The Court of Justice of the European Union (CJEU) has held that operators of online platforms to which users post copyright-protected content are not liable for copyright infringement in such user-posted content if they meet certain conditions. First, they must not contribute to giving access to such content to the public in breach of copyright, beyond merely making those platforms available. Second, they must not play an active role that gives them knowledge of or control over the content posted.
GitHub is currently causing a lot of commotion in the Free Software scene with its release of Copilot. Copilot is an artificial intelligence trained on publicly available source code and texts. It produces code suggestions to programmers in real time. Since Copilot also uses the numerous GitHub repositories under copyleft licences such as the GPL as training material, some commentators accuse GitHub of copyright infringement, because Copilot itself is not released under a copyleft licence, but is to be offered as a paid service after a test phase. The controversy touches on several thorny copyright issues at once. What is astonishing about the current debate is that the calls for the broadest possible interpretation of copyright are now coming from within the Free Software community.
“IIPA [International Intellectual Property Alliance] attacked subsection 12D7(a) as a threat to “academic freedom” because it gives the author of a scientific article that is the result of a research activity primarily funded by the government the right to make the article available on an open access basis. This is a truly Orwellian argument. How does preserving a scientist’s right to make her research publicly available undermine her academic freedom? The statute doesn’t obligate her to provide open access, although the Government certainly has the authority to do so as a condition of its providing the research funding. Indeed, the United States government conditions it research grants on making the resulting articles available on an open access basis. So do the EU and many other research funders around the world.
“On behalf of the leaders of 125 major research libraries, the Association of Research Libraries (ARL) is pleased to see that the US House of Representatives included the following policies in the National Science Foundation (NSF) for the Future Act (H.R. 2225), which center researchers and create public value by promoting the availability of publicly funded research:
Criteria for trusted open repositories to be used by federally funded researchers sharing data, software, and code. According to the House bill, the criteria would be developed with input from the scientific community. Research libraries look forward to partnering with NSF and the scientific community to develop these criteria.
Data management plans to facilitate public access to NSF-funded research products, including data, software, and code….
We strongly support public access to publications resulting from NSF-funded research with zero embargo, and we are heartened to see language in the Senate-passed US Innovation and Competition Act (S. 1260) requiring the publication of federally funded research data within 12 months, “preferably sooner.” Making research outputs publicly available to the widest possible audience in the timeliest manner possible, and machine-accessible for computation, is critical for developing scientific insights and solutions for public health, climate, technological advancement, and more….”
“Maintaining the status quo for public libraries – to build collections, preserve and lend them – is now seen as a radical and frightening mission, according Ben White, PhD researcher at the Centre for Intellectual Property Policy & Management, Bournemouth University and co-founder of KnowledgeRights21. Here he speaks to Rob Mackinlay about why not challenging the methods used by publishers to protect their content will damage not only libraries, but also threatens research and innovation.
“Publishers can’t refuse to sell paper books to libraries, but they can and do refuse to sell them eBooks. And all we want to do is to be allowed to do what we’ve always done, to keep the status quo, to be allowed to build collections, preserve and lend, so it is strange that the solution sounds a bit frightening and radical,” says Ben White who has been immersed in the legal minutiae of intellectual property across Europe for decades….”
About two years ago, the Copyright in the Digital Single Market (CDSM) Directive was adopted, obliging European Union Member States to ‘bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021’. On this date, we take a look at the progress of Member States, and at some of the policy choices they have made.
“The Senate recently passed the U.S. Innovation & Competition Act (USICA) which unexpectedly included language advancing access to federally-funded research results. The legislation now moves to the House where lawmakers are simultaneously working on another bill, the NSF for the Future Act. Open access will likely come up during discussions on either or both bills, and we want to ensure that your campus has all the relevant information about SPARC’s position on a zero-embargo national open access policy.
Although the timing of legislative action is uncertain, SPARC is offering this special briefing for members to learn about the current state of play and to ensure that your institution is prepared to take action in support of open access if and when the opportunity arises. This is an excellent opportunity for institutions to invite a representative from your government relations offices to also attend the briefing, if possible. …”
“The U.S. state of Texas has enacted the nation’s first law to increase transparency for automatic textbook billing programs. Sponsored by Representative Tan Parker and Senator Brandon Creighton, House Bill 1027 received bipartisan approval from the state legislature last month and was signed into law by Governor Greg Abbot last week.
Often marketed using the term “inclusive access,” automatic textbook billing is the practice of charging the cost of digital course materials to a student’s tuition and fee bill. While some of these programs are implemented on a voluntary “opt-in” basis, others are implemented without confirming a student’s consent, which can lead to unexpected charges and limited ability to seek cost-saving alternatives such as used books. Moreover, these programs effectively force students to accept the publisher’s terms of service, which can open the door to the extensive collection and processing of their personal data….”
“PIJIP Director Sean Flynn co-hosted a panel titled Access to Digital Education in the Time of COVID-19: Copyright and Public Health Emergencies as part of RightsCon 2021. He hosted the discussion with Justus Dreyling, the project manager of international regulation with Wikimedia Germany.
The panel focused on the impact of inadequate copyright rules on access to and use of educational materials in digital setting as well as how new legal instruments at the international level could solve these problems and facilitate access to knowledge….”
“The package also includes a provision originally authored by Wyden and supported by Sen Rand Paul, R-Ky., requiring open access to federally funded research within 12 months of that research being published in peer-reviewed journals.
“Taxpayer-funded research shouldn’t be locked away behind expensive paywalls – it should be open to researchers to spur new innovation and scientific advances. Our provision will help ensure more researchers benefit from work paid for by the American public,” Wyden concluded….”
“We are pleased to see the U.S. Senate endorse language that strongly supports providing faster access to taxpayer-funded research results with today’s passage of the U.S. Innovation and Competition Act (S. 1260).
Section 2527 of the bill, formerly the Endless Frontier Act, (titled “Basic Research”) includes language originally written by Senator Wyden and supported by Senator Paul that directs federal agencies funding more than $100 million annually in research grants to develop a policy that provides for free online public access to federally-funded research “not later than 12 months after publication in peer-reviewed journals, preferably sooner.”
The bill also provides important guidance that will maximize the impact of federally-funded research by ensuring that final author manuscripts reporting on taxpayer funded research are:
Deposited into federally designated or maintained repositories;
Made available in open and machine readable formats;
Made available under licenses that enable productive reuse and computational analysis; and
Housed in repositories that ensure interoperability and long-term preservation. …”
“Debates are taking place globally as to what role platforms should take with regards to the content they offer or host. In the EU, a first step to regulate this environment was taken with the 2019 EU Digital Single Market Directive (“DSM”). This new piece of legislation and specifically Article 17, presents an opportunity for platforms and the publishing industry to work together to enable the appropriate use of protected content and to ensure an improved experience for platform users.
Article 17 confirms platforms are liable for the content they host unless they receive authorization from the publisher. This could be, for instance through a license or by ensuring the unavailability of protected works. Meanwhile, publishers are obliged to make available “the necessary and relevant information”.
In 2019 STM assembled a working group to develop the necessary technical processes to implement these new obligations, in order to enable platforms to swiftly identify the content and respective policies to make sharing decisions in real-time using technology. These technical processes are described in the Article Sharing Framework, which enables the simple and seamless sharing of content in manners that are consistent with publisher policies….”
“In the European Union, an initiative to address this issue was finalized in a 2019 change to the EU Copyright Directive, the Directive on Copyright in the Digital Single Market (official text here). That new law took effect in June 2019 and must be translated into national law by EU Member States by June 2021. SCNs — some of which qualify as Online Content Sharing Service Providers, or OCSSPs as they are referred to in the Directive — fall within the scope of the new rules and, thus, are required to follow certain steps and obligations if they want to preserve the possibility avoiding liability for copyright infringement under the Directive. In particular, OCSSPs have to make “best efforts to ensure the unavailability” of protected works for which rightsholders have provided “relevant and necessary information”. In other words, in order for platforms to meet their obligation, publishers themselves have an obligation to give information, regarding rights and permissions of content sharing, in a method that can be feasibly leveraged at scale by SCNs….
In order to address this challenge, a team under the STM Association’s, STEC Committee, developed the Article Sharing Framework. The Framework gives scholarly publishers a mechanism to provide SCNs — in machine-actionable form — information about an article’s PDF’s identity and the respective publisher’s sharing policies. This enables SCNs to use the information to determine in an automated way, and in real-time, whether the publisher’s content may be shared….”
Special issue of Informatics Studies on the work OA/OS advocacy of Sander Dekker.
“The current crisis around the Corona virus revealed the importance of Open Access and Open Science – unfettered access to scientific and scholarly information, for scientists, researchers, academicians, journalists and the public alike – for effectively dealing with such calamities. It is the efforts of Sander Dekker during the last decade to implement Open Access by legislation and involvement of European Union; that made it easy for the scientific community to place their research results on Covid-19 under Open Access to arrest the spread of the pandemic. Considering the importance of the contributions of Dekker in the efforts of humanity to sustain life on this planet; the present issue of Informatics Studies is devoted for collecting together historical documents reflecting his work, with two reviews of his career and contributions.”
While the COVID-19 pandemic has surfaced the virtues of Open Access and propelled changes in scholarly communication that previously many feared, the current models of communicating scientific content still maintain unequal access to content.
On the other side of this highly regulated and controlled system, advocates of Open Access are exploring lawful ways to enable researchers to freely disseminate their research and maximize its impact.
The Rights Retention Strategy of PlanS (cOAlitionS) is a much-welcomed initiative that empowers authors to be in control of their own research and the granting schemes of HorizonEurope is another bold move by the European Commission in the same direction. It is now time that policies like these are implemented in all EU Member States and that the countries themselves have the same coordinated and horizontal approach.
Therefore, LIBER proposes a new model law that aims to ensure a zero embargo period for lawful self-archiving on open, public, non-for-profit repositories.