Category Archives: Copyright Issues and Legislation

Copyright Issues and Legislation, Digital Rights Management, Technologies

P2P and New Business Models

Peer-to-peer file sharing is usually not a scholarly communications issue in itself. Most such activity involves the infringing reproduction and distribution of music and video files, and it is more of a problem for colleges and universities than a benefit. Nevertheless, there are legitimate forms of file-sharing that happen at universities (and between them), and the big danger that recreational file swapping poses to schools is that draconian measures to control the illegal activity will also inhibit legal and productive collaboration.

Each time Congress proposes to address file-sharing at universities, this is one of the concerns that unites the higher education community against the proposals. Another concern is that the cost of implementing new mandates will be very high, even though university networks account for only a small portion of the overall problem. The recent proposal in Congress (see article here from the Chronicle of Higher Education) is a case in point. The proposal to require that universities develop a plan to address file-sharing is a little bit insulting – most schools already have a plan – and the instructions to offer alternatives to illegal music downloading and to explore technological solutions to the problem are unfunded mandates that could cost hundreds of millions of dollars. And filters that stop music sharing may also inhibit legitimate collaboration; the history of Internet filters suggests that they are often more effective at preventing legal activity than illegal.

The problem posed by illicit file-sharing will not be solved by increased enforcement measures; the genie is already out of the bottle in that regard — P2P swapping has grown beyond the bounds of any attempt to stop it using either law or technology. What are needed to curb the growth of P2P are business models that make legal acquisition of digital music and movies more attractive than the illegal alternatives. Georgia Harper from the University of Texas (see her blog here) has been a vocal advocate of business model development as a solution to some of our current copyright problems, and a conversation between Georgia and some speakers at a recent conference caused me to start wondering what such business models would look like.

One possibility came to my attention (rather belatedly, I suppose) while watching a football game on Saturday. Verizon Wireless was heavily advertising its V-Cast Song ID service, which allows a user who hears music that they like to capture a sample of the audio, identify the song and purchase a copy directly from, and to, their cell phone (see news report here). This, it seems to me, is exactly the kind of value-added service that can move listeners back to legal music downloading services, and it represents a much more positive solution to the problem of file-sharing than any of the legal remedies yet proposed.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories

To Assign or Not To Assign?

The International Association of Scientific, technical and Medical Publishers issued a statement last month on the benefits to authors of assigning copyright to publishers. The thrust of the statement is that publishers are better placed than authors to defend against plagiarism and copyright infringement, to ensure broad dissemination of the articles in question, and to manage issues like requests to reprint and migration to new formats. Each of these points is very debatable, and Peter Suber provides both excerpts of the document (which is itself very short) and a comment that refutes the assertions list above in a very concise and competent way. Not surprisingly, his conclusion is that publishers primary concern is to protect their own interests and that a concern for authors’ rights is, at best, secondary.

One point on which Suber and the STM publishers agree is that a complete assignment of copyright need not preclude authors from making their work available in open access through a personal webpage, institutional repository or disciplinary archive. Even when faced with a demand to assign the copyright, authors may negotiate to retain the right to deposit their work in the ways suggested, as well as to retain other rights. There seems to be little doubt, and the STM publishers do not even argue the point, that open access deposit is a benefit to scholarly authors. But authors will have to decide for themselves if assigning copyright while retaining that right really serves their best interests or whether they should negotiate to keep their copyrights and give the publisher a more limited permission to publish.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Technologies

Second thoughts

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On Google — the New Yorker has a learned and fascinating article on the Google Library project this month, by historian Anthony Grafton. The Google project has gotten inordinate praise in some quarters, as well as its share of criticism (see here, for my contribution to the latter). But Grafton’s article is neither wholly critical nor wholly laudatory; his is an attempt to place Google in the history of efforts at building a universal library and to realistically assess what can actually be accomplished. He points out that a truly comprehensive history of humanity, which some have claimed Google will provide, will still remain out of reach. For example, much “gray” literature and archival material will never see the light of scanning, nor will the cultural production of many of the world’s poorest countries.

This latter point is especially troubling. Poor countries are not just consumers of cultural production, they do also produce it. The digitization of so much western/northern literature could have two negative effects on this production. One would be to push developing world literature further to the margins in the developed world. The other is that, in so far as technology is available within those developing countries, the easy access to material through Google could marginalize a country’s own cultural production even within its borders.

Nevertheless, Grafton is properly amazed at the level of access that digitization has made possible. As he says, picking up his opening theme, “Even [Alfred] Kazin’s democratic imagination could not have envisaged the hordes of the Web’s actual and potential users, many of whom will read material that would have been all but inaccessible to them a generation ago.” Digitization offers great things, but a realistic valuation of those benefits recognizes that no single means of access should replace all the others; the Internet will continue to coexist with libraries, archives and whatever the future holds that we can not yet imagine; all will be part of any genuinely comprehensive look at human history.

On Second Life — On a less exalted plane, the New York Post reported last week on a law suit filed by and against Second Life entrepreneurs alleging copyright infringement of products designed and sold entirely within the virtual environment. See another comment on the lawsuit here. As the comment points out, many educators are looking closely to consider the educational potential of Second Life or other virtual worlds. This lawsuit raises some interesting questions that will need to be answered in order to exploit that potential. For example, do real world laws protecting the rights of creators even apply to Second Life? Is copying someone else’s design in Second Life stealing, as the plaintiffs allege, or is it merely part of a giant “video game” that should not have real world legal consequences? The answer to that question should be a prerequisite to placing educational content into Second Life; teachers typically want to protect the content they produce, or at least share it on their own terms. Whether Second Life will be subject to real world laws, intra-world regulation amongst its members, or merely arbitrary decisions enforced by Linden Labs, its owner, will have a profound impact on how much time, money and content educators are likely to invest in Second Life.

Interestingly, the same defendant who argues that Second Life is a giant video game in which real world laws should not apply also claims that his home in Second Life was subject to an illegal search and seizure by the plaintiffs when they entered to photograph the allegedly infringing items. Just goes to show how hard it is for us to escape our real world notions of property and privacy.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

NIH public access and copyright

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Last Tuesday the Senate passed a FY 2008 appropriations bill that included language making it mandatory for investigators funded by the National Institute of Health to place the published versions of their results in the open access PubMed Central database within one year of publication. There is a new release about the policy, which was passed by the House in July, here from the Alliance for Taxpayer Access.

A consultant for publishing groups recently posted several questions about how the policy relates to authors’ copyrights on a library listserv, intended to convince academic authors that the policy is some kind of threat to them. By responding to those questions below, I hope to clarify the real relation between this new mandate and author’s rights.

The first question was whether supporters of the NIH mandate believe authors should own their copyrights, including the right to charge for their work. In my opinion, an author should have ownership rights in their own work. I also recognize that the unique nature of intellectual property means that those rights have to be subject to limitations and exceptions in the public interest. Every copyright law in the world, and all of the international treaties, recognize and allow for such limitations and exceptions, so this is not a radical proposition. In any case, the NIH policy is not a threat or challenge to copyright ownership. In fact, the explicit language of the provision passed last week requires that the mandate be implemented in a way consistent with an author’s ownership of copyright.

All that the NIH mandate requires is that authors give to the NIH a non-exclusive right to distribute their work no later than one year after it is published. This demand is a much more modest limitation on authorial rights than is the complete transfer of copyright still demanded by many publishers as a precondition of publication. There is no evidence that this delayed and non-exclusive license would harm an author’s ability to charge for her work, although that part of the copyright has little application in the world of academic authorship. On the other hand, there is evidence that public access as soon as possible will benefit an author’s reputation, which is the real value academic authors are able to extract from their copyright ownership.

The second question was whether supporters of NIH deposit believe that authors should have the right to transfer their rights by contract. Again, I support that right very strongly; I spend a good deal of my time advising academic authors about how to accomplish these transfers in a thoughtful manner that benefits them, not just the other party to the transfer. Again, the NIH policy will not impair the ability to do this, it will simply make such contracts subject to the non-exclusive license described above. Governments often put restrictions and requirements on the contents of contracts; it would be absurd to claim that the Uniform Commercial code has seriously impeded a manufacturer’s ability to sell his goods, even though contracts for sale are much more heavily regulated than a publication contract is, even after the NIH mandate.

One must remember that deposit in PubMed Central will not be required until one year after publication, so there is lots of room to negotiate the exact terms by which that non-exclusive license will be implemented. I will certainly advise authors to negotiate for earlier deposit, since it will be to their benefit to do so.

Finally, supporters were challenged about whether they believe academic work is “work for hire” that is owned by their employing universities, and whether they also felt other faculty work,like inventions, should belong to the school. It seems to me that academic work should not be work for hire, although I recognize the strong legal basis on which some universities claim that it is. My preference is for clear policies that leave academic ownership of copyright in the authors’ hands. But again, the NIH policy has nothing to do with work for hire; it certainly does not involve any claim that funding of research makes a work a work made for hire. Such a claim would be insupportable under our current definition of work for hire.

When something is a work for hire, the ownership of the copyrights vests immediately with the employer. In contrast, the NIH is only requiring, again, a non-exclusive license to distribute which will not have to come into being until well more than a year after the copyright vests in the author.

As for other types of intellectual property, I would note that many academics are not uncomfortable with a work for hire claim over patentable inventions because they recognize that university resources are much more involved in such creations and that the assistance of the university is needed to pursue the complex and expensive process of obtaining a patent. Copyright protection is very different in its origination and its terms, so it is quite rightly treated differently.

Responding to these challenges helped me clarify for myself that the real threat to authors’ copyrights is not the NIH public access policy, but an outdated approach to publishing that tries to build an exclusive market around a non-competitive good (which means a good that can be distributed widely without diminishing its supply or value to the creator).

Copyright Issues and Legislation, Digital Rights Management, Technologies

Fixing the DMCA?

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The Digital Millennium Copyright Act added two important sections to the copyright act, one that has proved somewhat useful in fostering fair use and the balance between owner’s and user’s rights, and one that, in stark contrast, threatens to drastically overturn that carefully crafted balance. The “safe harbor” provided for online service providers has assisted the growth of web 2.0 applications that offer an unprecedented opportunity for user creativity that pushes the boundaries of fair use. The strict protection of electronic protection measures (anti-circumvention rules), on the other hand, has arguably given content producers the means to control each and every use of their content, forbidding any uses they wish to prevent, even if those uses would otherwise be privileged under the rest of the copyright law.

A new article by Professors Riechman, Dinwoodie and Samuelson, available here on the Social Science Research Network and forthcoming in the Berkeley Technology Law Journal, examines these two provisions carefully, in the context of their origins in the World Intellectual Property Organization Copyright Treaty and the US Congress, as well as the important interpretation of each in the courts. The professors find in the development of the safe harbor “notice and takedown” mechanism that has successfully protected OSPs a fascinating suggestion for how to fix the clearly dysfunctional anti-circumvention rules.

It is difficult to summarize an article this complex, although the clear writing and argumentation in this piece makes it far easier than many other law journal articles to comprehend. The authors examine the way the concern of the US courts, starting with the famous Sony Betamax case before the Supreme Court in 1984, to protect so-called “dual-use” technologies (those capable of both infringing and non-infringing uses) so that copyright law not be allowed to stifle technological innovation, laid the groundwork for the safe-harbor provision of the DMCA. Building an elaborate analogy between these cases and the situations in which the anti-circumvention rules would come into play, the three professors suggest that, in the US (the article also deals with the European Community), courts could begin fashioning a similar solution to the over-protection of copyrighted works fostered by technological protection measures. In short, they propose a “reverse notice and takedown” procedure which would obligate content producers to “unlock” technological protection when necessary to foster uses privileged by the law as in the public interest. They discuss in detail how such a procedure make be established in both the US and the EC, and what the details of such a solution might look like.

Although long and complicated, with its treatment of both the US and the EC, this article richly rewards the time spent reading it. It provides a clear summary of where we are vis-à-vis the uneasy relationship between copyright and the digital environment, how we got to this point and how we might move forward in a responsible way. Scholarly work seems to get more attention from European courts and legislators than it does in the US, but this is one article that we must hope catches the attention of some well-placed American jurists who could consider implementing its creative solution to a problem that has rapidly become intolerable.

Copyright in the Classroom, Copyright Issues and Legislation

Student rights and academic values

Do students own the copyright in the works they create as part of their education? Generally the answer is yes, but we have recently been reminded of some troubling exceptions. The University of Hawaii’s “Academy of Creative Media” is a film school that insists that all of its students completely assign their copyright in all of their works to the school. The Electronic Frontier Foundation has a story about this rule here, and they include links to several other comments, as well as to the Hawaiian Academy’s agreement and an FAQ they use to justify the practice. It also links to a story about a similar policy at the University of Southern California.

Student rights are often ignored on college campuses, perhaps because of long-standing practices that stretch back to before copyright vested automatically when an author fixed her work. But we need to deal seriously with student rights, especially now that digital networks give us so much flexibility for making class works available to the public. There are real pedagogical advantages to having students work for a larger audience, but there are also opportunities to abuse the rights students now have from the moment their works are fixed in a tangible medium. Part of learning how to use these new technologies is developing policies that respect those rights.

The policies of the University of Hawaii and USC undermine the respect students deserve. Even more startling is the justification found in Hawaii’s FAQ – that this policy is consistent with the University’s claim that most faculty works are also works made for hire. Most universities do not claim ownership of faculty works, even though there is a stronger argument for that claim than for demanding rights in student works. Courts have even suggested that the work for hire rules do not apply to faculty writings, although those rulings are old and in doubt. To claim student copyrights, however, these two universities can’t even rely on work for hire; they need to compel students to sign an agreement that gives the copyright to the school.

Does the proximity of these schools to Hollywood justify their grab of student rights? As one commentator points out, at the very least, students who are subjected to these avaricious and rigid policies will be better prepared to work in the commercial film industry. These seems like a clash between academic values, which, contrary to what some in the content industries claim, usually try to teach respect for rights in creative works, and commercial values that see creators’ rights as one more commodity to be acquired as cheaply as possible.

Copyright Issues and Legislation, Fair Use

A big footprint

The Computer & Communications Industry Association, which has recently grabbed some headlines with its complaint to the Federal Communications Commission about misleading and over-broad copyright warnings, has just released a report it commissioned on “Fair Use in the U.S. Economy.” The purpose of this report is to “measure the footprint of fair use on the U.S. economy,” and its conclusion is startling.   Industries that benefit substantially from fair use, says the report, employ over 10 million people and account for about one-sixth of the total U.S. GNP. That is a big footprint!

The PDF of the full report is available here.

In the past I have objected to claims made by the copyright industry about the amount of money lost through unauthorized file sharing or piracy. Those figures, I have suggested, are over-inflated and conjectural because they rely on lost opportunity costs and do not account for the economic benefits that might be gained from these activities. Now that the CCIA has decided to look at the economic equation from the other end and examine what benefits fair use (legal uses, as opposed to piracy and file-sharing) provides to the economy, it seems fair to ask how reliable its figures are.

The study, which was done by consultants from Capital Trade, a firm specializing in consulting and analysis of international trade, identifies “core industries” that “derive a significant amount of their current business from the demand generated by fair use and the Internet.” It is hard to argue that search engines, for example, have fair use at the center of their business. Other sectors, like consumer electronics, certainly are dependent on fair use, but one could argue that both purchased content and “pirated” content reduce the share of that industry that is dependent on fair use. Education, in this report, is also apparently identified as a core industry, since it depends heavily on the non-copyrightability of facts as well as other fair use freedoms. Other non-core sectors are also examined when their businesses “facilitate the output of the fair use core.” The identification of these industries and the measures used to evaluate their economic impact, are based on the WIPO recommendations for studying the role of knowledge industries in the world economy.

In so far as its conclusions are understood to show the economic impact of industries that would be significantly harmed by a narrowing of fair use, it seems a careful and clearly defensible effort to remind us that usability of information is as important to oar economy as is its creation. Without fair use, many of these industries would not go away altogether, but they would be badly hampered and would contribute much less to the U.S. economy. We have heard so much about the important economic impact of the industries that create copyrighted content; it seems like a vital counter-balance to consider the impact of those industries that benefit from the legal, unlicensed use of that content.

Copyright Issues and Legislation, Open Access and Institutional Repositories

When should the government intervene?

There has not been a lot of comment on this site about the launch of PRISM (The Partnership for Research Integrity in Science & Medicine – a coalition of publishing organizations that is campaigning against the proposals in Congress to require public access to federally-funded research. One reason for this lack of comment is that the actual arguments and assertions made by PRISM are so transparent and easily refuted; I called them simple-minded in an earlier post (here), and I have seen nothing that changes that judgment. Also, lots of other blogs and listservs have dealt extensively with the claims of PRISM, especially after the Director of Columbia University Press resigned from the Executive Council of the American Association of Publishers over its support of the Partnership and the Director of Cambridge University Press wrote a letter repudiating its absurd assertions (see news item in The Chronicle of Higher Education here).

But even a silly debate can produce significant points, and one of the most important contributions to this argument comes from William Patry, senior copyright counsel for Google, whose blog has been cited here several times before. The “PRISM principles” refer repeatedly to preventing “government intervention” in scientific research. The irony of complaining of government interference in research that is paid for from federal tax monies in the first place should be pretty obvious, but Patry adds another point that is worth our attention. As he says in this post, “Copyright is always Government Intervention.” By definition, copyright is a government-granted monopoly that artificially supports the price of intellectual property to provide an incentive to creation. Patry nicely explains the logic behind this government intervention and the reasoning that underlies the attempt to create a balance between incentives for creators and opportunities for users.

However one feels about whether we have struck the appropriate balance in the US or have erred to one side or the other, most will agree that the economic rationale for copyright as a government intervention in the free market is sound. We can only wonder if PRISM, however, will be true to its professed disdain for government measures and support the total abolition of copyright. Such a change would create a genuinely free market, where publishers would be free to compete with each other by publishing the same works at competitive prices; consumers would likely benefit from lower prices for books and movies, but it is pretty certain that creativity would suffer in the long run.

Copyright Issues and Legislation

Copyright & the First Amendment

Copyright blogs have been very active over a decision handed down in Golan v. Gonzalez by the Tenth Circuit Court of Appeals on September 4th. This is the most recent in a line of challenges to the Copyright Term Extension Act of 1998 (CTEA) that added twenty years to the duration of copyrights in the US. The argument that this was unconstitutional because the constitution only allows patents and copyrights for “limited times” has failed several times in federal court, and it failed here as well. But a new twist is introduced in this case that promises a great deal of debate.

See these blog posts by William Patry, Jack Balkin, Larry Lessig and Carlos Ovalle. Balkin’s post, which suggests some pitfalls to the First Amendment challenge described below and suggests that it is really the DMCA that should be subject to such a challenge, is especially worth reading.

In addition to challenging the CTEA, plaintiffs in this case also challenged the law that implemented the “Uruguay Round” of trade agreements in the US. This round of negotiations led to a revolutionary marriage of trade regulation and international intellectual property law, and it finally brought the US into the Berne Convention, a hundred-year-old international agreement on copyright. In order to implement that agreement in the US, Congress passed several major amendments to make our copyright law conform to the international minimum standards.

One change, in 1989, was to entirely eliminate “formalities” for copyright, the need to put a copyright symbol on a work or to register it before it was protected by copyright. In essence, copyright protection became automatic. The other Berne convention countries had done away with formalities long ago, so there were works published in those countries that were protected by copyright at home but were in the public domain in the US because they had not complied with our formal requirements. These foreign works were restored to copyright protection by the 1994 implementation act challenged in this case.

In 2003, the Supreme Court ruled, in Eldred v. Ashcroft, that the CTEA was not unconstitutional. They also said, however, that First Amendment free speech rights might be implicated by a copyright law revision if that revision “altered the traditional contours of copyright.” That phrase is spawning a great deal of litigation, and in Golan v. Gonzalez the Tenth Circuit held that the restoration of copyright in those foreign works that had been in the public domain was an alteration of these traditional contours. On that basis, it sent the case back to the district court to decide if free speech rights really were implicated here, requiring that the government meet a much higher standard in defending the law.

I have to agree with William Patry’s blog post that there is something very strange about this decision. The “remand” to the district court is essentially to decide what standard of review to apply to the case. But the Court of Appeals has already decided, earlier in the opinion, that Congress was acting within its constitutional authority when it passed the Uruguary implementation act. The Tenth Circuit seems to say that Congress had the authority to restore these copyrights under the constitutional authority granted in the patent and copyright clause but that the action may still be challenged, based on a higher standard of review, under the First Amendment. Since the Supreme Court has already said that the First Amendment safeguards built into copyright law — notably the idea/expression dichotomy and fair use — are sufficient to reconcile the grant of copyright authority with the free speech clause, it is hard to see where this argument can go. The Tenth Circuit explicitly disagreed with the Supremes on this point, but it seems unlikely that that alone will change the high court’s mind. Besides, it seems unlikely to me that the district court will actually apply the higher level of review to this law, since to do so it would have to find that the copyright restoration act was a”content-based” restriction on free speech, which it clearly is not.

All of this, to my mind, obscures the real point about the restoration of foreign copyrights. The significant alteration of the traditional contours of copyright occurred back in 1989 when the US dropped formalities. Suddenly, copyright protection became the default position, whereas previously authors could decide to protect their work, by complying with the formalities, or place it in the public domain. Once we made the decision to abandon formalities, the public domain was severely restricted. Restoring a small number of foreign copyrights so that non-US authors would not continue to be penalized by rules we had abandoned for ourselves seems a reasonable act of equity. We should be having a much broader debate about the “traditional contours of copyright law,” and the importance of the public domain to scholarship, creativity and innovation. That debate will not be resolved by the courts; it must take place in public and in Congress.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Salvos in the Copyright Wars

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This diatribe against YouTube recently appeared on the web site of a right wing lobbying organization with the innocuous name of “National Legal and Policy Center.” They are certainly correct that lots of copyright infringement happens on YouTube, but several of their arguments deserve response.

It is always odd to see a group that says it advocates small government and free markets swing so far in favor of stronger copyright protection, which, by its nature, is government intervention to distort the market. Copyright works to keep the price of knowledge goods well above the marginal cost of production in order to provide an incentive for creation. Because it creates an artificial monopoly, it must always balance the incentive created with the harm done to free competition. The National Legal and Policy Center makes no such analysis.

Instead, they simply assert that “Internet piracy” causes loses by the film industry of $2.3 billion. Such an estimate relies on lost “opportunity costs” and assumes that each unauthorized copy is equivalent to a lost sale – a very questionable assumption. It also neglects the other side of the equation; the potential economic and social benefits when consumers have lower-cost access to entertainment and to the “inputs” for new creativity. Not that we should encourage “free-riding,” but the economics are not as simple as these lobbyists suggest; there is no reason to assume that the price the entertainment industry wants to charge for its goods is actually the optimum price, given the artificial support of copyright law.

Finally, the article simply assumes that YouTube should be responsible for the infringing activities of its users. The current law, in fact, cuts the other way; the Digital Millennium Copyright Act provides a safe harbor for online service providers from such secondary liability in order to encourage innovation. That safe harbor, which has allowed a freedom for experimentation with fair use that has supported a wealth of new creativity, is being challenged in court by the entertainment industry. The issue is still unresolved, but once again, the desirable social balance is complex and requires careful negotiation, not mere finger pointing and accusation.

Equally simple-minded is the new campaign (PRISM) launched by the American Association of Publishers against public access for federally-funded research in health. The publishing industry lost in Congress earlier this year, when a mandate for public access to research funded by the National Institute of Health was included in an appropriations bill. Now they hope to reverse that loss by convincing the public that mandated access for taxpayers is “government interference.” Why it is not government interference for tax money to finance the research in the first place is not clear, except to note that publishers get a free ride on such research. The researchers, of course, are seldom paid for the articles they write based on the government-sponsored research, and publishers can charge outrageous rents to let the public see the results. Little wonder that they want to protect their golden goose. But the irony of accusing the government, which paid for the research, of wanting to free-load off the publishers, who do not, is a bit too much.

The debate on these issues is well documented by Peter Suber, here at “Open Access News.”