One ring to rule them all?

February 23, 2011 Kevin Smith, J.D. 3 Comments

How much control an author should have once a book leaves her hands is a fundamental question for copyright law. It arises in lots of contexts, but nowhere more directly than when a different author creates a sequel, a parody, or an homage and the original author objects.

This, of course, was the case with The Wind Done Gone, a work that a court ultimately found to be a parody of Margaret Mitchell’s classic novel and therefore permissible under copyright’s fair use exception. It was also the case with Sixty Years Later: Coming through the Rye, which was a kind of sequel or extension of the story of Catcher in the Rye. In that case, J.D. Salinger (and, finally, his estate) were successful in stopping publication in the United States because the judge — in a decision I lamented frequently on this site — held that it was not a parody and therefore a potential copyright infringement.

Now comes the news that the estate of J.R.R. Tolkien is trying to prevent the publication of two new books based on the Lord of the Rings. One is an English translation of a Russian work that is told from the perspective of Sauron and his forces, who lost the battle Mordor and failed to stop the destruction of the ring; it is called The Last Ringbearer and is available as a free PDF download. The other is a work (called Mirkwood) very similar to the Catcher sequel because it features both characters from LOTR and Tolkien himself, claiming to be a combination of fiction and literary criticism. These works raise the usual questions of whether allowing this level of control actually serves any social interest, or if we would be better off permitting these sequels and letting the marketplace decide what is good and what is unworthy of attention.

The blog TechDirt has written twice about this issue, and their suggestion that the Last Ringbearer case is very similar to that dealing with the Wind Done Gone strikes me as correct. After all, each was a retelling of a classic story from the point of view of a neglected or despised character; surely if one is fair use, so should the other one be. But the second case is not this simple; the issue being raised is not copyright infringement at all, apparently, but a right of publicity claim on behalf of J.R.R. Tolkien.

The right of publicity is basically a right to prevent others from making money using your name, likeness or (sometimes) voice. It is a right created most commonly by state law, and those laws vary somewhat. In most jurisdictions, a right of publicity survives even after the individual is dead and can be enforced by his or her estate. That is the case with the Tolkien estate, who is attempting to use the Tolkien’s right of publicity to prevent the distribution of this second, quasi-literary critical book. They apparently sent the publisher a cease and desist letter, and the publisher has responded with a court action seeking a declaratory judgment.

I want to focus on two issues raised by the unique facts of this case.

First, the right of publicity is an unusual approach, and it is one that seems designed to avoid a fair use defense (since there is no claim of copyright infringement, as there was from Salinger and Mitchell in those two cases). The potential power of publicity rights to suppress unwelcome attention and competition seems even greater than copyright. If it violates Tolkien’s right to control publicity for someone else to write a novel/criticism about hobbitts, wizards, orcs and JRR himself, could it not also be a violation to write a more serious critical secondary work about the original Trilogy if the estate disapproved? Here we approach the real threat to free speech and to scholarship that is latent in this kind of publicity right challenge to a new book. Scholarly works that displeased an estate (perhaps the James Joyce estate as well as that of Tolkien) would not even be able to lean on the slim reed (as it has become) of fair use; in its filing for a declaratory judgment on the issue, the putative publisher of Mirkwood: a Novel About J.R.R. Tolkien relies directly on a First Amendment argument.

Second, with these two books we are very close to the issue of fan fiction, especially in the case of The Last Ringbearer since it is being given away for free. Indeed, fan fiction works based on LOTR are not at all uncommon; the site fanfiction.net list almost 45,000 such works amongst its collection. I spoke about fan fiction at a symposium at Hofstra University last fall, and I learned preparing for that talk that there are strict norms amongst fan fiction writers against both plagiarism and selling one’s efforts, which are intended, usually, as acts of respect. There is no evidence that these norms have been violated by the Russian sequel, but it may still become an issue, mostly because of the attention turned on it by the review in Slate linked above.

Fan fiction is often not very good, but it is spontaneous creativity that springs from love for a particular work of creative art, whether it is a novel, movie or TV show. These works should not be seen as infringements, and they should not have to rely on obscurity in order to exist. If a work of fan fiction actually turns out to be good enough for a wider audience to want to read it — The Last Ringbearer may be such a work — society is better off for its creation and there is no loss to Tolkien or his heirs if we let the new work thrive alongside the original classic. Neither the purpose of copyright law nor the interests protected under rights of publicity are really harmed by such works, and copyright’s purpose is arguably advanced.

[The slides from my presentation on fan fiction are available here]

Copyright, rhetoric and name-calling

February 22, 2011 Kevin Smith, J.D. 1 Comment

Over the weekend I had an experience with this blog that has never occurred before, at least to me. I was suddenly flooded with long, angry comments denouncing what I wrote in my last post. I receive over a dozen comments and other communications in the space of a few hours. I approved six of them for posting before making the decision to close comments, something I have never done before. I reached that decision because the posts were becoming repetitive and hostile. Many people have disagreed with my posts in the past, and I have always approved those comments unless they were mere personal abuse that did not contribute to a discussion, but this concerted effort was new to me.

All this was unpleasant, but I would have ignored it were it not for a coincidence of topic that occurred this morning. One of technology leaders on campus came into my office to tell me about the talk she heard at the 2011 EDUCAUSE Learning Initiatives conference last week. William Patry, who is one of the most well-known authorities on copyright law in the US, gave a presentation on “How to fix copyright” and apparently discussed the article by Scott Turow and others that was the subject of my oh-so-controversial blog post. Indeed, Patry was far less respectful of Turow than I was, calling him “the Glenn Beck of copyright.” My experience with some of Turow’s defenders suggests that the analogy has a grain of truth in it, and it confirms my fear that discussions of copyright are becoming as debased and unproductive as much of the rest of our political rhetoric.

But the point of this post, now that I have that off my chest, is to clarify, with the help of Patry, what I was trying to say last week.

My first point, which generated most of the heat, was simply that there were, and still are, lots of different ways by which creative authorship and the arts are supported. I never suggested that patronage should replace copyright, just that it was an alternative available to those who did not have copyright protection, like Shakespeare, or for whom copyright was not a beneficial system, like academic authors today. That some people are able to make their living because of copyright is undoubtedly true, and I have no wish to abolish copyright laws or deny them their livelihoods. But I would like us to recognize that copyright is irrelevant for many creators, who do their work for a variety of different reasons and varied rewards, and that it is an obstacle for some, especially those who teach. That copyright can be an impediment for teaching is illustrated by the law suits going on right now over teaching materials, brought against Georgia State University and UCLA by different segments of the content industries. While we do not need to abolish copyright in order to support teaching, we do need a robust recognition that exceptions to copyright like fair use are an integral part of the overall scheme of protection; without them the law would fail in its fundamental purpose.

This gets me to my second point, which Patry made far better than I did when he pointed out that artistic production in the pre-copyright era, including Shakespeare’s, depended on what we now call fair use. That is, Shakespeare was able to write many of his plays precisely because he was able to borrow and rework material from earlier authors to create something new and, in Shakespeare’s case, unarguably superior. Fair use, or exceptions like it, is an integral part of today’s copyright law precisely because it permits and circumscribes these kinds of opportunities. My concern when Congress is told that they must ratchet up protections and choke off avenues of sharing, especially on the Internet – which was Turow’s message to the Senate on the same day Patry spoke to EDUCAUSE — is that they are hearing only one side of the story.

UPDATES — Please take a look at the column written about Turow’s essay by Professor James Boyle of the Duke Law School at http://www.thepublicdomain.org/2011/02/22/presumed-guilty/

Bill Patry’s presentation is available at http://www.educause.edu/Resources/HowtoFixCopyright/224238.

Authors' Rights, Copyright Issues and Legislation, Technologies

Shakespeare and copyright

February 18, 2011 Kevin Smith, J.D. 9 Comments

On Monday author, attorney and Author’s Guild president Scott Turow published an op-ed piece in the New York Times arguing that copyright protection is vital for creative production and that the Web is a serious threat to authors. Such pieces appear regularly in the Times; every three months or so a different author or artist trots out these arguments. It seems a little bit unfair to critique these editorials because they are usually manifestly uninformed; several critiques of Turow have already appeared, and I don’t want to seem to be piling on.

Nevertheless, Turow offers a chance to drive home a very different point than the one he thought he was making, owing to his woefully unfortunate choice of an example for his piece. The core of the argument is that Shakespeare and his contemporaries flourished because their work was rewarded financially, owing to the innovation of producing plays in an enclosed environment and sharing the income from theater admissions with the playwrights. Turow then analogizes this physical barrier to theater admission with the “cultural paywall” of copyright in order to argue that the Internet threat to copyright must be addressed with stronger laws (his piece was timed to influence hearings held in the Senate on Wednesday).

Turow chooses Shakespeare simply to show that authors need to make money in order to produce creative work. That point itself is quite doubtful and multiple counterexamples could be ranged against it. But even more basically, the example of Shakespeare actually proves some very different points than the ones Turow thinks he is making.

First, Shakespeare lived before there were any copyright laws in England — the Statute of Anne was adopted almost 100 years after his death — so his productivity is evidence that there are ways to support authorship other than with copyright. In truth, it was not so much his share of theater revenues that paid Shakespeare’s bills as it was patronage. And patronage remains important to many artists even today, since revenues from copyright so seldom actually filter down to authors and artists. The National Endowment for the Arts is one such patronage arrangement, as are academic appointments that allow playwrights and poets and musicians to continue to create while still putting food on the table. These kinds of direct support are much more effective, in many cases, than relying on the monopoly income provided by copyright, since most of that money remains with intermediaries. The example of Shakespeare proves that copyright is not an absolute necessity for supporting the arts.

The second reason Turow’s choice of a hero for his piece is unfortunate is that Shakespeare was, himself, a pirate (in Turow’s sense), basing most of his best known plays on materials that he borrowed from others and reworked. If Boccaccio, or Spenser, or Holinshed had held a copyright in the modern sense in their works, Shakespeare’s productions could have been stopped by the courts (as unauthorized derivative works). This is not an unfamiliar point; most schoolchildren are taught that Shakespeare borrowed his stories. It is rather astonishing that Turow would choose Shakespeare to make his argument, therefore, and no surprise at all that TechDirt has reformulated Turow’s question to read “Would Shakespeare have survived today’s copyright laws?”

As much as Turow may want to argue that copyright is necessary to support authors and artists, what he really succeeds in proving, unintentionally, is that great art often depends on the ability of artists to borrow from and reshape earlier work, and copyright, in so far as it impedes that process, is part of the problem and not its solution.

Some good examples from abroad

February 15, 2011 Kevin Smith, J.D. 2 Comments

It seems I have been looking at a lot of international comments and writings about copyright lately, for reasons I explained a couple of weeks ago. Now I have the chance to pass on two really interesting examples of sensible approaches to the reform of copyright law.

When British Prime Minister David Cameron announced that he was ordering a review of the relationship between IP protection and economic growth, I was one of many who was heartened by the decision. That was especially true because Cameron singled out the possibility, certainly correct but frequently ignored, that fair use provisions could be an essential part of copyright laws that truly foster growth.

Now I am pleased to report that the review panel for this effort has been named. It includes not merely representatives from the traditional content industries, but an economist, two law professors and a specialist in entrepreneurship, as well as one of Britain’s most creative media executives. One of those professors, I am happy to say, is Duke’s own (but Scotland’s native son) James Boyle.

In addition to the desire to hear a diversity of views that is evinced by this panel, there is also strong evidence that the work of the review group will be carried on in an open and public fashion. The panel has a blog that is being used to recount the various travels and interviews that will go into creating a final report. It should make for fascinating reading.

Both these approaches should be lessons to the Obama administration, whose own recent report on IP protections is clearly the work solely of “the usual suspects” from traditional content industries and which also worked hard to keep the recent ACTA negotiations as secret as possible. The contrast could not be more telling.

Back on this side of the Atlantic, there is also a great deal to learn from the ongoing process of copyright reform in Brazil. As Pedro Paranagua explains in this post on the IP Watch blog, there is a lot of pressure being brought to bear on the Minister of Culture, who is leading the effort at reform. That pressure, of course, comes from both sides of the debate. One unfortunate effect has been that the Ministry of Culture itself has stopped using a Creative Commons license on its website. Paranagua asks if it is inevitable that the process of reform remain polarized and schizophrenic, or if it is possible to take a “both/and” approach to the debate between wider cultural access and fair remuneration for copyright holders.

Needless to say, Paranagua advocates the both/and approach, arguing that both broader access AND fair profits are possible, as well as suggesting that both a non-exclusive list of exceptions and limitations AND a fair use style flexible exception would make for a truly balanced law.

Contract preemption: an issue to watch

February 8, 2011 Kevin Smith, J.D. 4 Comments

Back in December I wrote about the lawsuit that has finally been filed against UCLA claiming that the policy of streaming digitized view for course-related viewing is copyright infringement. Late in January UCLA responded with a motion asking the court to dismiss the lawsuit for lack of subject matter jurisdiction and failure to state a claim.

The alleged lack of jurisdiction is based on a claim of sovereign immunity, the idea that the federal courts cannot hear most cases against a state entity as part of the Constitutional scheme called, confusingly, “federalism.” That argument is the bulk of the motion. But there is another issue, one of several involving the alleged vacuity of the claims against UCLA, that caught my attention.

As I noted in my earlier post, the complaint by AIME and Ambrose Video asserts that at least some of the videos at issue are under license and that digitizing and streaming those videos is a breach of that contractual agreement. I questioned earlier whether the license being claimed was, or should be, cognizable. But UCLA is making a different claim in its motion to dismiss, that the state breach of contract claim based on a license is preempted by federal law.

Section 301 of the Copyright Act says that state laws that create ” legal or equitable rights that are equivalent” to the exclusive rights in copyright are preempted. Thus state or common law copyrights are mostly superseded by the 1976 federal Act. But two questions have long remained: whether or not this meant that state enforcement of contracts governing intellectual property could be preempted, and what rights are “equivalent” to copyrights.

We routinely assume that “contracts trump copyright;” libraries are told that all the time regarding the databases they license, and they often pass the message on to users. It is generally correct. In one of the most cited cases on this point, ProCD v. Zeidenberg, Judge Easterbrook of the 6th Circuit held that a contract creates rights only between the specific parties and thus those rights are not “exclusive” and so not preempted. But the question remains somewhat unsettled, and UCLA is exploiting an apparent loophole in the general rule that we have mostly taken for granted.

In an 8th Circuit case that the Supreme Court left standing, National Car Rental Systems v. Computer Associates, preemption was denied, but the denial was based on interesting reasoning — that the contract covered the use of the intellectual property, and that use was simply not one of the exclusive copyrights. Professor Nimmer, perhaps the foremost authority on U.S. copyright, picks up this reasoning and suggests that a contract that attempts to “serve as a subterfuge to control nothing other than the reproduction, adaptation, public distribution, etc.” of copyrighted works should be preempted. So a contract controlling how licensed property could be used — who could access it, for example — would be enforceable under state contract law, but one that dealt with reproduction, distribution and the other exclusive rights would not be.

UCLA applies this reasoning to say that the alleged video licenses should be preempted insofar as they would govern whether or not making a copy for digital distribution is allowed, since this would be equivalent to the rights under copyright. The upshot of this argument would be that schools could not license away their right to make fair use of content they license, since fair use is a limitation on the exclusive rights and thus part of what would be preempted in any contract action. Fair use would have to be decided on its own terms, spelled out in section 107 of the Copyright Act, and could not be “ruled out of court” by a contract.

I have long maintained that non-negotiable contracts (like shrink wrap licenses) should be preempted by federal copyright law, so that one does not give up rights like fair use without a chance to discuss and defend them. If UCLA argument is successful, it would suggest a broader rule, that contracts that abrogate fair use and other aspects of copyrights exclusive rights scheme would always be preempted. I have no idea if this will fly in the District Court; the case might get dismissed on sovereign immunity grounds so that the issue would not even be addressed. And even if UCLA prevailed on this point, an appeal would be likely. So I am not suggesting that we change our long-standing belief that contracts trump copyright in most case, just that we watch this issue carefully and consider its full ramifications.

A more sensible copyright law

February 2, 2011 Kevin Smith, J.D. 4 Comments

One of the ways I try to deepen and provide nuance to my understanding of copyright law is to engage in thought experiments about how different alterations to the law might make a practical difference for creators, rights holders and users. Copyright law is so metaphysical (as Justice Story famously observed) that its practical application is by no means intuitive. Anyone who teaches regularly in this area has had the experience of drilling some point home, only to discover that the listeners get the point as an abstraction but cannot apply it. Reading case law is one way to address this difficulty. Another is to ask what difference changes in a particular provision might make in the everyday world.

So when I saw this blog post about about Fair Usage in Caribbean Intellectual Property I saw an opportunity to consider alternative structures for copyright. Ms. Inniss observes, in her brief discussion, that the Jamaican Copyright Act is “the most comprehensive piece(s) of copyright legislation which seeks to balance the interests of both the copyright holder and the end users.” Since I have often commented on the imbalance of US copyright law, here was a chance, I hoped, to see how other decisions might make a real difference. I was not disappointed.

My brief perusal of the Jamaican Copyright Act has not been either comprehensive or critical; I claim no expertise and nothing I write here should be taken as anything but one of those thought experiments. With that caveat, here are some of the different choices made in Jamaican law, as opposed to that in the U.S., that seem sensible to me:

In its definitions section, Jamaican law defines an “arrangement,” over which the rights holder has control, in a much more exact and limited way than “derivative work” is defined in the U.S (section 2). The Jamaican definition suggests how to protect the legitimate interests of a rights holder without choking off too many creative opportunities that could arguably considered derivative. Most creativity, after all, is derivative of something, but the degree of dependence and similarity varies a great deal, so more nuance in a derivative works right would foster the goal of copyright.

The term of the Jamaican law is life of the author plus fifty years, and anonymous works are protected for 50 years from first publication. Film and sound recordings are also protected for 50 years, from the time of their creation (sections 10-13). In short, Jamaica has not followed the U.S. down the ruinous route of every longer terms, but stuck with the minimums required by international law.

Jamaica protects the moral rights of attribution and integrity of the work that are so important especially for scholars, but it subjects these rights to numerous exceptions to avoid preventing socially desirable reuse (sections 14-21). These rights are co-terminus with the economic rights (some last a shorter time, in fact) so they protect significant authorial interests without tying the works on which culture is built to the personality of the author forever (J.D. Salinger, anyone?).

There are no statutory damages available for infringement in Jamaica, although a form of punitive damages are at the discretion of a judge (section 32). This means that unscrupulous rights holders cannot threaten users with immense financial liability before even making their case to a court. The need to prove actual damage is just one of several ways in which the Jamaican law roots copyright protection in unfair business practices, which is, in my opinion, where it rightfully belongs. In this way, users of creative works who have no financial or competitive interest are not turned into targets for avaricious litigants.

It is important to note that the protection of moral rights in Jamaican law is a major reason that it is possible to make the economic rights more truly economic and focused on protecting real competition. Because reputational issues are unbundled from economic ones, rights holders with very different concerns are not all directed down the same legal paths.

Finally, the exceptions to the economic rights struck me as clearer and more designed to promote the general progress of “science and the useful arts.” There is a fair dealing provision applied to criticism, review and reporting that is exactly like the US four-factor fair use analysis (sections 53 & 54). But there is also a fleshed-out educational exception, so that repeated and socially valuable teaching activities do not depend on the vagaries of a balancing test. There are specific provisions that govern the creation of course packs and electronic reserves for teaching (sections 57 & 59). In the latter case, I might complain that the limits are too strict — 5% of a work and only when no license is available — except for the fact that licenses are governed by a Copyright Tribunal (section 96). Thus educational use is not left to the whims and profit motives of collective rights organizations that operate without oversight (as, for example, the Copyright Clearance Center in the U.S. does). And when all else fails, the Ministry of Justice in Jamaica is empowered to prescribe new exceptions that are deemed in the public interest (section 86).

All these things seem like sensible decisions to me; I hope others will join me in looking at this and other national copyright laws to see what we can learn about how our own law works, fails, and might be improved.

Data, Open Access and Institutional Repositories, Scholarly Publishing

The citation advantage for OA data

January 24, 2011 Kevin Smith, J.D. 1 Comment

As an added benefit from the close proximity of the Science Online 2011 conference, we were fortunate, in the Duke Libraries, to have a chance earlier this month to meet and talk with Heather Piwowar. Heather is a post-doc researcher working for the team developing Dryad, a data repository sponsored by the National Evolutionary Science Center, and the author of the Research Remix blog. She is also the corresponding author on a paper published in 2007 in PLoS One documenting the citation advantage gained by scientific papers that make their underlying data available for open access.

Since the article was new to me, I am writing about it (perhaps selfishly) even though some of my readers may already be aware of its results. It was especially valuable to read it after having a chance to discuss the topic with Heather, who amplified, a little bit, on the possible reasons for the demonstrated advantage. The basic result was that there was a 69% increase in citations for those papers that shared their research data. Both in the article and in our conversation, Heather (and her co-authors) scrupulously noted that this advantage might not be causal. But it is sufficiently significant to lead one immediately to speculate on why it might be causal, and that is where the really interesting possibilities lie.

The most obvious connection between all open access and the documented citation advantage is simply increased visibility. If more people can find an article there is more opportunity for it to be cited in later works. But with data there is another potential connection, which is that other researchers will be able to re-analyze the data and develop new research questions, or new approaches to the same research question, based on that openly available data; as the authors phrase it, “these re-analyses may spur enthusiasm and synergy around a specific research question.”

In our conversations, another possible reason for the citation advantage emerged, and it has a nice parallel with the open access advantage for journal articles. The suggestion was made that open access to data might increase confidence in the results reported in an article and therefore lead more subsequent authors to be willing to rely on that article in their own work. To me, at least, this idea of increased confidence is the data equivalent of the increasingly common report we hear about how open access to the articles themselves increases and improves coverage of scientific research in the popular media. More confidence on the “input” side and better understanding on the “output” side make open access a winning proposition for researchers.

Beyond this citation advantage, and the possible reasons for it, the article goes on to discuss some of the difficulties that researchers encounters when they determine to share their underlying data more openly. These obstacles are especially important for librarians to be aware of, particularly as it is librarians who will frequently be called upon to help researchers develop the data management plans that are now part of the requirements for researchers funded by the National Science Foundation. Libraries and offices of research support need to become more aware of both the difficulties that researchers might encounter and the benefits they will gain as they consider open access as part of these data management plans.

And finally, in our discussions about open data, Heather talked about another issue that will require the expertise of librarians — the inconsistencies in citing data collections and in tracking those citations. She suggested three steps that would help make data underlying research articles both easier to find and easier for a researcher to claim credit for. First, DOIs (digital object identifiers) should be used when citing a data set. Second, data sets used for a research article should be reported in the reference list, not merely in the acknowledgments, which do not get tracked by databases. Finally, since some databases strip out references that do not look like traditional articles for their citation reports, library pressure to get data sets treated equally would be very helpful to researchers, for whom the creation of a useful data compilation is a major accomplishment deserving of notice in the promotion and tenure process.

Open Access and Institutional Repositories, Scholarly Publishing

Economics is a dangerous game

January 18, 2011 Kevin Smith, J.D. 2 Comments

Late last month an editorial appeared on a blog for publisher Wiley in which two editorial executives start off talking about online publishing. The discussion is fine, if predictable and self-serving, until it turns to models of open access. “Gold” open access is mistakenly identified exclusively with “author-pays” models, even though the majority of gold OA journals do not charge author-side fees. Then the authors drop this line “The second model is known as the “Green Road.” It might be described as “no one pays” and thus is unlikely to be sustainable.”

This, of course, is nonsense. No one seriously believes that green OA is without cost. What the publishing executives cannot figure out is that the costs of many green OA repositories are being borne by research institutions, and others, because they believe that this form of access to scholarship serves their core missions and is an appropriate investment.

On the other hand, administrators are beginning to doubt whether continued support for commercial publishing is a good investment for them. In a recent EDUCAUSE column, Brad Wheeler from Indiana University wonders “About that $1B per Year” that a group of 257 research universities estimated they spent to buy back the research done on their campuses in 2006. Wheeler is groping his way towards a cheaper OA solution; one that would rest on faculty authors not surrendering their intellectual property for nothing.

A recent study in the UK shows us that the economic drain on universities from the traditional publishing system is even greater than Wheeler suggests. According to research done by JISC, the cost of uncompensated editorial and reviewing work done by British university faculty members is over 150 million pounds per year. Clearly that number would be much larger in the US, where there are more faculty members and more articles published.

As I have written before, if we start having a serious discussion of sustainability, I am not sure the result will be what traditional publishing expects. The traditional publishing system is founded on its ability to free-ride on the intellectual labors of scholars, then sell the results back to the very institutions that actually pay those scholars. Thirty years ago this might have seemed like a sustainable model; today, when digital technology has eliminated the scarcity problem and reduced transaction costs, it does not.

Green open access, and gold OA publishing, represent opportunities for universities to reap more benefit from the research done on their campuses, assert better control over costs, and recapture some of the uncompensated labor that has long been expected from their faculties. In a recent article on the Scholarly Kitchen blog, Phil Davis asserts that it is time to put an end to the “library as victim” narrative and recognize, he says, that we are getting more value for money as the price of traditional journals rises. Only the first half of his argument is supportable; we do need, in libraries, to stop thinking of ourselves as victims. Instead, we should assert our central role in the research process as publishers.

The economics of this transition will not be easy, but they are nowhere near as impossible as the economics of standing pat are, and we are beginning to work them out. In December this article by a Norwegian economist appeared in First Monday, itself a gold OA journal that does not charge author fees, and looked at open access journal publishing. Starting from the observation that the economics looked very inefficient, the author reached a couple of interesting conclusions. First, he decided that traditional journal publishing and its open access counterpart were about equally inefficient. Second, he issued an indirect challenge to the institutions that support open access journal publishing — many of them academic libraries — to streamline their operations and take advantage of economies of scale. If we continue to progress and to respond to these challenges, we have an opportunity to create the one system of scholarly communications that has a chance at long term sustainability.

Actions speak louder

January 11, 2011 Kevin Smith, J.D. 2 Comments

The recent news that the Canadian Recording Industry Association has reached a settlement agreement with artists is not, strictly speaking, about scholarly communications. But it does give rise, I think, to several reflections about the way copyright works for all of us, including scholars.

The story, which is explained here and here, is basically about how difficult it can be to clear rights to reuse creative and scholarly works. The record companies represented by CRIA found an easy way around this problem. When they could not easily locate a rights holder to pay royalties to, they simply put the work/artist on a “pending list” and went ahead with the planned use. The stated intent was to pursue contact and payment later on, but not to let the delay in locating a rights holder prevent the new compilation CD or whatever. Of course, there was little incentive to continue to try and find someone to pay; hence the lawsuit and the settlement. There are several interesting lessons here.

First, as several commentators note, the content industries that often bellow loudest about respect for copyrights have no interest in showing such respect for other peoples’ rights. The rhetoric of “someone has to pay or no one will create” is usually false and always self-serving. Many people create because they love to do so, and the claims, especially from the recording industry, that big content defends little artists is often contradicted by the former’s actions.

Second, this case is another reminder that copyright has never really been an author’s right; it was created and enforced by intermediaries. The history in England shows that when they could no longer get exclusive royal grants in particular works, the stationers (early publishers) lobbied Parliament for statutory exclusive rights, and used authors as their justification. But content industries have always sought to shortchange creators; their business model depends on doing so, and that is true more in the academic realm than anywhere else.

I have recently been reading a superb law review article by Christopher Sprigman from 2004 called “Reformalizing Copyright” that makes these arguments very forcefully. Sprigman argues that our “new” unconditional system of exclusive rights has badly exacerbated the problems. It is well worth a read for those who are not already familiar with it.

Finally, it is worth noting that these “pending lists” were really just a solution to what we all recognize as the orphan works problem. When we cannot find a rights holder, can we please just make a list and proceed with our use? We promise to keep trying to contact that rights holder. Of course, libraries that confront the difficulties of using orphan works would always take a much more conservative and careful approach. The pending lists were an excuse, not a solution, but they grew out of that same orphan works dilemma that has grown so intense, especially since we extended copyright protection to everything, regardless of its economic value or the intent of its creator(s). The solutions to the problem will be complex, but only because others will be unwilling to take the slipshod approach taken by the CRIA, those so-called defenders of copyright.

Curb your enthusiasm

January 4, 2011 Kevin Smith, J.D. 3 Comments

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.

Discussions about the changing world of scholarly communications and copyright