Silly copyright reform and its serious implications. February 21, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation , add a commentOn February 11, Senator Arlen Specter (R-PA) introduced a very specific reform measure for the US Copyright Act — a bill that would add to the exceptions to the public performance rights a special provision to allow churches to host Super Bowl parties.
Senator Specter is justifiably angry at the NFL for intimidating churches that want to host parties where folks get together, often share a meal or heavy snacking, and watch the big game. Some churches also use the events as an opportunity to raise money for various causes (like the “Souper Bowl” movement to assist community food pantries) or to have Sunday evening services. For several years the NFL has sent letters to such churches telling them that the parties infringe rights in the trademarked name “Super Bowl” and in the NFL’s copyright in its broadcast.
So Senator Specter has introduced an amendment that would allow only churches, based on a definition in the IRS code, to host viewings of “professional football contests.” Presumably a World Series party would still be potentially infringing, as would a party held at the local Elks or Kiwanis club. His anger is justified, but his narrow solution makes the legislation look silly and like special pleading. What is needed is a more comprehensive reevaluation of the copyright exceptions with a eye to the foundational purpose of copyright law.
The question that should be asked is “if the exclusive right is intended to provide an incentive for creativity and innovation, does this exception put that incentive at risk?” When the answer is clearly no, as it is here, the correct approach is to determine how broad the exception should be based on the public interest to be served, not to craft a narrow exception to penalize over-reaching, however satisfying that punative urge may seem.
Here, the ridiculous claims of the NFL seem to be unrelated to any incentive to create new TV broadcasts. The same number of eyeballs, if not more, will witness the advertising that is the true purpose, and often the true entertainment value, of a Super Bowl broadcast. And there is no indication that the NFL or the networks are trying to extract a licensing fee from the churches that host these parties. But if restricting the viewing of broadcast TV to personal homes and a few closely defined exceptions does not serve an incentive purpose, why are we doing it at all? Why not recognize that sporting event parties, “Sopranos” get-togethers, and lots of other gatherings to watch TV that seem like public performances, pose no risk to the reasoning behind copyright law and simply ought to be allowed? Instead of punishing the NFL, however much that punishment is earned, lets take the opportunity to discuss whether the public performance exceptions ought to be much broader than they are in order to serve legitimate public interests.
Suddenly, Open Access is all the rage. February 14, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentIn December the National Institute of Health made public access to research articles that grow out of NIH funded research mandatory; research are now required to place their final version of articles accepted for publication after April 7 into the PubMed Central database at NIH within one year of publication.
This was a victory for many library and higher ed. advocates of public access, but there is a certain element of “be careful what you wish for” here. Many campus are now scrambling to figure out the legal, practical and financial implications of complying with this mandate. Three issues must be addressed in a relatively short time frame.
1. How will authors manage their copyrights to comply with the mandate? It has long been important for authors to think about and negotiate for an appropriate copyright arrangement with publishers. Insofar as this mandate forces them to do what they ought to have been doing for years, its impact is salutary. But it will still come as a shock to many researchers and will increase the need for sound copyright guidance and policies on campuses.
2. How will campuses deal with the mechanics of deposit? Since lack of compliance could imperil future research funds, this is an issue which should not be left entirely to individual authors. Institutional repositories, where they exist, are in a good position to help with the mechanics of deposit, and library staffs will also need to be aware of the process and ready to assist. Although the process is not hard, and is easier to accomplish if the author is involved, it is clear that institutional guidance and assistance is called for.
3. Likewise, researchers will need assistance locating and tracking the PubMed reference numbers of their articles that are deposited with NIH. Starting with the May round of grant funding, NIH will require that these numbers be included as part of the investigators previous work with NIH when applying for renewals or new funding. Again, libraries are in the best position to help researchers locate and retrieve this information.
Hard on the heels of this public access mandate came news of the vote this week by the Harvard faculty to require deposit of all articles written by the Arts and Sciences faculty in Harvard’s own institutional repository. The faculty agreed unanimously to automatically grant to Harvard a non-exclusive license to their work to put those articles in the repository; authors retain copyright and are free to publisher their work anywhere they lack as long as the publisher will accept that copyright is subject to this prior license. The decision is a strong affirmation of the value of open access to academic research, both to the public and to the academy itself.
Lots of commentary on these two decisions is available. This comment by William Patry addresses both, and there is an excellent roundup of information and comment on the Harvard decision here on Open Access News and on Mike Carroll’s blog here. I have written about the NIH mandate here.
Copyright reform suggestions, part 1 February 12, 2008
Posted by Kevin Smith in : Copyright Information Notes, Copyright Issues and Legislation, Technologies , add a commentI am a little ashamed to admit that, at the American Library Association meeting last month, I learned about a very problematic provision of the
For some odd reason, Congress crafted an exception for sound recordings that were made prior to February 15, 1972. Those recordings, instead of being subject to the normal copyright rules, continue to be protected by state law until 2067. State protection, which was usually created by judges rather than legislators, often allowed perpetual protection for unpublished works, but were not designed to deal with other materials. Leaving these historical sound recordings subject to the patchwork of state laws has meant that, in fact if not by intent, these historical materials are subject to the most restrictive of state laws and for all practical purposes unusable until 2067. For the earliest recordings, which date from the 1890s, this amounts to a copyright term of over 170 years. Since even preservationists are reluctant to make copies under this bizarre and uncertain regime, many recordings are locked up by copyright for longer that the usable life of the medium in which they are recorded; they will be irretrievably lost before they are available in the public domain.
So here is an opportunity to reform our copyright act to mitigate one of its most pernicious effects – the unnecessary loss of our cultural heritage merely to time and decay – without harming anyone’s economic interests. In fact, compilations of some of these old recordings that are available for sale in other countries but technically infringing in the
Blogging law February 7, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Uncategorized , 2commentsTrying to catch up on interesting developments over the past few weeks, I note the very interesting and wide-ranging discussion going on across several blogs dealing with legal scholarship about the value of blogging in that discipline. It seems to have started with several reports (here on Balkinazation, here on the Volokh Conspiracy, and here on Law Librarian Blog) about the rapid increase in citations to blogs in the legal literature. Lots of interesting questions are raised here. Why are these citations growing? Jack Balkin writes about the assimilation of blogs into the “larger universe of legal writing.” Is there a different ethic and etiquette for citing blogs in scholarly articles? Eugene Volokh suggests that there is and provokes a fascinating chain of replies. His discussion of the ethics of citing unpublished sources continues here. And finally, is this good for scholarship, or the beginning of the end? Brian Leiter writes a long piece on “Why Blogs are Bad for Legal Scholarship.” In spite of the apparent “liar’s paradox” here – telling others not to read blogs in a blog – Leiter makes an interesting argument about the importance of mediation and some way to test and evaluate the expertise of the one whose writing is being cited.
It is also interesting to speculate on why legal scholarship seems to be the discipline in which this conversation is taking place. When I first read about it, I wondered if the unique aspects of legal scholarship, where most of the journals are edited by students rather than by full-time academics, might lead the professorate to feel less proprietary about their publications and thus more willing to experiment outside of the traditional confines of scholarship. Leiter suggests a somewhat different spin on this observation when he writes: “The problem is that reputational effects in the legal academy are mediate by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts… First, one of the major venues for legal scholarship remains the student-edited law reviews” (the second institutional problem is the “journalistic reception” of legal ideas). For Leiter, the problem to which this lack of expertise contributes is the “availability cascade” – “an opinion that appears to be informed gains credibility by virtue of being repeated and thus becoming current in discourse.” For its discussion of this phenomenon alone, Leiter’s piece is worth reading, even while recognizing that blogs are certainly here to stay and scholarship is going to have to find ways to deal with them.
Where does a publication contract fit in? (Final widget) February 5, 2008
Posted by Kevin Smith in : Copyright Information Notes , 2commentsA publication agreement with a book or journal publisher is a contract between the author and that publisher; it may be either a copyright transfer or a license. The most important point in this regard is that all authors should read any publication agreement before they sign it to determine which way it addresses copyright.
Most publication agreements are transfers of copyright, but most also allow authors to retain certain rights after they have transfered their copyright to the publisher. Authors should look carefully to understand what rights they are keeping, and remain aware that, if not retained, all rights are given to the publisher in a copyright transfer. One important right that authors usually want to retain is the right to use their own work in their teaching, including making copies to distribute to students or to put into coursepacks or online systems. At least as important is the right to use one’s own work in future publications, such as edited collections or proceedings of a conference at which the publication was presented.
The right to use a work in later scholarship brings up another issue — the non-compete clause. Sometimes contracts for book publication will contain a clause saying that the author will not publish something that competes with the book under contract. These clauses can seriously inhibit a scholars right to continue publishing research in the same field. Since most scholars do not want to abandon a whole field of research after one publication, it is important to read agreements carefully to identify and negotiate over any non-compete clauses and to retain rights to use articles in future publications.
Another right that is becoming very important is the author’s right to post her work on a personal web page, in a disciplinary repository or in an institutional repository. Again, many publication agreements are allowing authors to retain this right in some form, but they often restrict what version of the article can be used or when the article can be placed in an open access database. So for this reason also, it is important to read a publication contract carefully.
When a publication agreement is a transfer of copyright, all these rights may be retain, but if they are not specifically mentioned, the author no longer has them. A transfer gives everything to the publisher unless it is explicitly retained. A license, on the other hand, gives only the right of first publication to the publisher, and the author retains all the rights that are not explicitly included in the license grant. Obviously, a license for first publication is the form of publication contract that is most beneficial to the authors, since it gives them maximum flexibility to use their own work after publication has occurred. This kind of contract is not the norm, but some publishers are now willing to accept a license for first publication, so many authors will find that it is at least worth asking.
