Category Archives: Copyright Issues and Legislation

From James Joyce to Harry Potter, the importance of fair use

February 19, 2009 Kevin Smith, J.D. 1 Comment

Anthony Falzone is Executive Director of Stanford University’s Fair Use project and has defended fair use as an exception to copyright and a key “safety valve” for free expression in several high-profile cases. Anthony has argued successfully for fair use in the case of the Joyce scholar whose attempt to publish letters by Lucia Joyce was opposed by the Joyce estate and in defense of a short excerpt from the John Lennon song “Imagine” used in the Ben Stein movie “Expelled” and opposed by Yoko Ono. He also defended the Harry Potter Lexicon against an infringement claim by JK Rowling and is currently representing the street artist who made the iconic Barack Obama HOPE poster.

Falzone will talk about these cases and the importance of fair use for scholars and universities in a talk at Duke on MARCH 2, 2009 in the Schiciano Auditorium (Fitzpatrick CIEMAS engineering building) at 5 pm. He will emphasis that fair use is vital in higher education not only to prevent copyright from stifling scholarship but also to support free speech and academic freedom. His lecture is entitled “From James Joyce To Harry Potter And John Lennon: The Impact Of Fair Use On Scholarship And Free Expression.” A reception will follow.

This event is open to the whole Duke community, but it is especially relevant for scholars and teachers who rely on fair use to create their own scholarship or to distribute scholarly works to students and colleagues, as well as to those interested in the role of free speech in the academy.

If anyone doubts the importance of fair use for academics in all kinds of situations, this blog post by Middlebury College professor Jason Mittell offers a couple of interesting lessons. First, his reliance on fair use, and especially the transformative nature of his use of the screen captures he describes, is an important reminder of how often scholarship is dependent on fair use. As has often been noted on this site, transformative uses have gotten a lot of favor by our courts recently, which is a tremendous advantage for scholars like Mittell. But the downside is his encounter with Disney, which would not give Mittell permission for the cover art for his book unless he also paid copyright fees for all the illustrations inside, even though the latter were all very likely to be fair use.

To most of us, at least some aspects of Mittell’s story seem surprising or unfair; this is precisely why Tony Falzone’s lectures promise to be such an important and eye-opening event.

Falzone’s lecture will be repeated at UNC Chapel Hill on March 3 at 5:30 pm in the Wilson Library. These events are jointly sponsored by UNC University Library, Duke University Libraries, UNC’s Center for Media Law and Policy, and Triangle Research Libraries Network

Good for aging rockers, bad for the rest of us

February 13, 2009 Kevin Smith, J.D.

That pretty much sums up the situation regarding a proposal in the European Union to extend copyright protection in sound recordings from 50 years to 95 years. There are two important lessons to learn here — one specific and one general.

To start with some background information, we note that in the EU, as in most of the rest of the world, sound recordings are treated somewhat differently than materials under copyright. The rights in sound recordings as well as several other classes of stuff, are called “neighboring rights,” and have traditionally carried less protection than copyrights per se. This is not true in the US, where musical recordings are dealt with in the copyright act and receive the same term of protection — life of the author plus 70 years — as does other subject matter. In the EU, the copyright term is the same as that in the US, but sound recordings have had a shorter (but hardly short) term — 50 years. Now there is a proposal to almost double that term for sound recordings to 95 years.

This proposal has just been approved by the legal affairs committee of the European Parliament, and now goes for a vote to the full body. This in spite of several studies that have shown the economic harm of extending copyright this much. Every expert group that has studied the issue has advised against the move, but the pressure of industry lobbying seems to be more than the Members of the European Parliament can bear. There are stories about the recent moves here and here (from very different perspectives).

Most interesting, perhaps, is this letter from Bernt Hugenhotz, one of Europe’s leading copyright experts, pointing out that this action is proceeding in the face of all the evidence suggesting it is a bad idea.

Finally, this blog post from last month includes a nice little video that offers a simple explanation, aimed at MEPs, about the economics of copyright extension. The point, of course, is that nearly everyone loses when copyright terms are extended beyond the reasonable, and very short, time necessary to provide a meaningful incentive to create.

So what are the lessons we can take away from this controversy? First, that the economics of copyright extension actually favors shorter terms, even as industry pressures for longer ones. And more generally, this affair emphasizes the point made by Prof. James Boyle in his new book The Public Domain about the great need for basing copyright decisions on actual data rather than mere assertion and self-interest. It would be nice to believe that legislators approached every issue with a eye on data and evidence, but the history of copyright regulation does not bear that out.

Authors' Rights, Copyright Issues and Legislation

Don’t let this happen to you.

January 27, 2009 Kevin Smith, J.D. 1 Comment

I admit that what caught my eye in this story is the unique name of the band involved — Death Cab for Cutie — and the fact that I know this to be one of my twenty-year-old niece’s favorite acts.

All that aside, the story is an object lesson in the problems with transferring copyright without careful consideration, and versions of this problem are occurring everyday in academia.

What happened to Death Cab for Cutie is that they posted an embedded YouTube video of themselves singing one of their own songs on their own website. Except, of course, that they do not own the rights in their own music, having transferred those rights, in one way or another, to their record label. So, as this report indicates, they received a “takedown” notice alleging copyright infringement from their own label, Warner Music Group. The video is gone now, and DCFC is not able to share their own music with their fans, even though all sides must realize that doing so would increase sales.

Likewise, numerous academics have assumed that they can post their own work to personal websites, even after they have signed publication agreements. When those agreements transfer copyright, however, this assumption is likely to be wrong. There are lots of stories, unfortunately, of academic authors receiving similar “cease and desists” letters to the one the band got, where their own publishers inform them that, as the (now) owners of the copyright in the scholars’ work, they do not permit the authors to post the works they wrote.

The lesson here is twofold. First, once you sign a publication agreement, it controls the distribution of rights and it is dangerous to assume you can continue to use your own work as you wish. It is important to read these agreements and to abide by their terms. Second, however, is the equally important lesson that one can negotiate the distribution of rights within these agreements. Don’t wait till after the fact to read the agreement; read it before you sign and negotiate for the right to use your own work in ways you will want or need in the future.

Death Cab for Cutie probably had little flexibility in their relationship with their record label and, unfortunately, they did not learn until late in the game that they had sold their rights. For academic authors it is much more likely that, with a little forethought, similar problems can be avoided. All it takes is attention to the terms of a publication agreement and consideration of exactly what rights will be beneficial for you, as an author, to retain.

Obama, (c) and the CCC

January 22, 2009 Kevin Smith, J.D.

As a number of media outlets reported, the White House webpage changed over to an Obama presidency before nearly any other action was taken by the new administration. In fact, the initial posts on the new blog that fronts the page were dated Jan. 20 at 12:01 pm, only one minute after the Twentieth Amendment says that the new president’s term began.

From my (warped) perspective, the most interesting part of this new page is its copyright policy. For one thing, it does not appear that the Bush administration had any copyright policy on its web page; at least, there was no copyright policy link on the three instantiation of WhiteHouse.gov that I looked at on the Internet Archive’s WayBack Machine (yes, the Bush administration is already “waybacked.”). There is a privacy and security policy linked to those pages, but nothing about copyright. The presumption is, therefore, that the White House was claiming copyright in whatever was open to protection on those sites, which probably was not much.

By contrast, the Obama White House begins its policy by noting that materials on their site that are produced by government employees as part of their official duties are not subject to copyright protection. This was true during previous administrations, of course, but it is nice to see official recognition of the fact.

Perhaps most exciting, however, is the use of a Creative Commons Attribution license for all content found on the White House page that is created by third parties, “except where otherwise noted.” For the White House to employ a Creative Commons license is, I think, a wonderful affirmation of the value of the CC license as a tool and a recognition of the fact that there are more ways for creators to serve their own interests than simply to rely on “one size fits all” copyright protection. Here the White House sets an example that many in the academy ought to follow; I am very proud of the fact that the Duke University Libraries placed most of their web content under a CC license over a year ago and now the Obama administration is, presumably, emulating us.

I am much less comfortable, however, with the last paragraph of the White House policy, which asserts a unilateral right under the DMCA to terminate access for “repeat infringers.” There is no indication of what kind of infringement could get one banned from the White House site, only a vague admonition to “respect the intellectual property of others.” The concern is that, if the White House takes the same approach as many other site owners, mere accusations of infringement could make one a repeat infringer, and little account would be taken of the possibility of fair use. Also, no mention is made of the possibility, allowed for in the statute (see, especially, section 512(g)), that an accused infringer could dispute the accusations and have his or her comments or whatever re-posted until such time as the accuser decides to file suit.

The Obama administration, in its website and in other policy statements, has indicated a new commiment to openness and accountability. The embrace of a CC license, and campaign statements supporting fair use, offer real signs of a balanced approach to intellectual property protection. It is to be hoped that these signs point in the direction the administration will move, and that that last paragraph of the copyright policy is just obligatory and carelessly worded boilerplate.

Debating Internet regulation

January 19, 2009 Kevin Smith, J.D. 3 Comments

Last week Federal Communications Commissioner Robert McDowell spoke with a small group of Duke administrators about a wide range of topics. In response to one question (which was, I have reason to know, deliberately provocative), Commissioner McDowell, who is a Duke alum, gave a pretty ringing endorsement of the unregulated Internet. He referred approvingly to the history of the Internet as an open environment that has, throughout its history, been free of government regulation.

McDowell chose to ignore, in these comments, the pre-history of the Internet as DARPAnet, a creation of the Defense Department’s Advanced Research Projects Agency. But really his position is the one from which I want a government regulator to start; a stance of healthy skepticism toward regulation is the best way to ensure that careful thought proceeds regulatory enactment. While suspicion of regulation is almost always a justified foundation, however, it is not necessarily the final word on the matter.

The context of the question Commissioner McDowell was answering was ‘Net neutrality, and in that context it is particularly easy for the FCC to oppose regulation, since that is the position favored by the major telecoms. But it is far too simple to say that at long as the government keeps its hands off, the Internet will stay unfettered and equally accessible to all. Commissioner McDowell clearly knows this, and his assertion was that competition is the best way to prevent private entities from closing off the Internet pipes to certain types of traffic. But he also noted that the economic downturn has delayed the implementation of additional pipes, and it is still true today that the backbone of the Internet is in the hands of only a few major corporations.

The fear here is that these companies may find it desirable to implement differential pricing — charging more for certain kinds of traffic — and that regulation might be necessary to preserve the openness that has, so far, been a hallmark of the Internet. ISPs might, for example, decide that voice-over-internet phone services compete with another part of the business of their parent telecoms and introduce higher prices for VOIP to choke off such services. UPDATE — As this report indicates, this is a very real concern that the FCC continues to monitor

A similar decision to charge more for high-bandwidth uses could be implemented in a misguided attempt to prevent video piracy. Illegal video downloads, of course, use a lot of bandwidth, but so do perfectly legal file transfers. The danger with these kind of “solutions,” whether they are differiential pricing, filtering or agreements between ISPs and content companies, is that they are likely to exclude too much content and too many users. When this happens, the free speech goals which copyright is meant to serve are undermined, often in the name of copyright protection.

The recent announcement of a new anti-piracy strategy from the RIAA, and the continued behavior of YouTube toward repeat notices of copyright infringement, illustrates this danger. The RIAA has agreements with some ISPs (it is not saying who) to cut off Internet access for those accused of repeated illegal downloading. But we know that the RIAA has not been very careful about its accusations in the past, so there is a real concern that users will lose access based on inaccurate information and poorly substantiated charges. And even before the RIAA’s new strategy is put in place, we know this kind of abuse is happening. Here is a report from the ArsTechnica blog about a case where what is quite likely to be fair use — the posting of film clips on YouTube to augment an online critical essay — has lead to the author having his YouTube account shut down because of DMCA notices that claim infringement but do not have to prove it or to take into consideration any of the myriad ways the uses on YouTube might be justified. By disconnecting users after “three strikes” based on mere accusations, YouTube is already implementing the practice the RIAA is negotiating with ISPs. And we can see that that process is ripe for abuse.

The moral here is that regulation of the Internet is a complex topic. Reliance on the market alone will not always guarantee that the ‘Net will remain open and accessible on an equal basis for all. As more and more basic and vital information and services become Web-based, such access must be preserved. The trick will be to figure out the right moment and the right way to preserve access, but the time will come when those decisions must be faced, since we have already seen that reliance on market forces and good will alone will not suffice.

What is DRM really good for?

January 10, 2009 Kevin Smith, J.D. 3 Comments

As the Library of Congress considers new exceptions to the anti-circumvention rules that legally protect the DRM systems that are used by many companies to lock up digital content of all kinds, it is helpful to consider if those protections really accomplish what they were intended to.

Digital Rights Management, or electronic protection measures, are technological locks that “physically” prevent uses that are infringing, as well as many uses that would not be infringing if they were possible. The justification for using DRM is that it is necessary to prevent the widespread infringement that the digital environment enables, and thus to protect the revenues of content creators. Those revenues, it is argued, provide the incentive that keeps Americans creating more movies, music, books, etc. This purpose seemed so important in 1998 that the Digital Milleniuum Copyright Act included rather draconian legal protection for DRM systems, making it illegal to circumvent them even when the underlying purpose of the use would itself be legal. But the juxtaposition of two recent blog posts raises an interesting question about whether DRM really does what is claimed, and whether what is claimed is really its purpose in any case.

First is this report from Canadian copyright professor Michael Geist noting that for the third straight year sales of digital music (a prime type of content “protected” with DRM) have grown faster in Canada than they have in the United States. This growth comes in spite (?) of the fact that Canada does not have the same legal protections for DRM systems that the US does. Apparently the incentives for creativity are just as strong, or stronger, in Canada, where circumvention is not punishable, as they are in the US, where we are told that those who circumvent and those who market the technology to circumvent must be stopped lest creativity grind to a halt. The reality, as Geist points out, is that “copyright is simply not the issue,” and government intervention to drastically strengthen the copyright monopoly has not provided the promised benefit.

So why is DRM really so important to big content companies? On the Electronic Frontier Foundation’s blog, Richard Esguerra gives us a more convincing answer when he notes that Apple is finally dropping DRM from the music files it sells through its iTunes store. The timing, he suggests, shows that the big content companies really use DRM to eliminate competition and enforce a captive market; as soon as that purpose becomes moot, the companies drop the DRM. It is no surprise that DRM is a marketing problem, especially for music, where it often prevents users from moving files from one device to another. As long as the expected benefits in reduced competition outweighs the loss of sales, DRM is defended as a vital part of the copyright system. But it is abandoned without a qualm once it no longer serves that anti-competitive purpose and threatens instead to hamper profits.

If DRM systems really are being used primarily to suppress competition and prevent innovation, they are working directly in opposition to the fundamental purpose of copyright law they were sold to us to support. Read together, these two reports suggest that tinkering with exceptions, as the Library of Congress is charged to do every three years, is not enough; instead, the value of the whole idea of providing legal protection to DRM should be reexamined.

Authors' Rights, Copyright Issues and Legislation

From foreign courts,

December 20, 2008 Kevin Smith, J.D. 1 Comment

come two cases that offer interesting lessons for US observers of the copyright environment.

First, there is a case from Canada that allows us for once to be grateful for at least one aspect of US copyright law. In a case involving a parody newspaper that made fun of the coverage of the Middle East provided by the newspapers of Canwest, one of Canada’s leading media conglomerates, the Supreme Court recently ruled that there is no exception to infringement for parody. The court went on to cite its own earlier decision that freedom of expression is not a defense to copyright infringement. In that case, the court wrote that “the Charter [the Canadian Charter of Rights and Freedoms]does not confer the right to use private property – the plaintiff’s copyright – in the service of freedom of expression.”

The law in the US is entirely the other way on this point – parody is a well-established purpose that is favored in the fair use analysis, and fair use as a whole has been recognized as the safety valve in copyright law that supports free speech. It is easy to see way this is so; if a copyright owner could prevent parody by claiming copyright infringement, it would be possible to suppress a lot of speech that would otherwise be constitutionally protected. Consider the case of the parody of “Gone With the Wind” that tells the story from a slave’s perspective and is called “The Wind Done Gone.” The estate of Margaret Mitchell wanted to prevent publication of “The Wind Done Gone” and succeeded in convincing a district court to enjoin the book on the basis of a copyright infringement claim. Fortunately, the 11^th Circuit Court of Appeals understood that our copyright law is not intended to suppress speech, and that sometimes use of another’s copyrighted work is necessary in order to express a particular point, especially when parody is afoot. Free speech, in this sense, trumps copyright ownership, and, on that point at least, Canada could take a lesson from the US.

The other case is from Great Britain and involves the ownership in the copyright to a classic song from the 1960’s – A Whiter Shade of Pale by Procul Harum. Unlike the Canadian case, this one applies a law very similar to US copyright law, but it does so to a very unusual and unexpected set of facts. Apparently, the justly famous organ part played at the beginning and in the middle of the song was written during studio rehearsals by a new member of the band, Matthew Fisher, who was hired to play a Hammond organ. After almost 40 years, Mr. Fisher challenged the copyright ownership in the song, claiming that he was a joint author with Gary Brooker, who originally wrote the song and has collected royalties all these years. There is a nice summary of the case here.

I rather think that I disagree with the result reach by the Court of Appeal back in April, but the decision is interesting and instructive for several reasons.

First, the judgment tries to divide the attribution right (a declaration that Fisher is, indeed, a co-author) from the right to receive royalties on the song in the future or to enjoin its exploitation without Fisher’s permission. This fundamental point is where the decision seems unwieldy and mistaken to me, but it is an interesting reminder of how other countries view the “moral” right of attribution, which the US does not recognize.

Second, Lord Justice Mummery (really!) does a very nice, careful job of picking apart the various threads of creativity and copyright in order to arrive at a reasonable decision about joint authorship. His decision is worth reading in order to understand the complexity of music copyright and the ways in which copyrights in different versions can layer on top of one another. Since joint authorship is often a very important and debated issue for scholars, the careful and clear treatment of it in this case can be very useful.

Finally, there is a fascinating suggestion in the decision that “proprietary estoppal” might apply to defeat Fisher’s claim. This notion is ultimately rejected (although the same result is reached by a different route), but the discussion itself seems very significant to me. The concept being used here is very similar to “adverse possession” in the law of real property, and the effect of its application would be to give a user some real interest in a copyright if no objection has been made to the use over a long period of time. Essential, Mr. Brooker argued that his exploitation of the whole copyrighted work over forty years gave him a “constructive” right in the organ portion that Fisher could not disclaim after 40 years. I have suggested several times that something similar to adverse possession could be applied to copyright law to solve the orphan works problem, but this is the first case in which I have seen a court (albeit, not an American court) take that possibility seriously.

Security blankets?

December 12, 2008 Kevin Smith, J.D. 3 Comments

The report that some major music companies are considering a blanket licensing arrangement with college campuses whereby the schools would pay into a central collecting agency and the music industry would stop its campaign of litigation, has, quite understandably, generated a lot of Internet buzz. Neither the technorati nor academia really seem sure how to react. To the folks at Techdirt, this is a terrible idea that would amount to a “music tax.” At the Electronic Frontier Foundation, on the other hand, this is official sanction for an idea they have been advocating for a long time. Ars Technica is more cautiously optimistic, and warns against a knee-jerk reaction that anything proposed by the music industry must be bad.

What caught my eye in all the debate, however, was a quote in the Ars Technica piece, attributed generally to EDUCAUSE, in which the licensing scheme was described as “a covenant not to sue.” Certainly an end to the lawsuits and threats of lawsuits directed against students who share music across campus networks would be welcome. But I find the phrase a dangerous gloss on blanket licensing schemes, and it prompts me to consider just how much security these blankets really offer.

The starting point, of course, is to recognize that a license, even a blanket license, is private law — a contract between parties that is binding only on those parties. Such licenses do no impact the rights or obligations of anyone who is not part of the agreement. Thus if three of the four major record labels signed up for a blanket license, and thus promised not to sue college students, the fourth label could continue to pursues such lawsuits unimpeded.

Recognizing this legal situation is especially important for understanding the Annual Campus License offered to institutions by the Copyright Clearance Center, which is a blanket license that much more directly impacts the scholarly communications system. Under that license, some percentage of the publishers who license their works through the CCC (thus a percentage of a portion) agree to accept a blanket payment in exchange for permission to make all of the uses of covered content that the campus wants for the year. Uses covered by the license include classroom distribution, e-reserves, inclusion in a course management site and course packs, but not interlibrary loan. The license applies only to textual material produced by the participating publishers; music and video, as well as text published by non-participants, is simply outside its scope.

Campuses seem to approach this license in two different ways. Some see it realistically as but one tool in the struggle to use copyrighted content in responsible ways. For those campuses, the license may help save time and make costs more predictable, but it will not necessarily streamline the permissions process, since it will require that each work for which permission is needed be checked against the list of participants in the license and individual arrangements sought for items not included therein. Other campuses regard the ACL as a kind of covenant not to sue, assuming that they are safe, or at least safer, regardless of how careful (or not) their permissions process is, as long as they pay the large cost of the license. By this logic, finding the items used that are both infringing (i.e. not fair use) and not covered by the license would be a difficult and unrewarding task for potential plaintiffs, even if they do not participate in the ACL. And there might even be peer pressure within the publishing world not to go after ACL subscribers, since they have an agreement with, and are paying lots of money to, many of the big players. The CCC is careful not to endorse this view of the license, but there are persistent whispers along these lines in the academy and even some anecdotes about individual marketers making these types of assurance “on the QT.”

One aspect of these blanket licenses that I think deserves attention on college campuses is their resemblance to the “big deals” for periodical databases that many academic libraries signed onto in the past decade or so. In those deals, a high but relatively predictable price is paid for access to lots of content, a significant portion of which is probably not really usable in the specific setting. Some libraries have come to regret these deals and to long for the days of disaggregated purchases of content, when decisions could be made based on actual expected use; the classic cost/benefit analysis. A similar dynamic seems likely around blanket licenses, and institutions may have even less control over their costs with copyright licenses than they did with the big serials purchases. In the serials world, we typically negotiated around two cost control mechanisms – the ability to cancel some small percentage of little used journal titles within the scope of the larger collection and/or a cap on the annual increase in subscription fees. It seems unlikely that the licensors for either the music or the publishing industry would agree to allow campuses to delete some providers whose content they do not expect to use from the license in order to reduce costs. And we just do not know what annual price increases will look like for these licenses. Finally, we should remember that these licensing deals, backed as they are by the threat of lawsuit, will be even harder to get out of, once a campus has signed up, than the big serials agreements have been. That fact, and its implications for budget planning, should give us pause as we consider how much security these blankets really offer.

Two cases that could shape copyright

December 1, 2008 Kevin Smith, J.D. 1 Comment

Two interesting cases were reported in the past weeks by Zohar Efroni, a non-resident fellow at Stanford’s Center for Internet and Society. One could have significant impact on the shape of US copyright law, especially as it serves to encourage or hamper technological innovation, and the other suggests, to me at least, an interesting international model that could help mold US thinking about fair use.

The first case, decided in August by the Second Circuit and recently appealed to the Supreme Court, involves the legality of the remote storage digital video recording (RS-VDR) services that large cable companies want to offer to their customers. In Cartoon Network v. Cablevision, the 2d Circuit reversed a lower court’s ruling and injunction, and held that Cablevision was not directly infringing the copyrights held by television companies when it allowed consumers to select programs that would be recorded and stored remotely, on servers owned by Cablevision, for playback to the specific consumer when they request it.

The RS-VDR argument raises once again the Sony Betamax case, in which the Supreme Court held that a substantial non-infringing use of a video cassette recorder — the fair use by consumers for “time-shifting” TV programs recorded for the personal viewing — meant that the device manufacturer was not guilty of copyright infringement, even though it was acknowledged that there were potential infringing uses of the VCR. This was a landmark case that made possible a great deal of technological innovation, since it removed the chilling effect that would have inhibited the invention of any new device or service that might be used to infringe a copyright. The Grokster case about filesharing software gave the Court a second look at the Sony ruling, and opinions differ, even on the Court, about how much that doctrine was changed. In Grokster, the Court ruled against a technology that did have potential non-infringing use because its actual use was overwhelmingly infringing and its marketing actively and knowingly encouraged infringement. Now the Supreme Court might once again revisit the fair use underpinnings of so much technical innovation if they elect to hear an appeal of the Cablevision case; Efroni’s comments on the arguments asking the Court to intervene are here.

The other case is one from German and involves music sampling. The judge in this case, reported by Efroni here, found that sampling does not infringe the copyright in the original music. The result that is much more sensible than similar approaches to the issue in the US, although it has several “catches” attached to it, as Efroni notes. It is one of those catches, in fact, which captured my attention. The decision is based on a provision of the German copyright law translated as “free use” (freie Benutzung), which is not the same as fair use in the US. Efroni suggests that we think of free use in Germany as “an extreme version of the transformativeness element familiar from the U.S. fair use analysis.” Since one of the problems with any discussion fair use is separating the notion of transformativeness (which is not a defined element of fair use) from the exclusive right granted to copyright holders to authorize derivative works, I was struck by the possibility of separating transformative uses (under this category of “free use”) from the four-factor analysis. The many recent decisions upholding transformative uses as fair use have pretty well jettisoned the four factor approach in any case; once they decide that the purpose of the use is transformative, things like commercial versus non-commercial, the nature of the original and the amount used are usually held to be irrelevant. Impact on the market for the original is also usually discounted, since courts hold that the market for a transformative use does not compete with that for the original.

This transformative approach to fair use has been extraordinarily fruitful, supporting all kinds of scholarship and creativity. But it threatens to swallow up the fair use analysis as it has been carried out for almost two centuries and as it was codified in section 107, automatically dismissing as an infringement any use at all that is not transformative and struggling to find transformation in any use that a court wants to allow. So I think it might be worth considering adopting a provision like free use, that would allow an uncompensated use of a prior work to create something new under a set of conditions more appropriate to that situation than are the four fair use factors. Then fair use could be left in place to permit those socially beneficial uses that do not meet the standard of transformativeness but still serve the fundamental purpose of copyright law to encourage and protect creativity and innovation.

Calling for better policies

November 25, 2008 Kevin Smith, J.D. 1 Comment

Unfortunately, I had to leave the SPARC Digital Repositories conference to catch a plane before the closing keynote address by David Shulenberger, VP for Academic Affairs at NASULGC, but there is a nice write up about his remarks here in LibraryJournal.com. Shulenberger outlined seven steps to help academia weather difficult economic times and still “get to the next level” in scholarly communications. Given the context, it is no surprise that the emphasis was on creating digital repositories. I would note that his first step is for each university to be sure that a repository is available for their faculty, which is not quite the same thing as saying that every institution must have its own digital archive. The possibilities for collaboration and sharing are precisely what have burgeoned in the digital environment, and it is important to remember that we can share infrastructure as well as the scholarship that infrastructure is designed to support.

The point I want to emphasize, however, was Shulenberger’s third step, in which he called on faculties and administrations to discuss current intellectual property policies and practices. This is innocuous enough until Schulenberger delivers the punch line — “emulate Harvard.” The point, of course, is that faculty should not surrender their copyright without thought and negotiation when publishing their scholarly output. The time when that was a sensible or practical way of doing business is simply past, now that the digital environment offers so many new ways to disseminate research and scholarship. The earlier part of Schulenberger’s remarks included a “calling out” of university presses and some scholarly societies for their support of the lawsuit against Georgia State and of legislative attempts to reverse the NIH Public Access policy. The key to resisting these efforts to hamstring broader access to scholarship is precisely in this point — if faculty do not give away their copyrights, but rather give only licenses for publication, they will retain control and can use their work, and let others use it, without fear of being sued for infringing the copyright in works they or their colleagues produced in the first place.

The other appeal for better policies around copyright and intellectual property is this article in the ARL Research Bulletin by the President of NASULGC, Peter McPherson. McPherson makes the point that colleges and universities are at the heart of the purpose of copyright to “promote the progress of science and the useful arts.” To do that, he argues, we need to resist the trend toward every greater protection that has tilted the balance of the copyright bargain away from its core purpose. He recommends that higher education work in concert to develop a comprehensive set of policies and to create a structure to advance those policies with lawmakers. He argues quite correctly that our voice has been fragmented and unfocused, while those who believe, in opposition to the constitutional purpose of copyright, that they are entitled to squeeze every penny from each copyrighted work, speak in unison.

McPherson makes an excellent point, with which I want to close, when he notes that no single strategy will address all of the issues and all of the needs that arise around intellectual property within the academy. It is precisely this need for creativity and flexibility that so urgently requires that we cooperate to develop an appropriate set of strategies, rather than each pursuing our own favorite issue or solution. McPherson writes:

a “solution” to fully address some of the contemporary challenges we face in the intellectual property arena may be a combination of further legislation, public licenses, market-based allocation, or market-modification allocations.

I think this is exactly right, but would point out that the fundamental point made above, that IP rights can not simply be ceded away in exchange for traditional publication, is a prerequisite to any and all of these strategies. Higher education should welcome the leadership of NASULGC, exemplified in these two articles, on this issue.

Discussions about the changing world of scholarly communications and copyright