1. San Cannon Federal Reserve Board IASSIST 2010
Copyright and “Facts”: Issues in Licensing and Redistribution for Social Science Data Professionals
San Cannon
Federal Reserve Board
IASSIST 2010
Disclaimer: I am not a lawyer and do not assert that this discussion is a substitute for legal advice. The analysis and conclusions set forth are those of the author and do not indicate concurrence by the Federal Reserve Board or its staff.

2. What is copyright? In the US, it’s a bundle of rights:
Reproduce (copy) the work
Prepare derivative works from the work
Distribute copies of the work
Perform the work publicly (e.g., song)
Display the work publicly (e.g., painting)
Internationally, the rights are similar:
Mostly governed by Berne convention and WIPO Copyright treaty
EU has some special cases

3. Why should you care?
Copyright does not subsist in facts but it can in collections of facts – e.g. databases.
Copyright protection under U.S. law requires “originality” – very low, but not non-existent standard.
Some places still use “sweat of the brow considerations”.
Problem: most determinations are based on copyright infringement claims (ex post).
Point: assume any dataset is subject to copyright (ex ante).

4. EU Database directive Directive 96/9/EC on 11 March 1996
Provides sui generis protection - specific protection for databases separate from general copyright law.
Spells out definition of database, protection requirement, rights and infringement, exceptions, and terms of protection.
Meant to try to introduce consistency across the EU but adoption, interpretation and implementation are varied.
Wikipedia: “a legal classification that exists independently of other categorizations because of its uniqueness or due to the specific creation of an entitlement or obligation.”
Detailed discussion of each point can be found in Derclaye (2008)
Definition of dataset: “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.”
Protection requirement: “qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents”
Rights: “to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”
Infringement: “The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database”
Exceptions: Articles 8 & 9 outline responsibilities and exeptions, including one for teaching or scientific research but requires attribution. Allows for “public security”, “administrative” and “judicial” uses.
Term: 15 years.

5. Fair use
An exemption from copyright infringement under U.S. law that allows for use of copyrighted material without owner’s consent under certain circumstances.
By law, “fair use” is a case-by-case determination that is made based several factors.
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

6. The “fallacy of fair use”
Using an entire dataset is almost never “fair use” (quantity consideration)
Even small amounts of info can violate copyright (300 words of Ford memoirs, 11 words in news clip case)
Most datasets have (potentially considerable) market value – therefore unauthorized use generally has market effects which means it’s not fair use.
Fair use is a judgment after the fact. A fair use ruling in a court case may not undo any damage from the case having been filed in the first place.
AKA “Fair use is no excuse”
Ford case: in 1977 Ford contracted with a publisher to publish his memiors. That publisher then contracted with Time magazine for and exclusive excerpt to publicize the book. “The Nation” magazine got a hold of the unpublished manuscript and published a 2250 word article where around 300 words were taken verbatim from the several hundred PAGE book. They claimed fair use. They got shot down because the 300ish words were the bit about the Nixon pardon which the court determined affected the market value of the book since that’s the only reason people might be interested in buying the book.
EU: The EU court ruled that a Danish media monitoring company was guilty of copyright violation for distributing 11 word excerpts from Danish newspapers. The media company searched for a key word and took the 5 words before and 5 words after that word and sent it to clients with a note where the snippet came from. It’s possible that those 11 words would constitute the “good bits” (aka originality) and therefore violated copyright.
The nature of databases is such that it is possible to define sub-sections of a database as databases themselves so conceivable any extraction uses an “entire database”. See Davidson (2003)
If an institution is risk averse, any court case for potential infringement is unwanted regardless of the outcome.

7. Why copyright may not matter
Many datasets are now published with specific licenses or “terms of use” which define a user’s rights.
In many cases, these terms may (will?) be more restrictive than what copyright provides.
If data are licensed, fair use doesn’t apply.
You don’t need to sign a contract to be bound by terms – “click wrap” and “browse wrap” licenses are common.
Split decisions on legal challenges to browse through licenses: Specht v. Netscape – browse through license was insufficient for contract on a software download. But Pollstar v. Gigmainia browse through license may be arguably valid and enforceable” - The court agreed with Defendant that the license agreement was not readily apparent on the webpage, however the court declined to declare it invalid and unenforceable at this time.
But: Molnar v Flowers.com, 2008 WL at *7 (C.D. Cal. 2008) ("[C]ourts have held that a party's use of a website may be sufficient to give rise to an inference of assent to the terms of use contained therein.").

8. Example “But it’s free! I got it off the web”
Actual terms of use statement for CRB “free” data:
The Information provided by Commodity Research Bureau crbtrader.com web site is owned by or licensed to Commodity Research Bureau - crbtrader.com and any user is permitted to store, manipulate, analyze, reformat, print and display information from Commodity Research Bureau - crbtrader.com only for such user's personal use. In no event shall any user publish, retransmit, redistribute or otherwise reproduce any information from Commodity Research Bureau - crbtrader.com in any format to anyone.
Presentation of data in a research paper – even in a graph – can be deemed a reproduction.

9. What about government data?
No agency of the United States government can copyright the works of its own employees.
Other agencies and institutions can, and do, assert copyright or impose terms of use:
“No part or parts of this portal may be modified, copied, distributed, retransmitted, broadcasted, displayed, reproduced, published, licensed, transferred, sold or commercially dealt with any manner without the express prior written consent of the Department.” (Department of Statistics Maylasia)
“No part of this material in either its printed or electronic format may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner.” (UN)

10. What about government data? (2)
The publications and data made available on the current site may be viewed and consulted free of charge; they may be reused, including for commercial purposes, without a license and without payment of royalties, subject only to the following reserves: the user must respect the integrity of the information and data, and mention the source specifically. ” (INSEE)
“Any distribution and reproduction of information shall be accurate; the Bank of Slovenia shall be cited as the source.”
“The copyright in the material available on this site is, unless otherwise specifically stated, the property of the Central Bank & Financial Services Authority of Ireland. The consent of the Bank is required before this material or any part of it may be copied or adapted in any form or made available to the public by any method and any such consent is conditional upon appropriate acknowledgement being given of the Bank’s rights” but you can “print out hard copies for personal or business use”

11. Words of wisdom
Always investigate possible uses and restrictions on data that you use: public, free, purchased or otherwise.
Understand and respect the terms set forth or negotiate new ones.
Educate your users on licensing issues: free does NOT mean unrestricted.
Befriend your legal staff – they can make things easier.
Never think you can tell what is “fair use.”

12. The last slide Thanks for listening! Questions?
Thanks for listening!