Make It Digital - DigitalNZ - Licensing

Whose books? Google's books.

2009-07-20T13:12:04Z

In a little over six weeks time the doors will close on all authors and publishers wanting to opt out of the Google books settlement, the US-based class action lawsuit. The settlement, once finalised, will provide one-time compensation from Google in exchange for a licence for Google to use and sell every in-copyright book they have digitised, whether the authors are known or not.

Photo credit: Ruben Vermeersch, Flickr

Unlike the efforts for mass digitisation of public domain books by Microsoft and Yahoo in partnership with the Internet Archive, Google partnered with 20 mainly university libraries in the US and Europe to digitise both in copyright and public domain books. Google used US law to claim a ‘fair use’ right to digitise copyrighted books in their entirety and store them on their servers, making them discoverable only as ‘snippet’ views in their Google Books search. The American Authors Guild and the American Association of Publishers both started class action lawsuits against Google for breach of the US Copyright Act. After long negotiations and no admission of guilt by Google, the parties have arrived at an out of court settlement last October. The deal will effectively licence every in copyright book so far scanned to Google, to use in search results, on-licence to US public libraries and research institutions, and sell digital versions of to the public. The settlement has still to go through several stages before being final, including an anti-trust investigation by the U.S. Department of Justice.

We’ve had a look at what effect this deal might have on New Zealand books, and have come up with a few insights – the good, the bad and the ugly.

The Good

New Zealand authors and publishers are covered by the terms of settlement if they have books protected by US copyright. This extends beyond just those books sold and distributed in the US, to any book available in the US – so for instance, imported by Google’s partner libraries to become part of their collection. New Zealand authors and publishers who want to be part of the settlement and have had their books digitised can lodge a claim for compensation. Copyright Licensing Limited is New Zealand’s main agent in ensuring authors and publishers can make their claims.

The deal overall gives Google the ability to expose the content of their digitised books in search results as snippets, potentially improving digital access enormously for out of print books. This complements their current commercial deals with publishers of in print books.

The Bad

The Google books settlement only provides full book access to libraries, institutions and consumers in the United States. Google Book’s current practice is to block access to US public domain books that they consider might still be in copyright in other countries. This practice will now cover all in copyright books in the US that Google has digitised, meaning they will not be available in New Zealand for the foreseeable future. That’s why you won’t find a copy of Robin Hyde’s The Godwits Fly, or even The Story of a New Zealand River by Jane Mander in Google Books today, despite them both being out of copyright in New Zealand. [Edited to add the Jane Mander example. The earlier example of Distant Homes by J E Aylmer is available on Google Books if you look here.]

It is unlikely Google will undertake a mass digitisation programme for books in New Zealand, as New Zealand’s fair dealing provisions under our Copyright Act are not as open to interpretation as Google claims they are in the US.

The Ugly

Google’s deal has raised many concerns about its potential monopoly price-setting implications, and the precedent it sets for the treatment of out of print orphan works.

The settlement enables Google to receive the most favourable terms for the digital versions of the out of print books licensed to them. That means, for instance, that partner universities cannot provide their digital copies to competitors to licence for sale at a lower price.

The opt-out requirements of the class action effectively licences Google to sell in the US any out of print book where the author or publisher cannot be found. This can provide Google with a significant advantage as a sole publisher and digitiser of these books, given ‘ordinary’ publishers, libraries and others are prevented by the Copyright Act from re-publishing orphan works. This has big implications for digitisation in the US, as their orphan works protection lasts for 95 years for books published prior to 1978. There’s a good write up here by the Oxford University Press about the potential impact.

In New Zealand, literary works of unknown authorship are only protected for 50 years. It seems unlikely therefore that New Zealand researchers and booklovers will see any full versions of the New Zealand titles Google has digitised and that were published in the 20th century.

NZ copyright status flowchart (photographs) - updated

2009-06-25T07:32:37Z

Last month we posted the first version of a tool for determining the New Zealand copyright status of photographs for you to use and comment on. The updated version is now available for you to use and share:

Download the flowchart for determining the NZ copyright status of photographs, in RTF (324 KB)

Download the flowchart for determining the NZ copyright status of photographs, in PDF (62 KB)

Your responses, both in the comments and by email to us, was amazing. Thank you.

We'll be turning our attention to more flowcharts in the series soon, beginning with either Sound or Video.

Any preferences?

Creative Commons offers new tools

2009-06-25T07:38:16Z

With Creative Commons licences it's always been a bit tricky to give away content or declare it out of copyright. Creative Commons licences rely on provisions in copyright law that firmly fix the licence to the copyright owner. But what if you don't want to remain the copyright owner, and what if your content is not in copyright? The Creative Commons is on to it, and will offer new tools for exactly these circumstances.

Released earlier this month is a 'CC0' (CC Zero) Universal tool, which allows content creators and owners to unconditionally waive their rights on copyright for their works. A legal waiver rather than a licence, it aims to help cultivate a rich pool of freely available content for anyone to use for any purpose. Its wording is designed to be applicable worldwide for any content without having to be adapted to local laws. The waiver can be found here.

Creative Commons is also working on updating its currently U.S.-centric public domain dedication and certification. The current dedication relies on U.S. law which may not be applicable in countries such as New Zealand. The updated version will focus solely on the certification of content that is already in the public domain i.e. not covered by copyright. This should be able to be ported to a New Zealand certification, and will be useful for anyone wanting to share content that they can verify is not in copyright, and which can't be given a copyright licence.

The announcement and more details can be found on the Creative Commons blog. The New Zealand Creative Commons website is www.creativecommons.org.nz .

Would you consider using the CC0 licence for content you produce in order to give it away? Have you struck problems with putting licences on content that you know is not in copyright? Share your views with us!

NZ copyright status flowchart (photographs) - tell us what you think!

2009-06-25T07:38:51Z

UPDATED 7 April 2009: Thanks for all the wonderful feedback, and time taken to review. We have updated the flowchart based on your comments.

Download the updated flowchart for determining the NZ copyright status of photographs (NZ copyright flowchart in RTF, 324 KB) (NZ copyright flowchart in PDF, 62 KB)

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DigitalNZ is proud to make available the first version of a tool for determining the New Zealand copyright status of photographs for you to use and comment on.

Download the flowchart for determining the NZ copyright status of photographs (RTF, 149 KB) (PDF, 120 KB)

Why provide the NZ copyright status flowchart?

One of the problems we find that our content providers face is determining the copyright status of items. If you can’t determine the copyright status of your content, you can’t even start to think about applying New Zealand Creative Commons licences or other statements.

The tool we’ve developed is intended to meet ‘80%’ or thereabouts of situations, rather than trying to provide a decision tree for every possible scenario (e.g. rights of joint photographers). These are things you need to take note of though.

Who’s the NZ copyright status flowchart for?

We think it will be useful to you if you are:

Working with photograph collections that you want to make available online
Trying to work out what the copyright status of a photograph you find online might be, if it’s not already identified.

Breaking it down by format is a great way to tackle some of the complexity in this area, so we've begun with photographs to prove the concept. If this one proves useful, we’ll extend this into a series.

Has a lawyer looked at the NZ copyright status flowchart?

Yes, and then some. We’ve worked with a number of experts and lawyers to ensure that this flowchart is a useful tool for determining the copyright status of photographs.

That said, this flowchart is of a generalised nature, for information only. As the disclaimer states, it doesn’t constitute professional advice and DigitalNZ is not responsible for any loss caused as a result of using it. You should seek professional advice from a suitably qualified professional about specific issues. Don't let that put you off using it though!

What do you think about the NZ copyright status flowchart?

Please take a look at the flowchart, try it out, show it to other people, and let us know what you think. Anything you’d like more discussion on, just let us know in the comments.

We’d also be interested to know whether anyone out there has similar tools hiding in their back rooms? We’re happy to publish them here if you’d like to share – though we can’t verify their usefulness like we have for this one.

This isn’t the end for us. We’ve got plans! From making it look nice (OK, a bit of a nice to have), through to making it an online interactive.

But for now we just want you to know we’ve taken the unglamorous approach, and can’t wait to hear from you. So, what do you reckon?

Download the flowchart for determining the NZ copyright status of photographs (RTF, 149 KB) (PDF, 120 KB)

Useful links

Information about copyright - Ministry of Economic Development website

Creative Commons Aotearoa New Zealand

Rights and permissions help - Kete Digital New Zealand

Digital rights and mice

2009-05-06T13:08:55Z

Some of you who attended the National Digital Forum (external link) in Auckland at the end of November 2008 may have caught the discussions around copyright, public domain and Creative Commons. We presented on one aspect of that, which was about DigitalNZ's experiences with rights statements, and how users have changed what it now means to make content accessible. We talked about that a bit in our case study of the Memory Maker, and if you want to check out our NDF presentation, the slideshow "Access, rights and copyright" is available on Slideshare.

At DigitalNZ, part of our focus is to encourage contributors of content to find and share NZ content that can be tagged, reused and remixed. We believe that if Kiwis can't really use digital content they will ignore it. As a country we then miss out on opportunities for our stories and knowledge of the past to be woven into the experiences and learning of the present.

So here is an opportunity through this blog to build on the rights conversation. Let's start with frightening a couple of elephants in the room to get the ball rolling, but before we do, a disclaimer: we are not lawyers here, and cannot give you legal advice. What we can do however is build an informed debate, and who knows, bring a few lawyers along with us!

First off, have you been claiming new copyright in digitised copies put on the web? Whether you are digitising images, sound or video, in almost every case your digitised copy will not have a new copyright. New copyright is only granted to original works and to new typographical arrangements (e.g. an e-text transcription). A digital scan of an image or a digital copy of a videotape, while requiring hardware and software calibration to produce a faithful copy, lacks originality in just the same way a photocopy of a novel would. That means if it's out of copyright, you can't put a copyright licence on it like Creative Commons.

Second, does your website point users to the 1994 Copyright Act for their rights of reproduction of digitised heritage content? Where copyrights granted by the earlier 1913 or 1962 New Zealand Acts had already expired, the 1994 Act did not renew them. So for instance all photographs, sound recordings and film material created before World War II are almost certainly out of copyright, as the earlier Acts only provided a copyright term of 50 years from creation (regardless of publication status) for these items.

When put together, these two practices will have the effect of misdirecting users about how copyright works. If you want to restrict out of copyright digitised content from undesirable use, maybe don’t put it on the web. Otherwise, consider developing a terms of use for those items that have simple and clear statements of what you want users to do with the content (just don’t confuse these statements with copyright licences). And at least test them out on your work colleagues – if they can’t understand what those statements mean in under 10 seconds, most of your users have no chance.

We’re really keen to hear about examples out there of good practice terms of use. We also want to know your views on whether out of copyright materials placed on the web should have any restrictions at all, and why. Perhaps we should set all this stuff free? Tell us your thoughts by leaving a comment on this post.