tag:blogger.com,1999:blog-14963990.post6534867901779816361..comments2024-03-14T21:04:42.902-07:00Comments on The Imaginary Journal of Poetic Economics: Copyright for expression of ideas; patent law for ideasHeather Morrisonhttp://www.blogger.com/profile/13726928948544472886noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-14963990.post-77000975928396398452012-03-20T19:08:57.311-07:002012-03-20T19:08:57.311-07:00Thanks Geof these are useful comments and citation...Thanks Geof these are useful comments and citations. The fight for fair copyright has many fronts, and needs lots of copyfighters on each of them. <br /><br />Regarding your comment, "The European Union has a sui generis database right covering the content of databases. It applies if the database owner has made "a substantial investment in preventing unauthorized use of information" (May & Sell, Intellectual Property Rights: A Critical History, 2006, Lynne Rienner, Boulder CO, p. 149)." This is certainly concerning, and could have implications for open access.<br /><br />Let's consider the implications for the major point of this discussion between myself and Prosser, that is, whether CC-BY is optimal for open access. Consider the case of the faculty member who paid to publish in BioMedCentral, then was angry to find that someone was selling her article (behind a paywall) for $3: https://groups.google.com/a/arl.org/group/sparc-oaforum/browse_thread/thread/fc977cabd0d59bcc<br />This reseller has obviously made "a substantial investment in preventing unauthorized use of information" by putting this and similar articles behind a paywall. In this case, CC-BY, by granting commercial rights, creates a situation where a third party that contributed nothing at all to the publishing of scholarly articles, can gain rights. If the author had published CC-BY-NC instead, then what this reseller is doing would be clearly in violation of the CC license. This is another example of why I think that specifying noncommercial is important to protect OA downstream. For more on this topic, see my response to the RCUK consultation on their draft new OA policy. <br /><br />The postal codes example falls under the push for open data / open government. The civicaccess.ca list has had discussions about this very topic in Canada. This is an important issue because publicly available postal codes would be very useful as a democratic tool (i.e. assisting people to contact their representatives).Heather Morrisonhttps://www.blogger.com/profile/13726928948544472886noreply@blogger.comtag:blogger.com,1999:blog-14963990.post-89169949403122687942012-03-20T18:15:35.131-07:002012-03-20T18:15:35.131-07:00I agree with you that reading should not trigger c...I agree with you that reading should not trigger copyright. However, in practice it soon might if efforts to apply copyright to ephemeral copies in computer memory are enacted. (I think this proposal may be part of the Trans-Pacific Partnership; it's certainly not the first time copyright maximalists have pushed for it.) The rest of my comment is a narrow response to specific points.<br /><br />The European Union has a sui generis database right covering the content of databases. It applies if the database owner has made "a substantial investment in preventing unauthorized use of information" (May & Sell, Intellectual Property Rights: A Critical History, 2006, Lynne Rienner, Boulder CO, p. 149). The right can be renewed indefinitely. Needless to say, there are continuing efforts to enact similar rights elsewhere.<br /><br />I recall efforts to create an open index of postal codes in the U.K. as an alternative to the database of published codes, which is covered by copyright.<br /><br />Even without such a right, a similar effect can be achieved. For example, in the U.S., references to legal precedent refer to page numbers in publications owned by particular publishers. The legal decisions themselves are public domain - but the page numbers are not. (At least this used to be the case, I think there have been efforts to improve the situation though I don't know how.)<br /><br />As to the idea/expression doctrine, at this point it seems to me to be more a rhetorical justification than a genuine legal norm. May and Sell write, "The courts have stretched copyright law to cover such things as algorithms and aggregates of facts in ways that eradicate the ideas-expression dichotomy at the heart of copyright and extend new protections to facts per se" (p. 151). They give an example (pp. 151-2):<br /><br />In 1977 the Ninth Circuit in San Francisco heard a case brought by Sid and Mary Kroft against McDonald's fast food company. The Krofts had created a children's television program, H. R. Pufnstuff, which portrayed a live-action fantasyland of talking trees and magical creatures. McDonald's approached the Krofts about basing some television advertisements on H. R. Pufnstuf. They did not agree to terms,<br />but McDonald's went ahead and developed a series of commercials based in "McDonaldland" (complete with talking trees and magical creatures). Despite the fact that McDonald's had differentiated the expression of the characters from H. R. Pufnstuff in its rendition, the court ruled against McDonald's and in favor of the Krofts. In so doing, the court "extended to the realm of visual and narrative entertainment a new principle of idea protection: 'total concept and feel'" (Vaidhyanathan 2001).Geofhttp://www.geof.net/noreply@blogger.com