How bad are the proposed Orphan Works bills? April 28, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 2commentsTwo proposals on Orphan Works were introduced in Congress last week, one in the House of Representatives and a slightly different one in the Senate. Both bills are more complex than the version introduced and then largely ignored by the 109th Congress, but the core principle is the same – a remission of most of the available remedies for infringement if a user makes use of an orphan work (a work whose copyright owner can not be found) after a reasonable diligent search. The bills are designed to greatly reduce the risk for libraries and many others who want to make digitized versions of older, but still copyright protected, works available to the public. In some sense it is an attempt to balance the outlandishly long term of copyright with the reality that a huge percentage of works are not economically exploited at all after their first few years of existence.
The big question is whether either bill actually succeeds, with success defined as a reasonable likelihood that a thousand flowers will bloom from the soil of orphaned works that otherwise would not have been seen for many more years. Opinion in the blogosphere is mixed; Public Knowledge, which was deeply involved in helping to draft the bills, is guardedly hopeful. Georgia Harper, on the other hand, writes this deeply pessimistic blog post that declares the bills “DOA. Too late even for last rites.” The issue, as I will discuss it, revolves around how burdensome it would be for libraries to actually rely on the procedure outlined in the bills to support digitization projects. Three issues seem to need discussion.
First, there is the requirement in the House bill that users of orphan works file a “Notice of Use” with the Copyright Office that would be maintained in a “Notice of Use Archive.” The notice would have to contain a description of the search for an owner that was made by the user, as well as lots of identifying information and a certification of good faith. This requirement is only in the House version, and it renders the Senate version much more appealing. A database of uses raises the specter of copyright owners fishing for defendants in a stocked pool, for one thing. But, realistically, this seems pretty unlikely. First, access to the database would be restricted by unspecified regulation of the Copyright Office. More importantly, if a diligent search really has been made (and libraries almost certainly would be doing so) most copyright owners who would be on the lookout for infringement would have been found. More problematic is the burden of fulfilling this requirement, a burden that would be hard to measure until (and if) a version of the bill with this requirement is in place and being used.
I certainly would rather this not be included in a final bill. But I also know that librarians are investing a lot of time, labor and money in digital collections as things stand now. I doubt that even a burdensome reporting requirement will discourage the commitment to greater access that drives these projects, especially when the content is something that could genuinely benefit scholarship and that has been previously unusable.
A second potential problem is the instruction to the Copyright Office to develop “best practices” for different kinds of content that would have to be followed for a search to qualify as reasonably diligent. Georgia Harper thinks this is a guarantee that the content industries will write the rules, and she may be right. Unlike the case of proposed file-sharing legislation, however, such a role for industry is not actually specified in the bills. In any case, I think most librarians working on digital projects would welcome the guidance of best practices, even if the door to using orphan works were opened only a little bit. So much of our collections are unavailable for use as things now stand, and we have such high certainty that many of those works genuinely have no one to care about how they are used, that even restrictive rules for a qualifying search would advance the cause of digital access. Again, I think many libraries will take the necessary trouble when the content and the opportunity seem worthwhile. Restrictive rules will help only small digitization projects, of course, which may be the point, but even so the digital environment could be greatly enriched.
Finally there are the added rules for pictorial, graphic and sculptural works. These are the categories whose owners have most vocally opposed orphan works reform because they fear that it will be too easy to call these works orphans. The problem is that most such works carry no obvious notice of the copyright owner. The proposed bills specify that this lack by itself does not make the work an orphan, and it directs the Copyright Office to certify a database “to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection.” Such a database would actually probably be welcomed by libraries, since it would both facilitate use of orphan works and provide a source for needed metadata. The big problem is that such a source does not seem to exist right now, and creation of it would delay implementation of the orphan works exception for as much as 5 years. Since images and graphical works are a large part of the collections libraries would like to digitize, this kind of delay would be a huge blow to the effort to give the public access to much of our unexploited cultural heritage.
Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.
“It’s the links, dummy” April 24, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Scholarly Publishing , 3commentsEvents of the last week have delayed me from writing about a conference held at the Duke Law School on April 12, but I do not want to forget to share what was a very exciting and stimulating experience. Scholars from the US and the European Community gathered to discuss “Copyright Limitations and Exceptions: from access to research to transformative use.” If I had any criticism of the conference, it was that too little time was actually dedicated to discussing the legal details of limitations and exceptions to copyright law under the Berne Convention (especially article 9(2)) and the TRIPs agreement. But that flaut, which would bother only a small number of fellw copyright geeks, was more than made up for by the presentation about what exciting new possibilities copyright limitations and exceptions, if handled properly, could foster for scholarship.
The quote in my title came from Prof. James Boyle of the Duke Law School, explaining how the very links that create value on the Web are still illegal for much of scientific literature, even when the texts are available in digital form. To use an image suggested by another Duke Law professor, Jerome Reichman, the “web” of science today resembles the Rhine river in medieval times — it is so clogged with demands for toll that progress is impeded. Just as merchants had to stop over and over again to pay each castle owner in order to be allowed to continue sailing the river, today researchers must stop at innumerable “toll gates” to gather the research they need. This is why, as Boyle said, “a picture of an article” is not enough; what scientific research needs is a “semantic web” of linkages that allows research to be structured and shared. Boyle explains this concept, and the legal and economic obstacles to it, in this column from the Financial Times, “The irony of a web without science.”
This concept of a true “web of science” was developed more fully by John Wilbanks of the Science Commons. He demonstrated very compellingly the vastly wasteful research process that is determined by the siloing of research as it now exists on the web by show how one would approach the task of finding research about a particular protein in various databases, including Google and PubMed. Then he showed what a true semantic web approach could produce; a much more targeted and efficient search, even when conducted (as it currently must be) over a relatively small field of content. His conclusion was that keyword searching is less and less useful for research in the life sciences and that the use of “ancient tools” like Google for such research is largely dictated by the access restrictions created by an outmoded system of law (copyright) and an outmoded economic model for publishing. Finding ways to loosen the stranglehold of copyright law over the research web should be a primary goal of all discussions of copyright limitations and exceptions, while the search for new ways to disseminate scholarly research should occupy the attention of every scholar who hopes to take advantage of the tools offered by the 21st century.
Temperence is a virtue April 21, 2008
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , add a commentI am not much of a drinker, but I guess I can be intemperate in other ways. The Chronicle of Higher Education called my last blog post, about the lawsuit filed against Georgia State University, “fighting words.” I think that is journalistic hyperbole, but I do want to take the opportunity to make a couple of clarifying points and direct readers to some of the healthy debate that is going on.
First, about the free-rider problem. Sandy Thatcher, who is Director of the Penn State University Press, explains the issue as publishers see it in this reply to the quote from my post in the Chronicle. I want to be clear that I am not necessarily defending the practices at Georgia State; I cannot do so because I only know one side of the argument. One of the advantages a plaintiff gets in a lawsuit is a fairly long period to make their case publicly while the defendant is constrained from replying. But even if “free-riding” applies to the practices at GSU, it is important to note that our law tolerates and even encourages some degree of free-riding on intellectual property as a necessary condition to further creativity. That is the logic behind a long list of exceptions and restraints on the exclusive rights conferred by both copyright and patents, including fair use. My point about free-riding, however, is that it occurs at several places in the system of academic publishing. If GSU free-rides on the publishers, the publishers have likewise taken a unpaid ride on the labor of the University and its faculty when it acquired content from them without payment. Because this free-riding occurs at the very base-point of scholarly publishing, it really cuts off any argument against whatever is happening at GSU based on the incentive system copyright is supposed to create. The incentive for creation that copyright is supposed to offer simply does not exist because publishers absorb all the profits without passing them on to authors.
An exchange in the comments on my own post discusses this point in some depth. Monica McCormick argues that there is still an incentive system for authors, based on two points. One is the small amount of money that is usually paid to academic authors who publish monographs, and the other is the “stability” of the publishing system which advantages authors through promotion and tenure. Regarding the first point, there are some interesting replies from Prof. Kathleen Wallace, whose article “Marketing Ideas” addresses the issues of the scholarly communication system from the perspective of neither librarian nor publisher, but faculty author — the very person about whom we are arguing. So I leave that part of the incentive argument to Prof. Wallace and hope her article will generate some helpful discussion. As for the “stability” of the publishing system, I would note first that this advantage, insofar as it exists, does not seem to be a necessary creation of the copyright system as it is currently put into practice. It is certainly possible to image an equally serviceable system that does not rely on the uncompensated relinquishment of rights. Also, what stability there is in the system — based on effective evaluation and strong reputations — is partially itself the result of uncompensated labor done by faculty members working as reviewers and editors.
Finally, stability in scholarly publishing is currently very much in doubt, largely because of the astronomical prices changed by commercial publishers for academic journals. As more and more of a university’s budget goes for journal content, which often must be purchased repeatedly in different formats, less money is available to serve as incentive in other parts of the system. It is harder and harder to publish a scholarly monograph because sales have dropped so low; a decline that is directly attributable to funds being drawn away from monograph acquisitions by journal prices. McCormick’s point that we should distinguish between large commercial publishers and smaller academic ones, as well as between monograph and journals publishers, is exactly right. The problem is that the actions of the large commercial publishers — and we have to include Oxford and Cambridge Press, who are plaintiffs in the GSU suit, in this category even though the maintain a nominal affiliation with universities — are destabilizing the remainder of the system. It is simply not the case that all would be well of academics would just stop “pirating” their own works from victimized publishers.
Lastly, I want to comment on how all this should play out in the GSU lawsuit. If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor — the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for “thick” or “thin” protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use. After all, it is, uniquely, the creators themselves who are being sued here and who are asking for a space to make fair use of their own works. The court must determine what that space will look like, but it should be reminded that scholarly publishing simply does not function the way other systems of intellectual property creation do.
Trying to sue State U April 16, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Scholarly Publishing , 8commentsTwo interesting lawsuits came to my attention recently, one decided in February by the federal district court in Los Angeles and the other just filed in the district court in Atlanta. The new case involves a challenge by three publishers to the electronic reserves practices at Georgia State University, so it has direct relevance for many of the readers of this blog. But taken together with the LA case, there is a fascinating question raised about whether it should be possible to sue state institutions for violations of federal law.
The case out of California, Marketing Information Masters v. the Board of Trustees of California State University reaches a rather predictable result in dismissing an allegation of copyright infringement on the grounds that states and state institutions are immune from lawsuits by private individuals and corporations. Congress has tried to change this doctrine in regard to copyright by adopting section 511 of the Copyright Act in 1994, but the courts keep brushing that provision aside. William Patry comments negatively on this trend here, while Georgia Harper partially defends it here. But what is really interesting is that the district court in Marketing Information Masters allowed the suit to go forward after dropping Cal State as a defendant by leaving intact the claim against the specific university employee named in his individual capacity. Pretty frightening stuff for state university faculty.
If we now flip forward to the suit filed yesterday against Georgia State University, we have to wonder if the same sovereign immunity problem will lead to dismissal. The four university officials are named only in their official capacity; no one claims they actually infringed copyright themselves. So how will this case avoid being dismissed? The answer seems to be in one of the few exceptions to sovereign immunity, the doctrine that one can sue state officials in their official capacity if one is seeking only injunctive relief — an order to stop the infringing activity — rather than money damages (the Ex parte Young doctrine). The complaint filed against GSU takes exactly this tack, seeking only an injunction to stop the activity going forward, not damages for alleged infringement in the past. On that basis, we might actually get a decision about the meat of the claim, that electronic reserves are almost always infringing if the universities do not pay for permission.
This claim, if successful, would increase student costs for educational materials dramatically as schools would have to pass on the costs for permissions in addition to the money already spent when they financed the original research, purchased the resultant articles and then, often, purchased them again in digital format. If publishers get their way a fourth payment would be required, and it would come straight out of students’ pockets.
The complaint against Georgia State acknowledges fair use, as it must, but it relegates it to a tiny fraction of situations, none of which can realistically be expected to occur on a modern college campus. In effect, this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.
A little bit of attention to the economics of scholarly publishing quickly undermines the claim in this complaint that, without permission fees for electronic reserves, the incentive system of copyright will be undermined. No monetary incentive currently exists for the vast majority of academic publishing, from the point of view of faculty, yet academics keep writing. There is no evidence at all that this well of free content will suddenly go dry if publishers are not able to collect an additional income stream from that well. If this suit goes forward in spite of sovereign immunity, that should be the issue on which the court focuses its attention.
A model for academic publishing April 14, 2008
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , add a commentLast week BioOne unveiled its new “Model Publication Agreement,” with an announcement that ought to generate more attention than it has. BioOne is “ a collaboration between scientific societies, libraries, academe and the private sector [that] brings to the Web a uniquely valuable aggregation of the full-texts of high-impact bioscience research journals.” The decision to create a model publication agreement grew out of the perceived need to help some of its publishers, especially the scholarly societies, deal with the legal complexities of publishing in the digital age. The model agreement was drafted for BioOne by an attorney for an intellectual property firm in
The core of the model agreement is a double license; the author grants to the publisher both a time-limited exclusive right of first publication and a perpetual, non-exclusive license to publish, distribute and sublicense. Subject to these two licenses, copyright is retained by the author. The model agreement contains a number of options or “fill-in-the-blank” points where publishers can customize the license to fit specific conditions. As an attempt to lower the transaction costs associated with publishing, and as an equitable balancing of needs that do not have to be in permanent competition, this is an excellent model to be followed in academic publishing.
It is unfortunate but predictable that one of the most immediate responses from the publishing community was a very revealing demur to the BioOne model agreement project. A university press director posted his objections within two days of the announcement; his position that the agreement is inappropriate even for academic publishers exposes the growing gap between academic publishing and the values of the academy that supports it.
One complaint is that, without an exclusive right in the published works, the publisher will have no standing to sue putative pirates who want to steal academic work. First, we should note that there will still be a rights holder under the model agreement who can enforce the copyright – the author. The problem is that the author’s interests not only do not coincide with the publisher in some cases, they sometimes conflict. The objecting press director notes that the author may actually benefit from wider distribution by a “pirate,” so one wonders why authors should continue to sign away copyrights to organizations who want to wield them as litigation weapons contrary to the authors’ interests. Copyright is supposed to be an author’s right; its genesis as a publisher’s right (associated with their role in censoring unpopular content) is centuries out of date.
And this brings us to the second revealing question about this objection – who are the pirates we are supposed to fear enough to give up copyright entirely to publishers? In fact, the only “pirates” against whom publishers tend to threaten litigation are the authors themselves and their institutions. The “theft” these publishers want to control is faculty authors passing out copies of their work to their own students or to others on campus, to their colleagues at other institutions, and via their websites. No one seriously expects large-scale republication of scholarly content for profit; all that is being defended by these grabs for exclusive copyright transfer is the traditional, and increasingly expensive, subscription model of access. If there is real danger that subscriptions will be canceled because authors retain their own copyrights, and this has never been shown to be the case, all it would illustrate is that this traditional business model has runs its course and no longer serves the interests of those it was created by and for.
