Copyright widgets

A colleague recently suggested the value of putting out short tidbits of information about copyright on a regular basis as a way to educate a community and keep attention focused on copyright issues and opportunities.  It seemed like such a good idea that this site will begin carrying such short information briefs (called widgets in honor of my colleague’s affection for that word) each Thursday (I hope).

All of this site is placed under a Creative Commons license (Attribution, non-commercial, no derivative works), but it seems appropriate to explicitly offer these informational widgets for reposting to other academic communities if they seem helpful.

These widgets will be collected under the more descriptive blog category of “copyright information notes,” with the hope that they will cumulate into a helpful review.

A Civil Debate about Open Access

Looking at these two articles about open access and scholarly publishing has made me aware of an online (and open access) journal that I did not know about before, “Script-ed” is the online journal of the Research Centre for Studies in Intellectual Property and Technology.  If these two articles, and the titles of others I have yet to read, are an accurate measure, this is an excellent publication for all interested in “law and technologies in the broadest sense.”

The two articles I want to recommend here are about the cost of open access to publishers, who fear loss of revenue if OA were to become the norm in the academic world, versus the social costs of continuing as things are, where fewer and fewer people have access to significant research as the toll for access to subscription journals rises.

From the perspective of an academic publisher, Kevin Taylor’s article is a calm and reasonable account of the current situation.  He recommends, and apparently practices at Cambridge University Press, where he is IP Director, sensible and even enlightened copyright policies for academic publishing.  It is only when he talks specifically about open access that he raises some fears that are not very well-founded.

In his response to Taylor’s article, A.A. Adams carefully refutes these fears and offers a font of helpful information about open access.  Perhaps his most important point is that book publishing in the academic world is very different that the business of publishing journal articles.  Academic authors do not write articles to gain direct economic benefit, which makes OA an important and entirely beneficial option in the world of articles, where it might be more contested if we were talking about monographs.

Adams’ section on “Routes to Open Access” is a superb introduction to the arcane jargon of the OA movement, explaining very clearly what green and gold OA are and how the various versions of these two “roads” to OA can work.

Keeping your copyright

There is a great new website to help those who create stuff — whether they are filmmakers, musicians or academic authors — understand and manage their copyrights.  Several groups at Columbia University law school, working with a Board of Advisors, have created the site to walk creators through the rights they have, how they can manage those rights to accomplish their personal goals for their work, and even the common terms found in many publication contracts.  The need for this website is summed up very well in its first paragraph:

“Today, too many creators take a passive attitude toward their copyrights. The matter seems complex, and publishers or distributors may tell you that everyone does it their way, or that giving up copyrights is standard practice. But giving up your rights under copyright is a decision, not a default option. If you stand passively by, you may over the course of a long creative career produce a large body of work, most of which is owned and controlled by other people, whose interests and yours may diverge.”

Academic authors and creators should take these words to heart and use this website to develop a proactive strategy for managing the rights they have in the works they create.  The vast array of options now available for sharing and exploiting one’s own creative work suggest that passivity is no longer a sensible option, and the information offered by this site is exactly the remedy needed.

Student rights and academic values

Do students own the copyright in the works they create as part of their education? Generally the answer is yes, but we have recently been reminded of some troubling exceptions. The University of Hawaii’s “Academy of Creative Media” is a film school that insists that all of its students completely assign their copyright in all of their works to the school. The Electronic Frontier Foundation has a story about this rule here, and they include links to several other comments, as well as to the Hawaiian Academy’s agreement and an FAQ they use to justify the practice. It also links to a story about a similar policy at the University of Southern California.

Student rights are often ignored on college campuses, perhaps because of long-standing practices that stretch back to before copyright vested automatically when an author fixed her work. But we need to deal seriously with student rights, especially now that digital networks give us so much flexibility for making class works available to the public. There are real pedagogical advantages to having students work for a larger audience, but there are also opportunities to abuse the rights students now have from the moment their works are fixed in a tangible medium. Part of learning how to use these new technologies is developing policies that respect those rights.

The policies of the University of Hawaii and USC undermine the respect students deserve. Even more startling is the justification found in Hawaii’s FAQ – that this policy is consistent with the University’s claim that most faculty works are also works made for hire. Most universities do not claim ownership of faculty works, even though there is a stronger argument for that claim than for demanding rights in student works. Courts have even suggested that the work for hire rules do not apply to faculty writings, although those rulings are old and in doubt. To claim student copyrights, however, these two universities can’t even rely on work for hire; they need to compel students to sign an agreement that gives the copyright to the school.

Does the proximity of these schools to Hollywood justify their grab of student rights? As one commentator points out, at the very least, students who are subjected to these avaricious and rigid policies will be better prepared to work in the commercial film industry. These seems like a clash between academic values, which, contrary to what some in the content industries claim, usually try to teach respect for rights in creative works, and commercial values that see creators’ rights as one more commodity to be acquired as cheaply as possible.

A big footprint

The Computer & Communications Industry Association, which has recently grabbed some headlines with its complaint to the Federal Communications Commission about misleading and over-broad copyright warnings, has just released a report it commissioned on “Fair Use in the U.S. Economy.” The purpose of this report is to “measure the footprint of fair use on the U.S. economy,” and its conclusion is startling.   Industries that benefit substantially from fair use, says the report, employ over 10 million people and account for about one-sixth of the total U.S. GNP. That is a big footprint!

The PDF of the full report is available here.

In the past I have objected to claims made by the copyright industry about the amount of money lost through unauthorized file sharing or piracy. Those figures, I have suggested, are over-inflated and conjectural because they rely on lost opportunity costs and do not account for the economic benefits that might be gained from these activities. Now that the CCIA has decided to look at the economic equation from the other end and examine what benefits fair use (legal uses, as opposed to piracy and file-sharing) provides to the economy, it seems fair to ask how reliable its figures are.

The study, which was done by consultants from Capital Trade, a firm specializing in consulting and analysis of international trade, identifies “core industries” that “derive a significant amount of their current business from the demand generated by fair use and the Internet.” It is hard to argue that search engines, for example, have fair use at the center of their business. Other sectors, like consumer electronics, certainly are dependent on fair use, but one could argue that both purchased content and “pirated” content reduce the share of that industry that is dependent on fair use. Education, in this report, is also apparently identified as a core industry, since it depends heavily on the non-copyrightability of facts as well as other fair use freedoms. Other non-core sectors are also examined when their businesses “facilitate the output of the fair use core.” The identification of these industries and the measures used to evaluate their economic impact, are based on the WIPO recommendations for studying the role of knowledge industries in the world economy.

In so far as its conclusions are understood to show the economic impact of industries that would be significantly harmed by a narrowing of fair use, it seems a careful and clearly defensible effort to remind us that usability of information is as important to oar economy as is its creation. Without fair use, many of these industries would not go away altogether, but they would be badly hampered and would contribute much less to the U.S. economy. We have heard so much about the important economic impact of the industries that create copyrighted content; it seems like a vital counter-balance to consider the impact of those industries that benefit from the legal, unlicensed use of that content.

When should the government intervene?

There has not been a lot of comment on this site about the launch of PRISM (The Partnership for Research Integrity in Science & Medicine – a coalition of publishing organizations that is campaigning against the proposals in Congress to require public access to federally-funded research. One reason for this lack of comment is that the actual arguments and assertions made by PRISM are so transparent and easily refuted; I called them simple-minded in an earlier post (here), and I have seen nothing that changes that judgment. Also, lots of other blogs and listservs have dealt extensively with the claims of PRISM, especially after the Director of Columbia University Press resigned from the Executive Council of the American Association of Publishers over its support of the Partnership and the Director of Cambridge University Press wrote a letter repudiating its absurd assertions (see news item in The Chronicle of Higher Education here).

But even a silly debate can produce significant points, and one of the most important contributions to this argument comes from William Patry, senior copyright counsel for Google, whose blog has been cited here several times before. The “PRISM principles” refer repeatedly to preventing “government intervention” in scientific research. The irony of complaining of government interference in research that is paid for from federal tax monies in the first place should be pretty obvious, but Patry adds another point that is worth our attention. As he says in this post, “Copyright is always Government Intervention.” By definition, copyright is a government-granted monopoly that artificially supports the price of intellectual property to provide an incentive to creation. Patry nicely explains the logic behind this government intervention and the reasoning that underlies the attempt to create a balance between incentives for creators and opportunities for users.

However one feels about whether we have struck the appropriate balance in the US or have erred to one side or the other, most will agree that the economic rationale for copyright as a government intervention in the free market is sound. We can only wonder if PRISM, however, will be true to its professed disdain for government measures and support the total abolition of copyright. Such a change would create a genuinely free market, where publishers would be free to compete with each other by publishing the same works at competitive prices; consumers would likely benefit from lower prices for books and movies, but it is pretty certain that creativity would suffer in the long run.

What faculty think

It is always dangerous to try and speculate about the opinions and attitudes of a large group, especially one af diverse as university faculty. But the University of California’s Office of Scholarly Communications always produces great research, and their recent report on “Faculty Attitudes and Behaviors Regarding Scholarly Communication” is no exception. The full report can be downloaded here, and a PDF of the Executive Summary and Summary of Findings is here. This is solid, empirical research that can help guide attempts to reform and renew the system of disseminating scholarly research.

One of the most interesting findings in this report is the disconnect it documents between attitudes and behaviors around open access and, especially, copyright. Faculty members report a high level of concern about these issues, but very little change in behavior as a result of that concern. Most respondents, regardless of their worries or desire for change, continue to pursue co0nventional scholarly behaviors around research publication. These behaviors are deeply ingrained in the fabric of scholarship, so this finding isn’t very surprising. But it does suggest that offering help to faculty around copyright management, as well as simple and convenient ways to deposit their work in open access repositories, is very important. When we are asking a group to change long-followed practices, we ought to make the case compelling and the changes as painless as possible.

One thing that may help with this change is the growth of informal means of scholarly communication. As blogs, wikis, and even e-mail become an increasingly ubiquitous part of the scholarly process, traditional channels of scholarship will seem less inevitable than they have before. The UC report notes that the traditional system of tenure and promotion, with its narrow view of what constitutes acceptable scholarship, is one major reason for strict allegiance to the traditional system; the proliferation of informal channels of communication, rather than “external” pressure, seems the most likely way to open up that view of scholarship. It is to be hoped that the value for a more open and informal way of evaluating and improving scholarship will make traditional channels, as valuable as they are, no longer the only option for perceiving quality work.

Another interesting finding of the report is that “senior faculty may be the most fertile targets for innovation in scholarly communications.” For many this seems counter-intuitive, although the report on legal scholarship discussed in our last post indicated the same possibility. While younger faculty may be more comfortable with technology (although that is by no means certain), it is senior faculty, the UC report suggests, who can afford to experiment, since tenure makes experimentation much lower risk. Is it possible that another explanation of this finding is that senior faculty, with their years of experience in traditional scholarly publishing, have reached a level of frustration that makes them embrace new alternatives more quickly?

Copyright & the First Amendment

Copyright blogs have been very active over a decision handed down in Golan v. Gonzalez by the Tenth Circuit Court of Appeals on September 4th. This is the most recent in a line of challenges to the Copyright Term Extension Act of 1998 (CTEA) that added twenty years to the duration of copyrights in the US. The argument that this was unconstitutional because the constitution only allows patents and copyrights for “limited times” has failed several times in federal court, and it failed here as well. But a new twist is introduced in this case that promises a great deal of debate.

See these blog posts by William Patry, Jack Balkin, Larry Lessig and Carlos Ovalle. Balkin’s post, which suggests some pitfalls to the First Amendment challenge described below and suggests that it is really the DMCA that should be subject to such a challenge, is especially worth reading.

In addition to challenging the CTEA, plaintiffs in this case also challenged the law that implemented the “Uruguay Round” of trade agreements in the US. This round of negotiations led to a revolutionary marriage of trade regulation and international intellectual property law, and it finally brought the US into the Berne Convention, a hundred-year-old international agreement on copyright. In order to implement that agreement in the US, Congress passed several major amendments to make our copyright law conform to the international minimum standards.

One change, in 1989, was to entirely eliminate “formalities” for copyright, the need to put a copyright symbol on a work or to register it before it was protected by copyright. In essence, copyright protection became automatic. The other Berne convention countries had done away with formalities long ago, so there were works published in those countries that were protected by copyright at home but were in the public domain in the US because they had not complied with our formal requirements. These foreign works were restored to copyright protection by the 1994 implementation act challenged in this case.

In 2003, the Supreme Court ruled, in Eldred v. Ashcroft, that the CTEA was not unconstitutional. They also said, however, that First Amendment free speech rights might be implicated by a copyright law revision if that revision “altered the traditional contours of copyright.” That phrase is spawning a great deal of litigation, and in Golan v. Gonzalez the Tenth Circuit held that the restoration of copyright in those foreign works that had been in the public domain was an alteration of these traditional contours. On that basis, it sent the case back to the district court to decide if free speech rights really were implicated here, requiring that the government meet a much higher standard in defending the law.

I have to agree with William Patry’s blog post that there is something very strange about this decision. The “remand” to the district court is essentially to decide what standard of review to apply to the case. But the Court of Appeals has already decided, earlier in the opinion, that Congress was acting within its constitutional authority when it passed the Uruguary implementation act. The Tenth Circuit seems to say that Congress had the authority to restore these copyrights under the constitutional authority granted in the patent and copyright clause but that the action may still be challenged, based on a higher standard of review, under the First Amendment. Since the Supreme Court has already said that the First Amendment safeguards built into copyright law — notably the idea/expression dichotomy and fair use — are sufficient to reconcile the grant of copyright authority with the free speech clause, it is hard to see where this argument can go. The Tenth Circuit explicitly disagreed with the Supremes on this point, but it seems unlikely that that alone will change the high court’s mind. Besides, it seems unlikely to me that the district court will actually apply the higher level of review to this law, since to do so it would have to find that the copyright restoration act was a”content-based” restriction on free speech, which it clearly is not.

All of this, to my mind, obscures the real point about the restoration of foreign copyrights. The significant alteration of the traditional contours of copyright occurred back in 1989 when the US dropped formalities. Suddenly, copyright protection became the default position, whereas previously authors could decide to protect their work, by complying with the formalities, or place it in the public domain. Once we made the decision to abandon formalities, the public domain was severely restricted. Restoring a small number of foreign copyrights so that non-US authors would not continue to be penalized by rules we had abandoned for ourselves seems a reasonable act of equity. We should be having a much broader debate about the “traditional contours of copyright law,” and the importance of the public domain to scholarship, creativity and innovation. That debate will not be resolved by the courts; it must take place in public and in Congress.

Is Blogging Scholarship?

It certainly can be, according to Margaret Schilt in “Is the Future of Legal Scholarship in the Blogosphere,” reposted in from the “Legal Times.” Her article provides a very helpful thumbnail summary of the major legal blogs, but also reflects on the trend of legal scholarship toward this more informal and community-centered form of scholarship.

The recently released Ithaka report on university publishing noted that an increasing amount of scholarly communications takes place over informal channels, where the blog is becoming increasingly important. But who are legal bloggers, and do they think they are committing scholarship with their postings?

Schilt observes that most legal bloggers are not the “young turks” one might expect, but mid-career professors who have tenure. There has long been a debate whether new modes of scholarly communications will be adopted more readily by the young, to whom they may be more familiar, or the older, tenured faulty who can afford the risk. In law, apparently, it is the latter who are turning to blogs.

This is good news for shared scholarship, since this group of bloggers tends to be very familiar with traditional scholarship and able to translate that level of work to the blogosphere. Schilt makes specific mention of my favorite legal blog in this regard, Balkinization, where Jack Balkin of Yale leads an in-depth discussion of current events and recent works of legal learning.

What are the benefits of blogging, as Schilt sees them? First and foremost, a blog reaches more readers than does traditional scholarship. Also, it encourages rapid feedback. Some comments may be inane, of course, but there is also the potential to open up the scholarly enterprise to participants long excluded and to make the dialogue amongst traditional participants more lively and immediate.

Interestingly, Schilt also suggests that there may be a “reputational bonus” in blogging, since it can increase name recognition amongst one’s peers. Finally, she points out the value of the blog in teaching, offering a chance to encourage class discussion to continue in a public and accountable forum.

Blogs, Schilt concludes, “are where scholarly dialogue increasingly takes place.” Although it looks different from the traditional journal article, and its pace is accelerated over that of conventional scholarship, the blogosphere “still looks and feels a lot like scholarly activity.”

By the way, the Ithaka report mentioned above has itself become the subject of this rapid and interactive process of “peer-review.” It is now available in a “CommentPress” version from The University of Michigan. This software allows the report to be read in its entirety, but also lets readers insert comments at different places. You can read as many or as few of the comments as you like, but the availability of this important report in a “2.0” version speaks volumes about the trend toward more collaborative scholarship.

Salvos in the Copyright Wars

This diatribe against YouTube recently appeared on the web site of a right wing lobbying organization with the innocuous name of “National Legal and Policy Center.” They are certainly correct that lots of copyright infringement happens on YouTube, but several of their arguments deserve response.

It is always odd to see a group that says it advocates small government and free markets swing so far in favor of stronger copyright protection, which, by its nature, is government intervention to distort the market. Copyright works to keep the price of knowledge goods well above the marginal cost of production in order to provide an incentive for creation. Because it creates an artificial monopoly, it must always balance the incentive created with the harm done to free competition. The National Legal and Policy Center makes no such analysis.

Instead, they simply assert that “Internet piracy” causes loses by the film industry of $2.3 billion. Such an estimate relies on lost “opportunity costs” and assumes that each unauthorized copy is equivalent to a lost sale – a very questionable assumption. It also neglects the other side of the equation; the potential economic and social benefits when consumers have lower-cost access to entertainment and to the “inputs” for new creativity. Not that we should encourage “free-riding,” but the economics are not as simple as these lobbyists suggest; there is no reason to assume that the price the entertainment industry wants to charge for its goods is actually the optimum price, given the artificial support of copyright law.

Finally, the article simply assumes that YouTube should be responsible for the infringing activities of its users. The current law, in fact, cuts the other way; the Digital Millennium Copyright Act provides a safe harbor for online service providers from such secondary liability in order to encourage innovation. That safe harbor, which has allowed a freedom for experimentation with fair use that has supported a wealth of new creativity, is being challenged in court by the entertainment industry. The issue is still unresolved, but once again, the desirable social balance is complex and requires careful negotiation, not mere finger pointing and accusation.

Equally simple-minded is the new campaign (PRISM) launched by the American Association of Publishers against public access for federally-funded research in health. The publishing industry lost in Congress earlier this year, when a mandate for public access to research funded by the National Institute of Health was included in an appropriations bill. Now they hope to reverse that loss by convincing the public that mandated access for taxpayers is “government interference.” Why it is not government interference for tax money to finance the research in the first place is not clear, except to note that publishers get a free ride on such research. The researchers, of course, are seldom paid for the articles they write based on the government-sponsored research, and publishers can charge outrageous rents to let the public see the results. Little wonder that they want to protect their golden goose. But the irony of accusing the government, which paid for the research, of wanting to free-load off the publishers, who do not, is a bit too much.

The debate on these issues is well documented by Peter Suber, here at “Open Access News.”

Discussions about the changing world of scholarly communications and copyright