Sunday, January 15, 2012

OpenEd Researcher Badge Additional Resources. Open Licensing. #ioe12

The following are three peer reviewed articles and five other resources. These materials cover the Open License topic in the Introduction to Open Education course and are meant to help earn the OpenEd Researcher Badge.

Peer reviewed articles

1. Lichtman, D. (2009). Copyright as Innovation Policy: Google Book Search from a Law and Economics Perspective. Innovation Policy and the Economy, 9(1), 55-77.

Douglas Lichtman provides an analysis of the Google Book Search litigation case and uses it as a lens to study how copyright policy tries to "protect the incentives copyright has long served to provide authors and at the same time facilitate the continued emergence of innovative Internet services and equipment." Google's Book Search project allows users to search the books of the world and then view scanned images of the front and back covers and a number of inside pages. The Authors Guild and the American Association of Publishers are suing Google for copyright infringement arguing that Google has not asked for permission. Google's argument in return is that it would be too costly, or impossible in cases such as orphaned works, and as such would infringe upon their right to innovate.

Lichtman believes, "the result of the case will ultimately turn on the court’s interpretation of section 107 of the Copyright Act" which allows the court to allow copyright infringement if a “rigid application of the copyright statute … would stifle the very creativity which that law is designed to foster.” He then goes on to apply the four factors that courts are required to consider in fair use cases:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
Before concluding Lichtman considers two other fair use considerations - the argument that Google Book Search benefits authors and the promise Google has made to allow authors and publishers to opt out of the project.

In conclusing Lichtman believes the courts will be able to strike a balance between the protection of the copyright holders without imposing such high a cost on Google that it discourages future innovation.

2. Dreier, T. (2010). Limitations: The Centrepiece of Copyright in Distress. Journal of Intellectual Property, Information Technology and E-Commerce Law, 1(2), 50-54. Retrieved from

In this article Thomas Dreier suggests that the history of copyright law in Europe has been about strengthening and extending the exclusive rights that copyright holders can apply to their work. He also suggests that this has been in response to the way technology has made it easy for "unauthorised copying and distributing of copyrighted works." Dreier then goes on to further suggest that limitations to these exclusive rights, such as fair use, are seen by copyright holders as a necessary evil that they have to abide by, as a "tribute" to the public.

While Dreier believes that historically "limitations and exceptions have become the main instrument in order to de-termine the exact scope of copyright," he also believes there are serious doubts this method has produced the outcome intended. He mentions attempts that have been made to remedy the situation: The Three Step Test, and The Draft European Copyright Code. He then notes that the International Conference on Commons, Users, Service Providers – Internet (Self-)Regulation and Copyright "explored both the status quo and the legal possibilities for shaping the limitations and exceptions in a way that they contribute to a balanced and well-limited copyright system ..."

3. Shapiro, C. (2007). Patent Reform: Aligning Reward and Contribution. Innovation Policy and the Economy, 8, 111-156. Retrieved from

Carl Shapiro believes the "U.S.patent system allows patent holders to capture private rewards that exceed their social contributions." Consequently, he analyses two reform proposals, as well as studying three further reforms, in the hope of finding a way to rebalance the system. His analysis mostly looks at the issue from an economic perspective.

Five further resources

In the above New York Times article James Grimmelmann believes Google Books as opt-in will not solve the problem of orphaned books, while Pamela Samuelson believes that the issue of orphaned works should be solved by legislation.

2. Robinson, Z. (2011, October 31). Fair use, fair dealing [Video file]. Video posted to

Zoe Robinson looks at the issue of fair use when using movie trailers in a blog when reviewing a movie. She emphasises the point that where it may be considered fair use to show parts of a movie trailer to help with reviewing a movie, it may not be considered fair use to use all of the trailer in a review.

3. Korn, N. (2011, January 28). What is fair dealing? [Video file]. Video posted to

Naomi Korn in her video highlights the disconnect between the what the law says you can do and what technology allows you to do. The point she is making is that the law is not keping pace with technological change.

4. Lessig, L. (2009, March 12). Do Copyright Laws Stifle Creativity? [Video file]. Video posted to

In this video Lessig shows and comments on a number of examples of how the copyright system is being abused and stifling creativity.

5. Unknown author. (2009, May 1). Episode 33 - Public Goods [Video file]. Video posted to

Understanding the issue of copyright and exclusive rights seems to need an understanding of public goods. This video explains public goods quite well.

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