Category Archives: international IP

Conspiracy theories, copyright term, and the TPP

I try to resist the urge to find conspiracies behind political developments; I tell myself that politicians and bureaucrats are just too unorganized and divided to really conspire about much of anything.  But sometimes that conviction gets tested.

Consider this: under our current, very confusing, set of rules for copyright term, at least some published works will begin entering the public domain in 2019.  No published works have been rising into the public domain for a long time in the U.S., but a work published in the U.S. in 1923, which had its term extended to 95 years from publication by the 1976 Copyright Act, would enter the public domain on Jan. 1, 2019, since 1923 + 95  equals 2018, and for administrate simplicity, works become PD on the first day of the year after their term expires (hence January 1 is celebrated as Public Domain Day).  Many works are protected for even longer, but this is the earliest we could hope to see published works entering the U.S. public domain.  And because this date is drawing near, it probably will not surprise many, including those who have always believed that protecting Mickey Mouse lies behind the U.S. term of protection, that Congress is once again beginning the process of formulating a new copyright act.  Do we really have any doubts that an extended term will be high on the wish list of the entertainment industry lobbyists?

But — and here is the conspiracy part — in case term extension can’t get through Congress, or cannot get through fast enough (the last copyright revision took over 20 years), there is an alternative approach to punitively protecting valuable icons from the mid-twentieth century — the Trans-Pacific Partnership agreement.

The TPP, as many readers will know, is a massive free trade agreement being negotiated in secret (more or less) between the U.S and eleven other countries.  Included in the TPP is a  chapter on intellectual property, and leaks of the text of that chapter have shown us that negotiators are considering binding the 12 parties to a copyright term that might significantly exceed, possibly even double, the minimum requirement under the Berne Convention of life of the author plus 50 years.  The longest term being proposed in the TPP, and the negotiators do not seem to have agreed on this point yet, is life plus 100 years.

Back in June, Congress renewed so-called fast track authority for the President over trade agreements, so no matter what is in the final version of the TPP, Congress will not get to amend the provisions; they will have to vote either yes or no on the text as it comes from the hands of the negotiators.  Obviously this gives a great deal more influence to the lobbyists, who must work only with the very friendly folks from the U.S Trade Representative’s office, not with the splintered and demanding Congress.  So perhaps this is a backdoor way to protect Mickey well into the 21st century.

We should note, however, that trade agreements are generally not “self-executing,” meaning that they do not become law automatically even once they are ratified.  Each nation must still make changes to their own national laws to bring them in line with the negotiated requirements.  So if a TPP with a copyright term requirement of life plus 100 years did emerge, Congress would still have to act to make that part of U.S. law.  But it would obviously be much easier to get Congress to do so if it were a requirement of a ratified trade agreement; that is great platform on which the lobbyists can stand.

Krista Cox from the Association of Research Libraries has done a wonderful analysis of the latest leaked IP chapter from the TPP, which is worth reading by anyone interested in these issues.  For me, there are three important points to take away from Krista’s analysis.  First, the current version of the IP chapter is an improvement in several ways over what we had seen before.  Second, there is still significant cause for concern in two areas — the proposal to make the issue of technological protection measures independent of the underlying copyright rules regarding a work and the issue discussed above — the potential for a much-extended copyright term to emerge from the negotiation.  And, finally, there is cause for real disappointment, if not much surprise, at the fact that the U.S. is one of only two countries that is apparently opposing a very innocuous provision that acknowledges the importance of the public domain.

With this final point we seem to come full circle.  The U.S., for which the public domain is a Constitutionally-required aspect of our copyright law, opposes an acknowledgement of the importance of that gesture to the public interest.  How can this be?  I am afraid it reminds us again that the folks responsible for copyright policy in our government do not much like the idea that copyright is a bargain with the public.  Rather than listening to the Constitution or to the 225 years of experience of copyright in this country, those officials turn their ears exclusively to the needs and concerns of the legacy entertainment and publishing industries. They seem to hear only the siren song of the lobbyist, and indeed, to move freely in and out of the ranks of those lobbyists.  Perhaps that is the conspiracy I would rather not believe in, a conspiracy to cut the public, and the public interest, out of their discussions about how copyright should work.

An international perspective on statutory damages

It has been a long time since we discussed statutory damages in this space.  Statutory damages are, of course, the high monetary damages that rights holders can elect when they sue someone for infringement.  Instead of having to prove the actual harm they suffered, statutory damages presume that harm and make proving it unnecessary.  In the U.S., statutory damages can be as high as $150,000 per infringing act (see 17 U.S. Code section 504(c)).  This is a number that the content industries love to throw around, especially as part of the highly-fictionalized warning you see at the beginning of DVDs.

Back in 2009, when the recording industry was actively suing its own customers for copyright infringement because of file-sharing, statutory damages were briefly a hot topic after juries returned million-dollar verdicts against ordinary individuals for downloading files the actual value of which was less than $100.  At the time I wrote about this issue, and also linked to another lawyer’s blog post which argued that these statutory damages were likely unconstitutional.  Since the RIAA has taken its campaign for ever-stronger copyright enforcement and ever-steeper penalties in a different direction, there has been less conversation about these disproportionate penalties.

This week, however, a development in Europe has reminded me that we should not let this issue drop.  Last week Poland’s Constitutional Court released a ruling which effectively declares Poland’s own take on statutory damages a violation of the Polish Constitution.  Polish law, it seems, enacts the same policy of allowing increased damages, well beyond ordinary judicial remedies, for copyright infringement with a provision that allows tripling of the “respective remuneration that would have been due at the time of claiming it in exchange for the rights holder’s consent for the use of the work” (see Article 79 of the English translation of Poland’s copyright law here, on the WIPO site).  What this essentially says is that triple the actual harm done (the amount the rights holder would have been due) can be awarded as a form of statutory damages.  And the Polish Constitutional Court has now decided that that provision must be changed because it violates a constitutional provision ensuring equality of protection for property ownership.  It seems they are concerned that the Polish copyright law gives a level of protection to copyrighted property that is much greater than other forms of property.

It is interesting to compare this situation to what we find in U.S. law.  We do not, of course, have the same provision about equal protection for copyright ownership in our Constitution.  The Constitutional case against statutory damages is made more on the grounds of due process, where the damages are so in excess of the harm that they are unreasonable, out of proportion, and unfair to defendants.  Still, there is intuitive sense to the idea that copyrighted works are protected far more comprehensively and stringently than most other kinds of property,  If this is true in Poland, and the Polish Court thinks it is, it is certainly even more the case in the U.S.

Consider two points.  First, in the Jamie Thomas file sharing case, the relationship between the actual harm — it would have cost about $24 for her to buy the songs at issue — and the 1.9 million dollar verdict against her, was much more disproportional than the triple damages that concerned the Polish court.  If a factor of 3 was too much for the Polish court to accept, a multiplier of nearly 800,000 ought to shock every U.S. court and every U.S. citizen.  Second, it is important to notice the different types of parties involved in the Polish case; it involved a cable TV network that apparently rebroadcast some films without a license.  So corporate entities were involved, and the Polish Court still felt that tripling the damages was unfair.  Yet in the U.S. we have allow grossly more disproportionate damages to be awarded against private citizens.

The content industry often looks to Europe and to other international laws and agreements they can use to convince U.S. lawmakers to increase protection for copyrighted works.  Here we have an international court pointing the other way; showing us in the U.S. how out of whack our copyright law has become in the area of statutory damages.  Something tells me this will not be an example cited by the MPAA or the U.S. Trade Representative.  But as Congress and the Copyright Office discusses reforming the copyright law, this finding from the Constitutional Court of Poland should shame us into looking at statutory damages here in America and recognizing that this is a problem in desperate need of remedy.


Copyright roundup 3 — Changes in UK law

In this final installment of the copyright roundup I have been doing this week, I want to note some remarkable developments in the copyright law of the United Kingdom, where a hugely significant revision of the statute received final approval this month and will be given royal assent, the last stage of becoming law, in June.

Readers may recall that the UK undertook a study of how to reform copyright law in ways that would encourage more innovation and economic competitiveness.  The resulting report, called the Hargreaves Report, made a number of recommendations, many of which were focused on creating limitations and exceptions to the exclusive rights in copyright so that the law would work more like it does in the U.S., including the flexibility provided by fair use.  The final results of this legislative process do not include an American-like fair use provision, but they do result in a significant expansion of the fair dealing provisions in U.K. law to better accomplish some of the same things fair use has allowed in the U.S.

Fair dealing is found in a couple of provisions of the British law and allows certain specified activities if those activities are done in a “fair” manner, with specified criteria for fairness.  Until now the categories have been narrow and few, but Parliament has just expanded them dramatically.  A description of this expansion from the Charter Institute of Library and Information Professionals can be found on the CILIP site.  A number of activities that are probably permitted by fair use in the U.S. are now also encompassed by fair dealing in Britain, including private copying, copying by libraries in order to provide those copies to individual users, and some significant expansion of the ability to make copies for the purpose of education.

On this last point, I wonder if the two British university presses that are suing a U.S. university over educational copying have noticed that the tide is against them even at home.

There is an explanatory memo about these changes written by the U.K. Intellectual Property Office available here.  It is interesting to see how certain goals that have been accomplished by the courts in the U.S. and, importantly, in Canada are now intentionally being supported in this British legislation.  As I say, we are seeing a fairly strong international tide pushing towards expanded user rights in the digital environment, lest legacy industries use copyright to suppress economic development in their anxiety to prevent competition.

Several points about this legislative reform seem especially important to me.

First is the emphasis in several of the new provisions on supporting both research with and preservation of sound recordings and film.  This is one of several places where the U.K. may reasonable be said to have just leapfrogged over the United States, since the provisions about non-profit use and preservation of music and film remain a mess in our law.

Second, the British are now adopting an exception for text and data mining into their law.  This is huge, and reinforces the idea I have expressed before that libraries should be reluctant about agreeing to licensing terms around TDM; the rights are likely already held by users in many cases, so those provisions really would have the effect, despite being promoted as assisting research, of putting constraints (and sometimes added costs) on what scholars can already do.  This is probably true in the U.S., where fair use likely gets us further than vendor licenses would, and it has now been made explicit in the U.K.

Another major improvement in the U.K. over U.S. copyright is the fact, explained in the CILIP post, that

[M]any of these core “permitted acts” in copyright law given to us by parliament all not be able to be overridden by contracts that have been signed.  This is of vital importance, as without this provision, existing and new exceptions in law could subsequently simply be overridden by a contract. Also many contracts are based in the laws of other countries (often the US). This important provision means that libraries and their users no longer need to  worry about what the contract allows or disallows but just apply UK copyright exceptions to the electronic publications they have purchased. 

This type of approach is desperately needed in the U.S.  If we truly believe that the activities that are supported by core exceptions to the rights under copyright, like education, library services and fair use, are beneficial to society and part of the basic public purpose of copyright, they should remain in place regardless of provisions inserted into private law contracts.  Now that the British have made this acknowledgement, it is time for the U.S. to catch up.

Competitiveness is often an important part of the discussion over copyright law.  Rights holders argue that terms should be lengthened and enforcement improved in order to enhance competition with other nations.  The U.K. began its copyright reform process in order to improve its ability to compete for high-tech business.  And this new revision of the British law puts the U.S. back in a situation where we must continue to strengthen not the rights of legacy industries but the rights of users — which is where innovation will come from — because other parts of the world are moving past us in this area.  How to we do this, in the two key areas I have identified?  In the area of the right to mine text and data for non-profit research purposes, this is something our courts can do, through interpretation of the fair use provision.  We can hope that such an opinion might appear in the near future, although I am not aware of what case might prompt it.  But contract preemption is something that Congress will have to address.  If the U.S. Congress is serious about copyright reform, and really wants to help it to continue to be a tool of economic progress in the U.S., they should put the issue of making user rights exceptions impervious to contract provisions that attempt to limit or eliminate them at the top of the legislative agenda.

Nimmer on infringement 2.0

I was reminded once again of Mark Twain’s comment — “Only one thing is impossible for God: to find any sense in any copyright law on the planet” — as I listened to Professor David Nimmer deliver the annual Frey Lecture in Intellectual Property at the Duke Law School this week.  As the person now responsible for revising and updating the seminal treatise Nimmer on Copyright, which was begun by his father over fifty years ago, Professor Nimmer has the monumental task of trying to make U.S. copyright law and jurisprudence coherent by creating a framework that makes it all (or most of it) make sense.  Judging from his lecture, it is a task he embraces with grace, humor and aplomb.

The title of Nimmer’s lecture was “Infringement 2.0,” and his overall framework involved the changing role of copyright and infringement in the current environment, where copyright protects every scrap of original expression, whether the creator needs or wants that protection, and where copying and widespread distribution can be accomplished with the click of a mouse.  I want to try to outline several points from the lecture that seemed especially interesting to me (fully recognizing that I alone am responsible for any misrepresentations of Prof. Nimmer’s meaning).

Nimmer began with a more qualified definition of infringement that we tend to think about normally, in my opinion — the unauthorized wholesale copying of works of high authorship.  Not just unauthorized copying, but wholesale copying of works of high authorship.  This definition seems to suggest that courts should not spend time worrying about copyrights in family photos and other ephemera; Nimmer even raised the question of whether we should protect pornography, although he immediately recognized the First Amendment issues that such a stance would raise.

With this qualified definition of infringement as a starting place, Nimmer took us on a tour of some recent copyright rulings.  What I found really interesting was his suggestion that courts are using fair use, in the digital environment to approximate the qualified definition of infringement that he suggested.  Two examples will have to suffice.  In the case involving the anti-plagiarism software Turnitin (A.V. v. iParadigms), the Fourth Circuit rejected an infringement claim based on the copying of entire student papers that are submitted to the service and stored to be used for comparison against later submissions.  The Court reached this result by finding that Turnitin’s use was a fair use, and Nimmer suggested that this use did not meet his qualified definition of an infringement because it did not copy works of “high authorship.”  More significantly, perhaps, Nimmer also approved of the District Court decision in last year’s Google Books case that Google’s scanning of millions of titles was a fair use.  In his framework, Google’s scanning did not amount to “wholesale” copying; even though entire works are scanned in to the database, users see only “snippets,” and those very short excerpts serve important social purposes.

Whatever one may think of the individual cases, this was a fascinating approach.  The copyright law says that what is fair use is not, therefore, infringement, so it makes perfect sense, for one sufficiently learned and bold, to try to understand fair use jurisprudence by looking at the limits on infringement that are thus defined by implication.

Another topic Nimmer addressed at length was the doctrine of first sale, and he was highly critical of the Ninth Circuit decision in Vernor v. Autodesk, which found that Mr. Vernor committed copyright infringement when he resold legal copies of CAD DVDs in apparent violation of licensing terms.   The Ninth Circuit spent a lot of time examining those license terms, but Nimmer suggested that they were asking the wrong question.  The proper question here, he suggested, was not “was this a sale or a licensing transaction,” as the Court assumed, but rather “who was the legitimate owner of the material substrate that made up this copy?”  He pointed out that in both the foundational Supreme Court case about first sale, from 1908, and in last year’s decision in the Kirtsaeng case, the Court was dealing with legal copies where an attempt had been made, through a license, to restrict downstream resale of those copies.  In both cases the Supreme Court ignored those attempts at licensing and allowed the legitimate owner of the material copies to resell the works on whatever terms he could negotiate.  Based on those precedents, Nimmer suggested that the Ninth Circuit erred when it found that Vernor had infringed copyright with his resale, based on provisions in the purported license.

Another place where Nimmer suggested a radical way to rethink the copyright environment was on the international front.  He asserted that the foundational principles of international copyright agreements — the prohibition of formalities and so-called “national treatment” — simply do not make sense in the Internet age, where potential copyright infringements nearly always cross national borders, and copyright owners are often impossible to locate.  He suggested that this out-dated approach be replaced by something the U.N. and the W.I.P.O could do very well — a searchable, worldwide registry for copyright owners that Nimmer called a “panopticon.”  His idea is that if a copyright owner has registered his or her work in the panopticon, they would be entitled to significant remedies for any act of infringement that is found.  If they do not register, however, a action for infringement could only result in an award based on actual losses, not the much more substantial “statutory damages” that are often available.

This idea is nothing if not ambitious, but its foundations are commonsensical.  If copyright protection is going to be completely automatic, and no notice on individual works is required, it is unfair to insist that users must have authorization for their uses if the rights holders have done nothing at all to make their claims known or to facilitate asking for permission.  Lots of other property rights regimes have notice or registration rules (think of buying a house or a car) and those rules are in place to protect the owner.  Why not a similar regime for international copyright, with an incentive, in terms of potential recovery available, for participation?

Finally, I want to end with Nimmer’s prediction about the prospect of a new copyright act in the United States.  It seemed that he does believe that Congress will seriously undertake such a thoroughgoing revision of the law, and he suggested a betting pool on when the new copyright act would pass.  For himself, he wanted to reserve a date in May of 2029.  So we have that to look forward to.


Fair use, Georgia State, and the rest of the world.

UPDATE —  Since I wrote this post, Professor Niva Elkin-Koren of Haifa University has kindly informed me that an English translation of the settlement agreement discussed below is now available on the Israeli A2K in Higher Education website. The direct link to the translated settlement is here.

Ever since the Georgia State copyright lawsuit over e-reserves began, people have suggested an analogy to the ill-fated and now renounced litigation campaign by the recording industry against customers who downloaded music files.  It took years, but it finally dawned on the recording industry that suing your own customers was a bad strategy, pursued only by a desperate industry that cannot figure out how to retool their businesses to offer services that people really need and want.  But as I tell folks, the publishers suing Georgia State have made an even more foolish decision, since they are suing people who are not just their customers, but also their suppliers.  The very academics that are vilified as thieves in this lawsuit are the ones who produce the content that Oxford, Cambridge and Sage take, usually for free, to resell at a high profit.  This is one reason why the publishers cannot win this case, even if the 11th Circuit follows the ill-logic they displayed at oral arguments and gives the publishers some kind of Phyrrhic victory.  The attention they are bringing to their own greed and mismanagement will drive more of the authors they depend on to stop giving these publishers free content to sell, and the current economics of higher education guarantees that they will not be able to offset their losses through the increased permission fees they dream about.

All of this is old news.  But as these three publishers continue to pursue a suicide mission in the U.S., we can see that other, more sensible segments of the same industry, are taking a more sensible approach.  As this blog post from University of Toronto law professor Ariel Katz describes, publishers and academic groups in Israel have come to an agreement about fair use that shows just how grasping and ill-conceived the GSU case is.

Israel adopted a fair use provision nearly identical in language to the U.S. provision in the 2007 revision of its (Israel’s) copyright law.  And, just as in the U.S., a couple of Israeli publishers brought a lawsuit against Hebrew University alleging copyright infringing, a case clearly designed to test and define the limits of the new fair use provision.  But in Israel the case has settled, with an agreement announced last week that defines fair use in a very sensible way that indicates a real commitment to scholarship and education on the part of these Israeli publishers, something wholly lacking from the U.S. plaintiffs.

According to Katz, the settlement in the Israeli case recognizes that both e-reserves and course packs are fair uses of copyrighted material, with full journal articles and excerpts of up to 20% of books falling within the fair use definition.  Note that this agreement allows unauthorized excerpts that are twice as long as the ones tolerated by Judge Evans in the GSU trial decision, which the U.S. publishers are disputing.  This, like a great deal of other evidence, shows us that the U.S. plaintiffs are not simply trying to protect their businesses, as they claim; they are asking the courts to grant them windfall profits they have not earned and do not deserve.  Apparently these smaller Israeli publishers think they can live with this agreement, while some of the richest academic publishers in the world are crying poverty to the U.S. 11th Circuit.

There are some additional qualifications on this Israeli settlement that are worth noting.  The e-reserve systems must be accessible only to students registered for a specific class in order to be fair use, something that is almost always true in the U.S. as well.  Course packs must be produced only on demand and sold only to students registered in a class and at cost.  These limitations are, I believe, things that U.S. higher education would be happy to abide by as well, but the publishers appear to be unwilling to show the same spirit of compromise that their Israeli colleagues have.  Finally, Hebrew University has agreed to pay legal costs for the publishers– less than $100,000 — without admitting any culpability for copyright infringement.  Overall, this is a sensible compromise between sensible parties, something foreclosed in the U.S. by the irrational greed of the GSU plaintiffs.

As Katz points out, this agreement in Israel is not a license being granted to universities by publishers; it is a definition of fair use within a specified context.  And, interestingly, it includes a mutual recognition of the Code of Best Practices for Use of Works in Research and Teaching that has been developed in Israel to interpret fair use.  This Code of Best Practices is similar in some ways to the Code from the Association of Research Libraries; it is certainly not more conservative than the ARL Code.  The Israeli Code explicitly recognizes that the amount used should be considered in relationship to the purpose, and that a loss of income to the publisher does not automatically foreclose fair use.  In thinking about the nature of the original, a topic that confused the 11th Circuit judges so badly, the Israeli Code does not waste time debating factual versus fictional and instead recognizes the greater accessibility required for works “of an academic character.”  It also adopts the same fourth factor criteria favoring fair use that Judge Evans used in the GSU trial, the unavailability of licenses specifically for electronic use. Finally, the Israeli Code treats transformative fair use properly, recognizing that transformation is an important but not required element of the first factor analysis, and that transformation can occur either through actual alterations to the original or when there is a “use of a work in a different manner or for a different purpose or function than that of the original work.”

The Israeli Code of Best Practices is very much worth reading, and there is an interesting article about the Israeli experience with fair use for higher education by four academics available here.

All of this, as well as discussions about fair use in Canada, Great Britain and Japan, suggest that the rest of the world is getting the hang of fair use.  They are realizing that fair use is absolutely essential for a copyright law in the digital age, lest the exclusive rights become an economic and technological drag on a nation.  What Judge Evans decided in the GSU case was squarely in the mainstream of fair use thinking; it was even rather conservative when viewed through the lens of developing international thinking about fair use in a digital age.  If the silly misunderstandings of the 11th Circuit panel of judges lead them in another direction, it will be one more obstacle that will eventually have to be overcome to prevent cultural and economic stagnation.  But internationally, the trend is to ensure that fair use serves education and eases the transition to digital teaching and learning, a goal that at least some publishers seem to support.

Taking a stand

When I wrote a blog post two weeks ago about libraries, EBSCO and Harvard Business Publications, I was attending the eIFL General Assembly in Istanbul, and I think the message I wanted to convey — that librarians need to take a stand on this issue and not meekly agree to HBP’s new licensing fee — was partly inspired by my experiences at the eIFL GA.

Having attended two eIFL events in the past four years, I have learned that many U.S. librarians are not aware of the work eIFL does, so let me take a moment to review who they are.  The core mission of eIFL is to “enable access to knowledge in developing and transition countries.”  They are a small and distributed staff that work on several projects, including support for the development of library consortia in their partner countries, negotiating licenses for electronic resources on behalf of those consortia, developing capacity for advocacy focused on copyright reform and open access, and encouraging the use of free and open source software by libraries.  The key clientele for eIFL are academic libraries, and all of the country coordinators and delegates that I met at the General Assembly were from colleges and universities.  But eIFL also has a project to help connect communities to information through public libraries in the nations they serve.

The delegates at the General Assembly came from Eastern Europe, Central Asia and Africa.  These librarians face a variety of local conditions and challenges, but they share a common commitment to improving information access and use for the communities they serve.  It was the depth and strength of that commitment that I found so inspiring at the event.  I wanted to encourage U.S. librarians to take a stand because these librarians from all over the world are themselves so consistently taking a stand.

One way these librarians are taking a stand is in negotiations with publishers.  There were lots of vendor and publishing representatives at the General Assembly, and time for each delegation to speak with each vendor (“speed dating”) was built in to the schedule.  Although these meetings were short, they were clearly intense.  One vendor rep told me that they were difficult because the librarians had diverse needs and were well-versed for the negotiations.  He also told me that he enjoyed the intensity because it went beyond “just selling.”  And that is the key.  These librarians are supporting each other, learning from each other and from speakers at the event what they can expect and what they can aspire to with their electronic resources, and taking those aspirations, along with their local needs, into negotiations.  They are definitely not “easy” customers because they are well-informed and willing to fight for the purchases that best serve their communities.  Because they cannot buy everything, they buy very carefully and drive hard bargains.

Another area in which these eIFL librarians are taking a stand is in regard to copyright in their individual nations.  I saw several presentations, from library consortia in Poland, Uzbekistan, Mongolia and Zimbabwe, about how they had made their library consortia into recognized stakeholders in discussions of copyright reform on the national level.  One consortium is offering small grants for librarians to become advocates for fair copyright; another has established a copyright “help desk” to bring librarians up to speed.  One of the eIFL staff emphasized to me the importance of this copyright work.  Copyright advocacy is part of the solution, I was told, to the problem of burdensome licensing terms that have often been seen in those parts of the world.

One story was particularly interesting to me.  An African librarian told how publishers in her country often view libraries and librarians as a major “enemy” because it is believed that they encourage book piracy.  Through the consortium of academic libraries, librarians have now become actively involved in a major publishing event that is held annually in her country, and recently the libraries were asked to nominate a board member to that group.  As a result of these efforts, the relationship between librarians and publishers has improved, and there is much more understanding (thus less suspicion) about library goals and priorities.

eIFL librarians are also taking a stand amongst their own faculties by advocating for open access. There were multiple stories about new open access policies at different universities, and about the implementation of repository software.  There were also multiple presentations to convey the advantages that open resources offer to education.  These presentations discussed MOOCs (that was me), open data, alternative methods of research assessment and text-mining.  If these sound familiar, they should.  In spite of difficult conditions and low levels of resourcing, these librarians are investigating the same opportunities and addressing the same challenges as their U.S. counterparts.  Just to illustrate the breadth of the interest in the whole topic of openness, I wrote down the countries from which the librarians who grilled me about MOOCs came when I spent an hour fielding questions; they came from Azerbaijan, Lesotho, Kyrgyzstan, Lithuania, Malawi, Maldives, Macedonia, Fiji, China, Thailand, Ghana, Belarus, Armenia, Uzbekistan, Swaziland and Mongolia.  They came with questions that challenged my assumptions (especially about business models) and deepened my own understanding of the international impact of open online courses.

There is one last conversation I had that I want to report on, both for its own sake and because of how it illuminates the eIFL mission.  Mark Patterson, the editor of the open access journal eLife, was at the GA to talk about research assessment.  Later I sat and talked with him about eLife.  He told me that the most exciting thing about eLife was its model whereby scientists reclaim the decision about what is important to science.  While the editors of subscription-based journals must always strive for novelty in order to defend and extend their competitiveness, eLife and, presumably, other open access journals, have scientists making decisions about what is important to science, whether or not it is shiny and new.  Sometimes there is an article that is really important because it refines some idea or process in a small way, or because of its didactic value.  Such articles would escape the notice of many subscription journals, but the editors at eLife can catch them and publish them.  And the reason this seems to fit so well into the eIFL context is because it is about self-determination.  Whether I was talking about open access journals with Mark or to the country delegates at the GA, this was the dominant theme, the need to put self-determination at the center of scholarly communications systems, from publishing to purchasing.

The varieties of the public domain

It is well known that early publishing houses in America built themselves up, in large part, through the publication of unauthorized editions of popular British authors.  This was a time when foreign works, including English-language books published in Britain, did not enjoy copyright protection in the U.S.  Indeed, books published abroad in English did not get copyright in this country until 1891, a full century after the first U.S. copyright law.  And even after that time, the strict formalities imposed on foreign works, including the infamous “manufacturing clause,” kept many works out of copyright.  American publishers used this legal situation to make money off of the popularity of British authors without having to pay any royalties to those authors.  The firm Harper published unauthorized editions of Walter Scott, for instance, while Grossett & Dunlap (now part of Penguin) built its business in part by publishing Rudyard Kipling without his permission.  British authors and British publishers called this activity “piracy,” but in the U.S. there was a different name for it.  It was the public domain.

In his new book Without Copyrights: Piracy, Publishing and the Public Domain (Oxford University Press, 2013), law professor (and one-time professor of English Literature) Robert Spoo details the legal and the literary situation that modernist British authors faced because of the narrowness of American copyright or, alternately, the expansiveness of the American public domain.  Just to take one example, Virginia Woolf’s early novels were published in the U.S with substantial changes from their U.K. editions, because it was believed that revised American editions could get U.S. copyright even if the original edition had failed to meet the manufacturing requirements.  Woolf instructed her friend Lytton Strachey, for example, to make lots of revisions because her American publisher suggested “the more alterations the better — because of copyright” (Spoo, p. 95).  Joyce and Pound were both published in fragmentary format in magazines because of the (unproven) theory that such publication could stake out a copyright claim while avoiding the difficulties and expense of U.S. printing and binding.  It is fascinating, in my opinion, to see how the actual experience of literature was shaped for American readers by the strictures of the copyright law.

Whether because copyright for foreign works was simply unavailable (as it was prior to 1891) or because of the rule that English-language works by foreign nationals had to be typeset, printed and bound in the U.S. in order to enjoy copyright here (not fully repealed until 1986), lots of well-known works were in the American public domain in those days.  And in spite of the frequent resort to the word piracy, this was a perfectly legal situation, created intentionally to protect American publishers and printers.  As nineteenth-century copyright scholar Eaton Drone wrote:

[I]t is not piracy to take without authority either a part or the whole of what another has written, if neither a statute nor the common law is thereby violated… Hence, there may be an unauthorized appropriation of literary property which is neither piracy nor plagiarism, as the republication in the United States of the work of a foreign author.  This is not piracy, because no law is violated; and, without misrepresentation as to authorship, it is not plagiarism. (Quote by Spoo, p. 23)

Then, as now, accusations of piracy were thrown about rather irresponsibly, and Drone sought to clarify the situation.

Over time, publishers developed a system called “courtesy of the trade” which took the place of copyright protection for foreign authors.  That system had two prongs — the offer of some form of payment to the foreign author of a reprinted work and a “gentleman’s agreement” amongst U.S. publishers that others would not “jump the claim” of a publisher who had announced the intention to reprint a specific author. Although this was referred to as courtesy, it was really sharp business tactics, and it was not particularly fair to the authors.  They were not in a strong negotiating position as to the fees they were paid; they pretty much had to “take it or leave it,” especially since the system made it very difficult to shop their work to multiple American publishers.  And, of course, the system was used to create informal monopolies, which excluded competition and drove up prices.  In some ways the system of trade courtesy reminds me of the current situation for academic publishing.  Although lip-service is paid to the rights of scholarly authors by publishers, their work is appropriated without payment through a coercive system in which they had little option, until recently.  Such publication is not piracy, as Drone tells us, but it certainly is a form of free-riding, coupled with an effective monopoly that keeps prices on the sales side artificially high.

The public domain, of course, is no longer the wide open commons described by Spoo, where most works published abroad were free for anyone to reprint or otherwise use within 90 days of publication unless the authors met onerous requirements.  Today our public domain is almost as constrained as it was free-wheeling for much of our history.  Today, virtually no published works are entering the U.S. public domain; our cultural heritage is basically locked up.  And figuring out what is and is not in the American public domain is just as difficult today as it was for Ezra Pound or Charles Dickens.  As Spoo writes about contemporary international copyright law,

Far from unifying the global public domain, however, recent laws enacted in the United States and Europe only guarantee its continuing disharmony and fragmentation.  Worldwide availability of modernist works is threatened by a tragedy of the uncoordinated global commons, a congestion of divergent durational terms and other rules that impede the free use of works created nearly a century ago. (p. 8)

In the context of this confusion, it is all the more laudable that some groups are making continuing contributions to the public domain.  I began reading Spoo’s book shortly after returning from a meeting about the Copyright Research Management System that is an ongoing project of the HathiTrust.  CRMS is methodically researching books that fall into the “doubtful” categories of U.S. copyright — periods of years during which a published work might still be protected or might be in the public domain.  Since the beginning of the U.S. project in 2008, nearly 150,000 titles have been identified as public domain.  These are works that can be made available to the public without any harm to rights holders.

There is nothing underhanded about this project, as there arguably was about unauthorized reprinting by American publishers of unprotected foreign works.  Instead, this research provides a pure benefit.  Most of that benefit is in the ability to open up new works to the public that were previously closed simply due to lack of data.  Another part of the benefit, however, is in the fact that information is being gathered that is beneficial to rights holders and to future users.  As it determines that many books are in the public domain, the CRMS project has also determined that a significant number of the books it has researched are still in copyright, which is important information to know.  Even the fairly large category of “undetermined” is beneficial.  Although these books are not able to be opened to the public domain, there is now better data about these titles and the gaps in our knowledge about them have been identified.  Knowing what we don’t know, to paraphrase Don Rumsfeld, is itself a step forward.  HathiTrust should be proud of the work that it has done and continues to do, opening books to the public domain and gathering data that will clarify the contours of the public domain into the future.

The public domain is a changeable space, as Robert Spoo shows eloquently in Without Copyrights.  Changes in law, changes in the practices of authorship and publishing and even the cost of paper can influence what is, or is not a public domain resource.  As with the weather, many people complain about the vagaries of the public domain, but do nothing about them.  Spoo and the HathiTrust are each, in very different ways, doing something to strengthen our notions about those resources that are the vital common property of us all.



Copyright policy here and abroad

Earlier this month, Jonathon Band, who, among his other accomplishments, is the principle attorney for the U.S. Library Copyright Alliance, posted a report of a talk he gave in Seoul, South Korea at a conference on “The Creative Economy and Intellectual Property.”  In response to an invitation to talk about how U.S. copyright policy helped to foster a creative economy, Band made an interesting distinction, one that caught my attention and made me nod my head in surprised agreement.

Band’s basic distinction is this: U.S. domestic policy does help to foster a creative economy because it seeks to balance copyright protections, which do support creative pursuits, with exceptions that limit the scope of claims to copyright infringement.  These exceptions are every bit as to encourage innovation as the protections themselves are, but U.S. policy about copyright in other countries does not similarly support a creative economy.

We can identify two reasons why the U.S approach to copyright in other countries does not support creativity and innovation, based on a distinction Band makes between process and substance.

In terms of process, the U.S. foreign policy about copyright is entirely in the hands of the Executive branch of government, which is very susceptible to lobbying from the traditional content industries.  The important role that the entertainment industries play in any Presidential election is just one reason for this understandable, if unfortunate, influence on the Executive branch.  And because that branch is solely responsible for our foreign relations, we are often in the position, as Band illustrates nicely, of advocating for much stricter copyright provisions abroad than we have, or are allowed to have, at home.

Part of the reason our domestic law is more balanced is because of the role of the courts, who are much less easily influenced by lobbying and who have a great role in maintaining the copyright balance, as we have seen in the important string of fair use decisions that have been coming out of courts all over the country in recent years. But U.S. courts have no role in shaping the kinds of policies we advocate for in other nations.

On the side of substance, our copyright policy toward other countries is determined and expressed by trade representatives, whose goal, naturally, is to improve the market for U.S. products around the world.  Thus their copyright focus is on (primarily) entertainment products that already exist, and which, they believe, must be strictly protected from all kinds of unauthorized use, even if those uses would be allowed in the U.S.  So at the same time that U.S. courts are developing a broad view of fair use that supports digital innovation and new industries, our trade reps are vigorously campaigning to prevent any other nation from getting the (correct) idea that fair use is a good idea if you want to support a creative economy.

To continue this distinction a little farther, I want to look at two other items that came to my attention this week.

On the domestic front, there is this info-graphic about fair use from the Association of Research Libraries, which is a great resource for starting a conversation with academic librarians and faculty members about the space that our domestic courts are opening for innovation, scholarship and creativity with their expanding approach to fair use.  Conveying to our communities that fair use is good news from the copyright front, and that considered, responsible decisions about how to use materials in teaching and scholarship are also quite likely to be good decisions about fair use, is an important role on campus.

On the international side, consider this press release from the European Commission suggesting that open access has reached a “tipping point” in Europe.  The European Community, of course, has been a leader in promoting open access to research and scholarship.  And it is helpful to see open access as a way to simply move past the pressure that the EC and other nations receive from the U.S. to strengthen copyright protections and weaken user rights.  Open access is a way for copyright holders — remember that in spite of the rhetoric, it is authors on our campuses who are the original copyright holders in virtually all works of scholarship — to exercise their rights in ways that are most beneficial to them and to avoid many of the restrictions imposed by secondary copyright holders on access and reuse.  It allows scholars to simply ignore the attempts by industry and the U.S trade reps to ratchet copyright protections ever higher and to use their own copyrights in a way that is true to copyright’s core purposes of supporting creativity and innovation.  Indeed, by making our works of scholarship openly accessible, we provide much needed access to scholars and others, especially in the developing world, access that will be denied if those users have to rely on national policies that are shaped by pressure from the U.S.

In different ways, both the growing consensus around fair use and the open access movement are responses to the issues that Jon Band raised in his talk.  Both are supports for a creative economy.  But it is open access, where authors hold on to their copyrights in order to use their works for the best interests of themselves, their discipline and scholarship in general, that has the most potential to foster growth and innovation both here and abroad.

The quest for “super-property”

Before yesterday’s ruling in the Kirtsaeng v. John Wiley & Sons Supreme Court case, I had written a post about the oddity that copyright law is the only form of property right that does not include a specific mechanism by which the rights holder can lose their rights if they do not use the property for a long period of time.  In this way copyright violates one of the principal reasons that property rights are granted, to encourage the efficient use of resources.

In thinking about the Kirtsaeng case — the decision is here, there is a Chronicle of Higher Education story about the ruling here, and Kenny Crews of Columbia offers a detailed analysis of the decision here — I have come to realize that the same issue of whether or not copyright should behave like other forms of property was in play in this litigation.  In short, by trying to enforce a “geographical” reading of the doctrine of first sale, publishers were attempting to create a “super” property right that would gave them a level of control that other property owners do not get.

On a trip to Turkey two years ago, I purchased a silver and onyx ring while in Cappadocia, where onyx is mined in large quantity.  My wife and I also purchased a carpet for our dining room.  Both items could have been purchased in the U.S., but both were less expensive in Kaymakli than they would have been had we done our shopping in Raleigh.

I mention this small shopping spree to make two points.  First, the sale of these goods at lower prices in other countries than are available in the U.S. does not, apparently, make it impossible for U.S. merchants to sell at higher prices to shoppers here at home.  Price discrimination, as it is called when vendors adjust their price structure to take account of local market conditions, does not depend, apparently, on an absolute prohibition on importation or cross-border sales.  Second, now that we own the ring and the carpet, we are free to do with them what we like.  No one can tell us where to place the carpet, or to what events I may or may not wear my ring.  And we can resell either item if we wish.

What publishers wanted from the Supreme Court was an unprecedented level of control that no other property owner gets — the right to control the use of a copy that was manufactured in another country (i.e. whether or not it could be lent) and to control any resale of that copy.

Let’s think back for a minute to the Costco v. Omega case from a few years ago that also dealt with unauthorized importation of copyrighted goods.

First, it is interesting that that case involved copyright at all, since the goods in question were watches, which are not copyrightable subject matter.  Omega was able to bring the suit only by registering a small emblem on the back of the watches for U.S copyright protection.  They had to do this, of course, because simply being the owner of a batch of watches would not have given them control over the importation of legally purchased watches to the U.S.  They resorted to this ploy to take advantage of the unique feature of copyright that they believed gave them more control than “mere” property ownership did.  They were trying to exploit the “super” property features of copyright.

Second, even though Omega got a tie from the Supreme Court that left in place a favorable decision for them from the Ninth Circuit, they were ultimately unable to take advantage of that quasi-victory.  On remand, the District Court granted summary judgment to Costco because, it held, Omega was trying to misuse its copyright to prevent perfectly legal importation.  In spite of that ruling (which is under appeal), I am pretty confident that Omega still sells watches for less in South America than it does in North America.  Again, an absolute ban on importation is not a prerequisite to price discrimination; while there is always some “leakage” of “grey market” goods, price discrimination works well enough that all kinds of businesses that sell different types of property depend on it anyway.

So the outraged threats that are being heard from publishers about how U.S. market prices will now have to be charged for copies sold in the developing world are simply ridiculous.  One extremely vocal advocate for the publishing position puts the claim this way, in a comment to the Chronicle story linked above:

The only practical effect of the decision will be to stop the practice of publishers licensing the sale of U.S. works for sale in foreign countries in cheaper editions, thus greatly inhibiting the flow of knowledge to underdeveloped countries.

If academic publishers were really to do this, it would be a crime against their self-declared mission of making knowledge available.  It would also be bad business; a self-defeating fit of pique that would cost them a lot of money.  But no, I am confident that publishers will still sell books at prices adjusted for market conditions, unless they are even worse businesspeople than I think they are.  Perhaps it will be necessary to adjust prices to account for that leakage which the Supreme Court has said cannot be choked off entirely, but I actually suspect that that small loss is already built in to decisions about pricing.

One way to think about what was being considered in the Kirtsaeng case is to look at it as a tariff — an attempt to guarantee extra, post-sale income from goods when they were imported into the United States by forcing purchasers to license certain uses of those goods they had already bought.  The U.S. disfavors tariffs, and where they do exist the money is paid to the government, which is trying to protect specific domestic industries.  If Kirtsaeng had gone the other way, however, there would have been, in effect, a tariff on importing books and films that would have been an entirely private benefit.  From this perspective, as from that of property rights as a general notion, what was being sought by the publishers in Kirtsaeng was unprecedented, as well as unwise.

[By the way, Mike Masnick of TechDirt also uses this analogy with tariffs in one of his comments on the case, and his post is an indication that the publishers are already beginning to pull strings to try and get Congress to give them the extraordinary benefit that the Supreme Court has just denied them.]

One argument that the publishers have made and continue to make is that the “parade of horribles” that was predicted by libraries and many others in the Court would not have actually come about; they frequently say that what they were asking for was actually the state of the law for the past thirty years, and things have run pretty smoothly up till now.  But to make that claim is to beg the question of why the case had to be brought at all.  Libraries did not sue over first sale; neither did Supap Kirtsaeng.  It was publishers who decided that they needed to go to court because, obviously, they wanted to change the conditions that actually have been in place up till now.  Publishers were seeking a “new deal,” a super-property right that is unprecedented in any other market place.  And what libraries “won” (remembering that no library was a party to the case) was simply the right to proceed as we have been for many years.  I have no doubt that if the lower courts had been upheld in this case, publishers would begin to demand “public lending fees” from libraries whenever a book was printed in another country, and would have moved operations offshore to increase the situations in which they could demand such a fee (as the Second Circuit Court of Appeals acknowledged was a likely outcome).  It is an overstatement to call this a victory for libraries; it was merely a successful defense of what we have done for many years, which, it turns out, is something that our courts really value and appreciate.


Why is copyright different?

One of the most basic justifications for all forms of property rights, something every first-year law student is taught, is that these rights encourage the efficient use of property.  Because property (usually) is a scarce resource, exclusive ownership rights help encourage people who value and will use the property.  For the same reason, restraints on the ability to sell property are generally discouraged — we support the “free alienability” of property so that those who do not wish to fully exploit a piece of property will be able to transfer that land (as it usually is) to someone who will.  In short, the rules around real property exist because of the foundational belief that fields should be tilled and planted, and houses should be lived in.

In this context of why we have property rights at all, it is very easy to see and understand that the problem in copyright of so-called orphan works is a fundamental failure of the rights system itself.

In addition to rules that encourage property owners to sell that they do not intend to use, nearly all forms of property rights regimes also have doctrines that will take the property away from an owner who declines to exploit what he or she owns.  The classic doctrine that does this is adverse possession, which can actually transfer title to a piece of land from the owner to a person whose only claim is that he is using the property while the owner is not.  In North Carolina, for example, a person who openly possesses and uses a piece of land that is not her own for a period of at least fifteen years can ask the courts to transfer title to her.  That is, owners of real property can lose their ownership simply because they did not use the property.

Real property is not the only property rights regime that has such a doctrine.  Ownership over personal property can also be lost, through the doctrine of abandonment.  If I leave my bicycle in a local park for long enough, without any indication of my claim to it or my intention to ever use it again, I may have abandoned the bicycle and it could become the property of another person who finds it, claims it and uses it.  Although we do not usually think about it this way, property rights are a “use it or lose it” legal regime.

Perhaps someone will suggest that these use it or lose it rules make sense in the realm of tangible property, where scarcity is really a problem, but would be inappropriate for intangible, intellectual property.  But that distinction does not work, because two other intellectual property regimes, trademark and patent, also have “use it or lose it” rules.  A trademark owner can lose their rights in a mark through neglect — one must defend the ability of the mark to identify specific goods or services, or else the mark will be lost because it is not serving the purpose for which trademarks are granted.  And patent rights can likewise be lost, if the rights holder does not pay the regular maintenance fees that are required.

In fact, as far as I can tell, the only form of property interest that cannot be lost even if it is never used is copyright.  Unlike with land, chattels, trademarks, or patents, a copyright holder can hold on to their rights for nearly a century without using them at all, and still without losing them.  And it is this bizarre feature of copyright, which distinguishes it from all other forms of property rights, that creates the problem of orphan works.

Of course, our copyright law used to have the same kind of mechanism that exists in other property regimes; renewal of copyright served as a very simple way to indicate a continued intention to use the property right, and without renewal the right was lost.  With that renewal requirement, copyright stayed on a par with other forms of property.  But we removed that requirement when we joined the Berne Convention, which forbids “formalities.”  That probably made very little sense (and we have ignored other requirements of the Berne Convention in spite of our adherence to it in 1988) because it created the orphan works problem and undermined one of the most basic justifications — efficiency through use — for allowing exclusive property rights in the first place.

The best solution to the orphan works problem would simply be to reinstate the renewal requirement.  That could probably be done without violating our obligations under Berne, if the requirement was imposed only on rights holders who are U.S. citizens.  That would be only a partial solution, of course, but it would be better than the current situation and would address the oddity that copyright is a more ironclad right, at this point, than any other form of property rights.

There are also more “gentle” ways to address this problem.  Given the current situation, where we give copyright holders a grip on those rights that is stronger than any other form of property, it would be possible, and eminently fair, to ask them to voluntarily take a simple step to make their intention to continue using their property known to others.  A registry, or perhaps different registries for different genres of copyrighted works, would allow rights holders to assert their continued interest in their rights, and make it much easier for potential users of the work to find and contact the appropriate rights holder if they are seeking permission for their use.  This would be a very non-intrusive way to address the problem of orphan works, especially in the context where other forms of neglect of property can result in forfeiture.

If a registry regime were voluntary and did not carry the threat of forfeiture that exists in other property regimes, what kind of “teeth” could be built into a registration system?  The most sensible approach would be for judges, when considering a fair use claim over a piece of copyrighted work, to take into consideration the “find-ability” of the right holder.  If the rights holder has taken any positive steps to be known and locatable, a claim of fair use should have to meet the same threshold that is currently erected for such defenses.  But if the rights holder has done nothing, has “sat on their rights,” to use a old-fashioned phrase that is amazingly applicable to the current copyright system, then it should be much easier to establish fair use.

When Congress considered an orphan works solution a few years ago, it wanted to put the onus on users to search for the rights holder.  But when we put copyright in the proper context of other property rights regimes, it should be obvious that these obligations should be a two-way street.  All other property rights require some kind of indication that the rights holder will use the rights, or else they can lose them.  In copyright, it would be fair, and a very small burden, to require a similar gesture — inexpensive and easy — of continued interest on the part of the rights holder. This is especially true if the only consequence of failing to make that gesture would be easier use, rather than a loss of the rights.  Copyright would still not be on a par with other property rights in terms of encouraging, indeed demanding, efficient use of the property, but the balance would be redressed a little.