Monthly Archives: March 2009

Copyright Issues and Legislation

Sailing to Byzantium

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I couldn’t resist citing one of my favorite poems for this post about my coming trip to Istanbul, especially since I have been reading John Julius Norwich’s ” A Short History of Byzantium” in preparation.  But most of my time recently has been spent preparing for the two presentations I will be giving next week at the second annual IP conference sponsored by eIFL in Istanbul.  I have always wanted to visit Istanbul, so I am very excited about finally getting that opportunity; I am sure I will have much more to say about the city and the conference next week and thereafter.  But as a preliminary reflection, I want to say something about the organization that is sponsoring the conference and comment on each of the presentations I have been preparing.

eIFL –Electronic Information for Libraries — is an organization that deserves to be better known in the library community (although by saying that all I really do is confess that I had not heard of it before).  eIFL’s mission is to “enable access to knowledge through libraries in developing and ttansition countries.”  To that end they have established six core programs: they negotiate access to commercially produced databases and electronic journals, they assist in building national library consortia, they facilitate interaction and sharing among knowledge professionals and they advocate on three fronts — copyright law, open access and open source software.  Just reading their excellent website is an education in the role of libraries in the development of nations and cultures.  I am humbled by the invitation to speak to a group of librarians involved with eIFL (and interested in copyright issues) and look forward to the chance to learn as much as I can from them over the coming week.

The first of my presentations, about the development of copyright policies for libraries, poses an interesting challenge.  So much policy on this topic in US libraries is based on specific provisions in our copyright law, whether fair use, section 108 for interlibrary loan and preservation, or even something as basic as the doctrine of first sale, which allows free library lending in the first place.  I cannot claim to know what those structures are or how the function in the copyright laws of all the different nations that will be represented in Istanbul.  So the gist of this presentation will be to talk about the different copyright issues that arise and the different ways national law might address those issues.  I can only hope to outline the decisions that have to be made as one develops a policy within the structures created by a national copyright law.

I seldom have much good to say about US copyright law in this space, but my initial conversations about this presentation have made me somewhat grateful that US law addresses many of our library issues so specifically.  Even when I feel it gets the balance of rights and opportunities wrong, as I often do, at least we work within an articulated structure, which is not always the case elsewhere in the world.  One irony here is that the growth of digital communications is leveling that playing field a bit, since many of the legal structures developed in the US break down when one tries to apply them to instantaneous worldwide digital access, and we are left to do our best to strike a fair balance in the absence of clearly applicable law, just as many in the rest of the world often must do.

My second presentation will be about the implications of the Google Books Settlement agreement for libraries.  Preparing for this has been a real eye-opener about the international ramifications of that agreement.  Although the agreement says it authorizes nothing except in the US, almost in the next sentence it adds that Google must notify the Books Rights Registry if it begins to make covered works available outside the US.  So international availability is clearly contemplated.  Also, many, many authors around the world are putative members of the settlement class, since they will hold US copyright interests and/or their books will already be included in the Books Search database.  It is interesting to see how different national groups have responded to being made part of the settlement.  A statement from the Pan-Africa Writers Association encourages authors to register with the BRR and claim their interest, while an article in a leading Japanese newspaper denounces the arrogance of forcing authors to opt out in order to “preserve their rights.”

These divergent opinions are probably simply the result of everyone’s confusion and shock at how radically our law and our practice of access books will be changed by what is, after all, a private settlement between parties.  Google books will go from being an index of the worlds knowledge to a vast commercialization of out-of-print books, changing the landscape for bookstores and libraries, as well as the legal landscape, especially around orphan works and any of the copyright exceptions (like 108) that rely on a work being commercially unavailable.  Yet all of this will happen with little or no input from most of the affected parties; vast public changes will be accomplished through private negotiations.  This, I believe, was a major theme at the conference held last week about the settlement agreement at Columbia Law School, and I will close by linking to two of the major reports I have read about that conference, here and here.  I look forward to gaining a more international perspective on this ongoing discussion from the conference participants in Istanbul, and I promise to share some of what I learn when I return.

By the way, it is somewhat ironic that I should think of the W.B. Yeats poem from which my title is taken, since I will be traveling to Istanbul, ancient Byzantium, shortly after my fiftieth birthday, and the first line of Yeats’ poem, made famous by a recent movie, is “That is no country for old men.”  We shall see.

Authors' Rights, Copyright Issues and Legislation

Congress shall make no law

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Following up on my earlier post about Anthony Falzone’s lecture and his strong emphasis on the need to limit copyright to the minimum protection necessary to encourage creativity in order to avoid the harmful effects of a monopoly over speech, three related items came to my attention this week.

First, there is this announcement of a conference at Duke Law School to celebrate a new book by copyright scholar David Lange and Constitutional expert H. Jefferson Powell.  The book is called “No Law: Intellectual Property in the Image of an Absolute First Amendment,” and the tag line for the conference is “what part of “No Law” don’t you understand?”  At the very least, this shows that Falzone is neither alone in his concern that copyright’s monopoly can jeopardize fundamental American values, nor particularly radical in his proposed solution.  Falzone focuses his work on defending fair use as a safety valve for free expression, a role the US Supreme Court has acknowledge for that exception and that many courts have upheld.  For Lange and Powell, however, the concern goes much deeper, and their book proposes the much more radical re-visioning of copyright and patent protections that would be needed if we took the First Amendment seriously in the context of incentives for creativity and innovation.  The question that is seldom asked, but that is beginning to rise up, is whether copyright as it is currently shaped discourages more socially valuable expression than it encourages.  If the answer is that it does, and that seems like a pretty easy case to make in an age when Internet users are being sued right and left for creating their own content, it is time to take seriously proposals like that of Lange and Powell to rethink IP from the ground up.

Next up is another new book that I haven’t yet seen, just read about.  According to this news release from Washington University in St. Louis, two economists at that fine institution have just published a book arguing that copyright and patent law are not just inefficient, but self-defeating, from an economic point of view.  “From a public policy view,” says author David Levine, “we’d ideally like to eliminate patent and copyright laws altogether.”  Apparently the book argues both that these intellectual property monopolies are harmful to society, which is becoming a fairly common point, and that there are workable alternatives to protect creators and encourage innovation.  I have to admit that I will take some convincing, especially on the latter point; I tend to believe that copyright law needs pretty drastic reform, but not outright abolition.  Indeed, based on the remainder of the article it appears that that is really what Boldrin and Levine are calling for, since they argue that it should be much harder to get intellectual property protection than it now is, but not that it should always be unavailable.  I look forward to reading the full argument; the book is Against Intellectual Monopoly by Michele Boldrin and David Levine, from Cambridge University Press, and the author’s also maintain a blog on the topic at www.againstmonopoly.org.

Finally, I want to note a pithy comment made at the end of this blog post written by Peter Jackson, the chief scientist and vp at Thompson Reuters publishing.  In some ways the post is a little mundane, mostly focused on the joys of e-books.  But the last line caught my eye and suggested a context for these other items I have discussed.  “In the future,” Jackson writes, “the book is no longer a product; it’s a service.”  I am not sure that Jackson would agree, but it seems to me that if we take this service emphasis seriously, it grows harder and harder to see why the monopoly protection of copyright is either necessary or efficient in most cases.  Surely service industries florish in a competitive market; if content is ubiquitous and “publishers,” whatever they will look like in the future, offer reliable access and convenience, those services will not depend on the artificial environment of scarcity that copyright was designed to enforce, nor will they thrive therein.

Copyright in the Classroom, Fair Use

A call to action

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Anthony Falzone from Standford’s Fair Use Project gave a superb lecture on the impact of fair use on scholarship and free speech at the University of North Carolina, Chapel Hill on Tuesday.  I am trying to contain my disappointment over the need to cancel his lecture at Duke scheduled for the day before due to a freak March snowstorm.  I hope that I will soon be able to point Duke folks who did not get to hear Tony, as well as interested listeners from elsewhere, to a podcast of the lecture.  In the meantime, I want to emphasize two aspects of Tony’s talk, one from the very beginning and one from the very end ( but note that the middle was fascinating too).

In setting the context for his discussion of fair use, Falzone made the fairly common point that copyright is a monopoly, which is something we usually disapprove of in the US as economically and socially inefficient and harmful.  Jamie Boyle, in his book on The Public Domain, discusses the reluctance felt by Jefferson and Madison over copyright for this very reason.  But Falzone went a step further to stress that copyright is a monopoly over speech.  For me this fell into the category of things I knew but had not fully considered; Tony helped my really think about what it means to give someone a monopoly over expression in a nation where free expression is the first guarantee in our Bill of Rights.

The message I came away with is that fair use is not really primarily about who has to pay whom, when and how much.  Rather, fair use is a safety valve that protects one of our most fundamental values.  Do we really want a copyright owner, for example, suppressing an expression of political speech such as the Barack Obama HOPE poster or the Ben Stein movie Expelled?  From this perspective, fair use is a fundamental and absolutely necessary part of the fundamental structure of copyright in the context of American values.  It is an incentive for creative expression just as much as the exclusive rights themselves are.  Without fair use, I asked myself, would copyright’s monopoly be unconstitutional?

At the very end of his lecture, Falzone returned to this emphasis to ask his audience to get involved.  Specifically, he remind us that our practices, as librarians and academics, help shape the norms about copyright use.  And courts do consider these norms within various industries and user groups as they rule on copyright matters.  This is why statements of best practices are so important.  Falzone ended his talk by asking us to exercise fair use, especially those transformative uses that are becoming more common in a digital age and which courts tend to favor when deciding fair use cases.  These transformative uses (parody, criticism and comment, as well as all kinds of remixes and mash-ups) are precisely where new creative expression is born; they are wonderful opportunities for teaching and learning.  Here more clearly than anywhere else, fair use serves both the mission of education and the fundamental purpose of copyright law to support new creation.  The message is not that “anything goes,” but that in higher education especially we must not allow the “chilling effects” of fear give us cold feet about creative and socially beneficial fair uses.

Copyright Issues and Legislation, Technologies

Kindle 2, public performances and copyright

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I had rather hoped to stay away from the controversy being generated by the new Kindle 2 Book Reader from Amazon and its “text to speech” feature that will allow the reader to offer a computer-generated audio reading of e-books, but there are copyright issues here too good to ignore.  It is hard to make sense of the claims being made in this kerfuffle, but it may be worth the effort in order to clarify what copyright does and does not protect.

In a widely-ridiculed public pronouncement, a spokesman for the Author’s Guild has denounced the audio feature of Kindle as an infringement of copyright, even though the e-books sold by Amazon are, of course, licensed from the publisher.  He is quoted as saying the “they,” meaning consumers, “don’t have the right to read a book out loud… That’s an audio right, which is derivative under copyright law.”  This led many to trot out a parade of horrible consequences, suggesting that parents might be sued by the Author’s Guild for reading”Goodnight, Moon” to their children.  So the President of the Author Guild took to the New York Times Op-Ed page to explain that that was not their intention. Unfortunately, his piece does not really explain what the claim really is.  He merely says that the Guild collects separate royalties for audio books and for e-books and that Kindle would “swindle” authors out of that double fee.  From a copyright perspective, it is interesting to try and sort out what infringement, if any, is involved in this “swindle.”

One way to look at this, of course, is as a simple contract dispute, and contract provisions are probably the way to settle this.  Authors and publishers can simply charge Amazon more for the e-book license to compensate for the potential decline in audio book sales when those e-books are “read” by Kindle.  Other e-book platforms would pay a lower price if they do not provide a text-to-speech function, and both sides could monitor to see if audio book sales really do decline.  For e-books already licensed to Amazon, the Author’s Guild could try to claim that this feature of Kindle 2 breaches the license terms, and try to demand additional money.  The public spat is likely an attempt to force such renegotiation.

But it is more interesting to ask if any copyrights are being infringed.  When a parent reads to a child, this is a private performance of a work that does not infringe any of the rights under copyright.  It is very important to remember that the performance right in copyright is only an exclusive right to authorize or deny PUBLIC performances, defined as a performance “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered.”  Based on this definition, it is unlikely that Kindle would ever infringe the public performance right under ordinary use.

This distinction of performances is undoubtedly why the Author’s Guild spokesman spoke of a derivative right.  Now he was simply wrong to refer to an “audio right” which is “derivative under copyright law.”  There is no separate “audio right,” there is only the public performance right discussed above and another exclusive right over the preparation of “derivative works.”  So a lot turns on whether an audio reading of a text can be called a derivative work.

It is generally thought that a derivative work must itself be an original work of creative authorship.  So a translation of an English text into Hindi involves new creative expression, as does the creation of a film from a novel; these are classic examples of deriviative works, and each involves the reuse of protected expression in combination with new creative authorship.  So a translator or a filmmaker must get a license from the original author to create these works, in which there is subsequently two (at least) copyright interests.  But an audio reading adds no creative expression, so it is hard to see how it is a derivative work. In this fascinating article, Julian Sanchez analyzes this argument very nicely, and suggests an exception — an abridgment has been held to be a derivative work, and it does not contain original expression that is added to the original.  I think there are historical reasons for this, but I will let Sanchez explain the ins and outs of this debate to those who are interested.

What I want to add to this discussion is an additional argument for why an audio reading should not be considered a derivative work.  There is a long standing rule of statutory interpretation that instructs court to read laws in wasy which do not make parts of the language used by legislatures irrelevant; we do not want interpretations that make whole portions of a law redundant or unnecessary, since we assume legislatures did not intend those readings.  If an audio reading is interpreted as a derivative work, we would have just such a reading, because that interpretation would make the public performance right “mere surplusage.” Why would Congress include a specific right over performance, and limit that exclusive control to public performances, if ALL audio readings were derivative works and therefore subject to the authors control based on a different exclusive right.  Audio readings are not derivative works because, unlike abridgments, they are subject to a different right, and we must assume that Congress intended that right (public performance) to circumscribe the control an author should have over readings of his or her work.

POSTSCRIPT — In the interval between writing this post and publishing it, the news has come out that Amazon has agreed to make changes to the Kindle.  I am afraid this merely reflects on the chilling effect of a lawsuit threat; it does not change the legal analysis, which suggests that the Author’s Guild won by making a very weak claim, but making it loudly.