gmane.culture.libraries.ngc4lib

Terence Fitzgerald | 27 Apr 15:09

Ah, wonderful copyright

Catalog records are not protected by copyright.  They contain data that
can be readily observed and recorded by anyone, and thus fail the minimal
creativity standard set in 1998 in Matthew Bender v. West Publishing
(http://www.law.cornell.edu/copyright/cases/158_F3d_674.htm).  Of course,
that doesn't mean you won't get sued . . .

Terence Fitzgerald
Humanities Index
H. W. Wilson

K.G. Schneider | 27 Apr 15:53

Re: Ah, wonderful copyright

> Catalog records are not protected by copyright.  They contain data that
> can be readily observed and recorded by anyone, and thus fail the minimal
> creativity standard set in 1998 in Matthew Bender v. West Publishing
> (http://www.law.cornell.edu/copyright/cases/158_F3d_674.htm).  Of course,
> that doesn't mean you won't get sued . . .
>
> Terence Fitzgerald
> Humanities Index
> H. W. Wilson

Can I clarify, in this discussion are we talking about re-use of OCLC member
records?

K.G. "Dances with Elephants" Schneider

Jonathan Rochkind | 27 Apr 16:08

Re: Ah, wonderful copyright

Has this been tested in court with regard to cataloging records
specifically? What about "notes" fields, are those data that can be
readily observed and recorded by anyone?  Are you a lawyer?   Do you
think a single case cited would be sufficient evidence in a legal
brief?  Is there other established (case)law that would be relevant
here, and perhaps suggest a different decision?

Sorry, don't mean to get testy, but I'm awfully sick of people assuming
they have the end word on copyright law. Copyright law is complex, and
certainly undergoing change right now do to changing environments.
Things are up in the air, and undecided. But I do agree that the
argument Terrence makes is the one someone defending themselves is
likely to make in court, and I think they'd have a fairly good chance of
succeeding, but I wouldn't want to bet my farm on it.

Jonathan

Terence Fitzgerald wrote:
> Catalog records are not protected by copyright.  They contain data that
> can be readily observed and recorded by anyone, and thus fail the minimal
> creativity standard set in 1998 in Matthew Bender v. West Publishing
> (http://www.law.cornell.edu/copyright/cases/158_F3d_674.htm).  Of course,
> that doesn't mean you won't get sued . . .
>
> Terence Fitzgerald
> Humanities Index
> H. W. Wilson
>
>

(Continue reading)

Tim Spalding | 27 Apr 16:13

Re: Ah, wonderful copyright

Nine legal arguments that OCLC has no copyright over MARC records:

1. The "originality" requirement—specifically the "fact-expression
distinction." Another good case is Feist v. Rural Telephone Service
(1991), which covered whether a telephone book could be copyrighted.
(The answer was no.) The majority opinion compared a phone book to a
census; a catalog is a sort of "census" of books.
2.If there is a strong case for creativity, it resides in the
assignment of something like LCC or LCSH, two systems created by the
government. The LC has a unique place in copyright law and history as
the official depository of copyrighted material and copyright
metadata. I know of no coypright cases specifically involving the
institution, but a system designed to organize the very *fruits* of
copyright ought to be particularly difficult for someone else to
assert copyright over.
3. "Names, titles and short phrases" cannot be coyprighted. That
covers most of a MARC record.
4. Transferring copyright is hard to do. The law is weighted in favor
of creators and the transfer needs to be explicit and in writing. The
owner of any copyrights on MARC records are the libraries that made
them, not OCLC. If any library signed over copyrights, I'll eat my
hat. (You can forget work-for-hire here. That's also stacked in favor
of creators.)
5. Anything cataloged before 1977 is almost certainly public domain.
Before that time, you had to formally renew a copyright in their 28th
year, and I will eat my hat again if anyone ever did it to a MARC
record.
6. Before 1978 there were very strict notice requirements anyway, so
all this data is open.
7. Between 1978 and 1988 the standard were relaxed and works could be

(Continue reading)

Houghton,Andrew | 27 Apr 16:42

Re: Ah, wonderful copyright

> From: Next generation catalogs for libraries
> [mailto:NGC4LIB <at> LISTSERV.ND.EDU] On Behalf Of Tim Spalding
> Sent: 27 April, 2007 10:13
> To: NGC4LIB <at> LISTSERV.ND.EDU
> Subject: Re: [NGC4LIB] Ah, wonderful copyright
>
> In sum, if OCLC has rights, they have to be contractual, not
> from copyright law.

I don't believe that OCLC ever claimed copyright on *any*
individual MARC record entered or batch loaded by member
libraries.  OCLC, I believe, claims copyright on the
aggregation of MARC records that comprise WorldCat.

This, in my limited understanding of copyright law, is
similar to when a publisher takes multiple copyrighted
works and creates an aggregated work (anthology?).  The
publisher makes no claim against the individual works,
only their authors can do that, but the publisher does
have claim on the aggregated work.

Andy.

Andrews, Mark J. | 27 Apr 16:55

Re: Ah, wonderful copyright

It might be productive to see what OCLC's house counsel or law firm has
been up to lately.  It shouldn't take more than an hour with Google to
get started.

Better yet, ask them.

Mark Andrews

-----Original Message-----
From: Next generation catalogs for libraries
[mailto:NGC4LIB <at> listserv.nd.edu] On Behalf Of Houghton,Andrew
Sent: Friday, April 27, 2007 9:42 AM
To: NGC4LIB <at> listserv.nd.edu
Subject: Re: [NGC4LIB] Ah, wonderful copyright

> From: Next generation catalogs for libraries
> [mailto:NGC4LIB <at> LISTSERV.ND.EDU] On Behalf Of Tim Spalding
> Sent: 27 April, 2007 10:13
> To: NGC4LIB <at> LISTSERV.ND.EDU
> Subject: Re: [NGC4LIB] Ah, wonderful copyright
>
> In sum, if OCLC has rights, they have to be contractual, not
> from copyright law.

I don't believe that OCLC ever claimed copyright on *any*
individual MARC record entered or batch loaded by member
libraries.  OCLC, I believe, claims copyright on the
aggregation of MARC records that comprise WorldCat.

This, in my limited understanding of copyright law, is

(Continue reading)

K.G. Schneider | 27 Apr 17:13

Re: Ah, wonderful copyright

> I don't believe that OCLC ever claimed copyright on *any*
> individual MARC record entered or batch loaded by member
> libraries.  OCLC, I believe, claims copyright on the
> aggregation of MARC records that comprise WorldCat.

I'm unclear about OCLC's nonprofit structure, but if it is truly a "member
organization," then one of two things could possibly-possibly be possible:

* The records could belong to the members, period, or

* The member's council could choose to vote to give anyone access to the
records-OCLC members, non-OCLC members, etc.

Pondering nonprofitland, I'm also wondering if those records are considered
OCLC's inventory.

Karen G. Schneider
kgs <at> bluehighways.com

Houghton,Andrew | 27 Apr 17:36

Re: Ah, wonderful copyright

> From: Next generation catalogs for libraries
> [mailto:NGC4LIB <at> LISTSERV.ND.EDU] On Behalf Of K.G. Schneider
> Sent: 27 April, 2007 11:14
> To: NGC4LIB <at> LISTSERV.ND.EDU
> Subject: Re: [NGC4LIB] Ah, wonderful copyright
>
> > I don't believe that OCLC ever claimed copyright on *any*
> individual
> > MARC record entered or batch loaded by member libraries.  OCLC, I
> > believe, claims copyright on the aggregation of MARC records that
> > comprise WorldCat.
>
> I'm unclear about OCLC's nonprofit structure, but if it is
> truly a "member organization," then one of two things could
> possibly-possibly be possible:
>
> * The records could belong to the members, period, or
>
> * The member's council could choose to vote to give anyone
> access to the records-OCLC members, non-OCLC members, etc.
>
> Pondering nonprofitland, I'm also wondering if those records
> are considered OCLC's inventory.

OCLC's nonprofit status doesn't have anything to do with any
claims of copyright.  The two are disjoint.  Since OCLC is a
membership organization it is recognized by the U.S. government
as a nonprofit which has certain tax implications for the
membership.  There are other criteria, that OCLC meets, other
than being a membership organization, for them to be considered

(Continue reading)

K.G. Schneider | 27 Apr 17:45

Re: Ah, wonderful copyright

> OCLC's nonprofit status doesn't have anything to do with any
> claims of copyright.  The two are disjoint.

Well, not if you're asking the question, is there an entity called "OCLC,"
how is it organized as a nonprofit, and what does it own? Not such a
farfetched question, as it is one that affected a lot of things at FPOW-1.

> As I mentioned before, members have a say in the matters of
> the cooperative.  If they don't like the direction then they
> have a right to organize and bring the issues before members
> council so they can be considered.

Right-that's my line of thinking. One of the things I hear about OCLC is how
it is "them," and "they" do things TO or AT us, but (depending in part on
how its nonprofit status is organized) "them" is pretty much "us." This is
what Cracker Barrel learned after it went public: you are your stakeholders.
The difference in OCLC's case is that I see the members, not OCLC, confused
on this point.

K.G. Schneider
kgs <at> bluehighways.com

Jonathan Rochkind | 27 Apr 17:56

Re: Ah, wonderful copyright

K.G. Schneider wrote:
> how its nonprofit status is organized) "them" is pretty much "us."
> This is what Cracker Barrel learned after it went public: you are your
> stakeholders.The difference in OCLC's case is that I see the members,
> not OCLC, confused on this point.
Apparently the members aren't seeing that OCLC is indeed acting in their
interests.  So this is perhaps a problem OCLC needs to address. If,
however, OCLC were to think they should address this as a "marketting"
problem, then OCLC wouldn't be acting like a membership organization
either.

OCLC is, of course, different than Cracker Barrel in that it's owners
_are_ it's consumers. (You don't really mean _stakeholders_ there, you
are specifically talking about _shareholders_. All of the other
"stakeholdrers" stayed the same when Cracker Barrel went public, the
difference was the _owners_, who are in the end the stakeholders with
control, and that's why it mattered to Cracker Barrel).

So what does it mean for a business to be owned by it's consumers? How
would one expect such a business to act differently than an ordinary
business?   Can you ask a question as to whether such a business is
acting like it, or is acting like an ordinary business instead?

Jonathan

--
Jonathan Rochkind
Sr. Programmer/Analyst
The Sheridan Libraries
Johns Hopkins University

(Continue reading)

K.G. Schneider | 27 Apr 18:11

Re: Ah, wonderful copyright

> OCLC is, of course, different than Cracker Barrel in that it's owners
> _are_ it's consumers. (You don't really mean _stakeholders_ there, you
> are specifically talking about _shareholders_.

Well, actually, I *do* really mean stakeholders, though I can see why you
thought I made an error (shareholder/stakeholder etc.)-I live with a former
trader so I'm up on the jargon.

If I own stock in a public company, I potentially have a very strong
interest in how it functions as a business, including how it behaves in
society. That is exactly how leverage was exerted on Cracker Barrel. The
company went public. Activists bought stock. Activists changed the company.

> So what does it mean for a business to be owned by it's consumers? How
> would one expect such a business to act differently than an ordinary
> business?   Can you ask a question as to whether such a business is
> acting like it, or is acting like an ordinary business instead?

Are the distinctions that significant? The organization is owned by its
members. The members have "stock" (OCLC in the aggregate). The members can
influence behavior (but in most cases will not, relying on the organization
for "best effort" in its directions).

K.G. Schneider
kgs <at> bluehighways.com

Peter Murray | 27 Apr 22:33

Re: Ah, wonderful copyright


On 4/27/07 11:45 AM, K.G. Schneider wrote:
>> OCLC's nonprofit status doesn't have anything to do with any
>> claims of copyright.  The two are disjoint.
>
> Well, not if you're asking the question, is there an entity called "OCLC,"
> how is it organized as a nonprofit, and what does it own? Not such a
> farfetched question, as it is one that affected a lot of things at FPOW-1.

Well, for that, one can go to the IRS 990 form.  The last on file that I
could find was from 2005:

http://www.guidestar.org/FinDocuments/2005/310/734/2005-310734115-02527b80-9.pdf

Page 25 has in interesting line:  $48,390,108 under the heading
"Capitalized Database" -- the union catalog?

On page 22 there is also an expense for "Cataloging Credits" -- did OCLC
buy the original cataloging?

Peter
--
Peter Murray                            http://www.pandc.org/peter/work/
Assistant Director, New Service Development  tel:+1-614-728-3600;ext=338
OhioLINK: the Ohio Library and Information Network        Columbus, Ohio
The Disruptive Library Technology Jester                http://dltj.org/
Attrib-Noncomm-Share   http://creativecommons.org/licenses/by-nc-sa/2.5/

Simon Spero | 28 Apr 00:49

Re: Ah, wonderful copyright

To clarify and expand on some of the statements made in this thread, here's
some stuff I culled from my notes.  I am not a lawyer. I'm just a lone duck,
trapped in a world he never made.

1) OCLC has claimed only a compilation copyright in bibliographic records,
and not in the record itself.  The thinking behind this is explained quite
well in Rowland C. Brown, OCLC Copyright and Access to Information; Some
Thoughts, 11 J. Academic Librarianship 197,198(1985).

2) Copyright was applied for in December 1982, and was granted
restrospective to that time in December 1984. Over 100 letters were sent to
the LC Copyright Office during this period  arguing against granting
registration. Janice R. Franklin, Database Ownership and Copyright Issues
among Automated Library Networks: an analysis and case study 86 (Ablex
Publication Corp, 1993) (hereafter Franklin).

3) The legal theory behind the registration was  that of "Sweat of the
brow", which held that the mere collecting  of data was  sufficient to
permit  granting of a compilation copyright.  (Franklin 84-85).

4) The landmark  case on the scope of compilation copyright in "mere facts"
is Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
(1991).   In this case, the Supreme Court held that "[...]copyright in a
factual compilation is thin. Notwithstanding a valid copyright, a subsequent
compiler remains free to use the facts contained in another's publication to
aid in preparing a competing work, so long as the competing work does not
feature the same selection and arrangement." (Feist, supra).  Indeed,
"[t]his result is neither unfair nor unfortunate. It is the means by which
copyright advances the progress of science and art." (Feist, supra)

(Continue reading)

Tim Spalding | 28 Apr 02:38

Re: Ah, wonderful copyright

Beautiful post Simon. Bravo.

On 4/27/07, Simon Spero <ses <at> unc.edu> wrote:
> To clarify and expand on some of the statements made in this thread, here's
> some stuff I culled from my notes.  I am not a lawyer. I'm just a lone duck,
> trapped in a world he never made.
>
> 1) OCLC has claimed only a compilation copyright in bibliographic records,
> and not in the record itself.  The thinking behind this is explained quite
> well in Rowland C. Brown, OCLC Copyright and Access to Information; Some
> Thoughts, 11 J. Academic Librarianship 197,198(1985).
>
> 2) Copyright was applied for in December 1982, and was granted
> restrospective to that time in December 1984. Over 100 letters were sent to
> the LC Copyright Office during this period  arguing against granting
> registration. Janice R. Franklin, Database Ownership and Copyright Issues
> among Automated Library Networks: an analysis and case study 86 (Ablex
> Publication Corp, 1993) (hereafter Franklin).
>
> 3) The legal theory behind the registration was  that of "Sweat of the
> brow", which held that the mere collecting  of data was  sufficient to
> permit  granting of a compilation copyright.  (Franklin 84-85).
>
> 4) The landmark  case on the scope of compilation copyright in "mere facts"
> is Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
> (1991).   In this case, the Supreme Court held that "[...]copyright in a
> factual compilation is thin. Notwithstanding a valid copyright, a subsequent
> compiler remains free to use the facts contained in another's publication to
> aid in preparing a competing work, so long as the competing work does not
> feature the same selection and arrangement." (Feist, supra).  Indeed,

(Continue reading)

Jonathan Rochkind | 30 Apr 15:51

Re: Ah, wonderful copyright

Simon Spero wrote:
> 3) The legal theory behind the registration was  that of "Sweat of the
> brow", which held that the mere collecting  of data was  sufficient to
> permit  granting of a compilation copyright.  (Franklin 84-85).
>
That's odd, because I was taught in my copyright class that 'sweat of
the brow' was no longer a valid legal concept in US copyright law, and
did not serve to justify copyright. Of course I'm not a lawyer either.
But that goes with your next point 4, that "copyright in a factual
compilation is thin", regardless of how much sweat was put into it.

> 4) The landmark  case on the scope of compilation copyright in "mere
> facts"
> is Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
> (1991).   In this case, the Supreme Court held that "[...]copyright in a
> factual compilation is thin. Notwithstanding a valid copyright, a
> subsequent
> compiler remains free to use the facts contained in another's
> publication to
> aid in preparing a competing work, so long as the competing work does not
> feature the same selection and arrangement." (Feist, supra).  Indeed,
> "[t]his result is neither unfair nor unfortunate. It is the means by
> which
> copyright advances the progress of science and art." (Feist, supra)
>
> 5)  Standard arrangements based on alphabetic, numerical, or
> lexicographic
> ordering are public domain. (Feist, supra).  Exhaustive enumeration
> exhibits
> insufficient creativity in selection to pass the constitutional

(Continue reading)

Tim Spalding | 30 Apr 16:45

Re: Ah, wonderful copyright

There's a good discussion on BitLaw.
http://www.bitlaw.com/copyright/database.html

The question is if the OCLC catalog can be described as "selected,
coordinated, or arranged in such a way that the resulting work as a
whole constitutes an original work of authorship," and, if so, whether
OCLC itself is the author and not the libraries with membership in
OCLC. Anyway, even if the whole can't be copied, you can extract a lot
of facts (ie., MARC records) from it without touching the "work."

I think we're set on copyright, but we need a deeper look at the OCLC terms.

Maybe we should have an X-prize for testing OCLC's claims. I'd put
some money up.

On 4/30/07, Jonathan Rochkind <rochkind <at> jhu.edu> wrote:
> Simon Spero wrote:
> > 3) The legal theory behind the registration was  that of "Sweat of the
> > brow", which held that the mere collecting  of data was  sufficient to
> > permit  granting of a compilation copyright.  (Franklin 84-85).
> >
> That's odd, because I was taught in my copyright class that 'sweat of
> the brow' was no longer a valid legal concept in US copyright law, and
> did not serve to justify copyright. Of course I'm not a lawyer either.
> But that goes with your next point 4, that "copyright in a factual
> compilation is thin", regardless of how much sweat was put into it.
>
> > 4) The landmark  case on the scope of compilation copyright in "mere
> > facts"
> > is Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340

(Continue reading)

Andrews, Mark J. | 30 Apr 16:53

Re: Ah, wonderful copyright

It might be cheaper to have an X-Price to replace OCLC than test its
claims in court.

Mark Andrews

-----Original Message-----
From: Next generation catalogs for libraries
[mailto:NGC4LIB <at> listserv.nd.edu] On Behalf Of Tim Spalding
Sent: Monday, April 30, 2007 9:46 AM
To: NGC4LIB <at> listserv.nd.edu
Subject: Re: [NGC4LIB] Ah, wonderful copyright

There's a good discussion on BitLaw.
http://www.bitlaw.com/copyright/database.html

The question is if the OCLC catalog can be described as "selected,
coordinated, or arranged in such a way that the resulting work as a
whole constitutes an original work of authorship," and, if so, whether
OCLC itself is the author and not the libraries with membership in
OCLC. Anyway, even if the whole can't be copied, you can extract a lot
of facts (ie., MARC records) from it without touching the "work."

I think we're set on copyright, but we need a deeper look at the OCLC
terms.

Maybe we should have an X-prize for testing OCLC's claims. I'd put
some money up.

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