Re: licensing of library data - article in LIBER quarterly

Well-said, Simon! I suggest that we crib from what you've written for our report. Do you mind?

To that end, I've pasted your comments into the Talk page of our Draft issues wiki page:
http://www.w3.org/2005/Incubator/lld/wiki/Talk:Draft_issues_page#Simon_Spero.27s_comments_on_US_rights.2Flicensing_issues

-Jodi

On 17 Mar 2011, at 20:09, Simon Spero wrote:
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> http://liber.library.uu.nl/publish/issues/2010-3_4/index.html?000512
> It is important to note that the cited article is published in LIBER : The Journal of European Research Libraries.
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> 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)
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> 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.
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> 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).  
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> 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)
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> 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. 
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> 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.  
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> 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.
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> OCLC has made no statements against interest that I am aware of in regards to this issue. 
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> 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), bringing up both products in the same breath indicates that the availability of copyright is not the deciding  factor.
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> I am not a lawyer, nor did I stay at a Holiday Inn Express last night. 
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> Simon //  IMHO, The proper purpose of OCLC is to fund OCLC Research :-P
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> Bérard, Raymond (2011). "Free Library Data?". Liber 20.3/4. 
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> Brown, Rowland C. (1985). “OCLC, Copyright, and Access to Information: Some Thoughts”.: Journal of  Academic Librarianship 11.4. P. 197.
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> EC (1996). Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.  
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