In search of a problem? January 31, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 1 comment so farI 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) January 24, 2008
Posted by Kevin Smith in : Copyright Information Notes , 1 comment so farCreative 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) January 17, 2008
Posted by Kevin Smith in : Copyright Information Notes , add a commentOften 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! January 15, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , add a commentThis 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
But it is just so easy! January 11, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Technologies , 1 comment so farThe 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.
