Research Works Act - HR 3699 - Stealing From the Public Domain?

In the wake of the U.S. Supreme Court's decision in Golan v. Holder last week, bills like the Research Works Act, which is designed to restrict access and limit sharing of scientific data, become more ominous.   More on the Research Works Act from Wikipedia here.   The full text below.

Congressman Darrell Issa and Congresswoman Carolyn Maloney are co-sponsors.

Richard Poynder's take here and here. The American Association of Publishers is behind this apparently legislation.

112th CONGRESS

1st Session

H. R. 3699

To ensure the continued publication and integrity of peer-reviewed research works by the private sector.

IN THE HOUSE OF REPRESENTATIVES

December 16, 2011

Mr. ISSA (for himself and Mrs. MALONEY) introduced the following bill; which was referred to the Committee on Oversight and Government Reform

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A BILL

To ensure the continued publication and integrity of peer-reviewed research works by the private sector.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Research Works Act’.

SEC. 2. LIMITATION ON FEDERAL AGENCY ACTION.

No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that--

(1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or

(2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.

SEC. 3. DEFINITIONS.

In this Act:

(1) AUTHOR- The term ‘author’ means a person who writes a private-sector research work. Such term does not include an officer or employee of the United States Government acting in the regular course of his or her duties.

(2) NETWORK DISSEMINATION- The term ‘network dissemination’ means distributing, making available, or otherwise offering or disseminating a private-sector research work through the Internet or by a closed, limited, or other digital or electronic network or arrangement.

(3) PRIVATE-SECTOR RESEARCH WORK- The term ‘private-sector research work’ means an article intended to be published in a scholarly or scientific publication, or any version of such an article, that is not a work of the United States Government (as defined in section 101 of title 17, United States Code), describing or interpreting research funded in whole or in part by a Federal agency and to which a commercial or nonprofit publisher has made or has entered into an arrangement to make a value-added contribution, including peer review or editing. Such term does not include progress reports or raw data outputs routinely required to be created for and submitted directly to a funding agency in the course of research.

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Supreme Court Decides Golan v Holder

The U.S. Supreme Court decided yesterday that Congress has broad powers to place works in the public domain under copyright. 

Choice nugget:  "Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights."

In light of the SOPA/PIPA debacle, that is entirely unclear.  Decision below.

Golan v Holder

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Eighth Circuit: Adding A Phrase or Dimension to Public Domain Work Is Copyright Infringement

What happens when you take an image from a publicity still for the Wizard of Oz of Judy Garland that has fallen into the public domain and add the phrase "There's no place like home?" where the phrase is part of a book and film under copyright?   Or if you take that same public domain image and render it in three dimensions with the added detail from your own imagination?

The Eighth Circuit has held that you have engaged in copyright infringement in  Warner Bros. Entertainment, Inc. v. X One X Productions (July 5, 2011) (10-1743).

The decision is an interesting one, finding that the enhancements to the public domain works are "evocative" of the copyrighted book and films.   The decision draws interesting distinctions between a "James Bond" character whose visual appearance changes from film to film, and other cartoon-type characters who are recognizable visually.

A lot of thought went into the opinion, but it will be interesting to see whether other circuits or the US Supreme Court follows in light of the opinion in Dastar.

Enhancements to the public domain will be the hot topic of the next few years in copyight litigation, this is not the last word.

A past post on Dastar and this case here.

Dastar Corporation v. 20th Century Fox Film Corporation et al., 539 U.S. 23 (2003)

Patently-O's take on the X One X case with links to documents here.

Warner Bros Entertainment v X One X Productions 8th Cir July 5 2011

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