From: Michael Carroll <[log in to unmask]>
Date: Wed, 5 Feb 2014 09:08:32 -0500

Just so everyone is clear, in the United States text mining is a user's
right not a copyright owner's right.  When a library signs an agreement
denying users the right to bulk download for the purpose of text mining,
the library is giving up a user's right in exchange for access to the
publisher's database of articles.  I understand that this may be part of
the price for access, but you should at least get a discount since you're
being asked to give up some legal rights as well as money in exchange for
access.  In Europe, the legal situation is more complicated because of
database rights and the absence of fair use.

Here's the quick explanation.  If by "text mining" we mean computational
analysis of textual data that results in durable outputs that extract
facts and ideas but not actual chunks of text, then there are two ways to
go about it.  Because computers have to make copies to function, temporary
copies are made in the computer's random access memory while the
processing is going on.  In the US, the user has the right to make these
copies.  Why?

The copyright owner owns the exclusive right to reproduces the copyrighted
work "in copies or phonorecords."  A "copy" is a defined term that
requires that the copy be "fixed" in a tangible medium.  The courts have
agreed that digital data residing on a hard drive is "fixed."  But, for a
work to be fixed it must be capable of being "perceived, reproduced or
otherwise communicated" for a period of "more than transitory duration."
The Second Circuit Court of Appeals has ruled that a buffer copy lasting
only 1.2 seconds was not "fixed" because that is a transitory period.
Therefore, the temporary copy is not a "copy" under copyright law and
therefore users rather than copyright owners have the right to make such
temporary copies.

(I know that's more complicated than it should be, and it's why we lawyers
often put words in quotes to signal that a word may have a specific legal
meaning rather than its plain ordinary meaning.)

So if your users just want to run the analysis off of the copies stored on
the library's or publisher's hard drive, no copying is taking place as far
as copyright law is concerned.

However, most researchers also want to keep a reference copy of all of the
text.  Can they?  Yes, if they are not making these copies publicly
available.  Making these copies for the purpose of serving as a reference
to back up research results is a transformative use that does not harm the
copyright owner's economic rights in the works and is therefore a fair
use.  I've been saying this for some time, but it's nice that the same
court of appeals essentially came to the same conclusion in the Google
Books case.

So, Elsevier may have the rights to control text mining in some European
countries, but this announcement still means that in the US Elsevier wants
to control computational research in ways that go beyond its rights as a
copyright owner.

Best,
Mike


Michael W. Carroll
Professor of Law and Director,
Program on Information Justice and Intellectual Property
American University Washington College of Law
Washington, D.C. 20016

Faculty page: http://www.wcl.american.edu/faculty/mcarroll/
Blog: http://carrollogos.blogspot.com
Creative Commons: http://creativecommons.org
Public Library of Science: http://www.plos.org



On 2/4/14 6:20 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>From: Ivy Anderson <[log in to unmask]>
>Date: Tue, 4 Feb 2014 05:32:56 +0000
>
>This short article from Nature News may be of interest to LibLicense
>readers:
>
>Elsevier opens its papers to text-mining
>Researchers welcome easier access for harvesting content, but some
>spurn tight controls.
>
>Richard Van Noorden
>03 February 2014
>http://www.nature.com/news/elsevier-opens-its-papers-to-text-mining-1.1465
>9
>
>Ivy Anderson
>Director of Collections, California Digital Library
>University of California