 So welcome again everybody for the last plenary session of this Libre annual conference. We will have the pleasure to listen to Dr. Andres Guadamuz of University of Sussex, UK whom we invited to speak about copyright, open science and challenges for research libraries. So Dr. Guadamuz, the floor is yours. Okay. Thanks very much to the organizers for inviting me and also to Dr. Lucy Gibot, who I understand recommended me when she was approached. I was lucky that she couldn't be here, so you get me. I come to this topic from long time in researching open source, particularly open science in general, and a little bit of open access actually. I've been involved in some of this from the research perspective of a legal academic. I am a lawyer, so you have no idea how daunting it is to stand in front of a full room or a room full of librarians. Panics from ancient times come to me. But I'm an academic lawyer, so I'm one of the good ones, I think. I've been doing a lot of work in my perspective in this is a lot of very heavy involvement in creative commons. So a lot of the perspective that I have in the open access movement has been from a tinted very heavily with involvement with creative commons have been, I was part of CCUK when it was initially CCUK. Then we split, we voted yes, and we became creative commons Scotland, and now I'm working with creative commons Costa Rica, which I'll explain a little bit in a second. My perspective then is a little bit on that. I'm a licensed geek and I'm very interested in the licenses. So the presentation today is going to be very much general and it's a general overview of what I consider to be interesting legal developments. And already I've been attending many of the talks and I have seen that some of the things that you are talking about are not the same things that I'm interested in. So I'm a very interested in seeing whether there is an interaction because of course you are at the front line of the battle that is being waste. I like to start all of my presentations with an apology and a story. Now my apology, I already apologize that I'm a lawyer. I'm also Costa Rican as I said, so I have to apologize to all English, Italians, Uruguayans, Greeks who may be in their floor, and I apologize in advance to all the Dutch people for tomorrow. I don't know if we're going to, I don't think we're going to win, but anyway. My apologies that this presentation is slightly general, so I'm very aware that many of you know a lot of the things that I'm going to be talking about because it's so same. In my experience, librarians are usually some of the most knowledgeable people about copyright outside of the legal profession and often more than a lot of people in the legal profession. And it's because as I was saying, you are at the forefront of the battle. Now my hope is to continue going through some of the issues that I think are interesting until at some point, hopefully I'm going to say something that you hadn't heard about. So that is my objective for today. And the story is I've been presenting on open source and open access and cleared comments for quite a long time. In 2003, I was presenting at a legal conference in Edinburgh. I was in Edinburgh for many years at the University of Edinburgh. And one of the, I was the first speaker and I was sorry, I was the second speaker. And I was going to talk about open source and a little bit of a legal introduction to open source. The first speaker was one of these very conservative German law professors. I'm not going to mention the name, it's not important. But he's, it was one of those people that you sometimes meet that is not only very conservative but could be accused of being almost unimaginative in many respects. And he was speaking before me and before he presented, he said, by the way, you are going to hear a presentation next about open source, open source software. I haven't heard the presentation, I don't know the speaker but I can tell you from the beginning that this is a ridiculous topic. This is a fad, this is a subject that has no legal interest whatsoever. All of these licenses I think that are invalid. And I'm sure that if they ever get to be tested in court they're going to be struck down. Because he gave a couple of explanations. Besides it being incredibly rude to dismiss an entire field that he was obviously not an expert in, he was also wrong. So I got up, presented and thankfully I didn't even have to change the slides. One of my first slides was just recently at court in Munich has checked the validity of the GPL, the GNU General Public License and has been accepted in court and its validity has been completely accepted. The professor was looking a little bit flustered and he didn't even ask a question and he left the room. I think that that's why I have a picture of a cat. I like cats in my presentations. You're going to see several cats today. And what I have here is that through the years I've noticed a very interesting change in the debate. First we started with this idea that whenever I was presenting about open source I was like the communist coming to talk about incendiary things and I was here to start a revolution. And that's why I have Chairman Miao here. Chairman Miao, oh yes, really. But it's changed the debate and the debate has changed in a way that I think and please forgive me if I'm a bit triumphalist in this. I think we won the debate at some point. It started changing from us being representing radical ideas about that could be seen almost like communist or what do you want, sharing information or who's going to pay for it. It was one of the things that they would tell us. But the whole idea of openness, the ethos that drives us has been winning slowly. When we are looking at this from a legal perspective we are looking at licenses that allow us to use redistribution modification and access to sources. It can be access to source code in open source for example. This idea of sharing information under this is good. These are truths that I believe are self-evident and we have been winning the debate. And the debate has been won in almost all of the fields. Open science, I like to think about it as the meeting or the reunion of all of the openness movements that share all this idea of sharing information, open access, open data, open source, open content, creative commons, from a scientific perspective also things like at some point open biotechnology, all of these ideas of sharing information. I'm using licenses or contracts sometimes to share that information. And we've been winning the debate where it matters. In the policy, at the policy level. So it's now understood almost universally that if you are going to use public funds to fund your research, then that research should be made available to the public at some point for free. And this has been recognized almost by everyone, the European Commission, the White House has been fostering this and I could show you slide after slide of how this debate has been won at the policy level, research funding bodies. Now we have a mandate and I've seen a lot in the last few years, research funding bodies in the UK, the REF, the academic exercise that is going to look at our output is going to require open access because we are using public money often. So all this debate has been won and I just had to show this. I showed this at the White House published this open data action plan that is now licensing content under CC0. And I love this slide for one reason, I presented it and there were US trade representatives in the room and they just looked like they had bitten a bad apple, I need to say the least. Because I was saying, I don't want to say some truth for this, but I think that we are winning the debate where it matters. So some of the legal developments that I had promised, I'm going to start from the very basic that I think most people in the room are going to know and try to go into some things that maybe you haven't heard before. First, orphan works. I think that by now everyone knows that we had a directive in 2012 that has created a regime for orphan works in the European Union. This applies mostly to works in memory institutions and it defines orphan works as those where an author cannot be identified after a diligent search and the diligent search is identified as done with good faith by using appropriate sources and these are going to be identified in each country through consultation. Now, I won't talk a lot about orphan works mostly because it's a topic that I haven't really been paying attention in the last couple of years after the directive was passed. Mostly because personally I'm waiting for the implementation in each country and I'm looking at or hoping to see how the directive is going to be transposed in each country. There are already some draft legislation out there and I haven't looked at it in a lot of detail, to be honest. If you want to have a look at more information about it, there is a fantastic report from Create People at the University of Bournemouth, wrote the report looking at comparative work, looking at the jurisdictions, at seven different jurisdictions from memory. I think it was Canada, Japan, India, Denmark and some other countries. I think they looked at some of the US proposals and also the European approaches but it's a fantastic look. And personally, I'm pretty sure that people in the room have a lot of information about this. Personally, I'm waiting for the dust to settle and to see how the directive is going to be implemented. Then, very important message that I want to convey from a licensing perspective is that Creative Commons version 4.0 is out. This was done after a very lengthy period of consultation with stakeholders, with all of the member states, the jurisdictions that had already ported the Creative Commons licenses. So I won't talk about it in a lot of detail because I don't want to make this a very CC heavy presentation but there are two important things about CC4 that you should know about. One is that, unlike the previous versions that had been ported, CC4.0 is designed not to be ported. So everyone in the world is going to use the international version, the unported version that was known in version 3.0. So there is not going to be a national port. There is going to be only official translations of the license and that is the plan at the moment. Before we had CC2.0 England and Wales, CC2.5 Scotland, CC3.0 Netherlands, et cetera, et cetera. We had lots of ports, CC3.0 Costa Rica. Each country that was interested in porting the license translated it and adapted it to its own jurisdictions. This is no longer the case. The plan with CC4.0 is the entire world is going to use exact same license. Also, the other important thing is that the language has been internationalized and particularly this is a license that, this is a license that allows for the re-license and reuse of databases. If you have been keeping up with the debate with what has happened with licensing of databases, 3.0 was a license that specifically did not allow for the re-license of database right in Europe, which led to a forking almost in the adoption of some licenses that led directly to the creation of the Open Data Commons licenses which are designed specifically for databases. Now this has been changed. I think Creative Commons accepted that a mistake had been made and some governments as well created their own versions of licenses. I know the UK government created their own government license for the Open Data Schemes because the database license wasn't licensed or included in the license. This is the main change on 4.0. So the message that I want to convey to anyone who is already using CC in the repositories is to migrate to CC 4.0. I strongly encourage people to adopt the new licensing and I'm sure Creative Commons will be happy to help you if you have any questions about that. Enforcement, this is something that always comes up. Even now, I have been talking about this in Costa Rica sometimes and there is always a lawyer in the room that raises their hand and says, I'm sorry, but these licenses haven't been tested in court in Costa Rica, so they're not valid. And I just smirk and so many licenses haven't been tested in court and we are always considering them valid and every time I hear this argument, I just look at them and say, okay. So you're telling me that every Microsoft license in the world that hasn't been tested in court is not valid. It's an absurd argument and you can tell them if they ever tell you that, that there are lots of implementation and the licenses and open licenses in general have been declared valid in court. Every single time they get to court, there is not a single court that has said these licenses are not valid. We've had cases, a large number of GPL cases in Germany. There is a very important case in Jacobson versus Katzer in the United States, which was about the open artistic license, if I remember correctly, and lots of Creative Commons cases as well. So every time you hear and maybe you've heard it before, every time you hear someone say, oh, these licenses haven't been tested in court, it's a lie. They have been tested in civil law systems and in common law systems. So I think they're as valid as any other license agreement that we sign all the time. This is from when we could still smoke or I used to be a smoker, you could still smoke inside cafes, that picture. And they listen to Creative Commons music as well. Another interesting development that I wanted to tell you about is that Creative Commons has just released. I'm trying to think exactly, I think it was November or December of last year or maybe it's a bit later than that. A new set of licenses that are for intergovernmental organizations. So if you are in any way related to an intergovernmental organization, you can use this license. Now, this is a 3.0 version of the license, of the Creative Commons license. It's a bit complicated because as I was telling you, 4.0 is not going to be ported. All of the ports that happen that were negotiated before are coming out as 3.0. So there are some countries that were lying behind in the porting process and those countries are still going to get their version of the license. Now, this 3.0 version of intergovernmental organizations is being, was negotiated between Creative Commons and WIPO, the European Space Agency, the World Bank, UNESCO, all sorts of very good organizations. And this is out. The main thing that it contains is an arbitration clause. So because intergovernmental organizations do not like being taken to court, it was an arbitration clause was included in the license. So if you're in any way related to them, this is good news. And also I think it shows how far we've become from this 2003 when people were dismissing the licenses and the movement. That now it's a de facto standard even for international organizations like WIPO and the World Intergovernmental Organization. They're very, very heavily involved in this process. I know that everyone is aware of CC0. I didn't put this, I sort of was thinking that this should be my first slide because everyone now knows what CC0 is. The one reason why I didn't put it at the beginning is that there is a little feature that people may not know about CC0. CC0 is a Creative Commons license that allows people to dedicate a work into the public domain. The funny thing is that not every jurisdiction allows users to dedicate things into the public domain. This is actually, I just wrote, this is a bit of an announcement, personal announcement. I just presented and published a report for WIPO on copyright relinquishment. It's a comparative study of jurisdictions looking at which jurisdictions allow you to relinquish or renounce your own copyright. And it's still ambivalent in many jurisdictions. So there has been a lot of talk and even scholarly works have been claiming that some jurisdictions do not allow you to renounce to your copyright. So that's why we have CC0. CC0 acts wherever you can renounce to your copyright, you can renounce it through CC0. It's a public domain dedication, but if your jurisdiction does not allow you to renounce or to relinquish or to dedicate into the public domain, then it works as a license. As a license that operates giving you all of the rights just as if the work was in the public domain. So it's quite nice trick that CC0 pulls. And I think it's something that is not advertised sometimes because you may encounter that your jurisdiction does not allow public domain dedications and then probably someone is going to say, oh, then you cannot use CC0. No, you can't still use it because it operates as a license. Then data mining. This is a topic that I still think it's legally open. Now, we can assume that if the database is original, then probably it is protected by copyright. I'm saying probably because this is an area of law that hasn't been tested, data mining specifically. And I think it's going to come down to specific cases and what operation is being performed of the data. I have a study and there is a link to it in one of the later slides. So I'll be happy to discuss this in more detail. But generally, I still think that the question is not open, but if we are going to be conservative and assume that data mining is protected by copyright, that the database is themselves or by the database, right? Then researchers will need a license. Now, I've seen this discussed a lot and I'm not going to go through a lot of detail on the legal perspective because I think that at the moment it's open as many of you know, the UK has just passed a series of reforms to its copyright legislation, including Parody, private copying. We can finally rip CDs legally, imagine, it's 2014. But also it allows for, it creates an exception in the legislation for data mining for non-commercial purposes and this is something that has been discussed a lot. Why am I saying that this is not an important legal issue because I want to send a very strong message. Oh, here's one of the cats, by the way. I want us to preempt the legal debate. It doesn't matter, okay, the UK has created an exception but it's for non-commercial purposes. What happens if you have commercial funding, et cetera, et cetera. Let's preempt the debate by making sure that the originators of research, that is OSAS researchers and you ask curators of that research through institutional repositories or libraries that we are sure that this data is being offered under some form of open or permissive license or you have at least a policy that allows data reuse and data sharing. And I just use open licenses for your work because this is, I didn't put the link but at the bottom is the name of the report, the article that I wrote with Diane Cabell in this topic and we looked at this data from 2012, recorded metadata reuse policies, 59% were undefined. And in recorded full text data reuse policies, this is UK only for 2012, 55% were undefined. So please, let's move this. I'm guessing that maybe the figures have shifted in the two years since we did this research. But this is appalling. We should be making sure that repositories, libraries and all sorts of data that is publicly available has a policy that allows reuse or if it's not allowed that at least it's stated somewhere because I spent days and days and days looking at policies in repositories and it was appalling. I'm sure that many of the people in this room, if you're here for a reason, you're the ones that are in the minority but we need to change this really. We need to make sure that all of our policies are stated and can be found through computers. So that is, if you don't get anything at all from this talk, please at least go to your repositories and to your institutions and try to make sure that we have very clear data because then if we are allowing data mining in our institutions on that other source, then the legal questions are moot, really, because it's already licensed. That is the whole idea behind open access, I think. Just briefly, I heard a lot of concerns about APIs in general and I wanted to just quickly refer to it because it's a topic that is of increasing concern. A lot of the interaction with data nowadays occurs through APIs. Now API law usually is governed by contracts by terms of use, terms of service or end user license agreements. That is well and fine. Now because it's governed mostly by contract, it's a subject that you're going to be bound by terms and conditions of the API that you're using. Now what if you want to create your own API? This is already being the subject of some case law. Oracle versus Google is an interesting case where it was a lengthy piece of case law that had patterns, trademarks, and a little bit of copyright. And the copyright part is that Google created its own API that resembled Oracle's API and they created it because they didn't want to pay Oracle royalty fees, licensing fees. In the end, the ruling found that the structure with which Oracle had created, in which they had created their API was not subject to protection. The same has happened in the UK and ECJ. SAS versus World Programming is a case that even though it's not specifically about APIs, it's about functional elements of software and the ECJ, the European Court of Justice, found that functional elements are not protected by copyright. So this could apply or could be used with APIs. Okay, a couple of other cases. This is 2004 and I can't believe that we're still talking about linking in case law, but there has been case law on linking. That means whether this is important for libraries because for example, aggregator services have been taken to court by aggregating information and linking to it. For example, this is Vincent and others, it's a Swedish case that made it all the way to the Court of Justice of the European Union. And a group of journalists were writing for the newspaper website and they sued Retrievers Ver... I'm sorry, I can't pronounce Swedish. A commercial indexing service which provides its clients with links to articles published by other websites. So the claimants argued that the practice amounted to copyright infringement because it was not clear that they were being direct to a site hosting content in another website. Well, the defendants claimed that their clients knew that the content was hosted elsewhere. This is important for librarians, I think. It's a very important case because sometimes what you're doing is indexing information. Now, the court decided that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public and therefore it's not copyright infringement. I was saying, it's crazy and amazing that we're still talking about linking data in 2014 but it's something that has made it to court. So I think it's important for you to know that this is finally getting decided. And a public relation consultants versus NLA, it's another linking case and it's very similar. So I'm just going to run through it because I'm running out of time. Just quickly, if you're going to have access to this, I am part of a project that is looking at creating a social layer for legislation case law in the European Union called Open Laws. And I would love if you would be able to fill a survey that is linked there. We are trying to get information from people who handle legal information, things like case law and law. If you handle that in any of your institutions, we'd love to hear from you of how your users are using that data so that's an announcement. My final, I've run through, I know it was a bit of a gallop through some legal issues that I think are interesting. I'm already these days, I've noticed that there are things that I haven't even beginning thinking about. Linking data, I think it's an interesting legal issue. I haven't even really touched on metadata. There is things like copy fraud, what happens if something is in the public domain and someone is digitizing it, what are the copyright issues of that? I haven't even begin touching on those issues. So I know that there are more aspects or more legal aspects that I haven't even begun. I would like to then hear from you and hear from your experiences and I cannot provide legal services, by the way. But thanks very much. Questions? Thanks so much to Dr. Gwazamus. Do we have a question for him? Thank you. David Proste from Research Library UK. Thanks for that. It's a very clear presentation of what is a very, for many of us, a very complex issue. I'm not actually going to ask a question. I've got a comment because just now there's been some added complexity. The large publishers association, STM, who represent the large commercial journal publishers, have just released a set of rival open access licenses to Creative Commons. So they've created their own licenses that they're going to be promoting. So STM has Elsevier, Wiley, Springer and such like as their members. And so my initial, following an initial reading of the licenses, I want to encourage all of us to try and resist this because it's going to add greater complexity. It's going to make text and data mining even harder because there'll be so many different licenses and such like. So if we can stand firm and promote Creative Commons as the ideal license for openness, I think that'd be a very positive thing. Thanks very much. Completely agree with that. I don't want to sound, as I was saying, a selling Creative Commons too hard because I've worked with Creative Commons, but I think there are very important advantages to using Creative Commons over, even though I was part of the team that gave rise to open data commons, for example, I'm encouraging now people to migrate to Creative Commons just because it makes interoperability much easier. It's much, anyone that knows about open source software knows that nightmare that is interoperability between open source licenses, some are interoperable only downstream and it creates a huge problem. So I encourage people to actually try to maintain themselves in the same licensing environment because it makes sharing much easier. It avoids complex interoperability issues and I'll have to look at the licenses. Are these licenses, all I can say is good luck with that. Yeah. Do we have other questions for Dr. Guedermas? Mariam Borosti from Fraunhofer Research Center. I didn't follow completely the discussion on the copyright issue concerning the Google snippets. Search results are presented that might touch us as well. So if we gather information and want to present something, can you tell us the status of the discussion? What is the copyright status of those snippets and how those discussions will end up? So what has been happening with the snippets, things like Google News, it has been a subject of, I wasn't really talking about the snippet aspects, specifically more linking to data. I know that they have been subjected to cases and litigation in some national countries. Now, I haven't been following too much the debate, but I know that there have been adverse cases to snippets in the Netherlands and in Denmark, if I understand correctly. Now, it hasn't made it all the way to the ECJ and I'm hoping that if it does, it's going to receive the same type of treatment that the linking has received. So the cases that we have at the moment are not of snippets. They're about linking to data where it may seem that the data is located somewhere else. So as far as I know, it hasn't made it to the ECJ. It's unfortunate that some national courts have declared some snippets to be infringing copyright. It's completely unfortunate. I'm hoping that this is just an aberration. Sometimes some national courts do things that we don't agree with. But I'll be happy to find out if there have been some other litigation in other countries. Those are the two cases that I'm aware of at the moment. Yeah, thanks. Last question. I have just one thing I would, I don't want to let you go without asking. If a library, as my library, we don't have any lawyer in the library. If there is one thing we should do and could do as a library without any lawyer inside, what would be the thing you say that you can do and this would be effective to be better? Oh, that's an excellent question. I'm an academic lawyer, so I don't like lawyers either. No, just joking. I would say that having a clear policy, I know that at least in the UK, I'm aware that a lot of bodies, I know Research Councils UK is a good example, GS, Sherpa, they have a lot of documentation that allows librarians to bypass legal advice specifically. So any very clear policies is the way to go, I think. Hopefully machine readable, machine searchable, some form of a standard RDF. Now there are lots of formats and technical formats that can allow search engines to read rights. And I think that can be implemented without any lawyer. So if you have a very clear set of policies, it's the best way to keep the lawyers away. Definitely. Okay, so thank you again, Dr. Guadamos. I'm very happy to do that. Thank you.