Where does a publication contract fit in? (Final widget)

A publication agreement with a book or journal publisher is a contract between the author and that publisher; it may be either a copyright transfer or a license. The most important point in this regard is that all authors should read any publication agreement before they sign it to determine which way it addresses copyright.

Most publication agreements are transfers of copyright, but most also allow authors to retain certain rights after they have transfered their copyright to the publisher. Authors should look carefully to understand what rights they are keeping, and remain aware that, if not retained, all rights are given to the publisher in a copyright transfer. One important right that authors usually want to retain is the right to use their own work in their teaching, including making copies to distribute to students or to put into coursepacks or online systems. At least as important is the right to use one’s own work in future publications, such as edited collections or proceedings of a conference at which the publication was presented.

The right to use a work in later scholarship brings up another issue — the non-compete clause. Sometimes contracts for book publication will contain a clause saying that the author will not publish something that competes with the book under contract. These clauses can seriously inhibit a scholars right to continue publishing research in the same field. Since most scholars do not want to abandon a whole field of research after one publication, it is important to read agreements carefully to identify and negotiate over any non-compete clauses and to retain rights to use articles in future publications.

Another right that is becoming very important is the author’s right to post her work on a personal web page, in a disciplinary repository or in an institutional repository. Again, many publication agreements are allowing authors to retain this right in some form, but they often restrict what version of the article can be used or when the article can be placed in an open access database. So for this reason also, it is important to read a publication contract carefully.

When a publication agreement is a transfer of copyright, all these rights may be retain, but if they are not specifically mentioned, the author no longer has them. A transfer gives everything to the publisher unless it is explicitly retained. A license, on the other hand, gives only the right of first publication to the publisher, and the author retains all the rights that are not explicitly included in the license grant. Obviously, a license for first publication is the form of publication contract that is most beneficial to the authors, since it gives them maximum flexibility to use their own work after publication has occurred. This kind of contract is not the norm, but some publishers are now willing to accept a license for first publication, so many authors will find that it is at least worth asking.

In search of a problem?

I have written before about the PRO IP bill introduced in Congress in December of 2007; its primary purpose seems to be to dramatically increase the amount of statutory damages available to a copyright owner whose work is infringed. The specific way this is accomplished — by allowing a separate recovery of statutory damages for each individual work contained in an infringed collection — seems carefully crafted to benefit the Recording Industry Association of America and almost nobody else. So unusual is this provision that the Copyright Office convened a roundtable to discuss it. According to this report on the event from Public Knowledge’s Sherwin Siy, the most interesting part of that roundtable was the fact that very few participants seemed very strongly in favor of the provision. This seems to be the classic solution in search of a problem, at least to everyone but the RIAA, who simply want larger recoveries from all their litigation. Siy’s long post does an excellent job of explaining the provision, its context and the discussion at the roundtable.  This post by Google’s William Patry, another participant in the roundtable, offers his perspective as well.

What I want to focus on is the unintended consequences of this steep increase in statutory damages on the problem of orphan works. For libraries and higher education institutions, the difficulty with using a so-called orphan work (a work whose rights holder either cannot be determined or cannot be found) is that high risk is associated with great uncertainty. One cannot predict if a rights holder might turn up sometime after your digital display or YouTube video becomes available, but you do know that, if that happens, the potential liability is very great. Thus works that are serving no useful purpose at all remain hidden because statutory damages are so high that they discourage schools from taking even a small risk. Raising those damages as dramatically as PRO IP proposes would magnify this chilling effect, and the result would be a pure social loss — works that are not generating any profit at all for the rights holders will still be locked away from potential users, readers and viewers because of fear.

The Orphan Works legislation introduced in the last Congress was intended to address this fear, so it seems like a good time to consider re-introducing that proposal. The orphan works bill would have made statutory damages unavailable if a user had made a reasonably diligent effort to locate the rights holder and was not able to do so. If a rights holder reappeared after an unauthorized use had been made, they would be entitle to the reasonable licensing fee they could have collected if they had been around to ask in the first place, but not the draconian statutory damages designed to discourage piracy, not scholarship. With a proposal to increase those statutory damages now on the table, it seems like a great time to really press for the reintroduction of orphan works legislation as well. Only if orphan works protection is considered in conjunction with PRO IP can this legislation, which hardly seems to be needed at all, be prevented from doing far more harm than whatever good it is supposed to achieve.

Orphan works is important legislation in its own right; far too much of our cultural past is unavailable because libraries and universities do not dare risk the expensive vagaries of copyright law. A bill to make socially productive uses of this material possible without inhibiting profits at all is worth reintroducing on its merits. But it is absolutely vital at this point, as a corrective to the excessive protectionism of PRO IP. Lets hope someone in Congress sees the obvious connection between these two pieces of legislation, and orphan works protection makes a comeback.

What is the Creative Commons? (weekly widget)

Creative Commons is an organization that was founded to help authors and creators who are interested in sharing their work avoid the very restrictive rules of copyright, and their subsequent chilling effect on users. The licenses available through Creative Commons allow authors and creators to attach a recognizable legal document to their work, especially but not exclusively web work, that allows users to make broad categories of use of that work without further permission. The most common provisions of a Creative Commons license allow reproduction and distribute of a work as long as the original author of the work is identified and the use is non-commercial. This is called an “attribution, non commercial” license. Creators also have an option to either allow derivative works made from the original as long as the derivatives are also shared under the same terms or to prevent derivative works.

Creative Commons offers a fairly wide range of license options. All of their licenses operate to waive copyright protection in the identified situations, such as for a non-commercial use where the author is identified, while retaining the right to enforce copyright in other circumstances. Thus Creative Commons is very effective for sharing academic work so that other scholars can distribute that work to students or other researchers. If derivative works are included in the license grant, a Creative Commons license also supports the continued development of an idea through collaborative scholarship.

If Creative Commons just supported collaboration and open sharing for education and research, its value would be tremendous. But the ability to require attribution is what really makes Creative Commons licenses so important for academics. Needless to say, since academics seldom are paid for their scholarly work, the credit they receive, and the concrete benefits of promotion, tenure and grant funding that spring from enhanced reputation, make attribution tremendously important. Ironically, our copyright law, as restrictive as it is, does virtually nothing to protect attribution. whereas most countries protect attribution as a “moral right” and also make proper credit an element of a “fair dealing” defense, US law does neither of these things. The ability to require attribution as a condition for sharing and permitting reuse thus makes a Creative Commons license a much more effective instrument for enhancing the values that really matter in the academy then traditional US copyright law.

How do licenses work? (weekly widget)

Often a copyright owner (or the owner of any other kind of right) does not want to give her rights away, but does want to allow some people to use the subject of the rights in some way. This permission to use the subject of an exclusive right without liability is called a license. If I own land, for example, I can allow my neighbor to cross that land every morning to get to his bus stop. This is a simple license; I promise not to prosecute my neighbor for trespass, but I retain all the other rights in the land, include the right to exclude others and even to prosecute my neighbor if he trespasses outside the scope of the license. Since licenses are private contracts, they can be very flexible, allowing all sorts of terms and conditions to be built in.

Lots of intellectual property is now licensed for specific uses rather than sold, and no copyright is transferred or assigned. In these cases, the money paid is not a purchase price but is “consideration” for the license contract, the use is governed by the terms of that contract, and the parties are bound by the scope of the agreement. Licenses can restrict uses that would be permitted under copyright law if the copyrighted material had been sold. For example, a license can explicitly forbid uses that would be considered fair use if the user had bought the work; things like short quotes from the subject material may be forbidden by contract. Also, purchasing a copyrighted work usually gives the buyer the right (called a “first sale” right) to further distribute that copy – resell it, lend it or give it away – while licenses often forbid this subsequent distribution.

But licenses also can help an author share her work in appropriate ways. Some publishers, in fact, will now accept an “exclusive right of first publication” – a licensed right that does not involve transfer of the copyright – as sufficient to publish a journal article (note that exclusive licenses, like copyright transfers, must be in writing). And many academic authors, as well as millions of other creators, are starting to use Creative Commons licenses to permit many uses of their work while still retaining the right to explicitly authorize or forbid those other uses that fall outside the terms of the license. As we shall discuss next, the Creative Commons is often a better way to protect the values important in the academy than reliance on traditional copyright law is.

Caveat emptor!

This posting on the NY Times Technology blog – “On eBay, Some Profit by Selling What’s Free” – caught my eye over the holidays because it recounts a situation very similar to one in which we have found ourselves at my university. The post describes the experience of purchasing an old film from an eBay vendor only to discover later on that the entire film is available for free download from the Internet Archive site. The author is unsure whether to feel cheated, since he paid for something he could have obtained for free, or to recognize that the vendor had earned his fee by finding material the author wanted but would not have found himself. Both the vendor involved and Brewster Kahle, founder of the Internet Archive, basically take the latter position, with Kahle pointing out that no one is getting rich doing this while expressing the wish that more creative, transformative uses were being made of the older material.

At Duke we have been struggling to deal with a very similar situation. A great deal of effort went in to the creation of digital collections feature lots of wonderful material in our collections on the history of advertising. So our staff was understandably distressed to find out that an Internet entrepreneur had downloaded virtually the entire collection, which is mostly public domain images, and was selling the CDs through his own website and via eBay intermediaries. It is a well-established principle of copyright law, of course, that “sweat of the brow” does not give one rights in a collection of facts or public domain material. Nevertheless, we were unhappy because we made the collections available in order to facilitate scholarship and research without barriers of place or fees for access; selling the material undermines our vision of the research purposes of the collection.

We finally decided to send a letter asking the vendor to stop selling this collection. We based our request on three claims – a compilation copyright in the whole collection, which was copied in its entirety with our selection and arrangement (and some commentary) intact; a fear that, because the Duke name appears in a few places, there might be confusion about our relationship with the vendor (there is no such relationship, in fact); and our concern that some of the images may still be protected by copyrights held by the donor who gave us the material in the first place. Most galling to us is the fact that the vendor who has appropriate this material himself claims, on the site, to hold a compilation copyright in the material.

So far our letter has been ignored, and the material is still available for sale. We are unsure if we want to take further steps or what those steps might be. We have no desire to impede the flow of information to people who want or need it. But we do want to uphold the value of free access to the public domain, and also to protect and value the intellectual efforts of our fine curators. Perhaps the best thing I can do is to use this space to encourage readers to check out the free digital displays of this fascinating material on the Emergence of Advertising in America website. And remind all that when someone offers to sell this kind of material that looks like it came from a library special collection, let the buyer beware!

But it is just so easy!

The ease with which we can copy and use stuff found on the Internet, particularly photographs and other images, leads to some delicious ironies when some of the major corporate interests that rail against file-sharing are caught infringing other peoples’ copyrights. The Washington Post published an interesting story on Wednesday that looked at some of these cases where snapshots on the Web were misappropriated for commercial use. Often the unauthorized use is dismissed as accidental — it is amazing how many unsupervised interns appear to doing significant work for these companies — but whether they are the result of inattention or conscious laziness, these lapses suggest that some of the major commercial content owners have little concern for copyrights not their own property. Makes all the rhetoric about theft and the moral claims of creators that is thrown around by these big media companies seem rather disingenuous.

The best thing about this article, however, is the discussion of it, with the wonderful title “Good Artists Copy, Great Artists Steal” on the Info/Law blog. I don’t think I have the chance to point to Info/Law before, but it is an excellent place for information and analysis about the “convergence of intellectual property doctrine, communications regulation, First Amendment norms, and new technology.” This post, which also reports on a recent infringement action filed against Jerry Seinfeld and his wife, is an nice example of a careful yet entertaining dissection of the legal principles at stake in each of the two reported stories.

The point, of course, is that the Internet has fostered a culture of easy borrowing and creative remixing that is at odds with much of our current law. There is a great deal in that culture that is valuable, with its emphasis on user creativity and sharing, and its conflict with much of the prevailing rhetoric about intellectual property is becoming too obvious, and too ubiquitous, to ignore.

How is copyright transferred? (weekly widget)

Copyright, like most other “property” rights, can be sold, inherited through a will, given away or otherwise passed to other people (or corporate bodies). Since copyright is really a bundle of rights – reproduction, distribution, public performance, etc. – it can also be divided up and the different pieces transferred to different people under all kinds of different terms. Thus I can sell my right to reproduce and distribute a song I write to a music publishers, give my right to authorize public performances of that song to my sister (a singer), and will my right to allow translations of the song into other languages to my children.

When I transfer an entire right or my whole copyright (i.e., I keep nothing for myself), that is called an assignment or transfer of the right. Most transfers of copyright must be in writing. In the past, most publication agreements required that an author assign his or her copyright to the publisher; authors rarely retained any of their rights. Today many publication contracts still require a copyright transfer, but they allow authors to retain certain rights like the right to post an article on a personal web page or use it for a conference presentation. Essentially, the publisher who receives the assignment grants these rights back to the author. But increasingly we are seeing another method for sharing the rights in intellectual property being used – the license. As we shall see, a license can be used to make it either much easier or much harder to use a work of intellectual property.

Still waiting

It seems we have been waiting for years for the e-book to “arrive.” The promise of having a whole library in a hand-held device has been made for a long time, but the technology has seldom lived up to expectation. The early readers were awkward to use and difficult to read. The latest generation of e-book readers seems to have improved a great deal, but problems still remain.

I participated in a trial of the Sony reader last year, and was very pleased with the visual display and the ease of use. But I was disappointed by the range of books available, which is probably the fault of my quirky and eclectic reading habits, and with the awkward way the reader displayed PDF files. Now the Amazon Kindle is getting a lot of attention. Several people have noted the limited selection (and Kindle does not allow reading of PDF files at all), but the debate about e-books has now begun to recognize another issue that reduces the value of e-books, digital rights management. UPDATE — Comment by Kim Knoch (click on comments above) explains that there is a way to read PDF files on Kindle for a small fee.

DRM is used, of course, to protect the value of a proprietary e-book by preventing copying and display in other devices. But the e-book vendors seem to have missed the obvious fact the DRM reduces the value of the e-book for consumers. By definition, DRM limits the options for readers, and in a our world of constant innovation and a plethora of devices that compete for our dollars, options are value.

A blog from the Free Software Foundation dedicated to a campaign against DRM – Defective by Design – makes this point in a post called “Don’t let DRM get between you and a good book.” The defective by design campaign is primarily a consumer movement, focused on electronic freedom and privacy (the threat DRM may sometimes pose to privacy is another important issue). They make the point that, with DRM limited e-books, every time an updated device is released it could require that consumers buy a new version of their favorite books. They also argue that DRM is bad for authors and publishers as well, supporting a form of “digital censorship.”

The same concern about DRM in e-books is also raised on a recent post on the if:book blog from the folks at the Institute for the Future of the Book. “The future of the sustainable book” is part of a much larger discussion, all of which is worth attention. Regarding all sorts of electronic texts, this telling remark clearly places DRM protected proprietary e-books low on the scale of sustainability: “since I work in book publishing, job one is to figure out what it means to create a sustainable book. Lots of models come to mind. Good ones like Wikipedia (device-neutral and always in the latest, free, edition) and bad ones like the Kindle, (which tries to create a market for an ebook reader with designed obsolescence).”

Today a e-mail appeared in my inbox that proclaimed that the era of DRM is over. The author was referring to a recent announcement by Sony BMG that they were finally considering following the lead of much of the rest of the music industry and selling music in an open MP3 format. This is good news, but it is not the end of DRM by any means. Many other issues regarding electronic protection measures remain, and we are still waiting for a truly usable, portable e-book and reader.

Without certainty, how does fair use help? (weekly widget)

Congress recognized that fair use is hard to apply, since one is only certain that a use was fair after a judge decides that it was. So Congress added a provision to encourage teachers and librarians to use fair use where it reasonably can apply. Section 504(c)(2) of the copyright law, part of the section about remedies for infringement, says that “statutory damages,” which are the largest liability in most infringement cases, must be remitted to $0 if the person found to be infringing is BOTH an employee of a non-profit educational institution acting within the scope of his or her employment AND had a good faith belief that the use they made of the copyrighted material was fair use.

This provision greatly reduces the risk when academics think about fair use, since it eliminates most of the money that can be awarded if it is found that the user was mistaken in their fair use analysis. But it is important to note that the belief that a use is fair must be in good faith, which means it has to be both subjectively honest (I really did believe it was fair use) and objectively reasonable (a reasonable person could have come to the same conclusion). In those circumstances, Congress has created an incentive (by reducing what one has to lose) to make reasonable fair uses of protected material. If after carefully considering the fair use factors (this checklist can help), one reasonably believes the use is fair, it is often possible that the educational value of going forward will outweigh this reduced risk of getting it wrong.

Changing the economics of scholarly publishing

Inside Higher Ed recently published an article about a “New Collaboration for Scholarly Publishing” that describes how five university presses hope to alter the discouraging economic situation for publishing scholarly books. NYU, Fordham, Temple, Rutgers and UVA presses are collaborating to create a joint system for copy editing, design, layout and typesetting a series of books about American literatures. The project, funding by a grant from the Mellon Foundation, aims to produce over 100 new books that otherwise might not have been published due to cost constraints. By reducing the expenses that are common to all publishing operations, the project expects to allow each press to issue 5 additional books each year over the 5 years of the project.

Two aspects of this project make it significant beyond its own goals. First, it is only the initial such project that Mellon plans to finance; similar projects in Slavic studies and ethnomusicology are already in the works. Second, and most important, this project will help demonstrate that cooperation between academic presses is possible without surrendering the unique features of which many university presses are justly proud. Each of the publishers in this first project will be responsible for selecting its own titles and will continue to select in the specific area within the broad topic that is their own specialty.

It is no secret that publishers routinely have to reject quality manuscripts because the costs of production make them poor financial risks, however good the scholarship may be, and that many young scholars therefore can not get their work published. The hope for this experiment is that the value of collaboration, in terms of significant cost savings so that more worthy monographs will see print, can be realized without losing distinctive reputations or sacrificing quality.

A far more radical push to change the economics of scholarly publishing is expressed in this post on “Digital Media, Games and Open Access” from the blog “Grand Text Auto.” It is written by Nick Montfort, an assistant professor of digital media at MIT, ostensibly to explain his reasons for refusing to review for traditional journals anymore, saving his efforts for open access publications. As Montfort says, “there must be a few things that those of us who are part of the scholarly publishing process can do to foster an open-access future. The easiest thing that I’m able to think of is simply not volunteering our labor to lock academic writing away from the public.” His explanation of the current inequitable system of journal publishing is both clear and scathing, leading to his conclusion that that system, based on restricting access to scholarship rather than encouraging it, should be called “anti-publishing.”

These two very different approaches to the economic problems of scholarly communication may seem poles apart, but each is founded on the recognition that our current systems do not serve scholarship very well and are likely unsustainable. Whether changes come through carefully planned collaboration or through the radical disruption of open access (or both), change is certainly in our future.

Discussions about the changing world of scholarly communications and copyright