Authors' Rights, Copyright Issues and Legislation

Helprin, Chaucer and literary influence

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Several colleagues have asked me if I don’t have some pithy and devastating response to make to the opinion piece by Mark Helprin in Sunday’s New York Times, A Great Idea Lives Forever. Shouldn’t its Copyright?  In some ways the best refutation of Helprin’s editorial is simply to consider its title carefully.  Do we really want great ideas owned by individuals forever?  While copyright does not, of course, protect ideas, perpetual copyright would vastly increase the amount of litigation needed for any new work of creativity in order to prove that its dependence on all that had preceded it was on the correct side of the idea / expression line. What a powerful weapon the James Joyce estate would wield to suppress criticism and scholarship for many, many more years if Helprin got his wish.

Should Boccaccio have been able to sue Chaucer to establish that only ideas and not expression were appropriated when Chaucer wrote his “derivative works?”  Without literary borrowing, the great works of world literature would not have been possible; Chaucer could not have written The Canterbury Tales and Mark Helprin could not have written… whatever Mark Helprin has written.  Then there is the culture of remix and parody fostered by the Internet — a whole new kind of creativity that should not be stifled in its infancy.  So perhaps the most appropriate response to Helprin is to read another recent article that celebrates the interplay and interpenetration of cultural creation, The Ecstasy of Influence by Jonathan Lethem, which appeared in Harpers in February 2007.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories

Publisher position on author rights

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Three academic publishing organizations recently released a short position paper called “Author and Publisher Rights for Academic Use: An Appropriate Balance” that is worth a look from all who are concerned about scholarly communications.  For higher education, the position paper contains elements that evoke hearty agreement and others that demand objection.

If, as a recent comment on the LibLicense list suggested, the purpose of the paper is to call wide attention to two facts, that many scholarly journals already have very “scholar-friendly” policies built into their publication agreements and that copyright is not necessarily a barrier to academic discussion and comment, there would be little to argue with.  It is quite true that many academic journals already allow authors to retain many or most of the rights necessary for subsequent teaching and research uses.  It is important that authors read those agreements to be sure this is true in their specific case and to consider whether or not self-archiving or some other form of electronic deposit is permitted, since such access is becoming more and more important to scholars and to scholarship.

On the issue of digital “open access” availability, the position paper takes an awkward stance.  While citing several journals that have adopted “author-pays” models of open access as leaders, the paper marshals several arguments against mandated public access for research funded with public money.  Some of these arguments are self-contradictory; if one fear about open access is that it will “confuse the scientific record,” why is it suggested that a better course than mandating access to the final version of an article is to post pre-prints?  While pre-print repositories seem less threatening to the traditional business model of journal publishing, the scientific record is best preserved when access to the scholar’s final word is available to all.

One comment at the very end of the report deserves comment.  The publishing organizations take note of the educational exceptions and limitations built into copyright law but assert “that these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials [journal articles] over the Internet.”  This is wishful thinking; no court, that I am aware of, has decided one way or another about how far educational exceptions apply in the digital realm.  The TEACH Act, although largely a failure at its stated purpose, is clearly intended to apply some leeway for education to the Internet.  And the oft-repeated assertion that copyright law is technology neutral implies that there is fair use on the Internet, as the recent Perfect 10 decision held, even if its educational boundaries have not yet been clarified.

Copyright Issues and Legislation, Fair Use

Caching, Thumbnails and a Fair Use Win

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I am generally wary of relying too heavily on Google to fight all of the battles in copyright law, mostly because their interests and those of higher education don’t always seem very similar. But a fair use win for Google is usually good news for us as well, and the case decided recently (here is the decision in Perfect 10 v. Google) by the Ninth Circuit Court of Appeals is important on a number of points.

The Court of Appeals variously upheld and reversed parts of the previous district court ruling, but the upshot was that fair use was found for three specific activities: the routine caching that computers must do to display web pages, in-line linking and framing of web pages where the target page never resides on the server controlled by the web author doing the linking, and using thumbnail versions to index images found elsewhere on the web. None of these holdings are unique or new, but the Ninth Circuit does a nice job of explaining the technology involved and the reasoning behind its ruling. The “server test” used to find that in-line linking is not an infringement seems so simple and intuitive that one has to fear that other courts will try to complicate it. Linking, of course, is an important way that higher education tries to avoid infringement, so it is nice to be reassured.

As for caching, it seems amazing that we should have to be reminded, but the Court’s analysis is clear and useful:

[E]ven assuming such automatic copying could constitute direct infringement, it is fair use in this context… a cache copies no more than is necessary to assist the user in Internet use… Such automatic background copying has no more than a minimal effect on Perfect 10’s rights, but a considerable public benefit.

The only rain on Google’s parade is some language about secondary liability (liability for contributing to direct infringement by someone else) that could pose problems for Google in that part of the present case, which was remanded to the lower court, and in the future. An nice explanation of the potential harm in this part of the opinion is available here on Prof. Wendy Seltzer’s blog. For higher ed., however, this case is a nice reminder of principles that are necessary and ought to be obvious.

Copyright Issues and Legislation, Fair Use

Criminal infringement?

A colleague has recently posted a comment wondering about the impact of a piece of legislation suggested to the Congress this week by Attorney General Gonzales’ office, the “Intellectual Property Protection Act of 2007.” In a letter sent to the Speaker of the House and the President of the Senate, the AG proposes a series of amendments that would increase the enforcement of, and penalties for, criminal copyright infringement.

For most of our history, copyright has been an entirely civil matter, where an aggrieved party would sue the infringer directly for money damages and, sometimes, an injunction to stop the infringement. Only in recent years have we included criminal infringement in the law, where the government itself prosecutes the infringer and penalties can include fines and jail time. Most infringement is still handled through civil suits, but section 506(a) of the Copyright Act now defines criminal infringement in pretty broad terms. For infringement to be prosecuted as a crime, it must be willful, done for commercial advantage or financial gain, and involve either the copying and distribution of works with a total retail value of $1,000 or more or the distribution of a commercial work on a public network. This definition is broad enough to catch many activities like file-sharing in the criminal net, as it is intended to do, but it could also conceivably be used to prosecute other activities that occur in higher education, if the courts were to interpret “willful” and “commercial advantage” broadly enough.

The proposed changes to the law of criminal infringement include increasing penalties (up to life imprisonment for counterfeiting activities that result in a death), including “attempted infringement” as a new offense, giving wiretap authority for infringement investigations and making it easier for authorities to seize materials used in criminal infringement.

While some of these changes seem like a bad idea to me (like the notion of attempted infringement), it is not clear what impact they would have on the fair use provision that is so important to higher education. Presumably a reasonable reliance on fair use would defeat the willfulness requirement for criminal penalties to apply. My broader concern is that the increasing treatment of copyright infringement as a criminal offense is fundamentally opposed to the purpose of intellctual property law as expressed in the Constitution. Congress is allowed to make law around copyrights and patent rights in order “to promote the progress of science and the useful arts.” This justification reminds us that intellectual property is a public good and is thus different from physical property. Once we start treating copyright law as protection for a purely private property interest, similiar to laws against car theft, we step outside the rationale for federal action. Criminal law is usually a matter for the states, and Congress should remember that the reason it is given the power to legislate in this area is precisely because more is involved in copyright than mere private interests.

Scholarly Publishing, Technologies

RSS explained by Educause

A couple of months ago I wrote about Educause’s “7 Things You Should Know About Creative Commons,” which is part of a series designed to help faculty and administrators keep current with technologies that impact scholarly communications.  Now a new virtual pamphlet is available, “7 Things You Should Know About RSS.”  RSS, which is usually said to stand for “Really Simple Syndication,” is an Internet protocol that allows users to subscribe to content feeds from lots of blogs and other web resources, and aggregate that content into a convenient reader.

Many readers of this blog probably already know about RSS, since it is one of the ways to subscribe to our feed.   But it is worth keeping this simple, jargon-free explanation in mind, along with the other 2-page pamphlets in the series, because they are so useful for explaining to others those things that we ourselves might use frequently but have difficulty articulating.  As it does so often, Educause has provided an important service to the world of technology in higher education.

Fair Use, Scholarly Publishing

Fair Use on NPR

A recent NPR story highlighted fair use as an important exception to the exclusive rights of copyright holders and discussed the Stanford Fair Use Project, a legal clinic designed to help artists, scholars and others defend fair use as they create new works.  Although the focus of the story was a humorous and highly irreverant video creation that depicts Jesus Christ dancing to Gloria Gaynor’s well-known song “I Will Survive,” there is a good deal in the story for more traditional academic authors and creators to take note of, and perhaps to worry about.

 The Stanford Fair Use Project convinced Universal, the music company that owns the rights to the Gaynor song, to back down by sending a letter pointing out the strong protection given to parody in fair use doctrine.  Many scholars will also have heard of the Fair Use Project earlier this year because of their role in helping a scholar who wrote a book about James Joyce’s daughter Lucia wrest from the Joyce estate a concession that she could publish letters written by Lucia and her father as part of her work. (There is an interesting article about Lucia Joyce and Professor Schloss’ work here.)  One of the points from that conflict, that is reenforced in the NPR story, is that publishers are often unwilling to publish work that uses copyrighted material in spite of the vital role of fair use in making critical scholarship and comment possible.

Almost any campus official who deals with copyright can tell stories about the trials of helping scholars get work published when copyrighted material — often letters and/or illustrations — is involved.  Sometimes the publisher demands that the author obtain and pay for all the permissions, even when a clear case for fair use can be made and the project lacks the funding to pay permission fees, or else a copyright holder denies permission (as the Joyce estate did) and the publisher is unwilling to proceed in reliance on fair use. 

It is not surprising that publishers are wary of getting sued, no matter how strong their fair use defense might be.  It is expensive to defend even a baseless lawsuit, and, as the Director of the Stanford Project pointed out to NPR, copyright holders frightened by the digital revolution are resorting more and more to frivolous threats in order to prevent creators from relying on fair use.

 Scholars should take note that a critic of the Stanford Center and of strong fair use protection in general claims in the story that universities are trying to destroy the very idea of intellectual property and he advocates a greatly restricted application of fair use.  As absurd as the first claim is, since scholars are major producers of intellectual property, the threat of more restricted fair use protection is very real.  Powerful voices are calling for less fair use, an academics must be aware of its role in scholarly production and actively assert it where it applies.  The goal is not so much to push the fair use boundaries forward but merely to keep them where they have traditionally been, as a bulwork to encourage and protect scholarly creation.  

Open Access and Institutional Repositories, Scholarly Publishing

Sign of the Times

It has got to be significant for higher education when the New York Times endorses open access textbook publishing. That is exactly what happened in yesterday’s editorial about a proposed discloser law for textbooks being considered in Washington state. The concern over textbook prices is not new, of course, but the attention the NY Times gives to an open access model surely is unusual. The editor moves from endorsing the proposed law to suggesting that disclosure is not enough; “creative solutions” like the Rice University Connexions project are required.

Connexions is an open-source and open content experiment at Rice, supported by the William and Flora Hewlett Foundation, that allows users to create and publish academic “modules” that others can locate, download and print for educational purposes. All of the content is offered under a Creative Commons license. The Times notes that one can print a 300 page textbook in electrical engineering from Connexions for a lot less money than it would cost to purchase a similar work, and right now users can also find featured course material for music and corporate governance at the site. In fact, there are almost 4,000 modules available on Connexions, browsably by subject area. With the NY Times getting on board, this may be a real harbinger of the future in higher education.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Public Domain according to Google

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It has been a busy two weeks, and I am rather late in adding my comments to Raizel Liebler’s “Open Letter to Google.”

The letter, which points out that Google declines to treat government documents as public domain works, even though section 105 of the Copyright Act says that copyright is not available for any work of the US government, has attracted considerable comment, but I still want to add my two cents.

Although Google seems to be the biggest champion copyright reformers have these days, there are several reasons not to rely too heavily on a large corporation principly interested in its own bottom line.  As I have noted before, if Google uses its deep pockets to settle its fair use conflict with publishers, the situation for the rest of us is likely to be worse, not better.

Another problem with the Google Book Project is the speed with which it is being carried out, and the consequent inability to take adequate care for the results.  As I librarian, I was distressed to find, while helping a researcher who had located a”snippet” on Google, that the citation on the snippet page was not to the correct source of the passage.  The title page image displayed with the snippet referenced yet a third work, neither the one cited nor the source of the snippet.  Such lapses make Google very problematic for its stated purpose — online access to the world’s off-line literature.

Raizel’s letter points out another problem — Google is assuming a overly narrow view of the public domain.  Whether government documents are excluded because it is too difficult and time consuming to decide what is or is not a government work or because of an obscure fear that copyrighted work might be cited with a government production, the public is being denied some of the benefit promised.  Google’s representation of the public domain is further constrained by the assumption that all post-1923 works are protected, even though the protection on many will have lapsed due to non-renewal, back when renewal was required.  The public domain according to Google is much smaller than it needs to be, and those who hope that Google will lead the way toward free digital access to our shared intellectual heritage should take note and scale back their expectations.

Copyright in the Classroom

WKRP in copyright limbo

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How do the struggles to release a DVD of a 1970s era sit-com inform our difficulties with copyright in higher education? At the very least, the problems encountered in preparing a DVD of “WKRP in Cincinnati” illustrate the complex layers of rights with which academics who study or create multimedia must deal.

Those of us old enough to remember WKRP will recall that, in a sit-com set in a radio station, pop music was a central part of the story. Often the humor of a particular situation was created or enhanced by the music being aired on WKRP. The sound track of the show was a collection of contemporary pop, but the producers only licensed those tunes for a limited time. It was difficult, in 1982 when the show ended, to anticipate the need to release the shows in a format that had not yet been invented. But once the licenses expired, the music could not be used in subsequent releases, so a DVD of the show has been long delayed.

As William Patry explains in his blog post on this case, the complexity of music copyright is that there are multiple rights and rights holders for each recording, including, at least, a copyright in the underlying composition (sometimes one for the music and one for the lyric) and a copyright in the performance. When dealing with video, the rights situation is even more complex, with layer upon layer likely owned by different people. These are the complications that go into re-releasing a TV show, but they are also the difficult shoals that have to be navigated when an academic wants to use existing video to teach filmmaking techniques, for example, or get permission to put a video into a digital archive.

The good news (if you were a fan) is that WKRP in Cincinnati will be released on DVD shortly. The bad news is that much of the contemporary pop music has been replaced with “elevator music” versions that were much cheaper for the producer to license. All those classic songs will no longer be “living on the air in Cincinnati.”  This small piece of TV history has fallen victim to the same burgeoning and increasingly expensive market for permissions that holds back much academic innovation in multi-media.

A more serious look at these problems for higher education can be found in the 2006 white paper from the Berkman Center for Internet and Society called “The Digital Learning Challenge,” which is linked under recommended reading in the right hand column, through our Connotea feed. It is a detailed (and rather discouraging) look at the many ways current copyright law hampers digital teaching and learning, and it isn’t even enlivened by a sound track featuring Pink Floyd or Blondie.

Copyright Issues and Legislation

Would a new copyright law be good news?

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Professor Jessica Litman of the University of Michigan (and author of “Digital Copyright”) recently spoke at the Duke Law School in a lecture sponsored by Duke’s Center for the Study of the Public Domain.  Although I was traveling on the day of her lecture, I had a chance last week to listen to the webcast, and I was especially struck by her comment that the U.S. is in the early stages of a copyright revision cycle.  Recognizing that the last such cycle took nearly twenty years, it still seems appropriate to ask, assuming that Prof. Litman is correct, whether or not this would be good news.

At her Collectanea blog, our scholarly communications colleague at the University of Texas, and well-known copyright attorney, Georgia Harper has been emphasizing new business models that are developing around intellectual property and discussing whether or not those new models bode well for educational and consumer uses of protected material.  See her posts here and here for this excellent discussion.  Litman’s suggestion, however, that we are starting to see movement toward a revised copyright law, raises a similar question about how a new law might be better or worse for education and for consumers.

With no details at hand, detailed speculation is useless, of course, but it is still possible to take note of one possible dynamic.  It is certainly true that, in the piecemeal amendments to the copyright law that we have seen in recent years, consumers and educators have not fared well.  Is there any reason to think we might do better in a complete overhaul?  I think there is.  When Congress is considering a small change to the copyright act, they tend, I suspect, to listen to the industry voices that they hear from most regularly.  When time and attention is limited, one pays attention to the sources of information and opinion that are familiar and close at hand.  But in the longer process of a complete revision, it is likely that other voices will get to the table and will be heard more thoroughly; education groups and consumer advocates would, I hope, have a more complete opportunity to make their case about how copyright helps and hinders them, both to Congress and to an increasingly interested public.

I don’t know if Prof. Litman is right about a new revision cycle or not, but until I have reason to believe otherwise I am going to treat the possibility as a reason for optimism.

Discussions about the changing world of scholarly communications and copyright