How balanced is the balancing test?

Fair use, we know, is a balancing test.  What that means, fundamentally, is that whereas all of the other exceptions to copyright’s exclusive rights have a set of requirements or circumstances that must be fulfilled for the exception to apply, the four fair use factors work differently.  They are not a list of requirements, such that every fair use must fulfill some standard in regard to each factor.  Rather, the four factors describe “an equitable rule of reason” where these factors, and others, are balanced to help a court determine if the specific use in question is, given all of its particular circumstances, fair.

The question of how the factors relate to each other is persistent.  If we view them, as I think we should, as inquiries that direct courts to examine pertinent circumstances, they will obviously overlap and interrelate.  But courts often apply the factors quite mechanically, with the result that there are quite a few 2 to 2 “ties.”  In those situations, and at other times, courts will sometimes suggest that one factor or another has more weight or importance than the others.  Thus the balancing test can become unbalanced.

One case — Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) — has been particularly pernicious in its impact.  In regard to two factors, readings of this case have contributed to a misconception of the fair use factors.

First, the case was often cited for the proposition that one could not make a fair use of an unpublished work (although it does not quite say this).  Such a rule would give the second fair use factor determinative weight when unpublished works were being analyzed.  Congress address this problem shortly after the case was decided by amending the fair use provision to specifically say that fair use could apply to unpublished works if the equities favored that use.

The second way in which the Harper & Row case impacted fair use was through its assertion that the fourth fair use factor — the impact of the use on the potential market for and value of the work — was “the single most important element of fair use.”  In its recent report on “Fair Use Challenges in Academic and research Libraries” a research team associated with the Association of Research Libraries reported on interviews regarding fair use with 65 librarians and identified as one of the common “misconceptions” the belief that the fourth factor was dominant, especially in regard to video.  Since the language quoted above from Harper & Row is still out there as part of a Supreme Court precedent, it is worth asking why this belief is, at least sometimes, misleading.

One reason is that even the Supreme Court changes its mind.  In its more recent fair use reasoning, the Court focused on the transformative nature of a new use, and emphasized that when a use is transformative, the market analysis is less important.  In the well-known “Pretty Woman” case, the court reasoned that transformative uses like parody simply do not occupy the same market space as the original work, so consideration of  impact on the market is not as important.

If we generalize this reasoning a bit, it has two important results.  First, it reminds us that the factors interrelate in such a way that the importance of one factor may be influenced by facts uncovered as part of the analysis of another factor.  That is how fair use ought to work, IMO.  Also, the Pretty Woman case, and the transformative analysis in general, is an example of how fair use prevents a plaintiff from using copyright to stifle free speech about the original work.  If parody or criticism were subject to an absolute rule about market impact, a critical book review could be enjoined because its quotations from the original, combined with a negative judgment on that original, would inhibit sales and should not, therefore, be judged fair use.  We should never allow copyright to work that way, and the flexibility of fair use is a safety valve against should restraints on speech.

Another factor that sometimes gets out of hand is the third one — the amount and substantiality of the portion used.  The ARL Report identifies as another misconception the idea that fair use can only apply to a small portion of a work.  In fact, many cases that find in favor of fair use, especially cases involving transformations, allow the use of quite large portions of an original.  As this blog post reports, a law professor has recently filed an amicus brief in a copyright case making exactly this point, that even using an entire article does nor preclude fair use if the other factors support it.  As the brief points out, if there were an absolute rule against using an entire work, fair use would become “an inflexible, one-factor test.”

The lesson from all this, that a fair use analysis must plod through all the factors in light of the specific circumstances and is never subject to “short cuts,” may not be welcome news for all.  But it is, nevertheless, good news, since it reminds us that fair use exists to permit uses that are socially valuable but which cannot be anticipated or encompassed within definitive rules laid down in advance.

A book you will never read

The American Library Association, along with other groups including booksellers and major publishers, make quite a big deal about Banned Books Week each year.  Each year they showcase books that were subject to challenges from people who do not believe those titles belong on the shelves of, usually, public and school libraries.

One of the books that is frequently challenged, especially in schools, and just as frequently defended on free speech grounds, is J.D. Salinger’s Catcher in the Rye; it is in the top twenty most challenged books on lists from the past two decades from ALA.  So there is a very heavy irony in the fact that Salinger himself and, after his death earlier this year, his estate have been successful in permanently banning a book that tried to update the story of Catcher.

I have told the ongoing story of this controversy with posts here, here and here.  Basically, Salinger presented a very weak case that the new book, called “Sixty Years Later; Coming through the Rye,” infringed the copyright in the original.  Amazingly, the District Court accepted the argument and granted a preliminary injunction.  There was a quick appeal, in which the American Library Association and many others joined.  The appeal cited procedural flaws in the preliminary injunction as well as the inadequate and incorrect copyright analysis, which clearly conflicts with the free speech values fair use is supposed to protect. The preliminary injunction was overturned on procedural grounds and sent back to the lower court.  Unfortunately, the appellate court punted on the free speech issue entirely, and agreed, in a very cursory fashion, with the copyright analysis from the district court; the ruling on that appeal is here, and there is a comment from Will Cross here.

Now the final chapter has played out, as the District Court has issued, by consent of both parties, a permanent injunction against the publication or distribution of Sixty Years Later.  Apparently to avoid a costly and drawn out trial, and faced with a deck stacked against them, the author and publisher decided to cut their losses and forgo publication in the U.S.

So this is a book you will never read, if you live in the US.  Reviewers have said that it is not very good, but you will not get to decide.  If you teach Catcher, you will not have the opportunity to have your classes look at this updating of the story and see if it rings true or how else it might turn out.  Here we have a banned book on a scale no individual challenging Harry Potter or Judy Blume at their public library could hope to achieve.  This is a book banned by the government, something we usually believe our Constitution will prevent.

If we have ever needed evidence that our copyright law has expanded beyond all rational bounds and now threatens our most fundamental national values, this case provides it.  The claim that the new work is infringing is based on a disregard of many fundamental copyright principles, include the distinction between idea and expression, as well as the proper application of fair use.  Most basic, however, is the failure to recognize what our courts have affirmed repeatedly, that fair use is a safeguard for free speech.  Where copyright most needs the fair use exception is when a rights holder tries to suppress critical or unwelcome speech from others by asserting copyright claims.  L. Ron Hubbard, Stephan James Joyce and the estate of Margaret Mitchell have all been unsuccessful when they tried to do that, but J.D. Salinger has enjoyed an unusual deference from our courts (another example of that deference can be found here).

So perhaps when Banned Books Week next comes around, we should recognize that Salinger uniquely represents both sides of the First Amendment coin — someone whose own works must still be defended at the same time that he and his heirs misuse the copyright law to undermine that very guarantee of free speech.

Is the sky falling on library lending?

“The sky is falling,” Chicken Little cried.  I don’t want to emulate that panicky poultry too closely, but recent events have raised some concern in my mind over the continued viability of copyright’s “first sale” doctrine, upon which so much library practice depends.

First sale is the rule that once a lawful copy of a work is sold, the exclusive right to control distribution of that copy is “exhausted.”  Therefore libraries can lend books, consumers can resell CDs and NetFlix can rent DVDs through the mail.  First sale is not a necessary or automatic part of a copyright law; many countries have different provisions on what is sometimes called “exhaustion,” such as a statutory fee for each library loan of an item.  Most importantly, first sale does not apply when a work is licensed rather than sold.  Many of the current threats to first sale are controversies over where the boundary between a sale and a licensing transaction really is.

Here is a catalog, quite long I’m afraid, of some of these controversies and, I think, threats to library lending.

First there is the new lawsuit against UCLA over streamed digital video.  Part of that suit argues that what seemed like purchases of DVD by UCLA were really licensing situations because terms of use were printed on the purchase orders.  The plaintiffs use this claim to argue that UCLA cannot make a fair use argument in defense of their practice, but it is easy to see how such a claim could also restrict practices under first sale.  There have been many attempts to use one-sided terms of use to prevent or control resale; the Supreme Court rejected an early attempt to prevent second-hand resale at a lower price in Bobbs-Merrill v Straus back in 1908.  If a claim based on terms of use in a purchase order is successful in limiting fair use rights under copyright, it is easy to see how such terms will multiply to restrict library lending under first sale.

By the way, it will be interesting to see if these terms can survive analysis under the Uniform Commercial Code.  Article 2 of the UCC governs sales of goods, and its provision about conflicting terms of sale (the “battle of the forms”) might seem to support these terms of use.  But two questions occur.  First, if the PO terms turn a sale into a licensing transaction, does Article 2 even still apply, since it governs sales?  Second, do the terms so materially alter the transaction that they cannot simply be presented on a purchase order and enforced against the purchaser based solely on payment of that invoice?

My second concern comes from the news that a law firm has been sending cease and desist letters to academic libraries demanding that they stop filling ILL requests for scholars and institutions outside of the US.  I have not seen a copy of this letter, but the reports suggest that its legal arguments are quite confused.  For lending of articles these days, most ILL is governed by the contractual terms under which a database of journals is licensed.  If the license permits ILL without territorial restriction, there is no reason to stop following those terms.  If the license does not permit such lending, the demand is superfluous.  For the lending of physical items, first sale would seem to permit the purchasing library to lend to whomever it wants. But since the lawyer is representing a large group of STM publishers, this letter does remind us that there is a strong desire in the content community to place new and radical limits on long-accepted library practice.

Other threats to first sale do not directly involve libraries, but clearly have potential impact on them.  In Vernor v. Autodesk the Ninth Circuit Court of Appeals upheld the claim that a piece of software was not really sold but only licensed, such that the purchaser could not resell the physical discs he had bought in reliance on first sale.  Here again, there are obvious implications for library practice if much of what we think we are buying turns out to have only been licensed.

Finally, there is the non-decision reached this week by the Supreme Court in the case of Costco v. Omega.  That case involved not libraries, by a discount retailer and the claim by Omega Watches that first sale did not apply to copyrighted items (the symbol embossed on the back of watches) that are neither manufactured nor sold in the US.  The 9th Circuit (again) held that first sale did not apply and the watches could not be resold in the US without authorization.  The Supreme Court agreed to hear the case, and the Library Copyright Alliance filed a superb brief encouraging reversal.  But the Court split evenly, with Justice Kagan recusing herself.  That result leaves the troubling decision from the 9th Circuit in place, at least in Western quarter of the US.

The problem with the status quo in Costco is that it poses a threat both to some library lending and to the secondary market for used textbooks that is so important for students.  The LCA brief makes clear that affirming the lower court in Costco would leave academic libraries especially in great uncertainty, since they obtain quite a bit of material from overseas.  The case involves a technical issue about the so-called manufacturing clauses in the Copyright Act (sections 601-603) because that clause influences what is considered a copy “lawfully made under this title” for purposes of first sale (section 109).  Section 602 contains an exception to its restrictions on imports that allows libraries to purchase both books and videos from abroad for their collections, but the language about audiovisual works, which is different from that regarding books, seems to deliberately exclude lending of foreign-made videos.  So at the very least, academic libraries in the 9th Circuit must have doubts about whether they can lend foreign films purchased overseas.

Another potential problem created by Costco is for the used textbook market.  As this news story indicates, textbook publishers urged the Supreme Court to affirm the 9th Circuit decision in Costco precisely because it opens the possibility of moving textbook publishing offshore and then relying on the decision to close down resale of used books.

Perhaps the sky is not falling, at least not yet, on the first sale doctrine.  Kenneth Crews of Columbia suggests in this blog post that the Costco case, at least, does not give us cause to panic yet.  But I think it is pretty clear that the doctrine is besieged from several different angles.  Uncertainty about its scope and contours may translate, unfortunately, into less robust library services.  The unfortunate scenario is that, just as libraries are being really creative in rethinking our traditional role as “book warehouses,” content providers, sometimes intentionally and sometimes not, seem to be pushing us back into that limited space.  The reason, of course, is that the more first sale is restricted, for libraries and for consumers in general, the easier it will be to define the digital realm as a “pay-per-use” environment.

The other shoe drops

On Tuesday, Dec. 7, the educational trade group AIME and one of its members, Ambrose Video, finally filed the long- anticipated lawsuit against UCLA alleging that UCLA’s practice of streaming digitized video through its course management system to students registered for a specific class, was copyright infringement.

When several publishers filed suit against Georgia State University on April 15, 2008, I took note of the date because it seemed the publishers were trying to enforce a new tax on higher education.  Now the assault on academic fair use is continuing, but my initial temptation to draw a chronological analogy with the attack on Pearl Harbor – “a day that will live in infamy” – was easy to resist.  Not only would such an analogy be disrespectful of the terrible tragedy that took place in 1941, it would also give too much importance to the very strange document that was filed Tuesday in the Central District of California.

The complaint is unusual in several ways.  Those who try to read it off the AIME website will find, for example, that the PDF is riddled with problems in the scanning (one hopes) that make it very difficult to decipher.  Also, it is curious that the only named distributor of educational videos is Ambrose.  The complaint makes the claim that many others are also being injured, but it does not name them.  Instead it inserts a strange defense of the claim that AIME itself has standing without the presence of more than one of its members.  This is very different than with the Georgia State Case, where the Association of American Publishers led the search for a defendant but then dropped out and let the actual rights holders proceed.  Rumor had it last year that Ambrose, whose CEO is also a leader of AIME, was very keen to sue but was having difficulty convincing his colleagues in the group that that was a good idea.  The structure of this lawsuit seems to add credence to that rumor.

Another legal oddity is the decision to sue UCLA for damages as well as injunctive relief, even though the complaint acknowledges that UCLA is “an arm of the State of California.”  It would seem that sovereign immunity will be an issue, and AIME has not taken the steps that the GSU plaintiffs did to avoid the  potential for dismissal on these grounds.

Much of the argument, of course, centers around fair use.  Here too it was surprising to see how the complaint proceeds.  It actually does not address the four fair use factors, but makes three arguments about why UCLA cannot claim that defense.  First, it says that the videos are all licensed in a way that precludes fair use.  Second, it asserts that it offers a licensed streaming service, which presumably goes to the market harm factor in a fair use analysis.  Third, it asserts that UCLA is not using “reasonable and limited portions” of the videos.  Again, the point here is to argue one of the fair use factors – amount and substantiality – but the language actually comes from the requirements of section 110(2) of the copyright act, not from fair use (section 107).

This last point is interesting because the complaint tries to refute any argument that 110(1) and/or 110(2) might apply to UCLA’s practice.  It does not acknowledge the possibility, which I hope UCLA will argue, that even when those provisions do not fully apply, attention to the policy behind them and the restrictions place upon them strengthens the case for fair use.  For example, if the impact of course-specific streaming is no different than employing 110(1) – the face to face teaching exception — it argues that there is a Congressional policy that refutes a claim for economic harm. When the complaint itself confuses the language between these exceptions, it points directly toward that possibility.

Licensing, however, is the heart of this complaint, in two ways.

First, Ambrose argues that its licensed streamed service makes a claim to fair use inappropriate.  The entire Ambrose catalog is, oddly, attached as an exhibit to the complaint, but only a “sample” of the streamed offerings appears.  An examination of the Ambrose website shows that not all of its offerings are available for streaming, but it is hard to tell what the percentages are.  So the question arises, how much of the content must be available for licensed streaming before a fair use argument is ruled out?  That question would, I think, persist even if a court accepted the claim, by no means obvious, that a licensing market does count to reduce the field for fair use.  That latter claim is quite circular and courts have split over its validity.

Second, Ambrose makes the more basic claim that “many” of its products are licensed in a way that entirely precludes fair use, even when  UCLA (and the rest of us) have bought a physical DVD.  The complaint says that, if the purchase orders for these DVDs are “scrutinized,” licensing terms will be found.  That claim made me think about what the Uniform Commercial Code (article 2) calls “the battle of the forms,” where parties to a sale of goods disagree as to what terms apply.  Even if the terms found on the purchase orders (or some of them) are held to be valid in some ways (and I think they might be under the UCC) the question still remains as to whether these one-sided terms are adequate to take the use of the DVDs completely out of the realm of federal copyright law.  Academic libraries should watch this issue closely, since it seems likely that similar attempts to use purchase order terms of use to abrogate the right of first sale, upon which libraries depend so heavily, will grow.

One finally oddity, from the perspective of academic librarians, should be noted.  The Washington lawyer hired by AIME and Ambrose to pursue this case, Arnold Lutzker, is also scheduled to teach an online class on “Copyright, Photos, Video, Art & Multimedia” for the Center for Intellectual Property at the University of Maryland University College in 2011.  This coincidence is a reminder that librarians need to look carefully at the educational opportunities they select and consider whether their common tendency to be excessively nervous about fair use might be reinforced when it should, at least in my opinion, be countered by more in-depth knowledge.  We know how to recognize a bias when the Copyright Clearance Center offers to teach us about copyright; we need to be aware that other opportunities may also come with an agenda.

This is obviously a case we will need to watch as it progresses.  These comments are based only on the complaint.  UCLA will file an answer that will help clarify the issues and, one hopes, AIME and Ambrose will clarify many of the points that are left unclear by this strange initial document.

Fashioning innovation

I do not usually use this space simply to offer links to other resources without adding my own comments, but this 16 minute video by Johanna Blakely of the Norman Lear Center at USC — “Lessons from fashion’s free culture” —  is so good there is very little I can add.

Dr. Blakely discusses, in a smart and engaging way, the role that intellectual property protections play in providing incentives for creativity and innovation.  Her primary example is the fashion industry, where the lack of strong IP rights not only does not hamper creativity but seems, in Blakeley’s argument, actually to support innovation and rapid growth.  Her chart illustrating the relative income generated by creativity industries that “enjoy” strong IP protection versus those that don’t may be an oversimplification, but it does provide a strong refutation to the argument that IP protection is necessary for creative industries to thrive and for innovators to pursue their work.

The video is also an excellent lesson in how to do a fun, engaging and informative presentation.  I offer it with envy for Dr. Blakely’s skill and confidence that it will be a valuable way for readers to spend 16 minutes.  I am just disappointed that I don’t get all of the contemporary cultural references.

This one is really odd

Mark Twain once wrote in his Notebooks that “Only one thing is impossible for God: to find any sense in any copyright law on the planet.”  It has been a full century since Twain’s death in 1910 and he is just now presenting us with good evidence for the truth of his comment.

The gist of the story, which is recounted here and analyzed from an Australian point of view, is that Twain left an Autobiography when he died, along with instructions that it not be published until he had been dead for 100 years.  Twain’s purpose apparently was to avoid giving offense or committing defamation. That long-awaited publication has now taken place, and the question that interests me is whether the Autobiography has any copyright protection.

Under current US law, the copyright in an unpublished work lasts for the life of the author plus 70 years.  That term of protection for Twain’s Autobiography would have expired in 1980.  For a currently published work the term of protection is the same, so it is logically impossible to apply that term starting from the time of publication in 2010.

Perhaps we should look at Twain’s expectations in regard to copyright.  At the time he died the 1909 Copyright Act had just come into force, with a 28 year term of protection that was renewable for an additional 28 years.  This protection was dependent on publication with notice, so perhaps Twain thought that his work would be protected for 56 years after its 2010 publication.  But it is unlikely that he could have believed, critically aware of copyright as he was, that the law would not change in that long period of time.  It is even more unlikely that the thought of a copyright beginning in the 21st century and lasting 56 years was any motivating factor in Twain’s decision to write his memoirs.  So protecting his expectations, whatever they were, would not serve the fundamental purpose of granting the copyright monopoly, which is to provide an incentive for authorship.

If we accept, for the moment, an analogy between copyright and real property, perhaps we should recognize that the copyright in Twain’s Autobiography belongs in the category of intentionally abandoned property, based on his deliberate decision to suppress it past any reasonable term of protection.

I have to admit that I rather hope that someone will challenge the inevitable claim to a copyright that the Mark Twain Foundation will make in this work.  I would love to see how a court would sort out these issues.

In the meanwhile, however, I think there is a point to made here about the folly of believing that there is such a thing as a “limited” monopoly, which the Constitution requires that copyright should be.  Monopolies serve special interests by allowing prices to rise well beyond the level they would reach in a competitive market.  They are so beneficial to those interests that any boundaries imposed on them will always be pushed, tested and expanded whenever they can be.  The Mark Twain Foundation has a much stronger reason for asserting a copyright claim, even a baseless one, than any other party has in spending the money necessary to challenge it.  The result will likely be a continuing monopoly over a work that rightly belongs to the public; an inevitable but unintended consequence of granting a monopoly and then trying to control it.

About the copyright monopoly Lord Macauley said in 1842 “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly.  Yet monopoly is an evil.  For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”  With the case of Twain’s Autobiography we have a clear situation where the evil Lord Macauley decried has the upper hand and is likely to persist well past any rational justification for its existence.

A glimpse into our future?

Access Copyright is the Canadian equivalent of the U.S Copyright Clearance Center.  Like the CCC, which is helping to finance litigation against Georgia State University designed to force US universities to pay more and higher licensing fees for course materials, Access Copyright is also on a quest for ever greater income.

I and others have predicted for some time that a victory in this copyright infringement lawsuit would result in fewer educational options for our students, not more money flowing from university budgets into the coffers of the CCC. Now we have a Canadian parallel that seems to confirm those fears.

The situation for reserve materials in Canadian universities is already far worse than it is in the US.  A Canadian judge has ruled that putting required course materials on physical reserve in a library abets copyright infringement (when students make personal copies, presumably).  Based on this insane ruling, Canadian schools have been paying  $3.38 per student per year for physical reserves, along with .10 per page for course packs, to Access Copyright.  Now Access Copyright wants to change the fee structure and simply collect $45 per student per year for both physical reserves and course packs.

The upshot of this change, of course, would be a huge cost increase for universities and much higher revenues for Access Copyright.  And just as predicted, universities have started to opt for reduced student access in order to avoid a drastic drain on their budgets.  The University of Alberta has announced that it will no longer purchased the vastly more expensive license from Access Copyright and will, instead, simply stop providing reserve readings and course packs for students.  Students who cannot afford to purchase all the required readings will, it seems, be out of luck.

Who are the winners in this situation, I wonder?  Certainly not the students, who will have less access to course materials and higher costs for their education.  The university is obviously a loser too, since its basic mission is impeded.  And while Access Copyright will get richer, it is not at all clear that authors will benefit from the increased fees either.  Most academic authors – who are usually the ones who write textbooks – do not depend on that small additional income they receive from licensing fees after the large cut is taken by the rights organization.  In any case, often the author never sees any of that money; I have documented several times the situations in which the CCC collects fees for works whose authors it cannot identify. Those are cases where no incentive at all is created, only income for a bloated bureaucracy that feeds on fees that seem to have no rational justification.

When we compare the Canadian situation to the US it is clear that, in spite of some major differences in the law, we may be looking at our own future.  Physical reserves are not the problem in the US, since they are clearly covered by our first sale doctrine.  But fees for course packs and electronic reserves are climbing all the time, to unsustainable levels.  The Canadian system at least has the advantage of a predictable fee structure.  As US librarians know, we have no such predictability in our licensing budgets; the fees are inconsistent and capricious.  If we are to avoid a similar situation, in which professors are forced to adopt a more cramped and costly pedagogy, we need our courts to recognize that the current system is leading to a system that serves no public interest at all and is injurious to the educational system we have long been so proud of.

So who gets the money?

In my only previous foray into the issues of protection for traditional knowledge, I was quite critical of the legal regime used in Ghana to claim control and profit over the knowledge creations of indigenous peoples.  Even while criticizing the law, however, I admitted that there was a great deal of abuse that needed to be remedied, I just questioned how a remedy could be fashioned.  Now I have an opportunity to illustrate that abuse and also give concrete form to my doubts.

This short blog post, with links to other stories, tells how the Colgate company has successfully patented, in the U.S., an herbal toothpaste recipe that apparently has been used for centuries by natives of India.  Needless to say, the Indian government is not happy, and the case seems to illustrate the potential abuse of traditional knowledge that the WIPO and other groups would like to remedy.

One question, of course, is whether a patent should be available at all for this product.  This is not just an abuse of traditional knowledge but also, from a different perspective, perhaps, an abuse of the public domain.  In the U.S., as in most countries, patents are granted only for inventions deemed “novel.”  If this mixture of common herbs has been used in India for centuries, where is the novelty?  Colgate simply wants to sell to Indians something they have been making for themselves for a long time.

But this raises the second question I want to consider.  Is it possible that allowing a patent for this product will actually have a social benefit by making the toothpaste more widely available to those who want to use it?  Many Indians probably cannot be bothered to make the paste but would be willing to pay a reasonable price for a pre-made version.  If there would, in fact, be a social benefit, perhaps the patent should be allowed.  This seems to be the position of the Indian government; their object seems to be to letting an American company make the profit more than it is to the idea of profit itself.

So if a patent is to be allowed, the next step would be to find a way to protect the legitimate interests of the inventors of this traditional formula.  That is where the problems really come up, in deciding what those legitimate interests are and whose they are.

For example, are there some groups in India who should be able simply to stop the commercial exploitation of this product?  If we determine that there is social value to the commercialization, then we face a situation where protection of traditional knowledge might cause social harm.  We might opt to make such a decision out of respect for native peoples, but it is a calculus that needs careful consideration.

If we allow the commercialization, equity suggests that profits should be shared with the native peoples who developed the product.  But just who are those peoples?  Who stands in the position of representing Indians who have made this dental powder for “perhaps 1000s of years?”  The Ghanaian solution is to let the government stand in the place of the indigenous creators of traditional knowledge, and in this patent dispute it sounds like the Indian government would like to follow the same path.  To me this question of “cui bono” is the most important and problematic aspect of the debate about protecting traditional knowledge.  If we could find a way — and it will be different in nearly every situation — to actually let the indigenous creators garner some benefit from their traditional knowledge, then I am all for doing so.  But letting contemporary governments profit from knowledge passed down for centuries amongst people who occupied the same territory that that government now rules — even if, as may be the case, the descendants of those peoples do not, in the current situation, feel well represented by that government — is a very imperfect solution indeed.

Fair is fair, isn’t it?

It was certainly good news to see this news story from the BBC reporting that Prime Minister David Cameron has initiated a review of the UK copyright laws with an eye toward revisions that would accommodate the way innovation happens in the Internet age.  Every country should probably undertake this kind of review periodically, although this blog post from TechDirt raises doubts about how serious the review will be.  In any case, it is worth looking closely at the announcement Cameron made and seeing what we can glean.

First, Cameron was very clear is stating that his attention was turned to this subject when he was told by “the founders of Google” that “they could not have started their company in Britain.”  One thing this remark does is remind us of how important short, compelling messages are in capturing the notice of lawmakers.  I often wish we could get legislators to pay enough attention to really understand what copyright is for and how it could be improved, but that is a foolish hope.  In reality, short messages that cry out for specific action – framing devices that state a clear reason why a politician should care – are vital.

Another thing we learn from this remark is how much Google sees itself as dependent on the U.S. fair use provision.  It is precisely a U.S.-style fair use clause that Cameron wants to consider for the U.K.  The Guardian newspaper immediately took Cameron to task for that suggestion, arguing that the government was too much “in the thrall” of “IT giants.” The Guardian went on to tell Cameron that there was little difference between fair use in the US and fair dealing in Britain, and that fair use “does not allow what Google does either.”

This latter statement is badly misguided.  It is very clear that the heart of Google’s business – the provision of Internet searching and indexing – is fair use and several courts have ruled that way.  Perhaps Mr. Arthur of the Guardian is thinking about the Google Books project, the fair use issue in regard to which has never been resolved.  The utility of fair use for supporting Internet innovation is really hard to dispute, although recent interpretations of fair use in some court cases have not always allowed it to live up to its potential.  It is worth taking a minute to see why fair use may be preferable to fair dealing for supporting innovation.

Fair dealing generally refers to a specified set of acts that will not be considered copyright infringement.  In the U.K, private and research purposes, educational coping, news reporting and library lending are all among the acts consider fair dealing (see item 8 in the linked document).  But these lists are exclusive; they do not offer the flexibility to encompass new uses and technologies not known when the law was passed.  Some of the items on the U.K. list of fair dealings are covered by specific exceptions in U.S. law — library lending, for example, is permitted by section 109 – while others are left to the broad but dubious embrace of fair use.  Fair use is an addition to the specific exceptions and is intended to provide exactly the flexibility that fair dealing lacks.

The irony here is that while I agree that Britain needs a fair use provision that would give them the flexibility to experiment and innovate in the knowledge economy, I also envy fair dealing provisions to some extent.  If the U.S. had the fair dealing exemption for educational copying, for example, we would be spared the battles over course packs and e-reserves, and education would be somewhat less expensive for our young people.  So I think it is a mistake to present fair use or fair dealing as an either/or choice; a balance between the flexibility offered by fair use and the certainty offered by specific exceptions for common and socially valuable activities is the goal our copyright reform should pursue on both sides of the Atlantic.

The final point I want to make about the BBC report is regarding the comment from the chief executive of the British Publisher’s Association, who warned that “The immutable fact remains that the people who generate and invest in creativity deserve and need to be rewarded.”  This comment is one of those bromides, often heard in the copyright debate, that really means “keep paying me and don’t make me change the way I do business.”  My real dispute is with the phrase “immutable fact.”  As the knowledge economy changes rapidly, few “facts” will really be “immutable.”  Indeed, they may not be facts at all; we desperately need better data to assess whether and how well copyright laws actually do provide incentives for authorship and creativity.  Certainly we know that there are broad swaths of creators (in academia, for instance) who create without regard for the economic incentives created by copyright.

And there are probably other “facts” we need to consider.  As a panel at a recent meeting of the World Intellectual Property Organization testified, the “Byzantine maze” of copyright regulations is “stalling monetization of new business models.”  This is the fact to which Prime Minister Cameron is responding, as well as to the charge to treat the need to reform copyright so as to support innovation with the same urgency that we fight piracy of copyrighted works.

B8, OA, GSU and the crux of the matter

During both the Berlin 8 conference and the Open Access Week events at Duke, the word “sustainability” was everywhere.  At the conference in Beijing, for example, the question was posed to some publisher representatives about what they needed to support OA.  Their answer was a sustainable income, not surprisingly.  Similarly, at a panel discussion on OA here at Duke, several Duke Press employees posed pointed questions to panelists challenging the idea that open access offered a sustainable business model.

From one perspective, this emphasis on sustainability is a reflection of how tied we are to traditional economic models for publishing.  In many other areas of university life we are willing to try experiments and even to invest money without any certainty of a demonstrable profit. No one asks if student counseling services or intramural sports are “sustainable;” they are simply services we know we need to provide.  Yet with something as important as scholarly communications we are bound to a question that misdirects us from the fundamental values of the enterprise.

While I was in Beijing I took a break from the conference to read the latest filing in the Georgia State copyright infringement lawsuit.  The plaintiff publishers, having sustained a major setback in the judge’s ruling on the motions for summary judgment, have filed a motion for reconsideration.  They specifically want the judge to reconsider her rulings that the only continuing cause of action is contributory infringement and that the case should go forward only on the alleged infringements detailed in filings already before the court.  Without commenting on the substance of this motion, I was struck by how tied the arguments were to the notion that publishers owned valuable property that could not be shared with others absent continuing payments to those owners.  And this is where sustainability came back to the fore.

Traditional scholarly publishing is built on a model where publishers obtain the content they publish for free, then charge universities and others to get that content back.  Often those costs are repeated for each new form the content takes; the GSU case is really about whether new types of course reserves will require an additional payment.  This model, I suggest, is the one that is really not sustainable.  The traditional model relies on the willingness of scholars to give away the fruits of their labor for free, something that made sense when scholarship was an economy based on scarcity.  But in the digital environment we no longer have an economy of scarcity, and the options for disseminating scholarship are many and varied.  The Georgia State lawsuit is an attempt to force scholars to conform to an outdated model; even if the plaintiffs were to win in court this is inevitably a losing gambit.

We need to reverse the question of sustainability and ask how long the traditional model of scholarly publishing can be sustained before authors simply refuse to participate any more.  It seems that more and more researchers are discovering that this model is not in their best interest; soon the idea of giving away scholarship in order to buy it back will seem a foolish option in a world of online scholarship.  As I listened to the talks in Beijing I came to feel that the time is shorter than I had realized.  Experiments in open access should be vigorous and varied, even when profitability is not guaranteed, because that is where the sustainable alternatives will ultimately be found.  It is urgent that we seek a transition to these new business models precisely because the old one cannot, and should not, be sustained.

Discussions about the changing world of scholarly communications and copyright