Category Archives: Copyright Issues and Legislation

Copyright Issues and Legislation, Fair Use

A flurry of activity

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There has been a sudden burst of activity in the Google Books case and the process of arriving at a settlement of the copyright infringement claim brought against Google by a group of authors and a publishers trade group.  Last week Publishers Weekly reported that Judge Chin, who is hearing the lawsuit, rejected a motion to allow the Internet Archive to intervene in the case, which would have meant that IA would become a official party to the litigation.  As PW says, “The IA wants to remove orphan works from the settlement and limited the settlement to rightsholders who have filed a claim.”  With the denial of their motion to intervene, IA will have to look for another way to attain this end.  More on that in a minute.

This week, two quite surprising developments have been reported (and really, the denial of IA’s motion was not very surprising).  First, Judge Chin has decided to delay the deadline for authors to opt-out of the settlement class by four months (until September 4), with a parallel delay in the final hearing to approve or reject the settlement (until October 7).  It seems Google had asked for a shorter delay in the deadline, and all parties seem to have been surprised by this ruling.  But maybe it is not so surprising in light of this article in yesterday’s New York Times reporting that the Justice Department has decided to begin an inquiry into whether the settlement agreement poises an anti-trust problem.  It is hardly a novel thought that there might be a anti-trust concern in the proposed monopoly over digitized books that would be created by the Google settlement, but it is, perhaps, unusual for the Justice Department to take notice of those concerns so quickly and to act before there is a final hearing on the settlement.  Perhaps it was notice of that decision from Justice that prompted Judge Chin to delay the deadline and hearings.

So with this extra time, what should the concerned parties be doing?  Specifically, is it possible to get the judge to limit the settlement to the parties in the litigation and to exclude orphan works?  This long blog post by Professor Pamela Samuelson about the settlement suggests that there is another option, an objection by members of the putative class to the very certification of that class.  As Samuelson points out, there has not yet been any hearing on whether or not the class in this class action suit really represents all of the authors who would be members of it, and with the settlement, there is not likely to be such a hearing.  Google, as the defendant in the suit, would usually challenge a class certification and force the court to decide that the plaintiffs before him really do represent the rights and interests of all of the proposed class members.  But with the settlement, Google has a huge financial incentive to support the class certification rather than oppose it — only through class certification will they get the compulsory license to digitize orphan works that is really at the heart of this settlement.

It is hard to believe that the Authors Guild really does represent the interests of the millions of rights holders in orphan works who, by definition, are not exercising those rights and who will not gain from the settlement.  To include orphan works in the settlement is a shortcut to a lucrative business model, not a genuine effort to protect rightsholders, and it will likely derail legislative efforts to address the orphan works problem in a comprehensive way.  It should be noted that even though the settlement is technically non-exclusive, no one else who undertakes a digitization project in the future will be able to get such a compulsory license for orphan works, since it depends on an extremely expensive and difficult manipulation of a very quirky aspect of US law, the class action mechanism.   So if the Internet Archive really wants to exclude orphan works from the settlement, their best move would be to assist copyright holders who are members of the putative class to file an objection to certification and try to force a full hearing on the issue of representation.

If a class was ultimately not certified, the settlement would apply only to the parties in the litigation, and one has to believe that those parties would not be interested in settling unless they could get the immense commercial advantage that a class settlement would provide.  The final result might be that the fair use issue with which the case began would actually go to trial.  And that, I think, would not be a bad thing.

Copyright in the Classroom, Copyright Issues and Legislation, Open Access and Institutional Repositories

Ancient texts and a modern database

What could be controversial about the United Nations launching an online database of 1,200 ancient documents from around the world, the World Digital Library?  Surely this is a significant contribution to making scholarship more efficient and open.

But several commentators, such as this one from Slashdot, have noted that the legal page of this database appears to suggest that there is copyright to be reckoned with in these documents.  As Slashdot notes, since some of these materials are over 8,000 years old, this sounds like an unprecedented claim.  It seems worthwhile to take a minute and try to sort out what is being said on this page, and what might lie behind it.

First, it is worth noting that the language the UN uses about copyright is very general and indeterminate.  It merely says that the country that contributed the material is the proper source for copyright information and that it is the responsibility of the user to determine what copyright issues, if any, need to be addressed.  This is pretty much just “cover your (self)” language designed to permit the UN to say “we warned them” if any disputes should arise.  But are there really any possible disputes?

I know of no national copyright law per se that could claim an interest in materials this old for any person.  But that is not to say that governments themselves might not claim such an interest, perhaps under laws designed to protect “national patrimony.”

Another possibility, depending on how the UN site is structured, would be a claim under a database protection law.  Although the United States pretty well rejected database protection in the Supreme Court’s Feist v. Rural Telephone Service case, it is a fact in other countries.  The US Supreme Court said that no copyright protection is available for “sweat of the brow,” so a database that merely compiles public domain documents or facts in an obvious and unoriginal way (like a phone book) is not entitled to protection.  The Feist ruling would probably include a database like the World Digital Library if US law were applied.  But other countries have taken measures to protect “sweat of the brow” by adopting special legislation that gives copyright-like protection to those who compile databases.  The European Union’s Directive on the Legal Protection of Databases is one such law.  If that law applied, and it could well apply to a dispute arising about materials from one of the EU member countries, certain uses of the material in the database would be prohibited.  It is not at all clear that these database laws would prohibit isolated copying of ancient documents found therein, but they would certainly bar wholesale or systematic copying.

The area of database protection is a complex and contested one.  There have been recent protests in Europe arguing that the database directive is ineffective and stifles innovation.  In the US, there have been abortive attempts to introduce similar legislation, but they seem to have subsided, at least for now.  Anyone who would like to know more about the nature and scope of database protection in the United States cannot do better than read Prof. Mike Carroll’s recent blog post on the subject, “Copyright in Databases.”

Copyright Issues and Legislation, Fair Use

One more topic from eIFl: Fair Use

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Because part of my assignment at the eIFL IP conference was to talk about library copyright policies, it was inevitable that we would talk some about fair use.  For one thing, it is what I know about, so I invariable began a discussion of a particular library issue by talking about how it would be approached with fair use versus how you could address the same issue in a jurisdiction without an exception like fair use.  Although a few countries — notably Israel and Japan — have adopted a US style fair use exception, none of the countries represented at eIFL had such a provision.  So we were left to discuss just how important it is, or is not, for libraries to function.

The conference began with a presentation from Becky Hogge, who was the Executive Director of the Open Rights Group in the UK and remains a writer and commentator on technology and IP.  Becky ended her presentation by pointing us to a web site called Thru-You.com where someone named Kutiman makes music mixes that are created entirely from other videos on YouTube.  It is hard to describe these videos, but a lot of fun to watch them.  The point to emphasize here is that these videos are another example of the flexible application of fair use, especially regarding the role of transformative reuses of copyrighted content.

With that introduction, it was interesting to hear about and discuss the relative merits of fair use for libraries.  I am sympathetic to the worry that simply adopting a word-for-word version of the US section 107 will not be effective in other countries.  After all, section 107 was not added to the US law until fair use already had about 100 years of development in US courts, and the accumulation of case law has continued since the 1976 act was adopted.  It is hard to know how fair use will function when exported to a country that lacks that common law foundation to support the rather vague terms of the “equitable rule of reason” that we call fair use.

Many countries seem much more comfortable with the specific exceptions that make up what is often called, at least in the Commonwealth Countries, “fair dealing.”  The model copyright law that eIFL has prepared for developing countries basically takes this approach, with specific exceptions for personal research, educational activities, library services, and the needs of persons with disabilities, to name only a few.  All of these are tremendously important, and the advantage of having these specific exceptions is that they give a level of certainty that fair use never offers.  US law, of course, has lots of specific exceptions, and I wish it included more of those suggested by the eIFL model law.  Nevertheless, I still think there is an advantage to fair use.  There is no other copyright exception that offers the flexibility that fair use does, especially in the face of technological change.  We simply cannot know that a specific exception that works today for libraries or for researchers will still work tomorrow when the needs and services have moved to a different type of technology that may implicate an entirely different set of rights.  The shift from print-based interlibrary loan to a system largely using digital copies and digital transmission, which are clearly outside of the “single-copy” parameters of the specific ILL exception in section 108, offers an example of why the decision around fair use versus specific exceptions needs to be both/and, not either/or.

For anyone interested in how fair use works, and what problems it generates, in an educational context, there is no better place to begin than with the series of blog posts by Peter Jazsi as guest blogger for the Collectanea blog at the University of Maryland University College Center for Intellectual Property, which begins with this post called “Educational fair use: a provocation.”

Copyright Issues and Legislation, Technologies

The World Blind Union, Amazon and the Author’s Guild — more from the eIFL conference

One of the most passionate and compelling speakers at the eIFL 2nd IP conference in Turkey last month was Chris Friend, who is the strategic priority leader for the World Blind Union’s Right to Read initiative and also works with Sight Saver’s International training blind leaders in Africa.  A couple of private conversations with Chris and his wife Judy gave me a much-needed education on the copyright issues facing vision-impaired people and the wide array of technological solutions that could be available if the IP problems were solved.  Also, our hotel room was next to that of Chris and Judy, so my wife and I were often lulled to sleep by the rhythmic sound of his text-reader.  At the conference, Chris presented about the World Blind Union’s proposed treaty before the world Intellectual Property Organization “for blind, visually impaired and other reading disabled persons.”

The treaty, which is linked in a variety of formats from this page by Knowledge Ecology International, makes for interesting reading.  It represents a carefully constructed effort to craft an exception to international copyright law that would make it easier for visually impaired people to find books in accessible formats.  Of course, WIPO has not been very interested, until recently, in harmonizing exceptions and limitations to copyright law, only protection.  But there are signs that that is changing, and the WBU proposed treaty would be a great place for WIPO to start.

The treaty includes five provisions that I want to highlight.

First, it would permit users to reproduce works into accessible formats without authorization and to distribute those formats on a non-profit basis exclusively to visually impaired persons (article 4a).  Second, it would permit distribute on a for-profit basis if the work is not reasonably available in an accessible format (article 4c).  Third, it provides a useful definition of what “reasonably available” means, pegged to the price of the non-accessible version of a work and distinguishing between what is reasonable in the developed world and what is reasonable in the developing world (article 4d).  Next, the proposed treaty includes a provision to permit circumvention of technological protection measures when those measures would prevent the creation of accessible formats (article 6).  Finally, the treaty would explicitly state that contractual provisions that are contrary to the treaty would be voided (article 7).  These last two provisions are extremely important as any discussion of harmonizing limitations and exceptions gets started, and we should be grateful to the WBU for stating them so clearly and in such a compelling context.

All this took on added urgency for me this week as another group that represents visually impaired people, the National Federation for the Blind, held a protest outside the headquarters of the Author’s Guild.  The protest, about which there are photos and a story here, was because of the pressure brought to bear on Amazon to disable the text-to-voice features on its Kindle 2 e-book device.  As I have written earlier, the legal claim made by the Author’s Guild that Kindle was infringing their copyrights was insupportable, but nevertheless, Amazon choose to cave in rather than risk a court battle, even one it could clearly win.  I find myself wondering why, if the Kindle feature is a copyright infringement, the Author’s Guild is not also opposing the text-reading software that Chris Friend was using in Istanbul; could it be something as obvious as avoiding really bad PR?  Anyway, the National Federation for the Blind is now taking the Author’s Guild to task for opposing a technology that, whatever other uses it might have, would be a great boon to the visually impaired.  Kindle 2 is not an ideal technology for blind people — one must still see well enough to turn pages in order to use it — but the text-to-speech function, combined with Amazon’s wide array of available e-books, would surely assist a great many people experience literature that would otherwise be unavailable to them.  Copyright law should not, and as of now does not, when understood properly, stand in the way of this benefit.  Neverthless, the flap over Kindle 2 helps make the point that exceptions for the blind and visually impaired must be built in to copyright law at the highest level in order to prevent self-serving misinterpretations from further burdening those who want to exercise their “right to read.”

Copyright Issues and Legislation, User Generated Content

Big victory for the public domain

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Sometimes big victories can happen even in small forums. On Friday a district court in Colorado — the lowest level of court in our federal system — issued a decision with big time implications.  I have written several times before about the interaction of copyright law and the First Amendment protection of free speech, and in an opinion in the case of Golan v. Holder, Judge Lewis Babcock has ruled a portion of the Copyright Act unconstitutional because of a conflict with the guarantee of free speech.

The case involves a fairly technical challenge to a fairly technical provision of the law.  The Uruguay Round Agreements Act (1994), purporting to implement agreements made about international IP protections at the World Trade Organization, restored copyright to foreign works that had already fallen into the public domain in the US because their copyright holders had failed to observe the formalities that the US required up until 1988.  The result was that works that had previously been free for anyone to use suddenly were protected, and people who had used those works for years — like a community orchestra that played the music of Prokofiev — would be liable to infringement suits after a one-year grace period.

The challenge brought against the URAA claimed that taking back a work that had been free to use “altered the traditional contours of copyright protection” and therefore (based on some language from a Supreme Court decision in 2003) was subject to “ordinary First Amendment scrutiny.”  This part of the claim was upheld at a higher level, by the Tenth Circuit Court of Appeals, in 2007.  On Friday, the district court applied that First Amendment scrutiny and determined that the URAA was not narrowly tailored to achieve an important government interest and, therefore, was unconstitutional.

At least two aspects of this decision make it such a big deal.  First, it is one of the first times a court has found an actual conflict between copyright protection and free speech.  As I have argued before (repeating remarks made by Anthony Falzone, who was one of the lawyers for the plaintiffs in Golan), copyright, as a monopoly over expression, seems to create an obvious tension with free speech.  In the past courts have said that fair use and the idea/expression dichotomy are sufficient insurance against unconstitutional suppression of speech, but now, in a fairly unusual set of circumstances, a court has found that even with those safeguards, provisions of the copyright law can go too far.

Second, this ruling makes clear that the public domain, that “commons” of material that is free for all to use and is the raw material for so much new creation, is an aspect of copyright protection itself that must be respected.  If the URAA stood unchallenged, the potential for the government to revoke freedoms Americans already enjoyed in using pd expression would always exist.  By affirming that the promise of the public domain is a part of the traditional contours of copyright, the court has given copyright users their first reason to cheer in a long time.

Given the importance of this case, it is certain to be appealed.  As noted above, the 10th Circuit has already considered one aspect of it, so the prospects on appeal seem favorable.  But the government will assuredly fight this ruling, since it will force them to rewrite a provision of the law arguably needed to conform with international agreements.  There is no doubt that the law could be rewritten successfully; there are models elsewhere in the world of restored copyrights that respect the “reliance interests” of users that arose prior to restoration.  As challenges proceed, however, it will be interesting to see if the argument made by plaintiffs that, in the US and because of our relatively unique First Amendment, American law cannot ever restore any copyrights after works have passed into the public domain, regardless of treaty agreements, makes any headway.

There is a discussion of this decision here, and the order from Judge Babcock is here.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Lessons learned in Istanbul

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Traveling to an exotic and chaotic city like Istanbul is inevitably an education, and visiting Aya Sofia and Topaki teaches one a great deal about the Byzantine and Ottoman empires.  But the real learning for me came at the eIFL IP conference at which I was a speaker.  A group of about 45 librarians from Eastern Europe, Africa and the former Soviet Union participated, and they taught me a great deal more than I could hope to have taught them.  Many of these attendees were the designated IP representative for eIFL, parts of the mission of which is to advocate for balanced copyright laws around the world.

One thing I learned is that amazing work is being done by libraries all over the world in conditions, both political and material, that would discourage many from trying to provide all but the most basic library services.  In Mongolia, for example, their copyright law is very new, adopted in 1992 after a period of socialist rule during which all intellectual property was considered state-owned.  The transition to privately owned IP is hard to navigate, and both the law and the social structures in Mongolia have not yet reached a high level of development.  Yet the Mongolian Corsortium of Libraries, represented in Istanbul by Baljid Dashdeleg, is trying to contribute its share of literature to the International Children’s Digital Library, whose mission is to “excite and inspire the world’s children to become members of the global community – children who understand the value of tolerance and respect for diverse cultures, languages and ideas — by making the best in children’s literature available online.”  The generous impulse of the Mongolian consortium to participate in this mission is hampered by both the lack of exceptions for digitization in the copyright law and the absence of usable mechanism to seek permission from publishers.  But I was deeply impressed by the willingness to work hard to achieve the goal of sharing Mongolian children’s literature more widely.

Which brings me to my second point, which is to note how clearly and unselfishly many librarians around the world see the need for open access to all kinds of literature.  In addition to its IP advocates, eIFL also recruits open access advocates in each country in which it works.  Many of those librarians are very advanced in their ideological and practical commitments to using the Internet to achieve greater access to knowledge.  I was told with great pride, for example, about the Armenian Digital Library of Classical Literature by Hasmik Galstyan, a librarian from the American University of Armenia.  It is one of hundreds of examples of how the potential of the Internet can improve education all over the globe.  In many ways, these librarians, and their universities, are far ahead of the US in their commitments to, and even mandates for, open access.

Nevertheless, it is impossible to ignore the fact that copyright law seldom helps, and often hampers, the educational mission of the institutions represented at the eIFL IP conference.  These developing countries quite naturally look to the international treaties (primarily the Berne Convention) and organizations (the World Intellectual Property Organization) as the create their own IP laws.  But it is a universally recognized truth that these international efforts have done much to harmonize copyright protection at a very high level and have ignored harmonization in regard to the limitations and exceptions that are so important for education.  Thus many countries have very strong copyright protect and very weak exceptions and limitations, and libraries are left to guess at what they can do, especially vis-a-vis digitization, or to simply take the risk and plunge ahead.  One African librarian told me very bluntly, but courteously, that the United States, with its zeal to export tough IP protections and disinterest in helping other countries design appropriate exceptions and limitations, was a very negative force in international IP.

There are certainly signs of hope, however.  The matter of exceptions and limitations has, for the first time, been put on the agenda of the WIPO Standing Committee of Copyright and Related Rights.  That sounds like a small matter, but it represents a big victory.  Perhaps even more promising are the efforts to get the WIPO to see exceptions and limitations to IP protections as part and parcel of the Development Agenda it adopted in 2007.  That agenda recognizes, primarily in the area of patents and especially pharmaceuticals, that a level of protection appropriate for the developed countries may be stifling for those on the way up.  For WIPO to recognize that these agenda requires more attention to copyright exceptions and limitations would be a giant step forward, one that eIFL is committed to realizing.

One of eIFL’s most important contributions to this discussion will be the Model Law it has drafted to aid librarians as they advocate for a balance copyright law in their own countries.  I was given a copy of the law “hot off the presses” while in Istanbul, and told that it would soon be posted to the eIfl web site.  In the model law (which I read on an airplane coming home and need to look at again when I can give it my full attention) is a sensible approach to both protection and exceptions that would greatly improve the international IP environment if adopted.  It should be the starting point, in spite of some reservations I will discuss in a later post, of any discussion of international copyright in the future.

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 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.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Presses, piracy and the slumping economy

6 Comments

I am sorry to say that I was not surprised when I read this article in Inside Higher Ed last week about “Pirates v. University Presses.”  I had been vlissfully unaware until recently of the existence of the kinds of websites it discusses, where unauthorized scans of the full text of many books, including academic books, are made available for free.  But only a short while ago, a colleague from another institution called one such site to my attention (following the lead of the IHE article, I won’t mention the site’s name) and asked me what I thought about faculty linking to such sites as an alternative to using a university’s e-reserves system.  It did not take me long to find the full text for some of the most frequently read titles in contemporary classrooms.

I told my colleague that I would discourage faculty from linking to such sites whenever I was asked, both because they so clearly infringe copyright and because they are inherently unstable; what is there today may not be available tomorrow.  I would love to see much more scholarly content available for free on the Internet, but the way to accomplish this is for faculty authors to retain their rights to post and license their own work, not to encourage these kinds of pirate sites.  Unfortunately, this approach puts me once more in the position of saying no to instructors who want to take illicit advantage of the benefits of the digital realm because our out-dated approaches to copyright have not caught up with that potential.

Why should we discourage piracy of academic work?  One contributor to an e-list discussion of the article asked a legitimate question — “Is it the same crime to spread knowledge by illegally making university press books available as to offer Harry Potter for download?”  I am inclined to respond that it is not the same, since the interests of academic authors are more in being read than in making money; they seldom profit from academic publication, and profit is almost never the incentive that gets them to write in the first place.  This is why our copyright system, and a publishing structure built on the transfer of exclusive rights, serves the academy so poorly.  But authors are interested in controlling the texts of their writings that are available, making sure the readings they assign are stable, and getting appropriate credit for their work.  For all these concerns, responsible rights negotiation and licensing, not pirate havens, are the right solution.

Moving beyond mere condemnatory hand-wringing, I am inclined to think there is a lesson to be learned in the fuss around these sites.  One of the reasons faculty are tempted by such things is that libraries are increasingly unable to meet their demands for online resources, either because the resources are too expensive (either for subscription or for permission), the libraries simply cannot get permission to place materials online, or the publisher does not offer an online version of the work.  The Association of Research  Libraries has recently addressed these concerns about declining budgets in a document aimed at starting a conversation with publishers to preserve as much access as possible in a time when massive cancellations are inevitable.  This document is a good start, but it only addresses one of the three problems listed above.

In many cases, it is the universities that are creating the digital files that students will use, because publishers have failed to do so.  Several of the texts I found on the pirate site I looked at are simply not available as e-books.  But libraries’ ability to fill this demand is severely limited by a narrow interpretation of fair use and extremely high permission costs for digitization that exceeds that interpretation.  One thing that must be understood is that the money an institution spends on permission fees in all likelihood comes out of its collection budget.  So even as those budgets are being slashed, the buying power of what remains is further reduced as permission fees go up.  Education suffers, and so, in the long run, do the publishers, from whom we can buy fewer and fewer new works.  Certainly the purpose of copyright law — to provide an incentive for new creativity — is left in the dust.

I wonder if there is room for a separate agreement between universities and university presses that would look more realistically at fair use for those works produced by the very faculty authors who want to make use of them and also at the cost of permission when the uses involved really are not within a reasonable understanding of fair use.  The interests of both the scholars and the university presses are very different from those of J.K. Rowling or Disney or Random House; our conversations together ought not to be burdened by the perceived needs of the entertainment industries.

Why should the university publishers agree to even discuss this idea?  Because library e-reserves and permission services are a bulwark against piracy, and the risk of piracy is increased when those services frequently must refuse requests made by faculty, either because they cannot obtain permission or cannot afford it.  It is not that libraries would resort to intentional infringment, but that students will find what they need wherever they can, and their instructors may not be inclined to make fine distinctions about the sources of material.  Academic presses also need to recognize that faculty authors feel a legitimate sense of ownership over the products of scholarly publishing, even when they have not retained legal ownership.  It is simply difficult to convince some scholars that obvious academic uses of academic work are not permitted, so it may be hard to discourage all use of pirate sites unless we can provide higher education with a legal alternative that is at least as useful.  This, of course, is what the music industry waited too long to do.  In the long run, then, it is in the best interests of all parties to negotiate the contours of both legal ownership and legal use, and it is the presses that are likely to suffer most if we fail to do so.