I was reminded once again of Mark Twain’s comment — “Only one thing is impossible for God: to find any sense in any copyright law on the planet” — as I listened to Professor David Nimmer deliver the annual Frey Lecture in Intellectual Property at the Duke Law School this week. As the person now responsible for revising and updating the seminal treatise Nimmer on Copyright, which was begun by his father over fifty years ago, Professor Nimmer has the monumental task of trying to make U.S. copyright law and jurisprudence coherent by creating a framework that makes it all (or most of it) make sense. Judging from his lecture, it is a task he embraces with grace, humor and aplomb.
The title of Nimmer’s lecture was “Infringement 2.0,” and his overall framework involved the changing role of copyright and infringement in the current environment, where copyright protects every scrap of original expression, whether the creator needs or wants that protection, and where copying and widespread distribution can be accomplished with the click of a mouse. I want to try to outline several points from the lecture that seemed especially interesting to me (fully recognizing that I alone am responsible for any misrepresentations of Prof. Nimmer’s meaning).
Nimmer began with a more qualified definition of infringement that we tend to think about normally, in my opinion — the unauthorized wholesale copying of works of high authorship. Not just unauthorized copying, but wholesale copying of works of high authorship. This definition seems to suggest that courts should not spend time worrying about copyrights in family photos and other ephemera; Nimmer even raised the question of whether we should protect pornography, although he immediately recognized the First Amendment issues that such a stance would raise.
With this qualified definition of infringement as a starting place, Nimmer took us on a tour of some recent copyright rulings. What I found really interesting was his suggestion that courts are using fair use, in the digital environment to approximate the qualified definition of infringement that he suggested. Two examples will have to suffice. In the case involving the anti-plagiarism software Turnitin (A.V. v. iParadigms), the Fourth Circuit rejected an infringement claim based on the copying of entire student papers that are submitted to the service and stored to be used for comparison against later submissions. The Court reached this result by finding that Turnitin’s use was a fair use, and Nimmer suggested that this use did not meet his qualified definition of an infringement because it did not copy works of “high authorship.” More significantly, perhaps, Nimmer also approved of the District Court decision in last year’s Google Books case that Google’s scanning of millions of titles was a fair use. In his framework, Google’s scanning did not amount to “wholesale” copying; even though entire works are scanned in to the database, users see only “snippets,” and those very short excerpts serve important social purposes.
Whatever one may think of the individual cases, this was a fascinating approach. The copyright law says that what is fair use is not, therefore, infringement, so it makes perfect sense, for one sufficiently learned and bold, to try to understand fair use jurisprudence by looking at the limits on infringement that are thus defined by implication.
Another topic Nimmer addressed at length was the doctrine of first sale, and he was highly critical of the Ninth Circuit decision in Vernor v. Autodesk, which found that Mr. Vernor committed copyright infringement when he resold legal copies of CAD DVDs in apparent violation of licensing terms. The Ninth Circuit spent a lot of time examining those license terms, but Nimmer suggested that they were asking the wrong question. The proper question here, he suggested, was not “was this a sale or a licensing transaction,” as the Court assumed, but rather “who was the legitimate owner of the material substrate that made up this copy?” He pointed out that in both the foundational Supreme Court case about first sale, from 1908, and in last year’s decision in the Kirtsaeng case, the Court was dealing with legal copies where an attempt had been made, through a license, to restrict downstream resale of those copies. In both cases the Supreme Court ignored those attempts at licensing and allowed the legitimate owner of the material copies to resell the works on whatever terms he could negotiate. Based on those precedents, Nimmer suggested that the Ninth Circuit erred when it found that Vernor had infringed copyright with his resale, based on provisions in the purported license.
Another place where Nimmer suggested a radical way to rethink the copyright environment was on the international front. He asserted that the foundational principles of international copyright agreements — the prohibition of formalities and so-called “national treatment” — simply do not make sense in the Internet age, where potential copyright infringements nearly always cross national borders, and copyright owners are often impossible to locate. He suggested that this out-dated approach be replaced by something the U.N. and the W.I.P.O could do very well — a searchable, worldwide registry for copyright owners that Nimmer called a “panopticon.” His idea is that if a copyright owner has registered his or her work in the panopticon, they would be entitled to significant remedies for any act of infringement that is found. If they do not register, however, a action for infringement could only result in an award based on actual losses, not the much more substantial “statutory damages” that are often available.
This idea is nothing if not ambitious, but its foundations are commonsensical. If copyright protection is going to be completely automatic, and no notice on individual works is required, it is unfair to insist that users must have authorization for their uses if the rights holders have done nothing at all to make their claims known or to facilitate asking for permission. Lots of other property rights regimes have notice or registration rules (think of buying a house or a car) and those rules are in place to protect the owner. Why not a similar regime for international copyright, with an incentive, in terms of potential recovery available, for participation?
Finally, I want to end with Nimmer’s prediction about the prospect of a new copyright act in the United States. It seemed that he does believe that Congress will seriously undertake such a thoroughgoing revision of the law, and he suggested a betting pool on when the new copyright act would pass. For himself, he wanted to reserve a date in May of 2029. So we have that to look forward to.
A new thing started happening here at Duke this week; we began getting inquiries from some faculty authors about how to obtain a formal waiver of our faculty open access policy. We have had that policy in place for over three years, but for the first time a single publisher — the Nature Publishing Group — is telling all authors at Duke that they must obtain a waiver of the policy before their accepted articles can be published. It is not clear why NPG suddenly requires these waivers after publishing many articles in the past three years by Duke authors, while the policy was in force and without waivers.
Indeed, the waivers are essentially meaningless because of the way Duke has implemented its open access policy. When the policy was adopted unanimously by our Academic Council in March 2010, the statement in favor of openness was pretty clear, but so was the instruction that implementing the policy not become a burden to our faculty authors. So throughout the ensuing years we have tried to ensure that all archiving of published work in our repository be done in compliance with any publisher policies to which our authors have agreed. NPG allows authors to archive final submitted manuscripts after a six month delay, so that is what we would do, whether or not the author sought a policy waiver. But suddenly that is not good enough; Nature wants a formal waiver even though it will have no practical effect. The demand seems to be an effort to punish authors at institutions that adopt open access policies.
There are some comical aspects to this sudden requirement for waivers. As I said, it seems to have taken NPG three years to figure out that Duke has an open access policy, even though we have made no secret of the fact. Even more oddly, the e-mail that our faculty authors are getting from NPG lists nine schools from whose faculty such waivers are being required; apparently it was only four schools until recently. But there are over thirty institutions with faculty-adopted OA policies in the U.S. alone. Some of the largest schools and the oldest policies have not yet showed up on Nature’s radar; one wonders how they can be so unaware of the scholarly landscape on which their business depends. NPG looks silly and poorly-informed, frankly, in the eyes of the academic authors I have spoken to.
In addition to making NPG look foolish, this belated demand for waivers has had positive effects for open access on our campus. For one thing, it simply reminds our authors about the policy and gives us a chance to talk to them about it. We explain why Nature’s demand is irrelevant and grant the waivers as a matter of course, while reminding each author that they can still voluntarily archive their work in compliance with the rights they have retained (which is the same situation as without the waiver). I suspect that this move by NPG will actually increase the self-archiving of Nature articles in our repository.
Another effect of these new demands is that open access and the unreasonable demands of some commercial publishers has gotten back on the radar of our senior administrators. Our policy allows the Provost to designate someone to grant waivers, and, in figuring our who that would be, we had a robust conversation that focused on how this demand is an attack on the right of our faculty to determine academic policy.
This last point is why I have moved, in the past few days, from laughing at the bumbling way NPG seems to be fighting its battle against OA policies to a sense of real outrage. This effort to punish faculty who have voted for an internal and perfectly legal open access policy is nothing less than an attack on one of the core principles of academic freedom, faculty governance. NPG thinks it has the right to tell faculties what policies are good for them and which are not, and to punish those who disagree.
As my sense of outrage grew, I began to explore the NPG website. Initially I was looking to see if authors were told about the waiver requirement upfront. As far as I can tell, they are not, in spite of rhetoric about transparency in the “information for authors” page. The need for a waiver is not even mentioned on the checklist that is supposed to guide authors through the publication process. It seems that this requirement is communicated to authors only after their papers have been accepted. I suspect that NPG is ashamed of their stratagem, and in my opinion they should be. But as I looked at NPG policies, and especially its License to Publish, my concern for our authors grew much deeper.
Two concerns make me think that authors need to be carefully warned before they publish in an NPG journal.
First, because this contract is a license and tells authors that they retain copyright, it may give authors a false sense that they are keeping something valuable. But a careful reading shows that the retention of copyright under this license is essentially a sham. The license is exclusive and irrevocable, and it encompasses all of the rights granted under copyright. It lasts for as long as copyright itself last. In short, authors are left with nothing at all, except the limited set of rights that are granted back to authors by the agreement. This is not much different than publishing with other journals that admit up front that they require a transfer of copyright; my concern is that this one is dressed up as a license, so authors may not realize that they are being just as completely shorn of their rights as they are by other publishers.
My bigger concern, however, is found in clause 7 of the NPG “license,” which reads in its entirety:
The Author(s) hereby waive or agree not to assert (where such waiver is notpossible at law) any and all moral rights they may now or in the future holdin connection with the Contribution and the Supplementary Information.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
Search the Scholarly Communications Blog
- Authors' Rights
- Copyright in the Classroom
- Copyright Information Notes
- Copyright Issues and Legislation
- Digital Rights Management
- Fair Use
- international IP
- Open Access and Institutional Repositories
- Open Access topics
- Orphan works
- Public Domain
- Scholarly Publishing
- Traditional Knowledge
- User Generated Content