sister organisations. FEP held its usual Annual Rendezvous, with a representative of the European Commission speaking.

Normally a thankful lull occurs following the full on week of Frankfurt but alas it was not so. Swets continued to involve us in providing information to members from the Curator appointed to deal with the liquidation and with preparations for meetings in Brussels, Washington DC and in my case attending my last IFRRO AGM as a board member. This year the meeting is being held in Seoul in South Korea and I will be travelling on to Beijing to introduce STM to some key Chinese stakeholders at The National Science Foundation China, the Chinese Academia of Sciences, the Chinese Association for Science and Technology and NCAC of the GAPP. Copyright and open access will be the themes.

Until the next time: safe travels and good publishing!

Michael Mabe

Copyright and Legal Affairs Report

Cases

United States – 11th Circuit overturns lower Court’s fair use analysis in Georgia State case

 

In a long-awaited judgment, the 11th Circuit Court of Appeals has overturned parts of the fair use analysis of the trial Court and vacated the injunction and order of costs granted to Georgia State University against the publishers, and remanded the case to the trial Court for further consideration consistent with the judgment.

The central issue in this case was under what circumstances Georgia State, the Defendant, must pay permissions fees to post a digital copy of an excerpt of Plaintiffs’ works to its electronic reserves (STM News October 2012).  The Court of Appeals summarized its findings (from p.110 of the written judgment) as follows: 

“In sum, we hold that the District Court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief. However, the District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically. The District Court should have undertaken a holistic analysis which carefully balanced the four factors in the manner we have explained.  

The District Court did not err in holding that the first factor — the purpose and character of the use — favors fair use. Although Defendants’ use was nontransformative, it was also for nonprofit educational purposes, which are favored under the fair use statute.  However, the District Court did err in holding that the second fair use factor — the nature of the copyrighted work — favors fair use in every case.  Though this factor is of comparatively little weight in this case particularly because the works at issue are neither fictional nor unpublished, where the excerpts in question contained evaluative, analytical, or subjectively descriptive material that surpasses the bare facts, or derives from the author’s own experiences or opinions, the District Court should have held that the second factor was neutral or even weighed against fair use where such material dominated. 

With regard to the third factor — the amount used in relation to the copyrighted work as a whole — the District Court erred in setting a 10 percent–or-one-chapter benchmark. The District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken — qualitatively and quantitatively — was reasonable in light of the pedagogical purpose of the use and the threat of market substitution.  However, the District Court appropriately measured the amount copied based on the length of the entire book in all cases, declined to give much weight to the Classroom Guidelines, and found that the Defendants’ educational purpose may increase the amount of permissible copying. 

With regard to the fourth factor — the effect of Defendants’ use on the market for the original — the District Court did not err. However, because Defendants’ unpaid copying was nontransformative and they used Plaintiffs’ works for one of the purposes for which they are marketed, the threat of market substitution is severe. Therefore, the District Court should have afforded the fourth fair use factor more significant weight in its overall fair use analysis. 

Finally, the District Court erred by separating two considerations [(1) that “[l]imited unpaid copying of excerpts will not deter academic authors from creating new academic works,” and (2) that “[t]he slight limitation of permissions income caused by the fair use authorized by this Order will not appreciably diminish Plaintiffs’ ability to publish scholarly works and will promote the spread of knowledge.”] from its analysis of the first and fourth fair use factors.” 

In the context of the fourth fair use factor, the Court noted that “There exists a well-established system for the licensing of excerpts of copyrighted works. Copyright Clearance Center (“CCC”) is a not-for-profit corporation with headquarters in Danvers, Massachusetts. CCC licenses excerpts from copyrighted works for a fee, acting on behalf of publishers who choose to make their works available through CCC.”  The Court opined:  “The fourth fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.”  The central question under the fourth factor is not whether Defendants’ use of Plaintiffs’ works caused Plaintiffs to lose some potential revenue.  Rather, it is whether Defendants’ use — taking into account the damage that might occur if ‘everybody did it’ — would cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing Defendants’ incentive to publish the work.”  Referring to CCC’s various programs for academic permissions and Plaintiffs’ own permissions programs, the Court observed that “the fact that Plaintiffs have made paying easier does not automatically dictate a right to payment.” 

In a minority judgment agreeing with the majority decision to remand the case back to the trial Court, Judge Vinson wrote that the trial Court’s error was even broader and more serious than the majority had concluded: “Defendants have the burden to show by a preponderance of the evidence why this aggregated use in electronic form is fair use --- when the exact same use in paper form is not. In my view, they have not even come close to doing so.” 

The decision can be found at http://media.ca11.uscourts.gov/opinions/pub/files/201214676.pdf.

Commentary from Kevin Smith of Duke University is at http://blogs.library.duke.edu/scholcomm/2014/10/19/gsu-appeal-ruling-read-better-seems/. A report in Publishers Weekly is at http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/64454-appeals-court-reverses-gsu-copyright-ruling.html.

European Union – VAT on e-books

On the vexed question as to whether a reduced rate of VAT that applies to the supply of print books should also apply to the supply of e-books in Europe, the European Court of Justice has pronounced that national legislation allowing a reduced rate for print books can allow the standard rate of VAT to apply to books published on other physical supports, provided that the principle of fiscal neutrality inherent in the common system of value added tax is complied with. 

On the vexed question as to whether a reduced rate of VAT that applies to the supply of print books should also apply to the supply of e-books in Europe, the European Court of Justice has pronounced that national legislation allowing a reduced rate for print books can allow the standard rate of VAT to apply to books published on other physical supports, provided that the principle of fiscal neutrality inherent in the common system of value added tax is complied with. 

K Oy, a Finnish publishing company, which publishes general literature and textbooks as well as audiobooks and e-books, brought a request to the Court for a preliminary ruling on the VAT Directive (2009/47/EC) following the decision of the Central Tax Board of Finland that the reduced rate of VAT applying to the supply of print books cannot be applied to the supply of books published on physical supports other than paper. The Court held that the VAT Directive allows a Member State to have a reduced rate of VAT on print books and the standard rate of VAT on books on other physical supports, such as CDs, CD-ROMs or USB keys, provided that this complies with the principle of fiscal neutrality, which is up to a local court to assess. 

The Court said that fiscal neutrality should be assessed against the consumer’s experience and the economic reality. In the case of books, the Court seemed to think that digital and audiobooks can provide a different enough experience to justify different VAT rates. However, this has to be assessed on a country-by-country basis. 

In the Court’s words: “as the average consumer’s assessment is liable to vary according to the different degree of penetration of new technologies in each national market and the degree of access to the technical equipment enabling the consumer to make use of books published on physical supports other than paper, it is the average consumer in each Member State who must be taken as a reference. In those circumstances, it is for the referring court to ascertain … whether books published in paper form and books published on other physical supports are goods which are liable to be regarded by the average consumer as similar. For that purpose, it will have to assess whether those books have similar characteristics and meet the same needs, using the criterion of whether their use is comparable, in order to ascertain whether or not the differences between them have a significant or tangible influence on the average consumer’s decision to choose one or other of those books.” 

The judgment can be found at http://curia.europa.eu/juris/document/document.jsf?text=&docid=157513&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=131347.

Italy – Constitutionality of Regulation on Online Copyright Infringement questioned

Late in September 2014, an Italian administrative Tribunal referred to the Italian Constitutional Court a question regarding the constitutionality of the Italian Communication Authority's ('AGCOM') Regulation on Online Copyright Infringement.

Late in September 2014, an Italian administrative Tribunal referred to the Italian Constitutional Court a question regarding the constitutionality of the Italian Communication Authority's ('AGCOM') Regulation on Online Copyright Infringement. 

The Regulation, which entered into force on 1 April 2014 (STM Membership A - Matters February 2014), empowers AGCOM to enforce online copyright infringement, and allows AGCOM to order access and hosting providers to block access to websites hosting infringing materials or remove allegedly infringing contents after a short administrative procedure.

Source: Stanford Law School, at http://stanford.io/1rrpEI7 . Commentary from the 1709 Blog is at http://the1709blog.blogspot.ch/2014/09/are-blocking-injunctions.html.

United Kingdom – the Courts’ power to grant blocking orders extended to brand counterfeiting

The High Court in London delivered a landmark judgment on 17 October 2014 establishing that trade mark owners can secure court orders blocking access to websites that are structured to infringe their trade mark rights by selling counterfeit goods online.

The High Court in London delivered a landmark judgment on 17 October 2014 establishing that trade mark owners can secure court orders blocking access to websites that are structured to infringe their trade mark rights by selling counterfeit goods online. 

In a comprehensive judgment in the case of Cartier v. BSkyB and others, the Court considered the enforcement methods that are presently available to trade mark owners when tackling infringement online. The court concluded that Internet Service Providers play "an essential role" and that the court can and should apply Article 11 of the Enforcement Directive to require the application of technical measures to impede infringement of trade marks. 

The Newzbin case (STM News August/September 2011) established that ISPs could be required to impede infringement by copyright infringing websites.  This action relied on section 97A of the UK Copyright Designs & Patents Act that specifically implemented Article 8(3) of the EU Copyright Directive.  In the trade mark context, the equivalent provision in the Enforcement Directive was not specifically implemented into the Trade Marks Act. The Court held that Section 37 of the Senior Courts Act gives it the power to make an order in accordance with Article 11 of the Enforcement Directive. 

Report from solicitors Wiggin (represented the successful claimants) at http://bit.ly/1teYYAS, and commentary form the 1709 Blog is at http://bit.ly/1vSpqQO. 

The judgment is at http://www.bailii.org/ew/cases/EWHC/Ch/2003/3354.html.

Spain – Supreme Court refers case on private copying levies to ECJ

Following an administrative appeal against the 2012 Royal Decree under which Spanish copying levies would henceforth be financed by the State, filed by the Spanish CMOs VEGAP, EGEDA and DAMA, the Spanish Supreme Court referred two questions to the European Court of Justice in September 2014 concerning the compatibility of the Decree with the EU Copyright Directive (2001/29/EC). 

Following an administrative appeal against the 2012 Royal Decree under which Spanish copying levies would henceforth be financed by the State, filed by the Spanish CMOs VEGAP, EGEDA and DAMA, the Spanish Supreme Court referred two questions to the European Court of Justice in September 2014 concerning the compatibility of the Decree with the EU Copyright Directive (2001/29/EC). 

The questions referred to the ECJ are:

  1. Is a private copying compensation system, that – taking as a basis the estimation of the actual damage – is financed through the State budget, thus not guaranteeing that the costs of this compensation are only supported by the users of the private copies, compliant with Article 5(2)(b) of the Copyright Directive?
  2. If the answer is in the affirmative, is it compliant with Article 5(2)(b) of Copyright Directive that the total amount set aside by the government for this compensation, which is calculated on the basis of an estimation of the actual damage, is conditioned on the budget restrictions for each financial year? 

 

The Royal Decree, in force as of 1 January 2012, established that the compensation for private copying would no longer be on the basis of a levy on reproduction devices, but rather obtained from the State budget (fixed at EUR 5 million per year for 2012 and 2013). Objective criteria for the calculation of the respective amount were set by a later Royal Decree, in force as of 8 December 2012, and its calculation and payment are being implemented every year. The procedure to determine the amount for 2013 is still in progress. 

At the same time, the Spanish Copyright Act is currently being amended (see story below). The amendment includes a severe reduction of the scope of the exception for private copying, which, if passed, means that the remuneration to be paid in the future is expected to be considerably lower, in which case the outcome of the case referred to the ECJ might, in the end, turn out to be of less importance for the calculation of the Spanish private copying remuneration. 

Source: FEP

Austria – Court orders blocking measures following UPC Telekabel Wien case

In a decision handed down at the beginning of October, the Austrian Commercial Court ordered blocking measures to be taken against video-streaming and downloading websites Kinox.to and Movie4K.

In a decision handed down at the beginning of October, the Austrian Commercial Court ordered blocking measures to be taken against video-streaming and downloading websites Kinox.to and Movie4K. 

The case was brought before court by the Austrian anti-piracy association VAP (Verein für Antipiraterie) against ISPs UPC, Tele2, A1 and “3”.  The ruling follows the recent ECJ judgment in the UPC Telekabel Wien case (STM Membership Matters A - May 2014) that intermediaries can be ordered to take measures against copyrighting infringing websites, as they can be deemed an intermediary within the meaning of Article 8(3) of the EU Copyright Directive. 

Source: Future of Copyright at http://bit.ly/1tNLZav.

Policy

WIPO – No agreement on normative policymaking at General Assembly

 

The WIPO General Assembly, held from 22 to 30 September 2014 in Geneva, could not agree on a work programme for its Standing Committee on Copyright and Related Rights (SCCR), nor for its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, leaving its policy making function in disarray. 

A key aspect of the discussions on the SCCR is the emphasis that Group B developed countries would like to put on the completion of a draft treaty to protect broadcasters’ rights in the next sessions of the committee, which is closer to maturity, according to developing country sources. 

Developing countries, some of which support broadcasting treaty talks, demand that equal attention be given in the SCCR to the three subjects currently addressed by the committee: broadcasting, exceptions and limitations to copyright for libraries and archives, and exceptions and limitations to copyright for education, research, and people with disability other than visual impairment. 

On the broadcasting treaty, though, some countries, including India and Brazil, would like the treaty to be limited to signal-based piracy and not include webcasting. According to a developing country source, that is a major issue to be solved before moving forward with the treaty discussions. 

In the corridors, some developing countries said during the Assembly that developed countries attempted to undermine WIPO activities that are priorities for developing countries, such as the protection of genetic resources and traditional knowledge, and exceptions and limitations to copyright. On the other hand, some developed countries said a particular group of developing countries purposefully blocked progress toward agreement during informal consultations on decisions. 

Discontent has been mounting since the 2013 General Assembly, with developing countries asserting that the WIPO Development Agenda is not correctly implemented in all WIPO activities. Developed countries contended that WIPO’s core mandate is the protection of IP throughout the world and that the Development Agenda should focus on technical assistance. 

The formal statement put out by WIPO at the end of the General Assembly downplayed the differences, putting the focus on agreements that had been reached. 

Source: Intellectual Property Watch at http://bit.ly/1teZ9wd  and http://bit.ly/1oxizeA. 

WIPO’s statement at the closing of the General Assembly is at http://www.wipo.int/pressroom/en/articles/2014/article_0016.html.

United Nations – High Commissioner for Human Rights holds consultation on impact of IP

The Special Rapporteur of the UN High Commissioner for Human Rights has decided to devote her next thematic report to the Human Rights Council (March 2015) to the issue of the impact of intellectual property regimes on the enjoyment of right to science and culture, as enshrined in article 15 of the International Covenant on Economic, Social and Cultural Rights.

The Special Rapporteur of the UN High Commissioner for Human Rights has decided to devote her next thematic report to the Human Rights Council (March 2015) to the issue of the impact of intellectual property regimes on the enjoyment of right to science and culture, as enshrined in article 15 of the International Covenant on Economic, Social and Cultural Rights. 

The International Publishers Association stated in its submission that human rights and intellectual property rights are not only compatible, but also mutually supportive and interdependent. IPA plans to participate actively in the debate ahead on this issue, making the point that copyright is based on human rights and justice and that it promotes both access and prosperity. 

UNHCHR announcement at http://www.ohchr.org/EN/Issues/CulturalRights/Pages/impactofintellectualproperty.aspx.

Spain – Senate passes amendments to Intellectual Property Code

The Spanish Senate has passed a Bill with amendments to the Intellectual Property Code, covering diverse aspects of copyright law. The Bill only has to be passed as a formality by the lower House of Deputies and published before it becomes law. 

The Spanish Senate has passed a Bill with amendments to the Intellectual Property Code, covering diverse aspects of copyright law. The Bill only has to be passed as a formality by the lower House of Deputies and published before it becomes law. 

The amendments reduce the scope of private copies to copies made from purchased content only, which in turn impacts on the private copy levy, which already was now being paid out of limited State funds and not by users (the decree legislating this being under judicial review – see story above).  The Bill also brings in new provisions to promote transparency and control of the operations of copyright management organisations.  (STM Membership Matters A – August/September 2014) 

Commentary from the local RRO CEDRO can be found at http://www.cedro.org/ca/premsa/cedroinfo/2014/10/17/cedro-informa-153 (in Spanish) and from IFRRO at http://www.ifrro.org/content/spain-approves-amendments-copyright-act.  There is also commentary on the Kluwer Copyright Blog (when the Bill was before the House of Deputies) at http://kluwercopyrightblog.com/2014/07/10/a-bill-to-amend-the-spanish-ip-law/.

Russia – modernisation of intellectual property law

As part of the modernisation of its Civil Code which took effect on 1 October 2014, Russia has updated substantive and procedural provisions of its law relating to intellectual property. In addition, there is the prospect of its anti-piracy legislation being extended from audio-visual works.

As part of the modernisation of its Civil Code which took effect on 1 October 2014, Russia has updated substantive and procedural provisions of its law relating to intellectual property. In addition, there is the prospect of its anti-piracy legislation being extended from audio-visual works. 

The updated Civil Code deals with a wide variety of subjects in the field of intellectual property, including the liability of internet service providers and the creation of a legislative framework for open licences of works of science, art or literature. 

In the meantime, draft legislation has been tabled to extend Russia’s existing anti-piracy legislation, which now only protects audio-visual works (STM Membership Matters A – August/September 2013), to all kinds of copyright works, except photographs (Bill No 458668-6).  This legislation is expected to be in force by the end of the year. 

Report in Intellectual Property Watch at http://bit.ly/1rrpNvo.

Australia – rightsholders and internet service providers far apart in consultation on online infringement

Responses to an Australian government proposal for fighting online copyright infringement show a wide gap between rights holders and internet companies on liability, and website blocking.

Responses to an Australian government proposal for fighting online copyright infringement show a wide gap between rights holders and internet companies on liability, and website blocking. 

The proposal, set out in a July 2014 (STM Membership Matters A - August/September 2014) outlined the government’s planned approach to amending the Copyright Act to “provide a legal framework within which rights holders, ISPs and consumer representatives can develop flexible, fair and workable approaches” to cutting online infringement. 

The proposal considered the so-called “authorisation liability” of ISPs, in particular the “power to prevent” infringements, a provision which had been weakened considerably as a result of the High Court decision in Roadshow v. iiNet (STM News June 2012).  Also considered was legislation allowing blocking orders against foreign infringing websites, similar to the provisions of Section 97A of the United Kingdom’s Patents Copyright and Designs Act, and the extension of the safe harbour beyond only telecommunications companies. 

The submissions are being considered by the Attorney-General, who also has to deal with the Australian Law Reform Commission’s report Copyright in the Digital Economy (STM Membership Matters A - February 2014). 

STM’s submission in response to the proposals to combat online copyright infringement is at https://www.stm-assoc.org/2014_08_29_STM_Australia_Submission_Online_Copyright_Infringement.pdf. 

Report in Intellectual Property Watch at http://bit.ly/1scnbBu.

United States – USTR requests comments on review of protection in India of US IP

The US Trade Representative has requested written submissions from the public concerning information, views, acts, policies, or practices relevant to evaluating the Government of India's engagement on IPR issues of concern.

The US Trade Representative has requested written submissions from the public concerning information, views, acts, policies, or practices relevant to evaluating the Government of India's engagement on IPR issues of concern. The deadline for the public is on 31 October, and the deadline for foreign governments is 7 November 2014. 

The request is pursuant to an out-of-cycle review following the USTR’s 2014 Special 301 Report (STM Membership Matters A - June 2014). 

The USTR notice is at https://www.federalregister.gov/articles/2014/10/14/2014-24309/2014-special-301-out-of-cycle-review-of-india. 

Commentary in Intellectual Property Watch is at http://bit.ly/1vSq1Sm and http://bit.ly/1weQ1ZI.

United Kingdom – IPO issues Guides to New Copyright Exceptions

With the last of the statutory instruments with copyright exceptions following the Hargreaves Review having come into force on 1 October 2014, the Intellectual Property Office has published separate guidance documents for each of those exceptions.

With the last of the statutory instruments with copyright exceptions following the Hargreaves Review having come into force on 1 October 2014, the Intellectual Property Office has published separate guidance documents for each of those exceptions. 

The exceptions relate to quotation and parody, personal copies for private use, public administration, research (which includes the exception allowing non-commercial text and data mining), education, libraries and archives and to persons with disabilities (STM Membership Matters A - July 2014).  The guidelines do not have force of law. 

The IPO’s press release is at https://www.gov.uk/government/news/major-reform-of-intellectual-property-comes-into-force.  The Guides can be found at https://www.gov.uk/government/publications/changes-to-copyright-law.

United Kingdom – Report on Copyright Education and Awareness

Mike Weatherly MP, the Prime Minister’s Adviser on Intellectual Property, has published a new report Copyright Education and Awareness.

Mike Weatherly MP, the Prime Minister’s Adviser on Intellectual Property, has published a new report: Copyright Education and Awareness. 

The report examines IP education and aims to help reinforce on the public the importance of respecting IP and paying a fair price for content.  Recommendations include: a step up in the coordination of IP awareness programmes, led by the Intellectual Property Office; greater measurement of IP perceptions and behaviours; incorporating IP education in the school curriculum; making better use of technology; the introduction of an IP/Education coordinator; the BBC to create a copyright education programme. 

After issuing the report, Mr Weatherly announced that he was stepping down as the Prime Minister’s Adviser.  His earlier reports were reported in STM Membership Matters A - July 2014. 

Source: The PA’s PA.  The report itself can be found at http://www.mikeweatherleymp.com/wp-content/uploads/2014/10/11.pdf.

Indonesia passes amendments to copyright legislation

The Indonesian Parliament passed long-awaited amendments to the country’s copyright legislation in September 2014, amongst others strengthening the procedural rights of rightsholders to combat infringement. 

The Indonesian Parliament passed long-awaited amendments to the country’s copyright legislation in September 2014, amongst others strengthening the procedural rights of rightsholders to combat infringement. 

The amendments gives the Ministry of Information the power to block access to websites providing infringing content, although regulations still have to be drafted. 

Source: IP Komodo at http://ipkomododragon.blogspot.ch/2014/10/enforcement-provisions-in-indonesias.html.

General

ALAI conference on Moral Rights in the 21st Century

The International Literary and Artistic Association (ALAI) held a conference in Brussels in September on the topic Moral Rights in the 21st Century.  The central theme of this conference was the “changing role of the moral rights in an era of information overload.” 

The International Literary and Artistic Association (ALAI) held a conference in Brussels in September on the topic Moral Rights in the 21st Century.  The central theme of this conference was the “changing role of the moral rights in an era of information overload.” 

Various aspects of the moral rights in copyright were examined during the two days of the conference. The first day revisited moral rights in the various copyright systems.   Several contrasts were discussed – such as the continental droit d’auteur v. copyright, the exercise of the moral rights, its abuse and the (potential) conflict with other rights, such as property rights or the freedom of expression.  During the second day, questions surrounding “digital, viral and virtual”, that the first copyright scholars never could have imagined, were discussed, specifically on creative commons, orphans works, cloud computing, user generated content and avatars. The last panel discussion will pondered on the future perspectives for the moral rights. 

STM’s external counsel, Carlo Scollo Lavizzari, was a presenter at the conference. Copies of the presentations can be found at http://alai2014.org/-Scientific-Program-.

Google announces new anti-piracy algorithm, report 17,000 urls already removed under “right to be forgotten” verdict

Google will begin rolling out a change to its search algorithm that it says will "visibly affect" rankings of piracy sites globally. In a separate development, Google says it has removed 170,706 URLs in the wake of a European high court ruling in May requiring search engines to take down “inadequate, irrelevant, or no longer relevant” materials from search results upon request by EU citizens. 

Google will begin rolling out a change to its search algorithm that it says will "visibly affect" rankings of piracy sites globally. In a separate development, Google says it has removed 170,706 URLs in the wake of a European high court ruling in May requiring search engines to take down “inadequate, irrelevant, or no longer relevant” materials from search results upon request by EU citizens. 

Google promised to change to its search algorithm in 2012 (STM News October 2012), but at the time, the Recording Industry Association of America, the Motion Picture Association of America, and others said the changes to its search algorithm had "no demonstrable impact on demoting sites with large amounts of piracy" (STM Membership Matters A - October 2013).  Google said the latest global algorithm changes, scheduled for October, will work.  The announcement of the algorithm update came as Google unveiled its latest How Google Fights Piracy report to show that it is trying to help combat online piracy.  The search engine says it will try to steer Internet users to more legitimate sites, such as by removing more terms from auto-complete based on DMCA removal notices. 

As a result of the ECJ decision in Google Spain vs. AEPD and Costega González (STM Membership Matters A - June 2014),Google has already been asked to remove about half a million URLs from its search results and it has removed about 42 percent of them, according to its latest Transparency Report. 

Source: ArsTechnica at http://bit.ly/1CRft6a and http://bit.ly/1sOQ8bQ .

The 2014 How Google Fights Piracy report is at https://drive.google.com/file/d/0BwxyRPFduTN2NmdYdGdJQnFTeTA/view?pli=1. 

Canadian students face higher Course Pack costs after University of Toronto ends Access Copyright License

According to an article in the local student magazine, some students at the University of Toronto now have to pay nearly twice as much for their course packs than they did when there was a license from Canadian RRO Access Copyright.

According to an article in the local student magazine, some students at the University of Toronto now have to pay nearly twice as much for their course packs than they did when there was a license from Canadian RRO Access Copyright. 

IFRRO’s newsletter comments on “the brave new world which was to be ushered in by the changes in Canadian copyright legislation in 2012”, which “has turned sour for students at the University of Toronto” after the University ended its licensing agreement with Access Copyright in December 2013, preferring to rely on the fair dealing provisions of the Copyright Act (STM News August/September 2012). However, its new Fair Dealing Guidelines mean that some students now have to pay nearly twice as much for their course packs than they did when there was a license from Access Copyright, the main reason being that the Guidelines covers only 10% of a work, while the old license included 20%. 

The article referred to in the IFRRO newsletter is from The Varsity, at http://thevarsity.ca/2014/09/21/after-access-copyright/.

Finland – “crowdsourced” amendments to copyright law rejected

The Finnish Parliament is close to rejecting what has been called a “crowdsourced copyright reform initiative.” Entitled Common Sense for Copyright, the Initiative called for the expansion of copyright fair use exceptions under Finland’s Copyright Act, including parody and satire, private copying, network storage, as well as others. 

The Finnish Parliament is close to rejecting what has been called a “crowdsourced copyright reform initiative.” Entitled Common Sense for Copyright, the Initiative called for the expansion of copyright fair use exceptions under Finland’s Copyright Act, including parody and satire, private copying, network storage, as well as others.

The Initiative was reported to have arisen out of an incident in December 2012 when Finnish police raided the home of a nine-year-old girl who had illegally downloaded music on to her computer (STM News April 2013). Backed by Finnish crowdsourcing NGO Open Ministry, the Finnish Electronic Frontier Foundation and the Pirate Party, the Initiative received over 50,000 signatures within six months of its creation, qualifying it for legislative consideration by the Finnish Parliament under a 2012 reform to the Finnish Constitution.

However, the Ministry of Education and Culture released a report calling for the rejection of the Initiative last week as reports cited the Ministry's problems with the Initiative's “internal contradictions and that many of the amendments it suggests are too significantly incompatible with the current legislation.” 

Although the Initiative’s consideration by the Finnish parliament is remarkable from the perspective of civic engagement, the Initiative’s pending failure is arguably necessary to help ensure that qualifying rights holders have effective and economical means to protect their works online, and to ensure that Internet users understand and assist in protecting the unauthorized online dissemination of infringed works. 

Source: The IP Kat at http://ipkitten.blogspot.ch/2014/10/finlands-citizen-copyright-initiative.html.

News from STM

STM follows the bankruptcy of Swets Information Systems

 

STM has, as a service to its members, been following and reporting on the unfolding bankruptcy of the Swets & Zeitlinger group, specifically its operating companies, called Swets Information Systems. 

Reports are sent by email to STM’s Copyright & Legal Affairs Committee and representatives from STM publisher members who have expressed an interest in the case, now 42 publisher members in total.  (Recipients are therefore advised to check their junk mail and spam filters to allow these email reports to get through!)  A special section on the STM website has been created - https://www.stm-assoc.org/swets-liquidation/ - containing a chronology of events and copies of the email reports. 

For more information, contact STM’s external counsel, André Myburgh, at afm@lclaw.ch.

Mark Seeley, Carlo Scollo Lavizzari and André Myburgh

Public Affairs Report

North America

Bill to address reporting requirements on medical article reprints introduced

 

On September 18, Congressman Michael Burgess (R-TX) and Congresswoman Alyson Schwartz (D-PA) introduced a bill to make sure that doctors can continue to accept educational materials without having to report them as gifts. The reporting requirement under a law known as “the Sunshine Act” was having a chilling effect on the ability of US physicians to have access to educational materials, in particular journal articles and medical textbooks.

The Sunshine Act requires certain payments or gifts from pharmaceutical and medical device manufacturers to be reported through an online reporting system. According to the legislation, "educational materials that directly benefit patients or are intended for patient use" do not have to be reported, but the Centers for Medicare and Medicaid Services (CMS), which interprets the law, claims that journal articles and medical textbooks do not fall under this language. In their explanation, CMS says these items have "downstream benefits" but do not “directly benefit patients,” so they must be reported. As an example of items that would be covered under the educational exemption, CMS offers "wall models and anatomical models," as those “directly benefit patients” when they are used with them to describe medical conditions.

The bill introduced last month by Congressman Burgess, a physician himself, and Congresswoman Schwartz would correct this interpretation. H.R. 5539 would explicitly add “peer-reviewed journals, journal reprints, journal supplements, and medical textbooks” to the definition of “educational materials that directly benefit patients” and therefore exempt them from the reporting requirements. This would ensure physicians can continue to have access to the latest, unbiased medical research and information.

A group of publishers is writing to Members of Congress in support of this legislation. More information about this effort can be obtained from STM’s US public affairs consultant, David Weinreich, at david@dcwsg.com.

Europe 

New Commission starts on November 1, 2014

 

On October 22nd the European Parliament voted on the Juncker Commission with 423 votes in favour, 209 against and 67 abstentions. With the final appointment by the European Council on October 24 the new European Commission starts working on November 1, 2014.

It was the last step in a process which started on June 27 when Jean-Claude Juncker was proposed as president-elect by the European Council to the European Parliament. Following his election on July 15 a work intensive period started where Jean–Claude Juncker had to find the right composition of his team. During the hearings in the committees in the European Parliament it happened that the Vice-Commissioner of Slovenia Alenka Bratušek (portfolio Energy Union) did not receive the appropriate support. Therefore Jean-Claude Juncker was forced to re-shuffle his team and portfolio responsibilities. He introduced a new female candidate from Slovenia, Violeta Bulc for the position as Commissioner for Transport. The post of the Vice Commissioner for the Energy Union was given to Maroš Šefcovič of Slovakia. 

It is the first time that we see a new structure of the European Commission where seven Vice-Commissioners will take overall responsibility for large portfolios. Twenty Commissioners, each of them responsible for a smaller more dedicated portfolio will report and work for and with those Vice-Commissioners to implement the plans of the President of the EU Commission.

With the establishment of the new Commission we also expect some further reorganization of the Commission services. One of those is already known and this concerns the move of the unit responsible for copyright from DG Internal Market to the DG Connect. 

STM, while following the future development, is currently working to prepare an outreach plan to the New EU Commission. For more information please contact Barbara Kalumenos (Kalumenos@stm-assoc.org). 

More information about the matrix structure of the Juncker Commission can be found here: http://ec.europa.eu/about/juncker-commission/

STM and ERC organized a roundtable dedicated to publishing in SSH

It was for the first time that STM and ERC (the European Research Council) co-organized a roundtable discussion about “challenges in publishing of long-text-formats in the digital environment”.  With nearly 30 participants from various services of the European Commission a lively discussion under the Chatham House Rule took place. 

It was for the first time that STM and ERC (the European Research Council) co-organized a roundtable discussion about “challenges in publishing of long-text-formats in the digital environment”.  With nearly 30 participants from various services of the European Commission a lively discussion under the Chatham House Rule took place. Three representatives of STM member companies in this area (Brill, Taylor and Francis, Regional Studies Association) and a representative of OAPEN capably contributed to various aspects about publishing in this area. Welcome and opening remarks were provided by Jean-Pierre Bourguignon, President of the European Research Council and Nicholas Canny, ERC Scientific Council, Chair of the ERC Open Access Working. Both of them and the director of the ERC agency were present throughout the session. 

One of the aims of this seminar was to launch a dialogue between different stakeholders concerned.

The feedback from the participants was overwhelmingly positive. STM and ERC have already agreed to consider to co-organize a seminar next year.

India

Indian Ministry of Science and Technology’s Department of Biotechnology (DBT) and Department of Science and Technology (DST) release revised draft Open Access Policy.

The revised draft, which is available to view, includes a number of noteworthy changes from the first draft.

In-mid October India’s Department of Biotechnology (DBT) and Department of Science and Technology (DST) released the second draft of their policy open access to DBT and DST funded research. The revised draft is available at http://dbtindia.nic.in/docs/DBT-DST_OPA-2nd_Draft.pdf. Noteworthy changes from the first draft include the following:

Additions:

  1. Section on institutional repositories that requires “Institutions that receive core funding, defined as an annual grant from DBT/DST, to have an IR. Such institutions that currently do not have an IR will be required to create one…”. DBT/DST also recommends that “other” institutions create IRs.
  2. The Ministry of Science and Technology plans to create a “central harvester” that will ingest the full text and metadata from each institutional IR and deposit them in centralized repositories to be created by DBT/DST. Authors whose institutions do not have an IR can deposit their articles in the centralized repositories.
  3. Requirement to deposit supporting information in addition to the accepted manuscript and metadata.
  4. Deposit of manuscripts to be made with two weeks of acceptance for publication. (It was one week in the first draft.)
  5. The notation that “making information available” is subject to Indian law and IP policies of funding agencies and institutions. (Noticeably absent from this statement are international copyright conventions, such as Berne, and publisher-author agreements)
  6. The notation that “It is not the intent of this policy to violate copyright or other agreements entered into by the researcher, institution or funding agency…DST and DBT expects the authors to bring to the notice of publishers their obligations under this policy to deposit…”
  7. Call for institutions to ensure their IRs can be scanned by Google, Google Scholar, and BASE.
  8. Recognition of the right of authors to publish in the journals of their choice. 

Deletions:

  1. The IR administrator shall deposit on behalf of authors.
  2. Copyrights vest with the government for government workers and the institution for faculty.
  3. The DBT/DST copyright addendum.
  4. Recommendation against using Impact Factors “as a surrogate measure of article quality”.
  5. Recognition that there may be cases where the PI has “some valid reason” for not complying with the policy.
  6. Authors of papers with no valid deposit ID shall not be considered for promotion/appointment/awards/grants.

Unchanged:

  1. The refusal to pay APCs. It still remains a bit unclear whether this applies to all APCs or just the APCs of “some journals”.
  2. Articles under an embargo can “still be made available by using the Request Button to automatically send the article request to the author”
  3. Authors are encourage to deposit papers published before the effective date of the policy, i.e. papers about research sponsored by “funds received from the 2012-2013 fiscal year onwards”.   
  4. The recommended embargo is “not more than one year.”

Interesting Information

SPARC releases its latest OA guideline document: How Open Is It?

On Oct. 20, SPARC, in collaboration with PLOS and OASPA, released an update to its How Open Is It? guidelines.

On Oct. 20, SPARC, in collaboration with PLOS and OASPA, released an update to its How Open Is It? guidelines. The new guidelines are available at http://www.plos.org/wp-content/uploads/2014/10/hoii-guide_V2_FINAL.pdf.  Overall they reflect the evolution of SPARC’s “criteria” for “open access” and contain new material on article versions, embargo times, reuse rights, “trusted” repositories, and the use of APIs for text and data mining.

Linked Content Coalition project becomes NFP

The Linked Content Coalition project (LCC), an initiative to improve the management, communication and accessibility of online rights information, has been transformed into a permanent not-for-profit organisation.

The Linked Content Coalition project (LCC), an initiative to improve the management, communication and accessibility of online rights information, has been transformed into a permanent not-for-profit organisation. LCC members are organizations who create and manage data standards associated with content of one or more types, particularly for identifiers, metadata and messaging. 

New announcement relating to Open Access

During the Open Access week major international associations made an announcement to reaffirm their support for immediate open access to research articles.

During the Open Access week major international associations made an announcement to reaffirm their support for immediate open access to research articles. While the implementation of embargo times in various policies is being recognized as a means “to help protect publishers’ subscription revenue as they shift to new business models” the signatories of this announcement are continuing to advocate for 6 months embargo for life and physical sciences and for 12 months for social science and humanities. There is no evidence being cited for the recommendation of those embargo times.

Barbara Kalumenos, Jack Ochs and David Weinreich