Student rights and academic values September 21, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom , add a commentThe policies of the
A big footprint September 20, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentThe PDF of the full report is available here.
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.
When should the government intervene? September 13, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , add a commentThere 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
What faculty think September 11, 2007
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Technologies , 1 comment so farIt 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 September 7, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation , add a commentCopyright 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.
