Legislation of Concern in 2023 – EveryLibrary

“EveryLibrary is monitoring state legislation during the 2023-2024 session that would limit Americans’ freedom to read and think for themselves. Of most concern are proposed laws that would allow for civil and criminal prosecution of librarians, educators, higher ed. faculty, and museum professionals.

In 2023, we are paying the most attention to state legislative initiatives in eight categories: efforts to limit access to school library databases, proposals to establish book rating systems, mandating or prescribing materials challenge policies, efforts to regulate collection development policies, use of parental control policies to limit free speech, changes to obscenity and harmful to minors definitions that preempt First Amendment guarantees, bills that limit or outlaw the teaching of “divisive concepts”, and bills that would criminalize libraries, education, and museums by removing long-standing defense from prosecution exemptions under obscenity laws. 

We do more than monitor bills. EveryLibrary is an active and engaged partner with several state library associations helping them create and field effective legislative advocacy strategies. We provide them with free access to a suite of digital advocacy tools including our Action.EveryLibrary.Org site, FightForTheFirst.org, and SaveSchoolLibrarians.org. If you would like to talk about how EveryLibrary can assist your state library association or advocacy group, please contact our executive director John Chrastka today….”

Massachusetts (Re)Joins the Effort — Readers First

“On Friday January 20th, Ruth Balser of the 12th Middlesex district filed “An Act empowering library access to electronic books and digital audiobooks.”

So, Rhode Island now has company and two states are showing the bravery that characterized the Tea Party (in Boston Harbor, not the more recent and very much less illustrious political movement) and the American Revolution.

The bill is different than most previous library ebook legislative efforts and is likely to have benefitted from the expert advice of Mr. Kyle Courtney….

But this is to pick nits a little ignoble—for the bill is bold, cogent, and important. Love its provision that libraries can’t be restricted from talking about what we pay for licensing from publishers/vendors. That anti-competitive restriction needs to be rejected in every state. The part about severability—if one provision is ever struck down, the rest still stand—is important for all state efforts as well….”

POLICY BRIEF: Opposing Attempts to Criminalize Librarianship through State Obscenity Laws

“In 2023-2024, we anticipate that many legislators whose bills failed the last session will reintroduce language in this session and anti-access activists will be inspired to sponsor their own regressive initiatives. The EverLibrary Institute is releasing a new Policy Brief “Opposing Attempts to Criminalize Libraries and Education Through State Obscenity Laws” to help state library associations anticipate this legislation and prepare properly to oppose unnecessary politicized changes to settled state law….”

EU list of specific high-value datasets and the arrangements for their publication and re-use

“(12) It is the objective of Directive (EU) 2019/1024 to promote the use of standard public licences available online for re-using public sector information. The Commission’s Guidelines on recommended standard licences, datasets and charging for the re-use of documents (5) identify Creative Commons (‘CC’) licences as an example of recommended standard public licences. CC licences are developed by a non-profit organisation and have become a leading licensing solution for public sector information, research results and cultural domain material across the world. It is therefore necessary to refer in this Implementing Regulation to the most recent version of the CC licence suite, namely CC 4.0. A licence equivalent to the CC licence suite may include additional arrangements, such as the obligation on the re-user to include updates provided by the data holder and to specify when the data were last updated, as long as they do not restrict the possibilities for re-using the data….”

It’s Copyright Week 2023: Join Us in the Fight for Better Copyright Law and Policy

“Last year there were a bevy of bad copyright and copyright-related proposals in the U.S. Because thousands of you spoke up, none of them made it into the year-end, must-pass bills in Congress.

But this week isn’t just about stopping bad proposals. It’s about celebrating positive changes for all of us. It’s about right to repair, fair use, and the public domain….”

Something is afoot with copyright this Public Domain Day | John Naughton | The Guardian

“The interesting thing is that these were originally supposed to enter the public domain in 2003, but as Jennifer Jenkins, director of Duke University’s Center for the Study of the Public Domain puts it, “before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years”

The mechanism by which this legal heist was implemented was the 1998 Copyright Term Extension Act (AKA “The Sonny Bono Act” or “The Mickey Mouse Protection Act” depending on your satirical tastes). In passing it, American legislators were simply continuing business as usual in the intellectual property business….

The issue highlighted by Public Domain Day is not that intellectual property is evil but that aspects of it – especially copyright – have been monopolised and weaponised by corporate interests and that legislators have been supine in the face of their lobbying….”

 

No free PACER as U.S. lawmakers exclude proposal from spending bill | Reuters

“The Open Courts Act would make electronic court records freely available and mandate the judiciary to develop a new website to access them. It had already advanced out of the Senate Judiciary Committee on a bipartisan vote in December 2021….

Despite the committee’s endorsement and fact that the U.S. House of Representatives passed similar bill to make PACER free in the prior Congress in 2020, the legislation had lingered as the federal judiciary raised concerns about funding….

 

But the PACER bill was ultimately left out of the 4,155-page omnibus spending measure that Democratic and Republican negotiators released on Tuesday morning, leaving its path to passage in the current Congress unlikely….”

Ten Years Later, The EU Orphan Works Directive Is Officially A Failure – Just As The Copyright Industry Intended

Every so often, Techdirt writes about the long-standing problem of orphan works, the huge collection of older creations that are out of circulation and have no obvious owners. Arguably, they should be called “hostage works”, since they remain uselessly locked away by rigid and outdated copyright laws, to no one’s benefit. Despite that, the copyright industry always fights hard against the outrageous idea that we should make it easier to bring these works back into circulation, where people can enjoy and use them.

One of the worst results of that attitude is the EU Orphan Works Directive, passed ten years ago. It started out as an honest attempt to free hostage works for the benefit of society. But along the way, the copyright industry lobbied long and hard to make the resulting law so bad as to be useless. One minor concession granted to the many critics of the final text was that the European Commission was required to submit a report by 29 October 2015 on how the Directive was working. The Commission has finally published the report (pdf) – a mere seven years late. It’s hard not to feel that the Commission delayed the publication of the report as much as possible because it is so damning. Here’s the key finding:

orphan works make up a large share of the collections of cultural heritage institutions. However, 8 years after the transposition deadline, the Directive has been rarely applied in practice. Stakeholders are divided on whether the Directive has led to improvements in the digitisation and dissemination of orphan works. The use of the exception provided by the Directive to digitise and disseminate orphan works seems to be very limited if the low number of recorded works in the EUIPO database is taken as the benchmark.

In other words, the Directive has been an embarrassing failure. Far from leading to a blossoming of culture through the renewed availability of orphan works as its original supporters hoped, it has become the legislative equivalent of abandonware. The report goes on to explain that the main reason the Directive has failed is that the process of liberating a hostage work is too “burdensome”. That’s a direct result of the copyright industry insisting on all kinds of unreasonable limitations and disproportionate “safeguards”, supposedly to stop the release of orphan works somehow undermining copyright. They were, in fact, conscious impediments designed to make the entire Directive so awkward to use that no one would bother. The belated European Commission report confirms that they have worked.

Follow me @glynmoody on Mastodon or Twitter.

The “Free PACER” Bill Has a New CBO Score. The Bill Actually Reduces the Deficit. | Fix the Court

“That’s not a typo — a revised CBO score for the Open Courts Act has appeared (at least one did in Fix the Court’s inbox), and the bill now reduces the deficit by $14 million over 10 years. That’s incredible!

And yet, the judiciary is once again trying to kill the bill, this time by maintaining that without PACER fees, the judiciary’s IT infrastructure will lack necessary funding.

A few congressional appropriators seem to be buying this (for now), but the simple solution, which we’re confident lawmakers will realize, is that the judiciary should ask for money for its IT costs like every other part of the government — and not rely on a system that multiple courts have deemed illegal in part….”

Shakedown Complete: The Story Behind Bill C-18’s Shameful Legislative Review Process and the Race to Mandate Payment for Links

“Later today, the House of Commons will vote to approve Bill C-18, the Online News Act, sending it to the Senate just prior to breaking for the holidays. While Canadian Heritage Minister Pablo Rodriguez and media lobbyists will no doubt celebrate the milestone, it should not go unremarked that the legislative process for this bill has been an utter embarrassment with an already bad bill made far worse. The government cut off debate at second reading, actively excluded dozens of potential witnesses, expanded the bill to hundreds of broadcasters that may not even produce news, denigrated online news services as “not real news”, and shrugged off violations of international copyright law. All the while, it acknowledged that mandated payments for links are the foundation of the bill with officials stating that individual Facebook posts accompanied by a link to a news story would be caught by the law. As for the purported financial benefits, the government’s own estimates are less than half those of the Parliamentary Budget Officer, who also concluded that more than 75% of the revenues will go to broadcasters such as Bell, Rogers, and the CBC. The end result is a bill that will undermine competition and pose a threat to freedom of expression, while potentially leading Facebook to block news sharing in Canada and Google to cancel dozens of existing agreements with Canadian news outlets….”

COMMUNIA Association – The Italian Implementation of the New EU Text and Data Mining Exceptions

“This blog post analyses the implementation of the copyright exceptions for Text and Data Mining, which is defined in the Italian law as any automated technique designed to analyse large amounts of text, sound, images, data or metadata in digital format to generate information, including patterns, trends, and correlations (Art. 70 ter (2) LdA). As we will see in more detail below, the Italian lawmaker decided to introduce some novelties when implementing Art. 3, while following more closely the text of the Directive when implementing Art. 4….

Notably, the new Italian exception also allows the communication to the public of the research outcome when such outcomes are expressed through new original works. In other words, the communication of protected materials resulting from computational research processes is permitted, provided that such results are included in an original publication, data collection or other original work.

The right of communication to the public was not contemplated in the original government draft; it was introduced in the last version of the article to accommodate the comments of the Joint Committees of the Senate and the Joint Committees of the Chamber, both highlighting the need to specify that the right of communication to the public concerns only the results of research, where expressed in new original works.

 

The beneficiaries of the TDM exception for scientific purposes are research organisations and cultural heritage institutions. Research organisations essentially reflect the definition offered by the directive. These are universities, including their libraries, research institutes or any other entity whose primary objective is to conduct scientific research activities or to conduct educational activities that include scientific research, which alternatively: …

The Italian lawmaker did not expressly contemplate any specific and fast procedure for cases where technical protection measures prevent a beneficiary from carrying out the permitted acts under both TDM exceptions. However, the law now recognises to the beneficiaries the right to extract a copy of the material protected by technological  measures in certain cases. Under Art. 70-sexies, LdA, beneficiaries of the TDM exception for scientific purposes (as well as the beneficiaries of the exception for digital and cross-border teaching activities exception) shall have the right to extract a copy of the protected material, when technological measures are applied based on agreements or on administrative procedures or judicial decisions. In order to benefit from this right, the person shall have lawful possession of copies of the protected material (or have had legal access to them), shall respect the conditions and the purposes provided for in the exception, and such extraction shall not conflict with the normal exploitation of the work or the other materials or cause an unjustified prejudice to the rights holders….”

ALLEA STATEMENT ON OPEN ACCESS PUBLICATION UNDER “BIG DEALS” AND THE NEW COPYRIGHT RULES

“While the rising number of Gold OA publications facilitated by these deals is to be applauded, they do not deliver on the triple promise of OA. In particular, they have not led to a reduction in the exorbitant costs to the academic community incurred in the process of research publication. While the downstream costs of journal subscriptions are gradually falling, the upstream costs of publication, made up of the APCs, have risen sharply. Concomitantly, the imposition of APCs has created new, and sometimes insurmountable, barriers to publication for researchers that are not affiliated to a contracting institution. In addition, as already underlined in previous ALLEA Statements,6,7 the Gold OA model creates a disadvantage for those coming from less wealthy countries and institutions, under-funded researchers in the social sciences and humanities, and early career researchers, among others. For these academics, OA of published research comes at the expense of closure of first-tier publication fora. In addition, ALLEA is concerned that the conditions of the “Big Deals” fail to adequately reflect the rules on copyright law in the European Union (EU), and do not fairly value the creative and research endeavours of researchers and their institutions, as well as their investment and efforts over time to generate research results and publications to the benefit of the public….”

ALLEA Statement on Open Access Publication under “Big Deals” and the New Copyright Rules – Kluwer Copyright Blog

“ALLEA, therefore, welcomes recent studies showing that OA publication in scientific journals is on the rise.[2]  An important driver of this development are the so-called “Big Deals”; “read and publish agreements” that have been negotiated in recent years between (consortia of) research libraries, institutions, and universities on the one hand, and scientific publishers on the other. These agreements, also known as “transformative agreements”, have replaced the subscription deals that were previously agreed between research libraries and publishers, and which provided for large bundles of subscriptions to proprietary journals to be made available electronically to libraries and their affiliated researchers.[3]

The new generation of deals is “transformative” in that they additionally allow for OA publication under the “Gold” standard of (usually a finite number of) research articles by institution-affiliated researchers in return for payment of substantial “article processing charges” (APCs)3 that allow publishers to recoup their investment in OA publication.

As a recent study demonstrates, commercial publishers currently derive more than two billion USD annually from APCs.2 Despite gradually decreasing subscription revenues, the commercial publishers have managed to embrace the Gold OA model without compromising their total revenues and enormous profit margins. Evidently, Gold OA publishing has become a new, highly profitable business model in and of itself,2 in addition to the subscription model which has remained partially intact. Incorporating Gold OA publication into all-encompassing read and publish agreements has thus allowed the major commercial publishers to effectively consolidate and enhance their already dominant position in the field of scholarly publishing,[4] solidifying their role as the gatekeepers of publicly funded research.[5]

While the rising number of Gold OA publications facilitated by these deals is to be applauded, they do not deliver on the triple promise of OA. In particular, they have not led to a reduction in the exorbitant costs to the academic community incurred in the process of research publication. While the downstream costs of journal subscriptions are gradually falling, the upstream costs of publication, made up of the APCs, have risen sharply.

Concomitantly, the imposition of APCs has created new, and sometimes insurmountable, barriers to publication for researchers that are not affiliated to a contracting institution.[6] In addition, as already underlined in previous ALLEA Statements,6,[7] the Gold OA model creates a disadvantage for those coming from less wealthy countries and institutions, under-funded researchers in the social sciences and humanities, and early career researchers, among others. For these academics, OA of published research comes at the expense of closure of first-tier publication fora.

In addition, ALLEA is concerned that the conditions of the “Big Deals” that drive these developments do not adequately reflect the rules on copyright law in the European Union (EU) and fail to fairly value the creative and research endeavours of researchers and their institutions, as well as their investment and efforts over time to generate research results and publications to the benefit of the public….”

Legal reform to enhance global text and data mining research | Science

“The resistance to TDM exceptions in copyright comes primarily from the multinational publishing industry, which is a strong voice in copyright debates and tends to oppose expansions to copyright exceptions. But the success at adopting exceptions for TDM research in the US and EU already—where publishing lobbies are strongest—shows that policy reform in this area is possible. Publishers need not be unduly disadvantaged by TDM exceptions because publishers can still license access to their databases, which researchers must obtain in the first instance, and can offer products that make TDM and other forms of research more efficient and effective.”

Canada Steals Cultural Works From The Public By Extending Copyright Terms

We’ve said this before and we’ll say it again: it cannot make sense to extend copyright terms retroactively. The entire point of copyright law is to provide a limited monopoly on making copies of the work as an incentive to get the work produced. Assuming the work was produced, that says that the bargain that was struck was clearly enough of an incentive for the creator. They were told they’d receive that period of exclusivity and thus they created the work.

Going back and retroactively extending copyright then serves no purpose. Creators need no incentive for works already created. The only thing it does is steal from the public. That’s because the “deal” setup by governments creating copyright terms is between the public (who is temporarily stripped of their right to share knowledge freely) and the creator. But if we extend copyright term retroactively, the public then has their end of the bargain (“you will be free to share these works freely after such-and-such a date”) changed, with no recourse or compensation.

That makes no sense.

And yet, countries keep doing it.

Canada has quietly done it: extending copyrights on literary, dramatic or musical works and engravings from life of the author plus 50 years year to life of the author plus 70 years.

Quietly on November 17, 2022, and appearing online this morning, an Order in Council was issued on behalf of Her Excellency the Governor General, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage to fix December 30, 2022 as the day Bill C-19, Division 16 of Part 5 comes into force. What does this all mean? With the passing of Bill C-19 this past June, the Copyright Act was amended to extend the term of copyright for literary, dramatic or musical works and engravings to life of the author plus a period of 70 years following the end of the calendar year in which that author dies. What was unclear at the time of royal assent was WHEN exactly this would come into force — if on or after January 1, 2023, one more year of works would enter the public domain. Unfortunately, we now know that this date has been fixed as December 30, 2022, meaning that no new works will enter the Canadian public domain for the next 20 years.

This should be a huge scandal. The public has been stripped of its rights to share information for twenty years. Based on what? Literally nothing, but demands from heirs of deceased authors to continue to receive subsidies from the very public they just stripped the rights from.

It is beyond ridiculous that any country in the world is extending copyright in this day and age, rather than decreasing it.