Category Archives: Copyright Information Notes

How to Restrict Access to the Law (and Make Money Doing It!)

Standardization is really important. Huge parts of modern life—everything from sending an email to the structural integrity of your car—depend on standards. Among other things, standards make sure we’re all on the same page. When I say “2017-02-07” you might have some clues about what I mean, but if I tell you that this string of numbers is expressed according to ISO 8601, you’d know for sure that I’m referring to today’s date.

Standardization is so important, in fact, that a large number of standards are made part of the law. On Friday the Federal District Court for the District of Columbia issued an opinion in ASTM v. Public.Resource.Org, addressing some hard questions about the extent to which copyright applies to standards, and in particular standards that have the force of law by virtue of their official adoption by regulatory agencies. The court concluded that the standards at issue in that case—a variety of technical and education standards developed by ASTM, APA, and several other groups—are protected by copyright and that their incorporation into binding law through regulations does not affect that copyright-protected status. I find that conclusion troubling.

A Standards Business Model

First, why do organizations like ASTM care? Imagine that you’re developing a new standard and you think you need to make some money to recoup your costs. One way to do that is to charge people who want to use the standard. To make that work you’d probably try to obtain some form of intellectual property protection so that you have leverage when asking for your fee. What kind of IP protection do you want? There might be some ways that you could try to work your standard into something patentable, but patents are expensive and hard to obtain. Another option is copyright. Copyright lasts much longer, is easier to obtain, and has some hefty enforcement provisions (statutory damage awards up to $150,000 per work infringed). So, you go with asserting copyright.

Next, you need to get people using this standard. Of course, voluntary adoption is great. But mandatory compliance is even better. So, you lobby some government agencies to adopt your standard as binding law itself.  That way, anyone who is obligated to follow the law will have to also follow your standard. It’s important, though, that the text of your standard not be reproduced in the regulation itself. Those are generally freely available, but you need to sell the thing. Instead, you aim to get the regulation “incorporated by reference” into the regulation; the regulation says that the public must comply with Standard X and gives a reference to it, but if a member of the public wants to know what Standard X  actually says in order to comply with the law, they’ve got to go buy a copy from you.

Now, I don’t mean to say that incorporation of standards into law is a bad thing or is only done to make money. It isn’t, but the restricting access part of this model seems problematic. It’s also at the core of the business model staked out by ASTM and the other plaintiffs in ASTM v. Public.Resource.Org. Posting free copies of those standards to the web for public access, as Public.Resource.org does, poses a threat to that model.

Should Standards Receive Legal Protection?

First, the business model is premised on copyright protection of standards, but there are persuasive arguments for why standards should be excluded from copyright protection. The text of the Copyright Act is a good place to start. Section 102(b) states specifically that “systems,” among other things, are not protected. That and a variety of other  theories for why copyright protection should not apply were raised in the ASTM case.  This post from TechDirt does a good job working through the copyright-related arguments made by Public.Resource.org. The court rejected them all, but I imagine we will hear more about them on appeal.

Beyond copyright, though, the main reason I find the ASTM decision troubling is that it gives relatively little attention to fundamental questions about due process, the public’s right to access the law, and earlier caselaw on the subject.   Rather than write out my own ideas on this, I’ll leave you with this good quote from the 1980 First Circuit case Bldg. Officials & Code Adm. v. Code Tech., Inc., which outline those concerns and raises some good questions that I hope will be addressed on appeal in the ASTM case:

“[Earlier Supreme Court cases hold that] the public owns the law not just because it usually pays the salaries of those who draft legislation, but also because . . . ‘Each citizen is a ruler, –a law-maker.’ The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.

Along with this metaphorical concept of citizen authorship, the cases go on to emphasize the very important and practical policy that citizens must have free access to the laws which govern them. This policy is, at bottom, based on the concept of due process. . . . Due process requires people to have notice of what the law requires of them so that they may obey it and avoid its sanctions. . . . But if access to the law is limited, then the people will or may be unable to learn of its requirements and may be thereby deprived of the notice to which due process entitles them. [Defendant] points out that the holder of a copyright has the right to refuse to publish the copyrighted material at all and may prevent anyone else from doing so, thereby preventing any public access to the material. . . . We cannot see how this aspect of copyright protection can be squared with the right of the public to know the law to which it is subject.”

Where should the Copyright Office live? A response from Duke Libraries

James Madison Building
The Library of Congress James Madison Building where the Copyright Office is located. Credit to Flickr user KenLund, licensed under a CC-BY-SA 2.0 license.

The U.S. Copyright Office has been a major topic of discussion lately. A few weeks ago Register of Copyrights Maria Pallante resigned, following her removal by new Librarian of Congress Carla Hayden from her post as Register and into a new advisory position in the Library. Beyond the speculation about what exactly led to Pallante’s reassignment, the move has reignited debate about the relationship between the Copyright Office and the Library of Congress. The Library of Congress has overseen the Copyright Office since the Office’s inception more than a century ago, but there are increasingly serious calls (including from Congress) for changing that relationship and possibly moving the Office outside the Library. Earlier this week Duke Libraries weighed in with a letter to Congress, and I know several others will too in the next few days. [Edit: this includes a letter drafted by Brandon Butler on behalf of himself and 42 individual copyright-library experts (including me!), that was sent today].

Why the Copyright Office matters

While the Copyright Office doesn’t actually have a lot of say in interpreting copyright law, it does make recommendations to Congress on copyright policy and plays an important role in shaping new copyright legislation. I think because of that, the question about where the Office resides has turned into a sort of proxy debate about the broader question of who should be exerting control over the Office and over copyright policy more generally. Putting a finer point on the issue, Ralph Oman and Marybeth Peters—the two Registers of Copyrights who immediately preceded Pallante—recently sent a letter to the leadership of the two relevant House and Senate committees.  Oman and Peters are apparently not fans of Library of Congress supervision, and this quote sums up their overall point:

 [T]he competing missions and differing priorities of the Library and the Copyright Office have increasingly emerged as a source of tension. . . . [T]hey are inevitable given the divergent roles of the two organizations. Stripped to its basics, the choice is stark: Does Congress want modernization and independent copyright advice straight and true from the expert agency, or does it want copyright administration and advice filtered through the lens . . . of the head of the national library?

Their letter is loaded with some bad assumptions, and so earlier this week and thanks to Duke Libraries’ director Deborah Jakubs,  Duke Libraries sent this letter to Congress to correct some of those inaccuracies and makes the case for why the Library of Congress is the best choice of home for the Copyright Office.

Libraries and the copyright system

The Duke Libraries letter first addresses the idea that there is an irresolvable conflict between the missions of libraries and the Copyright Office.  Oman and Peters suggest that Libraries have only a “limited goal” of “offering to the public the greatest possible volume of material, often at little or no direct cost to their patrons.” That’s a pretty narrow conception of what libraries do and suggests a bias with respect to copyright that just does not exist. Here’s how the Duke Libraries’ letter responds:

Libraries like ours have perhaps the most well-rounded and balanced relationship with copyright of any group of institutions in the world. Duke Libraries, like many other libraries, spends millions of dollars every year on services for our faculty and students to help them navigate the legal, technological, and economic choices they face as creators. Our libraries partner with those creators . . . on publishing. Duke Libraries also administer the rights to thousands of works for which we own copyright, primarily in our rare book and archival collections. . . .  Duke Libraries also invest millions of dollars each year into the publishing system by purchasing content and supporting new and emerging publishing platforms. . . .[W]e now spend even more money on developing strategies to carefully respect the rights of copyright owners as we seek to preserve and provide access to those materials in forms that are useful to researchers.

While all of that is true about Duke Libraries, we’re not unique. This is what libraries do, and to suggest a much narrower mission as Oman and Peters do obscures the far more balanced role that libraries play within the copyright system.

Impartiality of the Copyright Office

The second issue the Duke Libraries letter addresses is this idea that the Copyright Office has acted impartially and that more oversight from the Library of Congress would corrupt that impartial approach. As the letter points out “in recent years and without meaningful Library of Congress oversight, the Copyright Office has drifted into a markedly content industry-centric approach to copyright policy while at the same time failing in its core function of promoting and making accessible copyright registration information.” Highlighting some of the recent failings of the Office in its policy positions—some of which have recently and very publicly been rejected by the courts—and the lack of focus on core registration functions, the letter concludes with this:

The Office has not offered for some time the “straight and true” copyright policy advice that Oman and Peters suggest it should, nor has it adequately worked to achieve its core function of facilitating registration information. . . . The solution for the Copyright Office is not less oversight from the Library of Congress but more. Leadership from an experienced administrator such as Dr. Hayden who can guide the Office back to a position of impartiality and to a focus on its core function is a welcome development for Duke Libraries and for the public that has been so often ignored by the Office in favor of the content industry.

As many others have pointed out, copyright’s Constitutional purpose derived from the IP clause, “to promote the progress of science and [the] useful arts”, closely matches our own mission as a university and library. Like most university libraries, Duke Libraries are at the heart of creative process at our university. Likewise, the Library of Congress should stand at the heart of our national system to promote progress and creativity.

Copyright MOOCs, new and refreshed

When my colleagues Anne Gilliland and Lisa Macklin and I released our first Coursera MOOC about copyright, called Copyright for Educators and Librarians, we were very pleased with the reaction.  Although our enrollment for that first MOOC was, at just over 10,000 participants, rather low by MOOC standards, we had a higher than normal percentage of completions, and the feedback we got from colleagues was quite positive.

That course ran in the summer of 2014.  In July of 2015, we were able to release a new version of the same course in an on-demand format, meaning that participants are able to start the course whenever they wish and can proceed at their own pace without a proscribed ending point.

The move to on-demand is important because it brought us a bit closer to our overall goal, which has been to provide a form of copyright education that is accessible in the several sense of that word to all of our colleagues in education, especially.  The course is still free, although there is a small fee if the participants want to receive a “verified certificate” of completion.  We began this project aware that the Center for Intellectual Property at UMUC had recently closed, so the education community had lost access to their series of course offering on copyright that carried continuing education credit.  Our hope was to provide an opportunity to learn about copyright that was free to all, but also could be used, through the verified certificates, by those colleagues who want to learn about the subject AND get some form of (less expensive) credit for this professional development activity.

Now we have taken another big step toward that goal, with the release today of our second MOOC, on Copyright for Multimedia.  Like the first course, this MOOC is on-demand, free to take, and relatively short – four substantive modules and an introduction.  In this second course, the modules focus on four different media – data, images, music and film.  It grew out of our awareness how often the questions brought to us focus on different media.  Many of our colleagues seem confused about how copyright “rules” from the print world, apply in an environment rich with diverse forms of expression and communication.  This confusion is understandable, since copyright was born with print technology and continues to adapt only uncomfortably to these “new” media.

When we are asked about what “copyright for music,” or “copyright for film,” looks like, we try to emphasis that the one copyright law in the U.S. is intended to apply without regard to medium of expression.  Nevertheless, it is perfectly true that some provisions of the law are media-specific.  More significantly, the circumstances in which different media are used are often quite different from the more familiar facts surrounding the use and distribution of print.  There is an lawyer’s maxim that says, “change the facts and you change the outcome,” and that is never more true that when we are talking about different media.

Our new MOOC tries to address these differences, and also to further develop the framework for analyzing a copyright issue that we built in the first course.  Now that both MOOCs are available on the Coursera platform, we hope that they will be a continuing resource to improve copyright understanding for our colleagues.

I want to add a couple of personal notes to this announcement of the two-part series of MOOCs on copyright.

First, I want to say what a wonderful experience it has been to work with Lisa and Anne, who are as smart and creative about teaching as they are about copyright, as well as with the online course team at Duke.  I want especially to note my sense of awe at the creative, complex and realistic scenarios that Anne Gilliland can think up to tease out the implications of copyright in different situations; I hope our participants find them as thought-provoking and amusing as I do.

Second, because of the announcement issued today about my new position as Dean of Libraries at the University of Kansas, and thus my departure from Duke, it seems unlikely that I will participate in any more MOOCs in this series.  Our original plan was for three courses, but the two we now have stand alone and, we hope, also work together as a series.  It is now an open question whether there will be a third MOOC in this series, but the process of creating these two has been delightful, and the product, I profoundly hope, useful to our colleagues and to many others.

A MOOC on copyright

It has taken a while to get here, but I am happy to be able to announce that two of my colleagues and I  will be offering a four-week MOOC on copyright designed to assist teachers and librarians deal with the daily challenges they encounter in regard to managing what they create and using what they need.

The MOOC will be offered on the Coursera platform and will run for the first time starting July 21.  It is available as of today for folks to sign up at https://www.coursera.org/course/cfel.

It has been a great pleasure working with Anne Gilliland from the University of North Carolina Chapel Hill and Lisa Macklin from Emory University to create this course.  I hope and believe that the course is much stronger because the three of us worked together than it could possibly have been if any one of us did it alone.

This course will be four weeks in duration and focuses on U.S. copyright law.  While we are well aware of all the MOOC participants from other countries — and welcome folks from all over to join us — we also wanted to keep the course short and as focused as possible.  We hope perhaps to do other courses over time, and a more in-depth attention to international issues and to how copyright works on the global Internet might be a good future topic.  In the meanwhile, this course deals with the U.S. law and the specific situations and issues that arise for librarians and educators at all levels.

We especially hope to attract K-12 teachers, who encounter many of the same issues that arise in higher education, and who often have even fewer resources to appeal to for assistance.  That is one reason for the summertime launch.

Another point about the focus in this course — our goal is to provide participants with a practical framework for analyzing copyright issues that they encounter in their professional work. We use a lot of real life examples — some of them quite complex and amusing — to help participants get used to the systematic analysis of copyright problems.

For many in the academic library community, the winding up of the courses offered by the Center for Intellectual Property at the University of Maryland University College has left a real gap.  This course is intentionally a first step toward addressing that gap.  It is, of course, free, and a statement of accomplishment is available for all participants who complete the course.  We hope this can assist our colleagues in education with some professional development, and maybe, depending on local requirements, even continuing education requirements.

We very much hope that this course will be a service to the library and education community, and that it provides a relatively fun and painless way to go deeper into copyright than the average presentation or short workshop allows.

Of songs and chairs, or why do we need a public domain

I recently received an email from an author asking me if I would write a post about why we need a public domain.  Specifically, the questioner asked me why some things pass into the public domain while others do not; his example was that if you write a song, it eventually becomes PD, but if you make a chair you can keep it forever and “continue to draw enjoyment from it.”

It is understandable that the public domain is a source of annoyance and bewilderment to many creators.  Their creations often seem like their children, and the expiration of copyright like an act of snatching those children away.  My correspondent suggested that more people do not challenge the public domain “because everyone likes free.”  But as I hope to suggest in this public answer to the question, the public domain is not free at all; it is purchased at the price of the copyright monopoly. The two things are different sides of the same coin.  Were it not for the state-granted exclusive rights in copyright, there would be no need for the public domain.  And we can imagine such a social arrangement; I just do not believe that most creators would think of it as an improvement.

We can begin with a deceptively simple question: Why is a chair different from a song?  There are two reasons that matter here, I think.  The first is that the song is intangible, which means that it is, in economic terms, “non-rivalrous.” and non-exclusive.  That is a fancy way of saying that multiple people can possess an intangible good at the same time.  George Bernard Shaw is credited with having expressed this truth succinctly:

If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple.  But if you have an idea and I have an idea and we exchanges these ideas, then each of us will have two ideas.

Obviously I can sing a favorite song without depriving anyone else of that pleasure, just as books can be printed in multiple copies so that many people can enjoy the same work without disturbing each others’ enjoyment.  Only one person can sit in a chair at the same time, however (usually, at least).

The other difference is that a chair, as a piece of tangible property, is bought and sold on a basically unregulated market.  The chair maker sells her creation to whomever she can find, and once she does so, she surrenders control of it entirely.  If another carpenter wants to copy it, he can do so and try to sell his copies.  If he charges less, the competition will benefit chair buyers but not chair makers, since it will probably drive prices down.  That is simply the chance one takes in a free market.

The market for intangible goods is not a free market, however.  It is controlled by a state-granted monopoly called copyright. That is, the state gives a copyright holder rights that makers of other types of goods do not get.  The most obvious one is protection against copying.  The chair maker takes her chances in an open market, but the song writer benefits from a protected market that virtually eliminates competition for the goods he wants to sell.  No one is allowed to make copies of his song and sell it for less, or to perform it in public without his permission, and those prohibitions are enforced by our courts.  The reason for this is the fear that if intangible property were subject to a free market, it would be too easy to make copies of songs or books or movies and sell them for less, just as carpenters are allowed to do.  This would be good for consumers, of course, because it would lower prices, but it is felt that it would so reduce the incentive for creators to create that we would suffer a shortage of poems and songs and films.  Thus we give extra rights — rights that come with a social cost — to people who create intangible goods, and we call those rights “copyright.”

There is a clear relationship between these extra rights we give to copyright holders, that other creators and sellers of goods do not have, and the need for a public domain.  Imagine for a minute that we gave similar protection against copying to chair makers.  Eventually the ability to make a new chair would evaporate, since all of the possible designs that could serve the chair function would have been done by others, and all new chairs would be infringing.  How could we solve this problem?  By declaring that after a certain period of time — a period long enough for the chair maker to profit from his creation — older chairs would become free for others to imitate.  This “public domain” for chairs would be required to keep up the supply of places to sit, if we decided to grant a state-enforced monopoly in chair design similar to copyright.

So the public domain is a required part of a system that allows creators to have monopoly control.  It reduces the social cost of the monopoly by allowing less expensive editions of books or songs after that period during which an author or songwriter has the opportunity to make a profit.  Remember that a chair maker can profit only once, when she sells the chair she has made.  She must keep making chairs if she is to sustain a living.  An author, on the other hand is allowed to profit exclusively during his entire lifetime for writing just one book, and even to pass that exclusive right to make a profit on to his children and, probably, grandchildren (based on a copyright term of life of the author plus seventy years).  This obviously has a social cost; would J.D. Salenger have written more great novels if he had not been able to make a fortune over the 6o years of his life after Catcher in the Rye from sales of just that one book?

The most onerous cost of the copyright monopoly would be this potential reduction in new creativity.  The creation of new works depends in so many cases on building upon things that have gone before.  Shakespeare copied freely from earlier sources, just as George Harrison copied, albeit unconsciously, when he wrote “My Sweet Lord.”  New intellectual property is always created “standing on the shoulders of giants,” and the public domain is a way to ensure that the copyright monopoly does not become a check on new creation rather than the incentive it is supposed to be.  This is why the Constitution, in the clause that authorizes Congress to grant a copyright monopoly, stipulates that that monopoly be “for a limited time.”  The public domain is a required part of the social and legal system of copyright protection.

As I said at the beginning, it is possible to imagine an alternative social system.  Suppose we decided that we wanted neither exclusive rights (the copyright monopoly) nor the public domain. Instead, as a society we decided that authors and songwriters should be on the same footing as carpenters and everyone else who created tangible goods; all should compete on an equal footing in a free market.  In the short term, this might be good for consumers.  Songwriters would have to sell their songs once for the most money they could get, since their ability to make continuing profits over time would diminish.  Companies and consumers would then be free to either share the song freely or undercut the sale price of competitors, so it would be easier and cheaper to obtain music, and the threat of litigation over sharing would vanish.  In the long term term, it is hard to say whether this would be beneficial or harmful.  The conventional wisdom is that creators would stop creating because they could not make a living.  But maybe they would become more like carpenters, depending for continuing income on continuous creation.  If that happened, society would benefit from more creation instead of less.  As for the public domain, without the exclusive rights in copyright, society would not suffer the same costs and therefore would not need the same bargain that results in the public domain.  And creators would be in the same situation, again, as chair makers; they could enjoy their creation in perpetuity, as long as they decided not to sell it.  But, like the chair, once the song was sold it would be beyond the creators control forever.

I doubt that this scenario appeals to many creators.  But I hope it helps illustrate why copyright and the public domain are inseparable concepts; they go together, as the old song says, like love and marriage.

Public art and fair use

A couple of week’s ago I was asked a question that set me thinking and required a bit of research.  That is hardly post-worthy, but when a case came down that addressed the same issue I had been thinking about, it suddenly seemed worth discussing.  It provides an opportunity to dissect an issue, remind ourselves of things we already know, and also explore the continuing evolution of fair use decisions from our courts.

The question involved the use, in a planned publication, of a photograph of a piece of public art.  In Durham we have several murals, painted on walls in public spaces, of Pauli Murray, one of our prominent citizens.  Rev. Murray was a civil rights activist, a women’s rights activist, and the first African-American women ordained as a priest in the U.S. Episcopal Church.  But could an author use a photograph of one of those murals in an upcoming article?

Of course, the first thing that comes to mind is that there are likely two sets of rights to be aware of here — the artist’s and the photographers.  In this case, however, the photo was take by the author of the publication that was in preparation, so the issue was focused on the scope of the artist’s rights.

Does it matter that this work of art can be seen by people walking on a public sidewalk or through a public park?  I knew, for example, that that fact did matter when the subject of the photography was a building.  In 1990 Congress added section 120 to our copyright law which permits “pictorial representations” of an “architectural work that has been constructed” as long as the building in question is “ordinarily visible from a public place.”  These pictures can be made, distributed and publicly displayed without the need to obtain permission.  But a quick look at section 120 reminded me that it is quite specific to architectural works; it does not tell us anything about the situation for a work of visual art that is painted on to the side of such a building or otherwise placed in a public spot.

Next up in my mental queue was an older case (with the great name of Letter Edged in Black Press v. Public Building Commission of Chicago) that involved the immense, untitled Picasso sculpture that is installed on the Civic Center Plaza in Chicago. But interesting as that case is, it is not applicable to the situation I was looking into.  The case was decided in 1970, so it was based on the provisions of our older, 1909 copyright law.  In the specific circumstances, a federal court held that the Picasso sculpture was in the public domain because all of the publicity around it had amounted to “publication” without copyright notice.  Under the 1909 law this put the work in the public domain.  But that is no longer the case under the newer Copyright Act, which replaced the 1909 law on January 1, 1978. So the “Chicago Picasso” case did not answer my question either.

Ultimately, the answer comes down to this — copyright is automatic when the work of art is “fixed”, including by being painted on a wall, so the artist holds a copyright in this mural.  Simply painting it in a public place does not make it public domain or give people any license to make use of it (other than by viewing it, of course).  There is no specific exception that would apply to use of a photograph of this type of art.  When we have exhausted those options — public domain, a license, or a specific exception — we are left with two more possible grounds for using a work, fair use or permission from the rights holder.

Which gets me to the recent case, which actually involved very similar circumstances — reuse of an image of an artwork painted on a publicly visible wall.  In this case, the artist was Derek Seltzer and a copy of his poster called “Scream Icon” was on a wall in Los Angeles that was part of a video used as backdrop for live concerts by the band Green Day.  In an opinion last month, which can be found here, the Ninth Circuit Court of Appeals affirmed a lower court ruling that this use of the poster was fair use.  The Ninth Circuit panel found that Green Day’s use of the image, which was in a context created by other posters and graffiti on the wall and was used to convey, the Court said, a very different (and much clearer) message than the original poster, was transformative:

[the] video backdrop using ‘Scream Icon’ conveys new information, new aesthetics, new insights and understandings that are plainly distinct from those of the original piece.

The Court went on to hold that the creative nature of the work weighed slightly against fair use, and that the use of the entire poster was neutral, since the poster could not be separated from its context on the wall.  Finally, they ruled that there was no impact on the potential market for or value of the poster caused by Green Day’s fleeting use of it in a video backdrop.  They also held that that use was only “fleetingly commercial” because the video (and the poster) was not used in any way to market Green Day’s concert tour.

It is interesting that the Ninth Circuit panel said that this was a close case (and reversed a grant of attorney’s fees to Green Day because of that).  In many ways it seems like a pretty clear case of transformative fair use, and one for which there is precedent.  In the Second Circuit a very similar case involving use of copyrighted visual material during a live performance was decided about six months ago, also in favor of transformative fair use.  The case was called SOFA Entertainment v. Dodger Productions and involved a seven second video clip from the Ed Sullivan Show shown on a screen at the end of the first act of the Broadway show Jersey Boys.  The Ninth Circuit cited  SOFA Entertainment, but seemed to feel that the case for transformative fair use regarding the poster was closer.  On the one hand, of course, the use is much more ephemeral, but perhaps the Seltzer court felt that the “biographical anchor” which the SOFA court found in the use of Ed Sullivan in a show about the Four Seasons was lacking for Green Day.  And maybe they just wanted to reverse the grant of attorney’s fees to the band, feeling that it was unfair to Mr. Seltzer.

All of this reminds us that the analysis of transformative fair use, while very useful for both creative artists and scholars, is evolving territory.  In fact, the Ninth Circuit panel noted this themselves when considering the issue of attorney’s fees, but also saw in this case a convergence between themselves and the Second Circuit on the other coast. Fair use is always extremely dependent on the specific facts and circumstances related to the particular use of particular material.  Reading these case decisions continues to give us additional data points to guide our analysis, but we never arrive at a finished picture.

So what about the photograph of that Pauli Murray mural in a scholarly article?  If we look at the fair use argument as it is developed in these cases and many others — especially the language quoted above about new meanings and new insights — the use of that photo is probably fair use.  But there was also some realpolitik in my answer to the inquiry.  The artist who painted those murals is known, still working, and easy to contact.  Scholars working on the life and impact of Pauli Murray may want to make later uses of these works dedicated to her.  So why not ask? Especially because this is a clearly non-profit, scholarly use that will, like the murals, honor the memory of a remarkable women, the artist has every reason to grant permission.  Asking permission, we know, does not prevent a later reliance on fair use, but in some cases it seems like an easy and respectful way to proceed even when fair use would likely also support the use.

What I learned getting published by Taylor & Francis.

It was a rather embarrassing moment.  I was in a meeting with other copyright specialists from academic libraries when I received the email telling me that my article with Taylor & Francis had been published.  Before I could stop myself, I expressed my surprise out loud, then had to explain to my colleagues that I had just had an article published in a library science journal published by Taylor & Francis, and that I was not expecting it.  Two sources of embarrassment here.  First, especially following the resignation of the entire editorial board of a different library-related T&F journal due to their archaic authors’ rights policies, this is not a publisher with whom I would have chosen to do business or encouraged authors who consulted me to use.  Second, the fact that I was surprised by this news showed that I had been much more lax in my own decisions about publishing than I advise other academic authors to be.  It is always awkward to be caught in a “do as I say and not as I do” situation, and especially so when you have to explain it to a respected set of colleagues.

So let me explain how this happened and what lessons can be gleaned from my experience.

The story began when I gave a talk at the 2012 conference of NASIG, the North American Serials Interest Group.  Let me say at the start that no one at or representing NASIG did anything wrong in this encounter and that whatever misunderstanding or lack of information existed was entirely my fault.  NASIG provided me with an interesting and engaged audience of librarians, which was all I could ask.  In any case, I signed an agreement, as a “Vision” speaker (kind of ironic), allowing my talk to be mechanically recorded and also agreeing that a human “recorder” would write up what I said for an article for The Serials Librarian.  In due time, that reporter sent me a copy of the article and I agreed that it was a good representation of the talk I had given, ready to be published.  Not until the article was published did I realize that The Serials Librarian was a Taylor & Francis journal, and to the best of my recollection I never signed a copyright transfer agreement with T & F.  At least, I can find in my saved e-mail the agreement to publish in The Serials Librarian but not a CTA.

Again, neither NASIG nor the article author did anything wrong; they sought and obtained all the necessary authorizations from me.  It may well also be the case that the recorder who wrote up the article signed a CTA with Taylor & Francis, which she would have been entirely entitled to do.  But as I say, to the best of my knowledge I did not, and the lessons I take from this incident are premised on that recollection.

So the first lesson is obvious — be careful what you sign.  More careful than I was.  I should have determined who the publisher was and made an intentional decision before I signed that agreement about what would be done with the article that resulted from my talk.  It is quite likely that I would have agreed even after that small bit of research, since the article was actually written by someone else (as, I suppose, a derivative work from my original talk), and I had no further plans to use it in any way.  What I often tell authors is to consider the agreement they are presented with in light of their own plans and hopes for their work, and transfer or license rights in a way consistent with those plans.  If the agreements allow one to meet those goals, well and good; if they do not, negotiation is called for.  The decision should rest with the author.  In the experience I had, I did not make that decision in an informed way, and that, rather than the ultimate result, was the problem.

The second lesson from this experience is that authors choose journals, not publishers.  When I read over the agreement with NASIG, The Serials Librarian seemed like a proper venue for the article resulting from my talk, and I failed to inquire further.  Although I should have done, I did not look into the publisher’s identity because for me at that moment, as for many academic authors, it simply didn’t matter.  The first step in getting academic authors to pay attention to the rights they transfer or retain is helping them realize that not all publishers are alike in this matter, and that they do need some awareness of who is who.

Next, my little story provides an opportunity to remind readers about the issue of joint authorship.  Joint authors are very common, of course, in academia.  Once mostly found in the STM fields, digital humanities projects are now making joint authors out of folks from many different departments.  Joint authorship arises, of course, whenever two or more people each contribute original expression with the intent of creating a unified work.  In the case of my talk, my original expression was fixed in the PowerPoint slides and notes that I had made.  Recorder Susan Davis then created a derivative work from that original, adding a great deal of her own original expression.  Once I had indicated my assent to that process, she and I became joint authors.  Like all joint authors, we each hold an equal and undivided share in the copyright, and are each entitled to exercise the exclusive rights granted by copyright, subject only to a duty to account to each other for any profits (which I don’t expect, in this case).  Because of this situation, if Susan signed a copyright transfer agreement for publication of the article, she was perfectly entitled to do so.  And because of the potential that fact has to create misunderstandings and surprises for other joint authors, it illustrates how important it is in general that joint authors agree in advance, whenever possible, about how their shared work will be used, licensed and made public.

Finally there is this point — if I am correct that I never signed a copyright transfer, and assuming, for the sake of illustration, that Susan did, then Taylor and Francis and I are now joint holders of the copyright in this article.  One thing that means is that I can continue to exercise all the rights as a copyright owner — I could post the article to the web if I wanted to, for example — without consent from T & F.  So when publishers tell us that they need to be the exclusive holder of copyright in every item that they publish, it is important to realize that that may be an aspiration, but it is not a necessity.  In fact, my experience is only one of a large number of scenarios under which publishers routinely publish articles for which they are not the exclusive rights holders.  As we seek to reform the scholarly publishing system, partly by encouraging academic authors to pay better attention than I did in regard to this article, this fact is an important piece of information to remember.

 

Curb your enthusiasm

Happy New Year to all!

Just before and after the first of the new year, I saw a flurry of e-mails and blog posts celebrating this year’s Public Domain Day.  January 1 is the day on which all the material whose copyright expired during the previous year officially rises into the public domain and becomes free for all to use and transform into new works without the need to ask anyone’s permission or consider copyright exceptions.

Unfortunately, I have seen a few messages that overreact to Public Domain Day with claims, for example, that all of the works of F. Scott Fitzgerald (who died seventy years ago, in 1940) are in the public domain.  If our copyright law was simpler and more oriented toward helping users know what is what, that might be the case.  But it is not; our law has developed into a complex web of provisions that shows no concern at all for clear and understandable rules.

The basic situation is that only unpublished works are entering the public domain in the United States right now.  No published works will become public domain in the US through the expiration of copyright until 2019 at the earliest (assuming the law does not change on this point between now and then).

This severe restraint on the benefits that Public Domain Day ought to bestow on us are nicely explained by Duke’s Center for the Study of the Public Domain on this website.

Let’s look for a minute at F. Scott.  Because he died in December of 1940, his unpublished works do enter the public domain in the United States as of 1/1/11.  His published works, however, are another story.  If a Fitzgerald work was published between 1920 and 1922, as This Side of Paradise was, for example, it is in the public domain.  But any works published in 1923 0r later, such as The Great Gatsby, are still protected.  After 1922 (and prior to 1963), a work that was published with copyright notice  and the copyright in which was renewed is given a term of 95 years from publication (the initial 28 year term plus a renewal term, after the Sonny Bono Copyright Term Extension Act, of 67 years, ).  Thus published works from this time period are protected until at least 2019; — 1923 plus 95 years equals 2018, so works published that year will rise into the public domain on 1/1/2019.  The author’s date of death does not make any difference for these works.

This distinction seems designed to confuse librarians and other users of works.  An archive of Fitzgerald manuscripts, for example, could digitize and make available those items that were never published, or that were published earlier in F. Scott’s career (like Tales of the Jazz Age).  But a manuscript of Gatsby or Tender is the Night is still subject to protection.

If this isn’t confusing enough, the situation is not merely different, but reversed, in some countries.  As this blog post explains, Canadian copyright law has a shorter term — life of the author plus fifty years — but protects unpublished works differently.  In Canada, the published works of an author who died in 1960 are now PD, while unpublished works by the same author are protected until 2049!

Determining whether or not a work is in the public domain is an unfortunately complex business.  Like so much in copyright law, that complexity itself is a discouragement to many worthwhile efforts to make the products of our culture available to future generations.

Don’t take my word for it

There are two things that persistently bother me about the musing I post to this blog.  The first is very general — so often I sound like Chicken Little, crying that the sky is falling.  Readers might well ask if things are really as bad as I make them sound in the copyright arena, although I spend enough of my time with frustrated, angry or frightened academics whose teaching and research is impeded by copyright restrictions to justify my dire warnings.

The second, much more specific, thing that bothers are the requests I get for “something short and simple I can read about copyright law.”  Unfortunately, as the copyright law has grown more and more complex, full of new exceptions to try to mitigate the harms done by new monopoly rights and longer protection, a “short form” (and the analogy to the tax code is apt) simply is not available.

There are a couple of excellent websites, of course.  The Crash Course in Copyright at the University of Texas and the Copyright Advisory Office site at Columbia are my favorites.  But now I have the chance to recommend two short articles that I think really will help clarify the current copyright situation for interested readers.

To start literally at the beginning, this short essay on “The Purpose of Copyright” by law professor Lydia Pallas Loren takes us back to the beginnings of copyright to understand how and why it has wandered from its historic purpose (at least as expressed in the US Constitution).  Professor Loren makes a persuasive case that copyright law needs to return to the “delicate equilibrium” that copyright laws seek to establish.  Hers is an eloquent description of how copyright has gone wrong due to some pervasive misunderstandings and what the path to  a restored balance would look like.

The situation specifically in academia is nicely summarized by another short paper, this one by Dorothea Salo on “Who Owns Our Work?”  Through the prism of the thorny ownership questions that are arising around all kinds of academic work, Salo nicely outlines the conflicts inherent in the current system.  Her essay is about a good deal more than ownership per se; it is a compelling summary of the issues that need to be resolved if scholarship is going to make the kind of progress in the digital age that the technology offers.

It is nice to be able to offer these two articles — both readable and compact — both because of their quality and because the next time someone asks me if things are really as bad as I suggest, I can point to Loren and Salo and respond, “Don’t just take my word for it…”

“Renewing copyright” and a reflection on versions

In a post about two months ago I promised that I would offer a link to the article I wrote on reforming copyright law from the perspective of academic libraries.  That article was published this month in portal: Libraries and the Academy, and is now also available in DukeSpace, the open access repository at the Duke Libraries.

The full citation for the article is:  Kevin L. Smith, “Copyright Renewal for Libraries: Seven Steps Toward a User-friendly Law,” portal: Libraries and the Academy, Volume 10, Number 1, January 2010, pp. 5-27.

The published version is available on Project Muse at http://muse.jhu.edu/journals/portal_libraries_and_the_academy/summary/v010/10.1.smith.html

If you cannot access Project Muse, this is the link to the DukeSpace version, which is my final manuscript but lacks the formatting and copy editing done by the good folks who publish portal:

http://hdl.handle.net/10161/1702

As I said in the original post linked to above, I hope my suggestions will be read in combination with those made by Professor Jessica Litman in her wonderful article on “Real Copyright Reform.

I had intended to end this post with the information above, but a recent discovery has caused me to change that plan.  Late last week I discovered that a small error, an extra clause made up of words from elsewhere in the sentence, was inserted into the HTML version of the article.  It does not appear in my manuscript, nor in the PDF of the published article, only in the HTML version.  I contacted the editorial folks at portal and expect that the error will be fixed shortly, perhaps even before I publish this post (Note on 2/2 — the error has been corrected).  But it does raise some questions about some of the assertions made on behalf of traditional publication.

First, we are often told that copy editing adds value to an article and that publishers deserve compensation for adding that value whenever the public is given access to the final published version of an article.  On the compensation issue I shall write more later.  But here I want to note that the editorial process can insert errors as well as eliminate them.  I found the editorial assistance from portal to be superb, but, in spite of their best efforts, the multiple stages of the publication process are not all within their control.  The result was that a error that I was not responsible for, albeit a minor one, found its way into my work.

Second, this small incident raises questions about the assertion that publishers provide the scholarly community with the “version of record” that assures consistent quality.  In fact, there are two different versions of my article available at this moment (on 2/1) on the Project Muse site for this journal — the HTML is different from the PDF in at least this one respect.  So which is the version of record?  To make that determination, I am the final arbitrator, and I hope that the error I caught in the HTML will be corrected based on my request.

This suggests that there is at least an argument that the “version of record” should be the one that is closest to the author’s hand.  Who else has a greater incentive to insure accuracy, after all?  A serious error may impact the publisher’s reputation to some degree, but it can be devastating to that of the author.  And I would certainly hope that a significant error, such as an incorrect calculation or formula, would never be “corrected” by a copy editor without first consulting the author; it is easy to imagine cases where what looks like an error — a deviation from the expected — is in fact the heart of the argument.  Thus significant corrections should always be made with input from the author, and the author would then be free to correct any versions she has made available to the public.  So I would like to see discussions of “version of record” include the likelihood that the version nearest to the author may, at least sometimes, be the most accurate version available.