mfioretti: copyright* + fair use*

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  1. "I spent at least a year dealing with the Japanese corporation Kodansha, which owns the rights," Davis told me by email. He had to "hire someone who spoke Japanese to conduct face-to-face negotiations in Japan." Worse, in the end, Davis wasn’t even allowed to use the images he had asked for. Kodansha insisted he choose from a small selection of publicity photos, rather than the scenes actually analyzed in the text.

    Davis’s acquisition process was more arduous than most, but the general predicament will be familiar to many academics who work with film, art, comics, or other visual materials. Many academic presses and journals require permission for the reprint of any images. For instance, Julia Round, a principal lecturer at Bournemouth University and editor of the journal Studies in Comics, told me that, at the request of its publisher (Intellect Books), "we always seek image permissions." Only if authors can’t track down permissions holders, Round said, does the journal consider printing small images under the legal doctrine of fair use.

    But while publishers want authors to get permission, the law often does not require it. According to Kyle K. Courtney, copyright adviser for Harvard University in its Office for Scholarly Communication, copyright holders have certain rights — for instance, if you hold rights for a comic book, you determine when and by whom it can be reprinted, which is why I can’t just go out and create my own edition of the first Wonder Woman comic. But notwithstanding those rights, fair use gives others the right to reprint materials in certain situations without consulting the author — or even, in some cases, if the author has refused permission.
    Tags: , , by M. Fioretti (2017-05-12)
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  2. The No-Derivatives option, frankly, is not very popular. People can tell it’s self-defeating.

    The Share-Alike option, on the other hand, is quite popular. And it’s the one that kept me using CC the longest. Even those of us who are OK with others using our content for commercial purposes find it repellent to think that those others could wall off their derived works from the commons, refusing to pass on the benefit they themselves had received. It’s such a compelling argument that the P2P Foundation is promoting a whole new license to prohibit exactly that. But, as discussed by Dave Wiley more than eight years ago, Share-Alike-licensed content can only be combined with other content with an identical CC license, which is very limiting—and that’s really just a subset of the general compatibility problems with CC-licensed content (updated various times and still complicated). This really defeats the purpose of the commons, as Wiley illustrates with another graphic. As the saying goes, the great thing about standards is that there are so many to choose from.

    In essence, the problem is that Creative Commons allows people to grant others freedom, but with very specific and often mutually exclusive conditions. And that’s only sort of freedom. Does that mean people who use CC are evil, and that I’m boycotting their content? Certainly not. It simply means I find it simplest and most effective to use the public domain (with a fallback to CC0 in jurisdictions that don’t recognize the public domain) to build the commons.

    That leaves the question of free riders, meaning those who would copyright their derived works. At this point, I don’t believe that a further fragmentation of licenses that are complicated to apply and almost impossible to enforce will serve to both build the commons and prevent this problem. Of the two, my priority is the former, but I do still want to keep corporations from strip-mining the commons.

    One way might be to simply ignore them and keep doing our own thing. It’s important to remember that they cannot remove anything from the public domain, nor can they copyright an idea in the public domain itself, only a work derived from it. So, if future iterations of an idea in the public domain are better than those derived works, then the gamble of having produced them will not pay off. Similarly, if small workshops make and sell the products in short runs, not bothering to copyright them, large corporations simply won’t be able to compete. Copyrights take a minimum of three months to register, and that’s enough time for P2P production to move on to something better. In fact, the threat of a copyright might actually spur innovation.

    Another consideration is that corporations creating derived works doesn’t have to result from content being in the public domain or in the commons. They repeat each others’ ideas all the time, in spite of trademarks and copyrights. It’s the idea that attracts attention, not how it’s licensed.
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  3. A reader recently e-mailed us at FWW to ask if he could sell a few garden benches based on Russell Jensen's beautiful piece on the cover of issue 198, with only a few minor design changes. I gave him my stock answer:

    "Legally, he probably doesn’t have to ask, because it is hard to make these cases stand up in court. But ethically, he should ask, especially if his changes are only minor. The plans are in the public domain, but that is for hobbyists. For pros who want to make money off the design, it is a whole other matter. If he isn’t going to compete with Jensen directly, in his region for example, Jensen will probably say OK."
    Tags: , , , , by M. Fioretti (2015-06-16)
    Voting 0
  4. the Supreme Court itself has repeatedly said that fair use is the "safety valve" that makes copyright law compatible with the First Amendment. Without it, copyright law would be illegal. Many of us, of course, believe that the valve is screwed way too tightly, and that it needs to be loosened, since free expression is regularly stymied by abusing current copyright law. But, either way, it should be clear that fair use is, without a doubt, a key element in any copyright regime. Without it, you have undermined free expression and enabled out and out censorship.

    If the US is really trying to export its ideals in agreements like the TPP (and yes, the answer here may be that we are not), then it must include a mandate for fair use if it is going to include a mandate for copyright. The two have to go hand in hand, or you are advocating for out and out censorship.
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  5. A recent U.S. court decision clarified that media organizations cannot assume that photos shared via Twitter are rights-free, to be used as though they were in the public domain.

    In the case of Agence France-Presse (AFP) v. Morel, U.S. District Judge Alison Nathan ruled in favor of freelance photographer Daniel Morel. Her judgment: Both AFP and the Washington Post had infringed on Morel’s copyright.

    Not unlike last week, when some British news organizations published front-page photos of a helicopter crash sourced from Twitter, in January 2010 AFP lifted Morel’s photos of the Haitian earthquake from Twitter/Twitpic and distributed them on its wire service.

    These cases raise big questions, including where does copyright law and Twitter’s terms of use intersect? How can media organizations best serve their audience, particularly in a breaking news scenario? What can photographers — professional and amateur — learn from Morel’s experience?
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  6. In short, facebook photos aren't posted with the intent of becoming public domain and usable for any purpose, news or otherwise. Journalists should know better. And for those who don't, some day, the hammer will come down. I tell my students, "don't let this be you." I offer the same advice to journalists everywhere.
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  7. Quando il rifacimento di un’opera puo’ considerarsi “parodia”?
    Quali sono i requisiti di cui una parodia debba essere dotata perche’ sia libero l’uso dell’opera da cui essa e’ tratta e rientrare nelle eccezioni al diritto d’autore?
    Quando invece e’ necessario il consenso dell’autore dell’opera originaria?
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  8. n Enclosing the public domain: The restriction of public domain books in a digital environment, a paper in First Monday, researchers from the Victoria University of Wellington document the widespread proactice of putting restrictions on scanned copies of public domain books online.

    They sampled repositories like Google Books, Project Gutenberg, and the Internet Archive, and found about half the public domain books in their sample had some kind of conditions or restrictions on their use, due to uncertainty about whether the books were in the public domain. However, they showed that they could typically determine public domain status in about a minute, and say that the repositories should be following suit.
    Tags: , , by M. Fioretti (2014-07-01)
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  9. Millions of copyrighted books by authors from every major country were swept in to Google’s scheme. As the new filings demonstrate, not just authors but also photographers, visual artists, songwriters, and publishers around the world find it particularly galling that a wealthy American company would try to find a way to use their creations for free.”

    Authors from Australia, Canada, and South Africa joined one brief, including Margaret Atwood, Thomas Keneally, J.M. Coetzee, Yann Martell, Peter Carey and Michael Frayn. In a separate filing, an array of international rights organizations warned that if this massive expansion of “fair use” is allowed to stand it turns the United States into a rogue nation, in violation of international norms of copyright
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  10. guess what? Just as the one man show was about to come back, someone stepped in with a cease and desist letter, saying that the show infringed. While Brack won't say who sent the cease and desist, there's a pretty short list of whom it might be.

    Brack's partner in putting on the show, Matty Griffiths, says they had explored the copyright issues before putting on the show and were reasonably confident that it was fair use -- and it would appear that they have a very strong fair use argument here. But... because of the stupid way our fair use laws work, the only way to definitively know if it's fair use is to spend megabucks on a lawsuit. So, instead, this bit of creativity that people seemed to enjoy... has been shut down. While the two guys seem willing to test it, the theater where they were going to put on the show has bailed out, citing the potential liability.
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