Getting off the copyright merry-go-round May 17, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , add a commentCongress has been talking a lot recently about the farm bill and war spending. But amidst all that rhetoric and wrangling, some copyright work has also been done in the past two weeks. For one thing, the House passed the so-called PRO-IP bill last week, fortunately without its most troubling provision. One of the major provisions of that bill as proposed was an amendment to the copyright law that would have allowed much larger damage awards for infringement. As I wrote some while ago, this was a huge grab at more money for the recording industry especially, but that provision was dropped in the House-approved version. Now what PRO-IP would largely do is further bloat the federal bureaucracy (in a way opposed by the Justice Department) for IP enforcement.
Perhaps balancing out this sop to special interests, Congress has also been working on the Orphan Works bills, discussed earlier here. The Senate version, called the Shawn Bentley Orphan Works Act, was unanimously reported out of the Judiciary Committee on May 15, although it is clear that negotiation about some of its provisions is still going on. The House version, which includes the objectionable “dark archives” provision, is still being marked up in the House Judiciary Committee; whether that provision will remain is something I just don’t know right now. But I do know that several issues remain in controversy in both houses, specifically the language addressing state sovereign immunity and the role of Copyright Office certified statements of “best practices” in defining the scope of a “qualifying search” that would afford a user the shelter of the orphan works reduction in liability.
Amidst all this give and take about copyright, the question ought to be asked whether any of these incremental changes will really make much difference. From the perspective of higher education, at least, there is a sense of tinkering around the edges of a severely broken system. PRO IP simply creates more bureaucracy and further trumpets the “sky is falling” approach to copyright of the entertainment industry. Orphan works is an area in which real reform is sorely needed, but one can legitimately ask if the bills being considered would actually work; the bills may be so laden with expensive and unnecessary hoops to be cleared that they will not make truly beneficial uses of orphan works any more possible or likely. Another example of this futility may be found in the recently concluded work of the Section 108 Study Group: although the Study Group’s report raises some interesting and key issues, it was only able to reach agreement to actually recommend minor changes that will not make much real difference. Instead of waiting for reforms that never come in any helpful way, it may be more fruitful in higher education to ask ourselves how we might simply get off the copyright merry-go-round.
The answer, of course, is in open access to scholarship, and there may be some recent developments that point a direction for encouraging open access as an alternative to the current system of copyright protection for commercial monopolies. An article in this month’s College & Research Libraries News by David Lewis, Dean of the Library at IUPUI, forcefully asserts that it is time for libraries to stop putting more and more money into the bloated and dysfunctional journal publishing system and to move funds to support open access infrastructure and venues. His article proposes specific steps that libraries can take to move off the endless cycle of higher journal prices that leads to less money for monographs and overall reduced access. He is suggesting an important step to get us off the copyright merry-go-round.
A major obstacle to open access, however, has always been resistance from faculty, for whom the system usually seems to work just fine. Tenure and promotion have been built around the core of commercial publishing, and it is very hard to communicate the reasons for moving away from that core. Until now. With the lawsuit filed against Georgia State by three major publishers, a real opportunity has arisen to show faculty members that giving copyright away to publishers primarily interested in share holder profit, not dissemination of knowledge, is no longer in their own best interests. At its root, this lawsuit challenges what faculty members, who provide the content for scholarly publications, want to be able to do with their own work and the work of their colleagues – communicate it to students. If the copyright system determines that they cannot do that without paying yet more money on top of the exorbitant prices charged to buy the works back initially, perhaps there will be a general recognition that they should not freely give that content away in the first place. A return to first principles would remind faculty that these works belong to them unless and until they choose to give them away, and that they are free to negotiate the terms of any transfer of copyright. Ironically, this lawsuit’s frontal attack on a core value in higher education may prove to be the best weapon yet to move scholarship off the increasingly dangerous and unstable copyright merry-go-round.
Happy Birthday and the best interests of orphan (works) May 9, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation , add a commentI have been traveling a lot recently, and I use time on airplanes to catch up on articles I want to read. As always, Bill Patry’s blog is a great source for citations to interesting topics, and I was particularly taken by an article he recommended recently – “Copyright and the World’s Most Popular Song” by Robert Brauneis of the George Washington University Law School. Brauneis’ article is a great airplane read; a tour de force of historical research and reasoning that dissects both the history of the song “Happy Birthday to You” and the persistent claim that the work is still protected by copyright. His detailed discussion of the tangled history of authorship and its relation to the various copyright acts and ad hoc term extensions that occurred since the original composition of the tune (at least) in the 1890s beautifully illustrates how difficult establishing the status of older works is now that copyright term has grown so long, well past the memory of any person alive at the work’s creation.
This problem of establishing the rights in a very old work makes Brauneis’ article especially interesting at a time when Congress is considering ways to address the issue of orphan works – older works that are still protected for which no rights holder can be found. Brauneis mentions the orphan works proposals only in passing, but his investigations, and the lessons he learns from those inquiries, help clarify why orphan works are so problematic and suggest new directions for consideration of those problems.
First, as should already be clear, there is the problem that, as copyright term gets ever longer, it becomes harder and harder to identify authorship, trace rights, and even verify if the correct rights holder registered the work (this is very significant for works protected under the 1909 copyright act, but it could also be important if an infringement action were brought regarding a more modern orphan). For the song “Happy Birthday to You,” Brauneis is dealing with a relatively small and identifiable group of authors, yet the problems of identifying who wrote what and who should have registered which works are very knotty indeed. For genuinely orphaned works, these problems only multiply. As Brauneis points out, the rather scanty record-keeping efforts of the Copyright Office contribute to the difficulties in this area. He holds out hope for more comprehensive record retention in the digital age, although that is happening very slowly, and it is worth noting that the orphan works proposals also contain some requirements of additional recordkeeping to make diligent searching for rights holders a little bit easier.
Brauneis also notes the disincentives that are present to discourage potential users from challenging a dubious claim to copyright. In the case of “Happy Birthday to You,” there is substantial evidence that the song is not protected by copyright any longer, in spite of the myth, ubiquitous in copyright discussions, that it is. Nevertheless, the song generates $2 million in royalties for the company that claims to hold the rights. Since no single user pays a great deal for the rights, the users have little way to identify each other or act in concert, and blanket licenses make it difficult to distinguish exactly what one is paying for in any case, the song continues to generate a great deal of income and the public is denied a small but popular piece of its cultural heritage. This is not quite the same problem, of course, as that which prevents use of orphan works, but it is another example of structural difficulties in copyright that stifle creativity and learning.
Finally, Brauneis makes a fascinating point about the lack of any mechanism in copyright for obtaining the kind of prescriptive rights that are available for persistent (mis-)users of real property. When a trespasser uses land in a way that is continuous, open and “notorious” for a number of years, they may gain a prescriptive easement to use the land or even take title through adverse possession. When a copyright owner fails to enforce his or her rights, however, even if it fears that those rights would not stand up in court, no such legally cognizable rights are gained by the user. While one user may “infringe” without consequence (as many appear to do with “Happy Birthday to You”), the putative rights holder may continue to collect royalties from all those others who do not know about the dubious claim. All of the solutions proposed for the orphan works problems are merely attempts to mitigate the consequences for a potentially infringing use by reducing the available damages; Brauneis’ article raises the fascinating suggestion that that problem and others might be better addressed by allowing users to gain a legally recognized right in a work when and if they use that work in an obvious and long-term way and the copyright owner elects, for whatever reason, to “sit on her rights.” Such a solution would certainly expanded the cultural commons, although it might be useful in only a relatively few situations where the risk of litigation from a rights holder was very slim ( thus a “reasonably diligent search” would still be necessary). Most promising, however, is Brauneis’ comment that this kind of prescriptive rights approach to the problem of missing or inactive rights holders could be imposed judicially, rather than having to depend for a solution on a distracted and easily influenced Congress.
Access to legal scholarship May 5, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farI have written several times before about scholarship in the field of law (here, for example, and here). For a variety of reasons, legal scholarship is an excellent laboratory for experiments in changing the traditional structures and economics of scholarship. Both open access and informal forms of scholarship have been more readily adopted and more quickly influential in law than in other fields. The unusual structure of most legal scholarship is a partial explanation for these facts, but many of the experiences and observations made in the legal arena offer substantive lessons for scholarship in other fields.
Nowhere are these experiences and observations better synthesized than in a recent article by Richard Danner, Ruffy Research Professor of Law and Associate Dean for Information Services at
One of Danner’s observations particularly struck me when I read this article, and that impression was confirmed by a conversation I had this week with several librarians. Contrary to the oft-repeated claim that open access will inevitably lead to loss of subscription income for publishers, Danner documents the experience of
Overall, Danner’s article is a masterful analysis of the structure of publishing in a particular field and how the “access principle,” a concept taken from John Willinsky’s book of the same name, could transform a field of scholarship. In spite of the oddities of legal scholarship, Danner is very successful at offering both an analysis and a call to action that deserve to be translated and applied in other fields.
