Re: licensing of library data - article in LIBER quarterly

On Thu, Mar 17, 2011 at 10:50 AM, Jodi Schneider <jodi.schneider@deri.org>
 wrote:

> An article on licensing of library data -- see the abstract below.
>
> -Jodi
>
> ---------- Forwarded message ----------
> From: Kalfatovic, Martin <KalfatovicM@si.edu>
> Date: Wed, Mar 16, 2011 at 7:59 PM
> Subject: [LOD-LAM] Free Library data?
> To: "lod-lam@googlegroups.com" <lod-lam@googlegroups.com>
>
>
> Interesting article if you've not seen it. Martin
>
> As library materials are catalogued by public organisations and librarians
> are active promoters of the principles of open access, one would expect
> library data to be freely available to all. Yet this is not the case. Why
> then do so few libraries make their data available free of charge? This
> article reviews the diverging, often restrictive policies and the interests
> (commercial and strategic) at stake. It presents a panorama of the current
> situation, the actors and interests involved. It addresses the legal aspects
> and the obstacles and it shows how data produced by libraries can be made
> freely available to other knowledge organisations while retaining and
> developing the collective organisations and services built by library
> networks over the years.
>
> The aim of the 'free the data movement' is to share and reuse bibliographic
> data in a new ecosystem where all the actors are involved, both users and
> providers, not just librarians.
>
> http://liber.library.uu.nl/publish/issues/2010-3_4/index.html?000512
>
>
> ------------------------------------------------------------------
> Martin R. Kalfatovic
> Assistant Director, Digital Services Division
> Smithsonian Institution Libraries
> email: kalfatovicm@si.edu
> tel:  <202.633.1705>202.633.1705
>
> twitter.com/silibraries | smithsonianlibraries.si.edu | research.si.edu |
> biodiversitylibrary.org
>
>
It is important to note that the cited article is published in LIBER : The
Journal of European Research Libraries.

The article states that "The content of a data base is protected by
copyright when its producer can prove that he has made substantial
investments to create and maintain the database (financial, technical and
human resources)."   (Bérard 2011, p. 326)

This statement  is correct within the EU, as a result of a specific EU
directive (EC 1996), which granted a sui generis copyright in databases
under the sweat-of-the-brow  theory.

This statement is not correct as a statement of US law.  Copyright on the
basis of   Sweat-of-the-brow was rejected by the United States Supreme Court
in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340
(1991) <http://www.law.cornell.edu/copyright/cases/499_US_340.htm>.

In summary, the 1976 revisions to the Copyright Act leave no doubt that
originality, not "sweat of the brow," is the touchstone of copyright
protection in directories and other fact-based works. Nor is there any doubt
that the same was true under the 1909 Act. The 1976 revisions were a direct
response to the Copyright Office's concern that many lower courts had
misconstrued this basic principle, and Congress emphasized repeatedly that
the purpose of the revisions was to clarify, not change, existing law. The
revisions explain with painstaking clarity that copyright requires
originality, § 102(a); that facts are never original, § 102(b); that the
copyright in a compilation does not extend to the facts it contains, §
103(b); and that a compilation is copyrightable only to the extent that it
features an original selection, coordination, or arrangement, § 101.
(*Feist v. Rural, supra)*


The claim and grant  of copyright in OCLC's database were made in 1982 and
1984 respectively, prior to the decision in Feist.  As Brown (1985) makes
clear, OCLC's claim was based on "sweat of the brow". It is thus
questionable the 1984 copyright grant  survived that decision.

It is possible to assert property rights in databases through licensing
contracts; OCLC's guidelines and contracts do constrain certain uses, but
explicitly exempt "online access provided to end-user patrons of a library
in authorized possession of the records".  Guidelines  §II.6.

This exemption was not present in the proposed revisions to the usage
guidelines; however, since these controls are a matter of contract rather
than copyright, applying revised guidelines would require requiring
libraries to impose similar restrictions on all patrons accessing their
catalogs, since contracts are only binding on the parties privy to those
contracts.

OCLC has made no statements against interest that I am aware of in regards
to this issue.

Senior management at OCLC has directly stated that  they consider
maintaining and supporting both Worldcat and DDC to be a duty to the
community, and that if there were an open, distributed platform for
maintaining those databases, that  would not *reduce availability,
reliability,  and data quality, *they would be more than willing to pass on
the burden.  Since the copyright in DDC is unquestionably valid (AMERICAN
DENT. ASSN. v. DELTA DEN. PLANS ASSN., 126 F.3d 977 (7th Cir.
1997)<http://www.law.cornell.edu/copyright/cases/126_F3d_977.htm>,
bringing up both products in the same breath indicates that the availability
of copyright is not the deciding  factor.

I am not a lawyer, nor did I stay at a Holiday Inn Express last night.

Simon //  IMHO, The proper purpose of OCLC is to fund OCLC Research :-P

Bérard, Raymond (2011). "Free Library
Data?<http://liber.library.uu.nl/publish/issues/2010-3_4/index.html?000512>".
Liber 20.3/4.

Brown, Rowland C. (1985). “OCLC, Copyright, and Access to Information: Some
Thoughts”.: Journal of  Academic Librarianship 11.4. P. 197.

EC (1996). Directive 96/9/EC of the European Parliament and of the Council
of 11 March 1996 on the legal protection of
databases<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML>.