Copyright Issues and Legislation

Sailing to Byzantium

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I couldn’t resist citing one of my favorite poems for this post about my coming trip to Istanbul, especially since I have been reading John Julius Norwich’s ” A Short History of Byzantium” in preparation.  But most of my time recently has been spent preparing for the two presentations I will be giving next week at the second annual IP conference sponsored by eIFL in Istanbul.  I have always wanted to visit Istanbul, so I am very excited about finally getting that opportunity; I am sure I will have much more to say about the city and the conference next week and thereafter.  But as a preliminary reflection, I want to say something about the organization that is sponsoring the conference and comment on each of the presentations I have been preparing.

eIFL –Electronic Information for Libraries — is an organization that deserves to be better known in the library community (although by saying that all I really do is confess that I had not heard of it before).  eIFL’s mission is to “enable access to knowledge through libraries in developing and ttansition countries.”  To that end they have established six core programs: they negotiate access to commercially produced databases and electronic journals, they assist in building national library consortia, they facilitate interaction and sharing among knowledge professionals and they advocate on three fronts — copyright law, open access and open source software.  Just reading their excellent website is an education in the role of libraries in the development of nations and cultures.  I am humbled by the invitation to speak to a group of librarians involved with eIFL (and interested in copyright issues) and look forward to the chance to learn as much as I can from them over the coming week.

The first of my presentations, about the development of copyright policies for libraries, poses an interesting challenge.  So much policy on this topic in US libraries is based on specific provisions in our copyright law, whether fair use, section 108 for interlibrary loan and preservation, or even something as basic as the doctrine of first sale, which allows free library lending in the first place.  I cannot claim to know what those structures are or how the function in the copyright laws of all the different nations that will be represented in Istanbul.  So the gist of this presentation will be to talk about the different copyright issues that arise and the different ways national law might address those issues.  I can only hope to outline the decisions that have to be made as one develops a policy within the structures created by a national copyright law.

I seldom have much good to say about US copyright law in this space, but my initial conversations about this presentation have made me somewhat grateful that US law addresses many of our library issues so specifically.  Even when I feel it gets the balance of rights and opportunities wrong, as I often do, at least we work within an articulated structure, which is not always the case elsewhere in the world.  One irony here is that the growth of digital communications is leveling that playing field a bit, since many of the legal structures developed in the US break down when one tries to apply them to instantaneous worldwide digital access, and we are left to do our best to strike a fair balance in the absence of clearly applicable law, just as many in the rest of the world often must do.

My second presentation will be about the implications of the Google Books Settlement agreement for libraries.  Preparing for this has been a real eye-opener about the international ramifications of that agreement.  Although the agreement says it authorizes nothing except in the US, almost in the next sentence it adds that Google must notify the Books Rights Registry if it begins to make covered works available outside the US.  So international availability is clearly contemplated.  Also, many, many authors around the world are putative members of the settlement class, since they will hold US copyright interests and/or their books will already be included in the Books Search database.  It is interesting to see how different national groups have responded to being made part of the settlement.  A statement from the Pan-Africa Writers Association encourages authors to register with the BRR and claim their interest, while an article in a leading Japanese newspaper denounces the arrogance of forcing authors to opt out in order to “preserve their rights.”

These divergent opinions are probably simply the result of everyone’s confusion and shock at how radically our law and our practice of access books will be changed by what is, after all, a private settlement between parties.  Google books will go from being an index of the worlds knowledge to a vast commercialization of out-of-print books, changing the landscape for bookstores and libraries, as well as the legal landscape, especially around orphan works and any of the copyright exceptions (like 108) that rely on a work being commercially unavailable.  Yet all of this will happen with little or no input from most of the affected parties; vast public changes will be accomplished through private negotiations.  This, I believe, was a major theme at the conference held last week about the settlement agreement at Columbia Law School, and I will close by linking to two of the major reports I have read about that conference, here and here.  I look forward to gaining a more international perspective on this ongoing discussion from the conference participants in Istanbul, and I promise to share some of what I learn when I return.

By the way, it is somewhat ironic that I should think of the W.B. Yeats poem from which my title is taken, since I will be traveling to Istanbul, ancient Byzantium, shortly after my fiftieth birthday, and the first line of Yeats’ poem, made famous by a recent movie, is “That is no country for old men.”  We shall see.

Authors' Rights, Copyright Issues and Legislation

Congress shall make no law

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Following up on my earlier post about Anthony Falzone’s lecture and his strong emphasis on the need to limit copyright to the minimum protection necessary to encourage creativity in order to avoid the harmful effects of a monopoly over speech, three related items came to my attention this week.

First, there is this announcement of a conference at Duke Law School to celebrate a new book by copyright scholar David Lange and Constitutional expert H. Jefferson Powell.  The book is called “No Law: Intellectual Property in the Image of an Absolute First Amendment,” and the tag line for the conference is “what part of “No Law” don’t you understand?”  At the very least, this shows that Falzone is neither alone in his concern that copyright’s monopoly can jeopardize fundamental American values, nor particularly radical in his proposed solution.  Falzone focuses his work on defending fair use as a safety valve for free expression, a role the US Supreme Court has acknowledge for that exception and that many courts have upheld.  For Lange and Powell, however, the concern goes much deeper, and their book proposes the much more radical re-visioning of copyright and patent protections that would be needed if we took the First Amendment seriously in the context of incentives for creativity and innovation.  The question that is seldom asked, but that is beginning to rise up, is whether copyright as it is currently shaped discourages more socially valuable expression than it encourages.  If the answer is that it does, and that seems like a pretty easy case to make in an age when Internet users are being sued right and left for creating their own content, it is time to take seriously proposals like that of Lange and Powell to rethink IP from the ground up.

Next up is another new book that I haven’t yet seen, just read about.  According to this news release from Washington University in St. Louis, two economists at that fine institution have just published a book arguing that copyright and patent law are not just inefficient, but self-defeating, from an economic point of view.  “From a public policy view,” says author David Levine, “we’d ideally like to eliminate patent and copyright laws altogether.”  Apparently the book argues both that these intellectual property monopolies are harmful to society, which is becoming a fairly common point, and that there are workable alternatives to protect creators and encourage innovation.  I have to admit that I will take some convincing, especially on the latter point; I tend to believe that copyright law needs pretty drastic reform, but not outright abolition.  Indeed, based on the remainder of the article it appears that that is really what Boldrin and Levine are calling for, since they argue that it should be much harder to get intellectual property protection than it now is, but not that it should always be unavailable.  I look forward to reading the full argument; the book is Against Intellectual Monopoly by Michele Boldrin and David Levine, from Cambridge University Press, and the author’s also maintain a blog on the topic at www.againstmonopoly.org.

Finally, I want to note a pithy comment made at the end of this blog post written by Peter Jackson, the chief scientist and vp at Thompson Reuters publishing.  In some ways the post is a little mundane, mostly focused on the joys of e-books.  But the last line caught my eye and suggested a context for these other items I have discussed.  “In the future,” Jackson writes, “the book is no longer a product; it’s a service.”  I am not sure that Jackson would agree, but it seems to me that if we take this service emphasis seriously, it grows harder and harder to see why the monopoly protection of copyright is either necessary or efficient in most cases.  Surely service industries florish in a competitive market; if content is ubiquitous and “publishers,” whatever they will look like in the future, offer reliable access and convenience, those services will not depend on the artificial environment of scarcity that copyright was designed to enforce, nor will they thrive therein.

Copyright in the Classroom, Fair Use

A call to action

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Anthony Falzone from Standford’s Fair Use Project gave a superb lecture on the impact of fair use on scholarship and free speech at the University of North Carolina, Chapel Hill on Tuesday.  I am trying to contain my disappointment over the need to cancel his lecture at Duke scheduled for the day before due to a freak March snowstorm.  I hope that I will soon be able to point Duke folks who did not get to hear Tony, as well as interested listeners from elsewhere, to a podcast of the lecture.  In the meantime, I want to emphasize two aspects of Tony’s talk, one from the very beginning and one from the very end ( but note that the middle was fascinating too).

In setting the context for his discussion of fair use, Falzone made the fairly common point that copyright is a monopoly, which is something we usually disapprove of in the US as economically and socially inefficient and harmful.  Jamie Boyle, in his book on The Public Domain, discusses the reluctance felt by Jefferson and Madison over copyright for this very reason.  But Falzone went a step further to stress that copyright is a monopoly over speech.  For me this fell into the category of things I knew but had not fully considered; Tony helped my really think about what it means to give someone a monopoly over expression in a nation where free expression is the first guarantee in our Bill of Rights.

The message I came away with is that fair use is not really primarily about who has to pay whom, when and how much.  Rather, fair use is a safety valve that protects one of our most fundamental values.  Do we really want a copyright owner, for example, suppressing an expression of political speech such as the Barack Obama HOPE poster or the Ben Stein movie Expelled?  From this perspective, fair use is a fundamental and absolutely necessary part of the fundamental structure of copyright in the context of American values.  It is an incentive for creative expression just as much as the exclusive rights themselves are.  Without fair use, I asked myself, would copyright’s monopoly be unconstitutional?

At the very end of his lecture, Falzone returned to this emphasis to ask his audience to get involved.  Specifically, he remind us that our practices, as librarians and academics, help shape the norms about copyright use.  And courts do consider these norms within various industries and user groups as they rule on copyright matters.  This is why statements of best practices are so important.  Falzone ended his talk by asking us to exercise fair use, especially those transformative uses that are becoming more common in a digital age and which courts tend to favor when deciding fair use cases.  These transformative uses (parody, criticism and comment, as well as all kinds of remixes and mash-ups) are precisely where new creative expression is born; they are wonderful opportunities for teaching and learning.  Here more clearly than anywhere else, fair use serves both the mission of education and the fundamental purpose of copyright law to support new creation.  The message is not that “anything goes,” but that in higher education especially we must not allow the “chilling effects” of fear give us cold feet about creative and socially beneficial fair uses.

Copyright Issues and Legislation, Technologies

Kindle 2, public performances and copyright

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I had rather hoped to stay away from the controversy being generated by the new Kindle 2 Book Reader from Amazon and its “text to speech” feature that will allow the reader to offer a computer-generated audio reading of e-books, but there are copyright issues here too good to ignore.  It is hard to make sense of the claims being made in this kerfuffle, but it may be worth the effort in order to clarify what copyright does and does not protect.

In a widely-ridiculed public pronouncement, a spokesman for the Author’s Guild has denounced the audio feature of Kindle as an infringement of copyright, even though the e-books sold by Amazon are, of course, licensed from the publisher.  He is quoted as saying the “they,” meaning consumers, “don’t have the right to read a book out loud… That’s an audio right, which is derivative under copyright law.”  This led many to trot out a parade of horrible consequences, suggesting that parents might be sued by the Author’s Guild for reading”Goodnight, Moon” to their children.  So the President of the Author Guild took to the New York Times Op-Ed page to explain that that was not their intention. Unfortunately, his piece does not really explain what the claim really is.  He merely says that the Guild collects separate royalties for audio books and for e-books and that Kindle would “swindle” authors out of that double fee.  From a copyright perspective, it is interesting to try and sort out what infringement, if any, is involved in this “swindle.”

One way to look at this, of course, is as a simple contract dispute, and contract provisions are probably the way to settle this.  Authors and publishers can simply charge Amazon more for the e-book license to compensate for the potential decline in audio book sales when those e-books are “read” by Kindle.  Other e-book platforms would pay a lower price if they do not provide a text-to-speech function, and both sides could monitor to see if audio book sales really do decline.  For e-books already licensed to Amazon, the Author’s Guild could try to claim that this feature of Kindle 2 breaches the license terms, and try to demand additional money.  The public spat is likely an attempt to force such renegotiation.

But it is more interesting to ask if any copyrights are being infringed.  When a parent reads to a child, this is a private performance of a work that does not infringe any of the rights under copyright.  It is very important to remember that the performance right in copyright is only an exclusive right to authorize or deny PUBLIC performances, defined as a performance “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered.”  Based on this definition, it is unlikely that Kindle would ever infringe the public performance right under ordinary use.

This distinction of performances is undoubtedly why the Author’s Guild spokesman spoke of a derivative right.  Now he was simply wrong to refer to an “audio right” which is “derivative under copyright law.”  There is no separate “audio right,” there is only the public performance right discussed above and another exclusive right over the preparation of “derivative works.”  So a lot turns on whether an audio reading of a text can be called a derivative work.

It is generally thought that a derivative work must itself be an original work of creative authorship.  So a translation of an English text into Hindi involves new creative expression, as does the creation of a film from a novel; these are classic examples of deriviative works, and each involves the reuse of protected expression in combination with new creative authorship.  So a translator or a filmmaker must get a license from the original author to create these works, in which there is subsequently two (at least) copyright interests.  But an audio reading adds no creative expression, so it is hard to see how it is a derivative work. In this fascinating article, Julian Sanchez analyzes this argument very nicely, and suggests an exception — an abridgment has been held to be a derivative work, and it does not contain original expression that is added to the original.  I think there are historical reasons for this, but I will let Sanchez explain the ins and outs of this debate to those who are interested.

What I want to add to this discussion is an additional argument for why an audio reading should not be considered a derivative work.  There is a long standing rule of statutory interpretation that instructs court to read laws in wasy which do not make parts of the language used by legislatures irrelevant; we do not want interpretations that make whole portions of a law redundant or unnecessary, since we assume legislatures did not intend those readings.  If an audio reading is interpreted as a derivative work, we would have just such a reading, because that interpretation would make the public performance right “mere surplusage.” Why would Congress include a specific right over performance, and limit that exclusive control to public performances, if ALL audio readings were derivative works and therefore subject to the authors control based on a different exclusive right.  Audio readings are not derivative works because, unlike abridgments, they are subject to a different right, and we must assume that Congress intended that right (public performance) to circumscribe the control an author should have over readings of his or her work.

POSTSCRIPT — In the interval between writing this post and publishing it, the news has come out that Amazon has agreed to make changes to the Kindle.  I am afraid this merely reflects on the chilling effect of a lawsuit threat; it does not change the legal analysis, which suggests that the Author’s Guild won by making a very weak claim, but making it loudly.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Presses, piracy and the slumping economy

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I am sorry to say that I was not surprised when I read this article in Inside Higher Ed last week about “Pirates v. University Presses.”  I had been vlissfully unaware until recently of the existence of the kinds of websites it discusses, where unauthorized scans of the full text of many books, including academic books, are made available for free.  But only a short while ago, a colleague from another institution called one such site to my attention (following the lead of the IHE article, I won’t mention the site’s name) and asked me what I thought about faculty linking to such sites as an alternative to using a university’s e-reserves system.  It did not take me long to find the full text for some of the most frequently read titles in contemporary classrooms.

I told my colleague that I would discourage faculty from linking to such sites whenever I was asked, both because they so clearly infringe copyright and because they are inherently unstable; what is there today may not be available tomorrow.  I would love to see much more scholarly content available for free on the Internet, but the way to accomplish this is for faculty authors to retain their rights to post and license their own work, not to encourage these kinds of pirate sites.  Unfortunately, this approach puts me once more in the position of saying no to instructors who want to take illicit advantage of the benefits of the digital realm because our out-dated approaches to copyright have not caught up with that potential.

Why should we discourage piracy of academic work?  One contributor to an e-list discussion of the article asked a legitimate question — “Is it the same crime to spread knowledge by illegally making university press books available as to offer Harry Potter for download?”  I am inclined to respond that it is not the same, since the interests of academic authors are more in being read than in making money; they seldom profit from academic publication, and profit is almost never the incentive that gets them to write in the first place.  This is why our copyright system, and a publishing structure built on the transfer of exclusive rights, serves the academy so poorly.  But authors are interested in controlling the texts of their writings that are available, making sure the readings they assign are stable, and getting appropriate credit for their work.  For all these concerns, responsible rights negotiation and licensing, not pirate havens, are the right solution.

Moving beyond mere condemnatory hand-wringing, I am inclined to think there is a lesson to be learned in the fuss around these sites.  One of the reasons faculty are tempted by such things is that libraries are increasingly unable to meet their demands for online resources, either because the resources are too expensive (either for subscription or for permission), the libraries simply cannot get permission to place materials online, or the publisher does not offer an online version of the work.  The Association of Research  Libraries has recently addressed these concerns about declining budgets in a document aimed at starting a conversation with publishers to preserve as much access as possible in a time when massive cancellations are inevitable.  This document is a good start, but it only addresses one of the three problems listed above.

In many cases, it is the universities that are creating the digital files that students will use, because publishers have failed to do so.  Several of the texts I found on the pirate site I looked at are simply not available as e-books.  But libraries’ ability to fill this demand is severely limited by a narrow interpretation of fair use and extremely high permission costs for digitization that exceeds that interpretation.  One thing that must be understood is that the money an institution spends on permission fees in all likelihood comes out of its collection budget.  So even as those budgets are being slashed, the buying power of what remains is further reduced as permission fees go up.  Education suffers, and so, in the long run, do the publishers, from whom we can buy fewer and fewer new works.  Certainly the purpose of copyright law — to provide an incentive for new creativity — is left in the dust.

I wonder if there is room for a separate agreement between universities and university presses that would look more realistically at fair use for those works produced by the very faculty authors who want to make use of them and also at the cost of permission when the uses involved really are not within a reasonable understanding of fair use.  The interests of both the scholars and the university presses are very different from those of J.K. Rowling or Disney or Random House; our conversations together ought not to be burdened by the perceived needs of the entertainment industries.

Why should the university publishers agree to even discuss this idea?  Because library e-reserves and permission services are a bulwark against piracy, and the risk of piracy is increased when those services frequently must refuse requests made by faculty, either because they cannot obtain permission or cannot afford it.  It is not that libraries would resort to intentional infringment, but that students will find what they need wherever they can, and their instructors may not be inclined to make fine distinctions about the sources of material.  Academic presses also need to recognize that faculty authors feel a legitimate sense of ownership over the products of scholarly publishing, even when they have not retained legal ownership.  It is simply difficult to convince some scholars that obvious academic uses of academic work are not permitted, so it may be hard to discourage all use of pirate sites unless we can provide higher education with a legal alternative that is at least as useful.  This, of course, is what the music industry waited too long to do.  In the long run, then, it is in the best interests of all parties to negotiate the contours of both legal ownership and legal use, and it is the presses that are likely to suffer most if we fail to do so.

Open Access and Institutional Repositories, Scholarly Publishing

The Durham Statement

I have been delighted to see the “Durham Statement on Open Access to Legal Scholarship” getting lots of attention on the blogs and e-mail lists, and I couldn’t resist adding my own comments, as much out of local pride as because I have anything to add to the discussion.

The statement grows out of a meeting here at Duke amongst the law librarians from the top dozen or so US law schools.  As a call for open access, it goes well beyond most other declarations in a couple of ways.

First, the Durham Statement calls for law schools to simply stop publishing print versions of their journals.  The library directors note that this is especially pressing in a time of “growing financial pressures on law school budgets,” and they are quite right.  It is interesting that the issuance of this statement came only days  after the Association of Research Libraries issued its own statement about how publishers and libraries should deal with the economic emergency, in which a move to online only availability is also suggested.

One could argue that it is easier for law schools to suggest the transition to electronic only, open access publication because law school publishing is a unique model, where students do the editorial work and there is very little profit motive behind the publications.  But it is important to realize that the incentives for publishing legal scholarship are the same as those for all other scholarly publication — reputation and impact on the field.  So a model that works for legal scholars points the way toward new models that would also work for other types of scholarship.  Law journals are a proof of concept that show how unnecessary the print-based subscription journal really is to the foundational values of academia.

Another point of interest in the Durham Statement is that, in spite of its call for immediate open access, it also includes a clause urging faculty authors to retain their copyrights.  One might wonder why this is important if all law journal publication was online and free.  The Statement calls this “a measure of redundancy,” and that is a big part of the answer.  If academics retain their copyrights, they will be in a position to respond to changes in the means for distribution and use of their work.  We simply do not know what will come next as technology evolves, and it is the authors themselves who will have the best incentive to adapt and respond in ways that serve their own interests.  For that reason, even in an entirely open access world, authors should reserve their copyrights; the Durham Statement acknowledges this reality and suggests use of the Association of American Law Schools model agreement between authors and journal publishers.

Copyright Issues and Legislation, Fair Use, Scholarly Publishing

From James Joyce to Harry Potter, the importance of fair use

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Anthony Falzone is Executive Director of Stanford University’s Fair Use project and has defended fair use as an exception to copyright and a key “safety valve” for free expression in several high-profile cases.  Anthony has argued successfully for fair use in the case of the Joyce scholar whose attempt to publish letters by Lucia Joyce was opposed by the Joyce estate and in defense of a short excerpt from the John Lennon song “Imagine” used in the Ben Stein movie “Expelled” and opposed by Yoko Ono.  He also defended the Harry Potter Lexicon against an infringement claim by JK Rowling and is currently representing the street artist who made the iconic Barack Obama HOPE poster.

Falzone will talk about these cases and the importance of fair use for scholars and universities in a talk at Duke on MARCH 2, 2009 in the Schiciano Auditorium (Fitzpatrick CIEMAS engineering building) at 5 pm.  He will emphasis that fair use is vital in higher education not only to prevent copyright from stifling scholarship but also to support free speech and academic freedom.  His lecture is entitled “From James Joyce To Harry Potter And John Lennon:  The Impact Of Fair Use On Scholarship And Free Expression.”  A reception will follow.

This event is open to the whole Duke community, but it is especially relevant for scholars and teachers who rely on fair use to create their own scholarship or to distribute scholarly works to students and colleagues, as well as to those interested in the role of free speech in the academy.

If anyone doubts the importance of fair use for academics in all kinds of situations, this blog post by Middlebury College professor Jason Mittell offers a couple of interesting lessons.  First, his reliance on fair use, and especially the transformative nature of his use of the screen captures he describes, is an important reminder of how often scholarship is dependent on fair use.  As has often been noted on this site, transformative uses have gotten a lot of favor by our courts recently, which is a tremendous advantage for scholars like Mittell.  But the downside is his encounter with Disney, which would not give Mittell permission for the cover art for his book unless he also paid copyright fees for all the illustrations inside, even though the latter were all very likely to be fair use.

To most of us, at least some aspects of Mittell’s story seem surprising or unfair; this is precisely why Tony Falzone’s lectures promise to be such an important and eye-opening event.

Falzone’s lecture will be repeated at UNC Chapel Hill on March 3 at 5:30 pm in the Wilson Library. These events are jointly sponsored by UNC University Library, Duke University Libraries, UNC’s Center for Media Law and Policy, and Triangle Research Libraries Network

Copyright Issues and Legislation

Good for aging rockers, bad for the rest of us

That pretty much sums up the situation regarding a proposal in the European Union to extend copyright protection in sound recordings from 50 years to 95 years.  There are two important lessons to learn here — one specific and one general.

To start with some background information, we note that in the EU, as in most of the rest of the world, sound recordings are treated somewhat differently than materials under copyright.  The rights in sound recordings as well as several other classes of stuff, are called “neighboring rights,” and have traditionally carried less protection than copyrights per se.  This is not true in the US, where musical recordings are dealt with in the copyright act and receive the same term of protection — life of the author plus 70 years — as does other subject matter.  In the EU, the copyright term is the same as that in the US, but sound recordings have had a shorter (but hardly short) term — 50 years.  Now there is a proposal to almost double that term for sound recordings to 95 years.

This proposal has just been approved by the legal affairs committee of the European Parliament, and now goes for a vote to the full body.  This in spite of several studies that have shown the economic harm of extending copyright this much.  Every expert group that has studied the issue has advised against the move, but the pressure of industry lobbying seems to be more than the Members of the European Parliament can bear.  There are stories about the recent moves here and here (from very different perspectives).

Most interesting, perhaps, is this letter from Bernt Hugenhotz, one of Europe’s leading copyright experts, pointing out that this action is proceeding in the face of all the evidence suggesting it is a bad idea.

Finally, this blog post from last month includes a nice little video that offers a simple explanation, aimed at MEPs, about the economics of copyright extension.  The point, of course, is that nearly everyone loses when copyright terms are extended beyond the reasonable, and very short, time necessary to provide a meaningful incentive to create.

So what are the lessons we can take away from this controversy?  First, that the economics of copyright extension actually favors shorter terms, even as industry pressures for longer ones.  And more generally, this affair emphasizes the point made by Prof. James Boyle in his new book  The Public Domain about the great need for basing copyright decisions on actual data rather than mere assertion and self-interest.  It would be nice to believe that legislators approached every issue with a eye on data and evidence, but the history of copyright regulation does not bear that out.

Copyright in the Classroom, Fair Use

Defending hope

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Despite a recent appearance on CNN, Anthony Falzone, the Executive Director of Stanford’s Fair Use project, isn’t talking much about his latest case, which is perfectly proper.  Nevertheless, the case has all the necessary elements to attract a great deal of attention.

Street artist Shepard Fairey seems to admit that his used a photograph taken by an AP photographer to create his image of Barak Obama inscribed with the word “HOPE.”  The image became downright iconic during and immediately after the election.  The work has certainly had an impact on Fairey’s career, both positive and negative.  Just yesterday I saw a commercial-like feature about him on the USA Network; he is, they say, “character approved.”  In the spot Fairey comments on the thrill of being a street artist and, as he says, doing something he is not supposed to do.  According to this story, the thrill caught up with Fairey on Friday when he was arrested in Boston, apparently for defacing public property, although the nature of the warrants is not clear.

As the story about his arrest notes, Fairey is also being sued by AP over his use of the photograph to create those famous Obama posters one sees everywhere.  AP is asking for credit and compensation from sales of the image; Fairey is asserting fair use.  Which brings me back to Anthony Falzone, who is defending Fairey in the copyright suit.  Although he acknowledges that fair use is to be the defense, Falzone has otherwise said little, which is the appropriate course for a lawyer in an ongoing case.

Anthony Falzone will be talking, however, about the other high profile copyright cases he has litigated, when he speaks at Duke and at the University of North Carolina on March 2 and 3.  Many of his cases involve both fair use and free speech issues, and they often either directly involve scholarship or have grave implications for scholars.  Some of his previous cases have included helping James Joyce scholar Carol Schloss win agreement that her use of letters in a scholarly book was fair, in spite of objections from the Joyce estate, and successfully defending filmmaker and conservative pundit Ben Stein on fair use grounds when Yoko Ono objected to a brief clip of “Imagine” use in the film “Expelled.”  Perhaps Falzone’s most widely-publicized case was his defense of the publisher of “The Harry Potter Lexicon” against a coyright infringement claim from JK Rowling and Universal Pictures.  About all of these cases, Falzone will have much to say when he visits the Research Triangle.

Falzone’s lecture at Duke is called “From James Joyce to Yoko Ono to Harry Potter: the Impact of Fair Use on Scholarship and Free Speech.”  It will be at 5 pm on March 2, in the Center for Interdisciplinary Engineering, Medicine, and Applied Sciences (CIEMAS) Auditorium A on West Campus.  A reception will follow the talk.  This promises to be an exciting and timely discussion of the role fair use plays in supporting both scholarship and the fundamental values of free expression.  Hopefully many people in the Duke community will come out to hear Falzone, either on March 2 or the next day at UNC.

Copyright Information Notes, Fair Use

Sorting out exceptions

A couple of recent issues that have crossed my desk have drawn my attention to an aspect of copyright law that has the potential to be very confusing. Many people recognize that copyright works by granting a bundle of exclusive rights to a copyright holder for a limited time, then defining a long series of exceptions to those exclusive rights so that the rights holder’s control is balanced with opportunities to use previous works in the creation of new intellectual content. The difficulty that often arises is in recognizing which exceptions apply to which rights and, therefore, to which situations.

Most of the copyright exceptions are exceptions to a specific right or rights within the copyright bundle. If an activity implicates other rights than the one(s) to which the exception applies, the user should not rely on that exception. The copyright bundle consists of five basic rights – reproduction, distribution, public performance, public display, and the making of derivative works. The copyright holder has the exclusive right to authorize or deny these activities UNLESS an exception applies. So let’s look a couple of examples and see how the exceptions apply to certain rights in the bundle but not to others.

The face-to-face teaching exception is familiar to most teachers who want, for example, to show a film in their classrooms; it allows performances as long as the copy that is screened is legally made. This is an exception to the performance right (and display right, in the case of art slides, for instance), but not to the other rights in the copyright bundle. If the teacher want to transfer the film from VHS to DVD (thus making a copy and implicating the reproduction right), or wants to hand out those DVDs to every student (implicating the distribution right), or is making a compilation of film clips (implicating the derivative works right), the face-to-face teaching exception, by itself, will not authorize those activities. Other exceptions may apply – the format conversion and the compilation of clips are both good candidates for fair use – but it is important to recognize the limits of the face-to-face performance exception and recognize that other justifications must have to come into play.

I recently responded to a question about using an ELMO projector to project the pictures from a childrens’ book for a library’s reading time. Part of the “first sale” exception (section 109(c)) covers this activity nicely; it is written to allow just this kind of display of a legally obtained work. But it does not cover an almost identical inquiry about scanning the same pictures into PowerPoint for display. Why not? Because an ELMO does not make a copy of a work, while a scanner does. The 109 exception allows display but does not authorize reproduction. Again, other exceptions may allow the PowerPoint projection, but they must be exceptions that permit reproduction in addition to display.

Applying copyright exceptions requires attention to exactly which rights any given exception applies to, as well as an awareness of how certain technologies function vis-à-vis the different rights included in the copyright bundle. And most important, an awareness of the limitations inherent in each of these exceptions reminds us how important fair use is. Fair use is the only exception in our copyright law that is not limited in one way or another to specific rights; when it applies, it can provide an exception to any of the copyrights. In the “Pretty Women” case alone, fair use provided an exception to the reproduction, distribution, performance and derivative works rights. It is precisely because fair use is so flexible that it is vitally important in education; in several of the cases suggested above, where other exceptions have reached their limits, it is fair use, applied carefully and thoughtfully, which may allow the activity.

Discussions about the changing world of scholarly communications and copyright