Open Access and Institutional Repositories, Scholarly Publishing, Technologies, User Generated Content

The textbook world is getting flat

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Earlier this month I was able, thanks to the organizing efforts of a colleague, to participate in a phone call with Jeff Shelstad, one of the founders of Flat World Knowledge.  I wrote about Flat World some time ago, but I want to take the opportunity (before it fades in my mind) to describe their business in more detail, provide an update about their success and recommend their business model as a genuinely transformative opportunity for higher education.

Flat World Knowledge is essentially a publisher, founded in 2007 and currently focused on the market for “big” textbooks — the ones that cost students an arm and a leg and are issued in a new edition every other year to undercut second-hand resales.  Flat World, in contrast, is publishing their textbooks online, entirely open and free.  The books are licensed under a Creative Commons license.  Like other publishers, Flat World organizes peer-review for the books it publishes and provides copy editing and design services.  So two issues come to mind immediately — how do they make money, and what is in it for faculty who might write or adopt a Flat World textbook.  It is the answers to these questions that really make Flat World such an exciting venture.

First, although students can get free access to their online textbooks (through course-specific URL; more about this in a minute), they also can buy the textbook in several different formats (print, audio and self-print PDF, according to the “How it works” page).  According to Mr. Shelstad, about 50% of students currently opt to purchase a book that has been adopted for their course (at 29.95 for a print-on-demand copy), and Flat World plans to increase that percentage as they add new or improved formats.  Shelstad mentioned formats for hand-held devices, for example, and it seems exciting to me just to know that a textbook publisher is thinking this way.

For faculty who publish textbooks with Flat World, there is an opportunity to earn royalties on every dollar that is spent on their book, as well as the chance to continually update and correct the text.  These authors have a level of continuing control over their work that is unprecedented in the print world.

A unique level of control is also the principal advantage that faculty who adopt a Flat World textbook gain, since they are able to adapt a book for the specific needs of a course they are teaching.  Currently, adopting faculty can move sections of a book around with up / down / delete controls and annotate any portion.   Tools to insert materials and to edit at the word level are in development.  Once a faculty member has adapted and adopted a specific textbook, that version is saved and a course specific URL is created so that students in the class will see exactly the book that has been created, in a collaborative way, for their use.

I was especially interested in how these two different control points — that of the author and that of the adopting instructor — might relate.  I was delighted to hear that the adapted version will be separate from the original, using this system of unique URLs, and that all changes in the adapted texts will be indicated.  This seems to me to be a very sensible way to preserve the integrity of the original authored work while still permitting adaptation for a particular need.

Flat World is showing signs of being a genuinely transformative model for higher education.  They currently have 11 textbooks in their catalog, with 10 more to be added in the coming months.  Even with that relatively modest catalog, there are already over 500 course adoptions and more than 40,000 students using Flat World books.  The staff at Flat World is working on new ways to adapt the books, such as pulling in images, PowerPoint, etc.  It was heartening to hear that one of the reasons roll-out of these features is slow is that Flat World does not want to compromise the high standard they have for design of their books too radically.

Overall this is an exciting model that helps us look forward to the genuinely new ways technology can facilitate classroom and online education.  Just after our phone conversation,  this new announcement came out about Flat World’s partnership with Bookshare that will make textbooks available to people with print disabilities, highlighting yet another possibility for this adaptive technology.

Authors' Rights, Copyright Issues and Legislation, Technologies

Dissing incentives

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This New York Times article about “Legal Battles over E-Book Rights to Older Books” caught my eye both because of a usage I dislike in its title and because of its importance in the continuing discussion of how much incentive copyright really provides for writers and other creators.  The article focuses on a dispute between the family of William Stryon and Random House, his publisher, over who has the right to profit from e-book sales of Styron’s work.

I have to say first that I dislike the reference to “e-book” rights because there is no distinct right to publish an e-book.  There are specific exclusive rights within copyright to publicly perform a work and to prepare a derivative work, both of which are important in allowing the creation and distribution of an e-book based on a published novel.  But “e-book rights” is a misnomer; at best a short-hand reference to a set of the enumerated rights in copyright that are involved in e-books.  In the contract dispute between Random House and Styron’s estate, the issue will be the scope of the assignment of these various exclusive rights, not the simple question of who got the “e-book” right since, as the family points out, e-books were unheard of when Styron published his novels and the profoundly moving “Darkness Visible.”

This brief item explains that the actual issue in this case is what “in book form” means in the publications contracts Styron agreed to.

The larger significance of this issue involves e-book versions of much of the great literature of the 20th century.  The length of copyright protection imposed on this cultural heritage is usually justified as providing an incentive for writers to write, artist to paint and filmmakers to “shoot.”  If, as Random House claims in the Styron case, however, the right to exploit new technologies as they develop is encompassed in the original publication contract, this incentive seems even more tenuous than it would ordinarily.  Even if we assume that Styron was more likely to write because he knew his children and grandchildren could continue to profit from his books than he would have been if copyright term was shorter, Random House’s claim that his original publication contract transferred the right to profit from new forms of distribution seems to reduce that putative incentive.  Presumably the family will have less control over the e-book created by Random House than one for which they contract directly (as they want to do), and it seems quite likely that they will profit less, if at all, from a version sold by Random House.

If copyright is really an author’s right, as publishing intermediaries like to claim when they want Congress to enact  stronger protections, should not the right to decide when and how to exploit new opportunities, not considered at the time of an original transfer, remain with the author or the author’s family?  In short,  publication contracts in copyright should be read narrowly to preserve the incentive for authors and others  to create which is the alleged purpose of the law.

This recent article by Professor Rebecca Tushnet about “Economics of Desire: Fair Use and Marketplace Assumptions” considers the incentive structure of copyright in some detail, based on the recognition that many creators create out of desire, or even compulsion, rather than a direct expectation of the money to be made for them or their heirs.  She argues persuasively that the economic incentives that the copyright monopoly creates “largely bypass[es] a persuasive account of creativity.”  Her conclusion that “Copyright law, and general cultural policy, could do more to direct material rewards to authors if we truly believe that monetary incentives will spur creativity” seems to directly address the Styron e-book dispute.  If we are serious about copyright incentives, she suggests, “we need to keep a close eye on which entities are benefiting material from all these new works.”  This is precisely the case with e-books and the literature of the 20th century; disputes like this raise real questions about how genuine our commitment to copyright as an incentive for creativity really is.

Licensing, Technologies, User Generated Content

The most dangerous place on the Web

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The most dangerous place on the Internet may well be inside that little button that says “I Agree.”  The opportunity to bind oneself to a contract almost unconsciously abounds on the Internet, and the immediacy of the Web encourages click-through agreements that are almost never read and, if they are, impossible to understand.

The Electronic Frontier Foundation has provided a nice primer on on-line agreements in this document called “The Clicks the Bind: Ways Users “Agree to Online Terms of Service.”  This is a long blog post or, in PDF, a three page document that should be read by everyone who uses the Internet.  It helpfully distinguishes major types of online agreements and the relative likelihood that the different forms result in binding contracts.  The document, by EFF’s Ed Bayley makes two programmatic assertions, both of which seem unarguable.

First, users should have to take an affirmative step to agree to terms of service.  Put another way, terms of service that are there if you want to look at them but do not require even that thoughtless click should not be enforceable.

Second, Bayley asserts that terms of service from online service providers should be publicly available, not just presented as a pop-up as one enters the site for the first time.  This would allow public discussion, which is important if people are to get past the habit of clicking without reflection on “I Accept” and come to some awareness of what they are agreeing to.  Even when TOS are publicly available, they are not very easy to understand.  Over a year ago, I printed out the TOS for Flickr just as an example and found that, at that time, they ran to over 12 pages of printed legelese.  A repeat of that experiment shows that they are shorter now — “only” 10 pages.  And to Flickr’s credit, they are available to anyone who wants to see in advance what they are getting into.

Bayley’s short essay is vital information, and the suggestions he makes seem like minimum steps that must be observed if courts are really going to hold individual users to the extensive and complex clauses found in these online terms of service.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

What wasn’t decided

Sometimes what a court does not decide can be more important than the actual ruling that the court makes.  One newsworthy example of this possibility is the extraordinary step taken by the judge in the file-sharing case of Joel Tenenbaum.  As this opinion piece from Ars Technica reports, Judge Nancy Gertner has finalized the decision holding Mr. Tenenbaum liable for copyright infringement, but has also detailed how she might have ruled if a limited fair use defense had been raised.  To say that her 35-page memo is extraordinary is an understatement; in it she suggests that the defense team’s error in raising a sweeping fair use claim rather than one narrowly tailored to specific circumstances was costly indeed.

Judge Gertner is no fan of copyright laws that hold people liable for accidental infringement, which happens fairly often with file-sharing systems (although not, apparently, in the Tenenbaum case) or hold teenagers liable for hundreds of thousands of dollars over a handful of songs.  In her memo she invites Congress to reconsider some of the draconian provisions of our current copyright statute and also suggests that she might have found some file-sharing, in select circumstances, to be fair use.  But that was not the issue put before her or decided in the case.

An even more significant decision for higher education — or really a lack of a decision — is found in a case from late October in the Southern District of New York involving online solution manuals for copyrighted textbooks.  In Pearson Education & Cengage Learning v. Nugroho Judge Deborah Batts (who I criticized earlier in the year over her Salinger ruling) found copyright infringement in the defendant’s online sale of solution manuals for plaintiffs’ textbooks.  Apparently the solution manuals were identical to ones sold by the textbook publishers themselves, although Mr. Nugroho claims he did not realize this, so the decisions seems to me to be correct for this situation.  There is a nice description of the case here. But, in keeping with my theme, let’s look at what was not decided.

First, this ruling involved the recognition that the solution manuals were derivative works of the textbooks.  This finding was necessary because the copyright in the solution manuals had never been registered, so the court was barred from considing them as independently protected works. The opinion focus on the fact that the solution manuals “have no independent viability” from the textbooks (which were registered), and are therefore considered infringing derivative works.  What is not clear is where the line is after which something is no longer a derivative works, and the “independent viability” test does not seem to be a precise enough answer.  If I take a single problem from a textbook and work out the solution, but do not copy any original expression, that solution may not have independent viability, but I doubt that by itself it is a derivative work.  Indeed, this kind of thing happens all the time when instructors or their teaching assistants provide sample solutions through various course websites and other tools.  Surely not all of these are infringing derivative works.  Let me repeat that I have no quarrel with the decision as it stands, but wonder where its boundaries are, especially in regard to common educational practices.

Another issue that was not decided in this case is when the kind of derivative solutions that I have just described might be fair use.  Fair use was apparently not raised, and it certainly is not considered in the ruling.  Given the fact that entire solution manuals identical to those produced by the companies were being sold without authorization, I doubt a fair use defense would have been appropriate.  But there are certainly situations where the creation of answer sets for problems posed in a textbook could be fair use, perhaps where a small amount of protected expression is copied or the problem represents largely unprotected facts, and the solution sets are available without charge to a small group of students.  Whether this is allowable or not is a fairly common question, especially from teaching assistants, and the important point from the Pearson case is to note that this issue has not been decided.

Copyright Issues and Legislation, international IP

ACTA up

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ACTA, short for the Anti-Counterfeiting Trade Agreement, is a multi-party trade agreement being negotiated in secret by the U.S., the states of the European Union and several other nations.  While its name suggests a laudable purpose, the prevention of international trade in counterfeit goods, the secrecy of the negotiations raise cause for concern.  As details leak out about the contents of the proposed treaty, as such details always do, it becomes clear that much more is happening here than one might suppose.  Indeed, these negotiations are being used to undermine the legal system of copyright in place internationally in favor of a one-way system that benefits special interests at the expense (literally) of consumers.  The more we learn, the clearer becomes the need for consumer groups and others interested in fair copyright to “ACTA up” in opposition to these negotiations.

Not everyone is happy with the secrecy of the ACTA negotiations.  This news report tells of a letter written by two US Senators to the US Trade Representative, asking that the text of the proposed treaty be made public.  They cite privacy concerns, issues involving individual civil rights (such as the right to be free from warrant-less searches and seizures) and fundamental changes to the balance struck by international copyright laws.  One major privacy concern is the possibility of border searches, where customs officials would be authorized to look for and seize allegedly infringing goods, even on laptops carried through airports or across borders.

So what else is in ACTA that has Senators Sanders and Brown so incensed?  There is a nice, short summary of the key provisions of the US proposal here on the blog of Canadian law professor Michael Geist.  But I want to focus on a slightly longer report written about ACTA for the Library Copyright Alliance by Janice Pilch of the University of Illinois.  This Issue Brief nicely explains the context and key provisions being discussed in the ACTA negotiations, and it focuses on the specific concerns of libraries.

Two things particularly struck me in Pilch’s analysis of ACTA.  The first is the harm it could do to technological innovation.  As is often the case, the US Trade Representative apparently sees himself as an agent for the major entertainment industries, and is willing to sacrifice other, developing business models to the protection of their interests.  This is clear in the concern that ACTA will unfairly impose liability for copyright infringement on Internet Service Providers whenever their networks are used to transmit infringing content.  ACTA seems to carry a “three strikes” provision that would require disconnection of Internet users whenever there have been three accusations (not proof) of infringement.  The result would, at least, be a loss of business for ISP and a real fear of developing new communication technologies because of the threat of liability for how those technologies are used.  Worse, some suggested provisions would encourage ISPs to monitor user content and report suspected infringement.  As Pilch notes, the Library Copyright Alliance is asking that ACTA focus on commercial counterfeiting and not penalize particular technologies for the way they are sometimes used.

To me an even bigger concern is that ACTA represents a forum shift in international copyright regulation.  When I was in law school, we spent a lot of time discussing how our procedural rules were intended to prevent “forum shopping” — seeking a sympathetic court even if the area in which that court sat had little connection to the issue involved.  Forum shopping is often costly and unfair, and US jurisdictional rules discourage it.  But in a similar way, the US Trade Representative and the legacy content companies have been forum shopping internationally for a while now.  Pilch recounts the way industrialized nations moved toward international forums like the World Intellectual Property Organization in order to force stronger IP rules on developing nations and are now moving to these multi-party agreements because of the perception that those nations have gained too much influence at  WIPO.  The goal seems to be to find a way to continue to treat developing nations as markets rather than partners, whose own need for technological innovation and infrastructure development are subordinated to the desire to protect the sales of traditional goods produced by the industrial nations.  Such forum shopping also undermines the democratic process, since it uses trade agreements, which do not require legislative approval, to enforce rules the legislature is unwilling to enact into law.

ACTA raises a lot of serious concerns for consumers, fair copyright advocates and those concerned about international development.  Like many other similar attempts to make law behind closed doors, this is an effort where sunlight and transparency is badly needed.

Copyright Issues and Legislation, Licensing

What are we paying for?

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As the lawsuit brought by three publishers against Georgia State University claiming copyright infringement in GSU’s e-reserves and course management systems wends its way toward what seems to be an increasingly likely trial, it has had an unexpected benefit for academic librarians who manage electronic reserves.

As many people already know, academic copyright expert Dr. Kenneth Crews from Columbia University was named as an expert witness in the case this past Spring.  His report on e-reserve practices and argument for broad latitude for fair use is one of the best documents on this subject I have ever seen.  Peter Hirtle, of Cornell University and the LibraryLaw blog, performed a tremendous service by posting this report and some other documents from the case on the Scribd web site.  I have been reading the documents in the case on the Justia web site, but locating the documents attached to filings there is very cumbersome, so I have never considered linking to them here.  Peter showed much more ingenuity and determination than I can muster by providing this easier access to these public documents.

Peter’s post, with links to the various documents, can be found here.

In addition to the expert report, which the plaintiffs tried to exclude from the case, there is also some fascinating material in the “rebuttal expert report” that Dr. Crews filed after the plaintiff’s own experts had filed their reports.  One of the most interesting discussions in this second document, to me, is Crews’ comments on the inadequacy of the licensing market for electronic course readings as it currently exists.  In one amazing section, Crews recounts locating an offer to license permission to two of his own works on the Copyright Clearance Center’s website.  The only problem is that these were works for which Crews had retained the copyright himself, and he never authorized CCC to sell licenses for them.  From this small example, he raises the question of how secure those of us who purchase permission for at least some of our digital course content can feel about what we are buying.

I think many librarians rely on the idea that they are purchasing specific licenses for individual works from the Copyright Clearance Center, but I also know that an increasing number of us are concerned that what we are really buying is insurance.  As a colleague from another institution put this idea to me, “if we are spending enough money with CCC, it would be a horrible business decision for a publisher to sue us.”  The real question, of course, is how much money is enough.  But in any case, this notion of buying insurance for our e-reserves has never appealed to me, and I am pretty sure it is not the way CCC itself sees the licensing transactions it facilitates; everyone would be happier, I think, to believe we are purchasing legitimate copyright permissions.  But by raising the question of whether CCC actually has the right to sell some of the licenses it does sell, Crews makes the situation look more like we are, at least some of the time, paying “protection money” rather than effective licensing fees.

Copyright Information Notes

Writing about reform

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Every now and then, a law review article on copyright comes along that is so good that I feel I have to recommend it.  I am well aware that most of my readers are neither lawyers nor legal scholars, and the length and stilted format of law review articles can be off-putting.  But Professor Jessica Litman is more of a “known quantity” then many other copyright scholars, thanks to her wonderful 2001 book “Digital Copyright.”  It is her new article “Real Copyright Reform” that I now want to recommend for anyone interested in that broad topic.

There are lots of meaty and persuasive discussions of how to right the copyright ship in the US in this article, and it is hard to summarize all of Litman’s insights.  I really do hope that the whole article will be widely read, but I want to emphasize two broad points Litman makes for the purpose of this post.

First, Litman suggests that we abandon the division of copyright into seven distinct and separable rights.  This division serves us very poorly in the digital age, when all kinds of private uses that were uncontroversial for many years are suddenly contested online. Often the lines between performance, display, reproduction and distribution are simply impossible to maintain in the online environment that makes a new copy for nearly every use.  Instead of this increasingly dysfunctional division, Litman proposes a radically simple distinction between commercial exploitation and non-commercial enjoyment.

Besides the obvious simplification that such a new approach to copyright would accomplish, Litman points out another advantage to her proposal – it accords better with the general public’s intuitive understanding of what copyright is for and how it is supposed to work.  She correctly notes that a copyright law that is regarding as illegitimate and unenforceable by a majority of the public is of very little use.  This proposal for a simplified approach to protection and infringement, based on protecting only commercial exploitation and allowing non-commercial enjoyment, would serve the cause of copyright legitimacy.

The second broad proposal that I want to highlight is Litman’s suggestions for “reuniting creators with their copyrights.”  Copyright is frequently defended as an author’s right, but it seldom functions that way.  Nevertheless, both logical and economic reasoning suggest that greater efficiency could be had if copyright, or some copyright privileges, remained in authors’ hands.  To accomplish this goal, Litman suggests two significant reforms that would give creators more control over the exploitation of their works.  First, she suggests that we transform our largely illusory termination right (the right to terminate a transfer of copyright and reclaim the rights after 35 years if a complex procedure is followed) into a simpler process that would be available after only 15 years.  Second, she proposes that creators retain the right (“residual authority”) to license uses of their works even after a copyright transfer has been executed, “subject to a duty to account to her assignee(s).”  Such a move would simplify the licensing process, give some certainty to those who seek licensed uses, and put the residual licensing authority in the hands of the one most likely to permit and encourage creative reuse.

I have to finish this post with both a plug for my own forthcoming work and an expression of regret.  My own article on copyright reform, which is directed to a librarian audience, will be published in January 2010 in portal: Libraries and the Academy.  My article will be featured in the issue that marks the tenth anniversary of the journal, and I am very honored to be given that position.  But I also wish I had had the advantage of reading Litman’s article as I wrote my own.  Several of my suggestions for how to “renew” copyright focus on returning control to creators, and Litman has done a superb job of both defending the rationality of such reforms and thinking through some creative ways to get there.  I have no choice but to resort to that old complaint, “I wish I had said that.”

By the way, I will make a copy of my article available on this site as soon as it is published, in keeping with my contractual rights and obligations.

Uncategorized

Plus ca change, plus c’est la meme chose (GBS again)

In the brief time since the Amended Google Books Settlement was filed with the court (on Friday the 13th) and released to the public, there has been a flurry of commentary from a variety of perspectives.  Two interesting themes have emerged, however, from those on both sides of the great debate over whether the Google Books project is a good thing or a bad thing.  First, both sides seem to acknowledge that the changes have not been all that substantial.  Second, no one seems to think that the debate and legal maneuvering is really over.

Here is a quick look at what I perceive to be the major changes.

First, and probably most significant, the Settlement is now very clear that it applies only to books registered for copyright in the US or published in the UK, Canada or Australia.  This is an obvious attempt to avoid the objections and potential legal complications of including in the new Google products books subject to different copyright regimes and different author expectations; this comment on the Stanford Cyberlaw blog calls it “a policy-oriented maneuver intended to remove political pressure coming from abroad.”  It is interesting to consider what this means for the actual Google Book search results.  Will we continue to see snippets only of “foreign” books scanned by Google in the free database?  If so, does that indicate that Google really is continuing to assert fair use in some cases?  Or will these books disappear altogether?  In any case, we know that under the new terms, such works from other countries will not be part of the institutional subscription database, and that fact will substantially lower the value of the product.  Many of the works that will now be excluded are the very ones that research libraries have the most difficulty obtaining via interlibrary loan, so they are ones we were most counting on finding in the Google subscription database.  We must expect that the pricing of that database will be adjusted to reflect a significant decrease in value offered.

The next important thing to note about the amended settlement is what it does not do.  It does not address the concerns over reader privacy that have been expressed by many groups.  The Electronic Frontier Foundation expresses its disappointment about this lack of a privacy plan here.  In a conversation about this topic yesterday, a colleague of mine made the point that for Google to offer a privacy plan for this product would beg the question of privacy policies enterprise-wide, and that is a discussion Google, which depends on targeted advertising, does not want to have.

On the positive side, the amended settlement does clarify that rights holders can elect to allow free availability of their out-of-print but still in-copyright books, or to have them released subject to a Creative Commons license.  This will be a significant benefit to academics who have retained or reclaimed copyright in their own books; unfortunately, that is a much smaller class of authors than it should be.

In many ways the heart of the settlement, its huge compulsory license to Google to commercialize orphan works and other unclaimed titles, has not changed much.  There is a nice discussion of this aspect of the matter in this New York Times article.  The basic change being made is some restriction on how the money generated by sales of these works can be spent, and the appointment of an independent “fiduciary” to the Books Rights Registry board to protect the interests of this immense unrepresented class  The fundamental legal problem of an inappropriate use of the class action suit to create this license does not, and probably cannot, change.  Without that license, there is little if any incentive for the parties to bargain at all.

The great unknown in all of this is whether the Books Rights registry will be able to license other parties to exploit orphan works in ways similar to the opportunity the settlement creates for Google.  The provisions of the first settlement that had been known as the “most favored nation” clause, which said that the BRR could not give anyone else more favorable terms than Google got, has been removed — see the changes in sections 3.8(a) and 6.2(b) in the above-linked “redline” version of the settlement.  So it is now the case that if the BRR can license orphan works at all, it can give favorable terms to other parties.  But that is a very big “if.”  As James Grimmelmann explains in this post, it is not at all clear that the BRR will have this authority until and unless Congress acts to resolve the orphan works dilemma legislatively.  The NY Times article also seems to believe that this change depends on Congressional approval before the new independent fiduciary can assist with other orphan works projects.  So Google likely still has its exclusive position, which could only be threatened by an unlikely combination of Congressional action and very deep pockets.

Overall, it is hard to argue with the title of this article from Library Journal which suggests that the amended settlement agreement makes only minor changes, and, as noted above, the most significant change probably decreases the overall utility of the settlement to academic libraries.  The LJ article quotes a spokesman for the Open Book Alliance (which opposes the Google project) to the effect that the settlement is “sleight of hand.”  Even allowing for the bias source of this quote, I think it reflects a truth, that Google and its partners (which is what they are, as opposed to opponents, at this point) wanted to change the agreement as little as was necessary to slip by the complaints raised by the Justice Department.  As the NY Times article notes, that is really the only critic of the original deal that the settlement is designed to placate.  Whether it has gone far enough to satisfy the DoJ is still an open question.

Copyright Issues and Legislation, User Generated Content

Architectural overreaching

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This recent post on the TechDirt blog drew my attention (and that of may others) to an earlier note on the Freakonomics blog about an artist who pays an annual fee plus a percentage of his earnings to the University of Texas, Austin for the right to paint pictures of famous UT buildings like the Texas Tower and to use university emblems, even including the burnt orange color scheme.

On TechDirt, notice of this arrangement provoked a lot of angst.  Many of the comments expressed outrage at the “fact” that ordinary citizens who have to pay a copyright fee for photographs they take of public buildings, because of the copyright protection afforded to architecture.  That this is the state of the law is affirmed by several of those comments.  In contrast, the blogger who wrote the TechDirt post in the first place asked a differently focused question –“why should the painter have to pay a fee at all?”

All of the venting in the comments on this blog post reminded me of an article I have been reading by Professor Jessica Litman, about which I shall say more in another post, in which she discusses the “independent threat to the health of the copyright system” that arises from the “widespread perception of the current copyright system as illegitimate.”  The outraged comments point up this perception, even though they are largely misinformed.  The important question to address in this particular situation is really that other one — why pay a fee at all? — since the answer should allay some of the outrage.

The basic response to the concern for photographers and artists is that the copyright law provides an explicit exception, a limitation on the scope of the right in architectural works, that makes most drawing, paintings and photos of buildings non-infringing.  Section 120(a) of the Copyright Act (Title 17 of the US Code) says:

Pictorial Representations permitted — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing or public display of pictures, paintings, photographs and other picotial representations of the work, if the building in which the work is embodied or is ordinarily visible from a public place.

So there is no way under copyright law for UT Austin or any other building owner to prevent, or extract fees, for paintings and photographs of such buildings, either because they were constructed before copyright protection extended to buildings (as opposed to just plans) or because of the exception quoted above.

Other types of protection that could allow the extraction of a fee from the artist would usually be trademark issues.  University emblems will almost certainly be subject to such protection.  The issue of the burnt orange color scheme, however, is much more doubtful, especially after the decision earlier this month involving a similar issue around an artist’s use of Alabama’s crimson colors in the U.S. District Court for Northern Alabama.

So to return to the question of why the artist should pay this fee, one possible answer, I think, is that he wants to.  For paintings of buildings on the public property of the University, such a fee is probably neither required or enforceable, unless there are trademark elements included.  But the artist could have entered into a voluntary licensing agreement with the University, perhaps out of a sense of loyalty or fairness.  Or, of course, he may just be badly misinformed.  Unfortunately, we frequently encounter situations in which someone asks about a license in a situation where none is required and ends up paying an unnecessary fee.  Copyright owners (or putative owners) have little incentive to correct these misapprehensions.

Authors' Rights, Copyright Issues and Legislation

Copyright should be an author’s right (part 2)

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As promised in the last post, here is a very different look at the copyright incentive and the need to be thoughtful and cautious when we talk about copyright as an author’s right.

In the Autumn 2009 issue of The American Scholar, William J. Quirk writes an absolutely fascinating reflection on the finances of F. Scott Fitzgerald, whose tax returns and yearly financial ledgers were preserved and form the basis for Quirk’s essay called “Living on $500,000 a Year.”

The essay will be of interest to many people who are not obsessed with copyright issues, but one line struck my obsession very deeply.  According to Quirk, when Fitzgerald died in 1940, “his estate was solvent but modest – around $35,000, mostly from an insurance policy.  The tax appraisers considered the copyrights worthless.”  Fitzgerald’s copyright, of course, were not worthless over time.  As Quirk tells us elsewhere, the royalties from the sale of The Great Gatsby continue to generate about half a million dollars every year for the trust set up by Fitzgerald’s daughter Scottie to benefit her children.

This would seem to be one of the rare cases where the long term of copyright protection (Gatsby, published in 1925, will be protected until 2020) continues to benefit the descendants of the author.  Usually, of course, copyrighted works have ceased to generate any income at all after only a few years, and those who inherit the rights generally neither know that they hold them nor get any benefit.  Fitzgerald, however, arguably presents a strong, if unusual, case for long-lasting copyright protection.  But when we look deeper, we see that the incentive that copyright is supposed to provide probably was overblown even in this case.

First, it is not very likely that the knowledge that his writings would make his grandchildren wealthy really played any part in Fitzgerald’s decision to write his novels.  Indeed, Quirk’s essay tells the story of a man driven to work partly by the need to make money to keep a roof over his head from day to day (which is why he wrote short stories) and partly by the need to express himself (which is what he wrote his novels to do).  The copyright incentive worked in the short term – it made it possible for Fitzgerald to sell his stories and novels for relatively healthy sums – but all of that incentive was immediate.  The thought of riches two generations in the future was no part of what made Scott write.

Also, if the copyrights were considered worthless at his death, it is hard to see how Fitzgerald could have imagined profits for his grandchildren.  Even in this case, the incentive argument for an average copyright term of 95 years rests on the absurd assumption that authors can predict future success in the face of present failure (or perhaps that they are even more deluded than the rest of us).

Even if the copyright incentive can work in some cases, of course, it must remain in the hands of the authors.  If Fitzgerald had transferred his copyright to publishers, as is common practice today, there is little chance that his grandchildren would be enjoying all of that money, especially since there was a substantial period of time during which no one could anticipate the rebirth of interest in his books.  Once again we come to the inescapable conclusion that the justification for strong copyright protection, which is the incentive it provides to authors, is only valid if copyright remains in the hands of those authors.  To be effective at all, copyright must be, and remain, an author’s right.

Discussions about the changing world of scholarly communications and copyright