Copyright Information Notes

Who owns a paper written by three professors? (weekly widget)

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When there are joint authors of a work, each is a co-owner of the copyright in that work. This means that each author has the right to authorize publication of the work, use of it by a third party or the making of derivative works. It is very important, therefore, that joint authors agree in advance on how and when they wish to publish a work; conflicts develop when a single joint author authorizes a use of which the others do not approve, although such authorization is legal. Each joint author is responsible to account to the others for any profits received for the work.

Authors become joint authors when two or more each contribute protectable expression to a work with the intention that their contributions be combined into a unitary whole. Since intention is required, it is not possible to become a joint author accidentally. Contribution to a volume of essays or other collected work does not create joint authorship. Joint authorship is independent of academic rank or any other subordinate relationship (except that of employer/employee) ; a tenured professor, an adjunct instructor and a graduate student would all have equal rights in any work of which they were all joint authors.

Copyright Issues and Legislation

Exhausting consumer use

Two different lawsuits are currently underway that attempt to support the notion that users should be able to do what they want with the particular instantiation of intellectual property that they buy, a principle that is under attack through the use of “licenses” at the point of of a product’s sale.

In patent law the principle is called exhaustion, and it says that the patent is “exhausted” upon the first sale of a product; the consumer is free to use, repair or resell the particular product they bought, although they can not manufacture copies or new inventions that incorporate or imitate the product. Dissatisfied with this rule, many manufactures are trying to place various labels on their products to control uses of the product in the hands of consumers. In “Quanta v. LG Electronics,” a manufacturer’s use of a label claiming the product is “not for resale” is being challenged. The Electronic Frontier Foundation is supporting that challenge, and more information can be found here on their website “Deeplinks” blog.

As the EFF points out, these challenges to unfettered consumer use have had growing success recently. Lexmark has been able to “condition” its sale of printer cartridges with a “single use only” label that could make a consumer who refills the cartridge liable for breach of contract. This, and the “not for resale” label on software CDs at issue in the LG case, turn patent law upside down, and cost consumers money. Numerous “friends of the court” are asking the Supreme Court to revive the doctrine of patent exhaustion.

In copyright, a similar fight is going on to preserve the right of consumers to use the copy of a copyrighted work that they buy as they wish. In this arena the principle is called the First Sale doctrine, but its definition is exactly the same – the distribution and display rights in copyrighted material are exhausted after the first sale of the book, artwork, etc. In “Vernor v. Autodisk, Inc.,” a purchaser is claiming that a software distributor should not be allowed to prevent an eBay sale of the particular copy of the software he bought by using that same “license” provision that forbids resale. The issue is whether a manufacturer can convert a transaction that looks exactly like a sale – the exchange of money for a product that the consumer carries away – into a licensing transaction merely by shrink-wrapping a license agreement into the box. Courts have largely upheld these unilateral licenses, but there has been a split of opinion, as William Patry explains in a blog post here. Public Citizen, representing Mr. Vernor, argues that the first sale doctrine should preempt this provision of the so-called license.

These parallel cases in copyright and patent law show a concerted attempt to control how consumers can use the specific copies of intellectual property they purchase legally. This is not about defending themselves from unauthorized copying, since the law already does that; it is an attempt to choke off a secondary market that has been allowed for centuries. I called this a copyright coup in an earlier post, and I can only hope the courts will not allow it.

Copyright Information Notes

If I cite the source I am using, can it still be copyright infringement? (weekly widget)

Citation is a cure for plagiarism, which is a different, but related, problem from copyright infringement. Plagiarism is the unacknowledged use of the work of another — falsely claiming or creating the impression that you are the creator of someone else’s work. It is possible to plagiarize a work even if it is not protected by copyright; one can plagiarize from Adam Smith, who died in 1790, as easily as from Milton Friedman, who died last year. And citing the source always cures plagiarism.

Citation, however, does not cure copyright infringement, which is the unauthorized use of another’s work. If you copy an entire journal article by someone else, without permission, into a book you publish, you probably have infringed copyright, even if you add a footnote citing the original author and source. Citation may help show a good faith fair use argument, but it neither prevents plagiarism nor guarantees fair use. Copyright infringement is avoided either by having the copyright owner’s permission when using someone else’s material or by relying on one of the many exceptions to copyright.

Copyright, of course, does not protect everything. You cannot infringe a copyright when you use public domain material, especially when you take only ideas from another source but do not copy protected expression, since copyright does not protect ideas. But if you fail to acknowledge the source of those ideas, you may still be guilty of plagiarism.

Scholarly Publishing

What makes a journal valuable?

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For almost 90 years, librarians, faculty authors, tenure review committees and publishers themselves have relied on a single measure – the impact factor – to determine the relative quality of different scholarly journals. Impact factors are based on the number of times articles from a particular journal are cited in other scholarly articles. The citations to articles in one journal are cumulated to calculate the impact factor. It is fairly obvious that this system has some problems, however. For one thing, frequency of citation is a poor marker for quality, since all cited references to a work may not be positive and approving. To posit an extreme example, many articles that cite one specific article as a particularly bad example will boost the citation rate for that article and could raise the impact factor of the journal that published the flawed study. Also, journals are not all of equal quality or influence (which is the point, after all), so many citation from peripheral journals may not be as important as one or two citations in the really influential and universally-read publications. Impact factor can flatten these distinctions in regard to a single article, although cumulation over time should cause the “best” journals to rise to the top.

A new measure of journal quality, called the Eigenfactor, tries to address this last problem by starting with an evaluation of journal quality and assessing article impact on that basis. As their explanation of their methods says,

“Eigenfactor provides a measure of the total influence that a journal
provides, rather than a measure of influence per article… To make our
results comparable to impact factor, we need to divide the journal
influence by the number of articles published.”

Leaving aside the complex mathematics explained at their site, the Eigenfactor is based on an algorithm that maps how a hypothetical researcher would move from article to article based on cited references. This mapping yields a measure of the amount of time that researcher would spend with each particular journal. The score of a journal is based on that finding, and the influence of articles is measured by the influence of the journal in which they are published. This method corrects for peripheral citations and, it is claimed, for different citation patterns in different disciplines.

Both of these methods, however, measure the quality of journals only from within the relatively closed world of traditional periodical publication. Can we imagine ways of assess journal quality that can account for external factors and hence for the changes that are occurring within scholarship?

The advent of online aggregators of journal content has offered one relatively simple external measurement of journal impact which librarians have been quick to embrace – cost per article download. It used to be very cumbersome to try and tally which print journals were most used in a library, based on how often copies were picked up and reshelved. Now databases offer constantly updated counts of downloads which are easily divided into the cost of the database to provide a measure of where collections budgets are best spent. Since many downloads will reduce the cost per download, this metric also can serve as a rough indication of quality, or, at least, influence.

The real question I have, however, is how to assess the importance of traditional journal publication vis-à-vis newer, informal means of communication that are growing in importance amongst scholars. As blogs, wikis and exchanges of working papers via e-mail grow, scholars are getting their inputs and influences from new sources, and web publication of various kinds often supplements, and occasionally supplants, tradition publication. As the ACRL’s recent paper on “Establishing a Research Agenda for Scholarly Communications” puts it,

“Extant measures may suffer from being tightly coupled to traditional
processes while also inhibiting the application of other measures of
value. In the new digital environment, activities other than traditional
or formal publication should be valued in the reward structure for scholarship.”

I know of no metric that can yet account for the variety of informal publications and their relative influence. That, of course, is why it is part of a research agenda. As these informal, digital means of sharing scholarly work become more common, one of the principle functions of traditional publication – that of communicating the finished products of research – may become less and less important. Other functions, such as registration, certification and preservation, may continue to rely on traditional journals for a longer time. But the academic world needs to look carefully for ways to evaluate and compare the influence of a variety of new communications if it is to value scholarship based on its true impact.

Scholarly Publishing

By any other name?

Last week Paul Courant, Dean of Libraries (and formerly Provost) at the University of Michigan, posted a thoughtful blog entry on “Why I hate the phrase scholarly communications.” He is kind enough to say some nice things about this blog in his post, for which we are grateful, but I don’t want to let the glow of flattery distract me from addressing the excellent point he is making. “Scholarly communications” is a confusing term that conveys very little information to anyone outside of a circle of initiates within academia.

Even amongst the handful of academic libraries that have appointed positions with scholarly communications in the title there is wide variation in how that role is understood. For some a scholarly communications officer is primarily a copyright consultant, for others an advocate for digital publishing, for some an advocate for legislative change and for yet others a collections librarian trying to deal with alternative publications and journal subscriptions. As Courant points out, what all the various tasks have in common is attention to the business of scholarly publishing – the economic, legal and physical mechanisms by which scholarship is disseminated. Functionally, one might call a scholarly communications program that point (or points) at which an academic library is engaged with scholarly publishing in a role other than as a consumer.  Attention to this bundle of concerns, however, extends well beyond the library at many institutions, and it must do so if real change is to occur.

At Duke we became aware of the naming problem when the new Libraries’ home page included a link for “Scholarly Communications” that was very seldom followed.  We decided to rename that link “Copyright and Publishing” — the topics actually discussed in this space — in hopes of attracting more readers. Certainly for faculty the latter name identifies concerns they often are very conscious of, while the former likely does not.  I sometimes wonder if “Copyright and Publication Librarian” might not be a more accurate and descriptive title for my position.  Yet in the final analysis I am not ready to scrap the phrase “scholarly communications” just yet.

Terms of art are always difficult to handle. To take an example from my other profession, which is laden with them, a lawyer writing a brief who wants to argue that some element of her case is so obvious that no evidence for it need be adduced will use the phrase “res ipsa loquitur”; if she does not, a court will think her poorly trained. But if she uses it when talking to a client, she is guilty of poor professional judgment; attorneys must avoid obfuscation when explaining law and strategy to lay people. Terms of art are shorthand means of communication within a community of practitioners but they require explanation and clarification outside that “inner circle.” If we were to adopt Courant’s suggestion that we simply speak of “publishing” instead of scholarly communications, we would encounter a different confusion, but the same need to explain to the uninitiated exactly what we mean. Scholarly communications is now a recognized term within much of the academy, but like many such terms it is foreign to those outside the ivy-covered walls. I plan to continue to treat my oddly uncommunicative title as a teaching opportunity and decide in each instance whether I am better served by using it (and often having to explain what it means) or by substituting a longer but more descriptive phrase in those situations where the term of art will fail entirely to gain attention from the audience I am seeking.

Copyright Information Notes

Should I register my copyright? (weekly widget)

It is no longer necessary to register in order to have copyright protection, just as it is not required anymore to have the symbol (c) attached to a work in order to protect it. Copyright protection is automatic, starting as soon as a work is fixed in tangible form. But registration is still important in some situations. You must register a work before you can sue someone else for infringement, and registration creates a presumption that you own a valid copyright. Also, registration within certain time limits makes it possible to receive a larger damage award and attorney’s fees if a copyright owner can prove infringement. So registration is a good idea to protect the economic value of a work, but it is not required; each creator can make a decision about whether or not registration will best serve that individual’s interests.

Registration is accomplished by filing a form, found on the Copyright Office’s web site, along with a copy of the work being registered and a fee, which is currently $45.

Copyright Issues and Legislation, Fair Use

Desperate ploy, or copyright coup?

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In the digital age, it is hard to imagine that personal photocopying still poses much of a worry for copyright owners. Isn’t the real problem, after all, the ability to make perfect copies and to share them instantly with thousands of others? Traditional photocopying poses neither of these dangers, and personal copying is a long settled fair use, isn’t it?

Not, apparently, for Access Copyright, the Canadian copyright licensing agency that, like its US counterpart the Copyright Clearance Center, collects and distributes permission fees for various uses of copyrighted material. Access Copyright has recently filed a lawsuit seeking 10 million dollars – the largest damages award ever sought for copyright infringement in Canada – from the office supply chain Staples. Their claim is that Staples should be liable for infringing copying done by customers on equipment provided by the stores. There is a news report on the suit from the Canadian Press here, a negative assessment from P2Pnet here, and a comment from a Canadian professor of IP and technology law here.

To prove secondary liability on the part of Staples, Access Copyright will have to convince a court that Staples should be held responsible for copying done by its customers. As Professor Geist points out, that may be a difficult hurdle to clear. In Canada, as in the US, liability for those who merely supply the equipment to make copies is rare; the US provides statutory protection for libraries in such cases and the Canadian Supreme Court has established a similar “presumption” in favor of Canadian libraries. Explaining why that presumption should not apply to Staples will be a challenge for this lawsuit.

But the issue that should really worry us, the issue that makes this a radial attempt to change the terms of the copyright bargain rather than merely a desperate ploy to protect a new source of revenue as traditional sources dry up, is that Access Copyright will have to show that the personal copying done by customers is direct infringement of copyright. Only if that is true can Staples be held secondarily liable for providing the means for that infringement. But personal copying has been almost universally believed to be fair use (or, in Canada, “fair dealing”). Students have made single copies of journal articles and book chapters for their own study for as long as photocopies have existed, and consumers have made personal copies of TV shows with their own VCRs with the blessing of the US Supreme Court. So what has changed?

The clue is in the fact that this suit was brought by a licensing agency, not by publishers or authors. What we are seeing here is a new assertion that personal copying was never legal, only tolerated by copyright owners until they could create a mechanism to collect payments. The same digital technologies that have allowed so much infringement also now allow content owners to efficiently offer licenses and collect payments for individual uses that could never have supported a market before. Although it is still more efficient to sue the alleged contributory infringer instead of the consumer who is the direct infringer, this saber rattling by a licensing agency should tell us quite clearly that content owners intend to move toward a pay-per-use model. If such suits are successful, every consumer-made copy logged at a store or even at a library photocopier could be subject to small payments, which would be administered through an online licensing agency.

At a recent conference in Washington, DC, Cary Sherman, the President of the Recording Industry Association of American, refused to acknowledge that personal copying of a music CD for listening on an individual MP3 player was fair use. Instead he said that this likely was infringement, but that the industry had agreed internally not to pursue such cases. The Canadian lawsuit suggests that, if a precedent can be set regarding the much less contested area of personal photocopying, any such forbearance around consumer copying will quickly become a thing of the past.

Copyright Information Notes

So what is in the public domain? (weekly widget)

The public domain, according to Duke’s Center for the Study of the Public Domain, “is the realm of material—ideas, images, sounds, discoveries, facts, texts—that is unprotected by intellectual property rights and free for all to use or build upon.” In the United States, anything that was published before 1923 is in the public domain. Works published between 1923 and 1963 may be in the pubic domain, if they were published without notice (the symbol (c) with a date and name), or if the original copyright was not renewed after the first term of 28 years. It is often difficult to be certain about this, although the database of renewal records made available by Stanford University is a big help. Government works — works created by government employees (but not necessarily independent contractors working for the government) — are also in the public domain because the copyright law does not allow an initial claim of protection in such works. Works published with a Creative Commons license may also be in the public domain, although usually they are partially protected by copyright but available for non-profit reuse. Unpublished works are in the public domain if the author died over 70 years ago. It is important to note that all of these rules have some additional complexities; this chart by Peter Hirtle is very useful for sorting out the intricacies of copyright terms.

Most importantly, facts and ideas are in the public domain, since copyright only protects expression. Patents, however, do protect ideas, so the idea of a patented invention is not free for others to use without a license, while ideas contained in copyrighted expression are.

Copyright Issues and Legislation, Digital Rights Management, Technologies

P2P and New Business Models

Peer-to-peer file sharing is usually not a scholarly communications issue in itself. Most such activity involves the infringing reproduction and distribution of music and video files, and it is more of a problem for colleges and universities than a benefit. Nevertheless, there are legitimate forms of file-sharing that happen at universities (and between them), and the big danger that recreational file swapping poses to schools is that draconian measures to control the illegal activity will also inhibit legal and productive collaboration.

Each time Congress proposes to address file-sharing at universities, this is one of the concerns that unites the higher education community against the proposals. Another concern is that the cost of implementing new mandates will be very high, even though university networks account for only a small portion of the overall problem. The recent proposal in Congress (see article here from the Chronicle of Higher Education) is a case in point. The proposal to require that universities develop a plan to address file-sharing is a little bit insulting – most schools already have a plan – and the instructions to offer alternatives to illegal music downloading and to explore technological solutions to the problem are unfunded mandates that could cost hundreds of millions of dollars. And filters that stop music sharing may also inhibit legitimate collaboration; the history of Internet filters suggests that they are often more effective at preventing legal activity than illegal.

The problem posed by illicit file-sharing will not be solved by increased enforcement measures; the genie is already out of the bottle in that regard — P2P swapping has grown beyond the bounds of any attempt to stop it using either law or technology. What are needed to curb the growth of P2P are business models that make legal acquisition of digital music and movies more attractive than the illegal alternatives. Georgia Harper from the University of Texas (see her blog here) has been a vocal advocate of business model development as a solution to some of our current copyright problems, and a conversation between Georgia and some speakers at a recent conference caused me to start wondering what such business models would look like.

One possibility came to my attention (rather belatedly, I suppose) while watching a football game on Saturday. Verizon Wireless was heavily advertising its V-Cast Song ID service, which allows a user who hears music that they like to capture a sample of the audio, identify the song and purchase a copy directly from, and to, their cell phone (see news report here). This, it seems to me, is exactly the kind of value-added service that can move listeners back to legal music downloading services, and it represents a much more positive solution to the problem of file-sharing than any of the legal remedies yet proposed.

Copyright Information Notes

How long does copyright last? (weekly widget, a little late)

The original term of copyright protection in England was 14 years. In the US it began, in 1790, at, potentially, 28 years (a 14 year term that could be renewed once), then went to a system of two terms of 28 years, so that a renewed copyright lasted for 56 years. In 1976 we changed our law dramatically. Copyright became automatic as soon as a work was “fixed in tangible form,” and the copyright term was based on the life of the author. After another term extension in 1998, copyright in the US now lasts for the life of the author plus 70 years. For works created anonymously, as works for hire, or by a corporate author the term is 95 years from first publication or 120 years from creation, whichever is shorter. These changes mean that the public domain is barely growing at all in the US, since everything is protected automatically and it is now protected for a very long time.

Discussions about the changing world of scholarly communications and copyright