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