Copyright should be an author’s right (part 1) November 4, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , 1 comment so farIt seems like such a simple point. And the rhetoric of authors’ entitlement to the fruits of their labors has always been prominent in copyright debates, although it was usually on the lips of printers and publishers whose real concerns were much different. Two very different articles have once again led me to reflect on the importance of keeping authors (broadly defined as anyone who actually creates the intellectual property that is subject to copyright) at the forefront of copyright discussions and decisions.
First there are these stories about file-sharing of scholarly articles amongst medical researchers – one from the Chronicle of Higher Education here and the other from Techdirt here. The Chronicle is particularly scolding in its tone, and it evokes the misnomer “piracy” in its title. But aside from that commonplace rhetorical strategy, I want to emphasis two points raised by these reports.
First, the estimate of how much money journal publishers would lose by this practice, which the Chronicle sets at $1.4 million per year, should be taken with a ton of salt. As has become very well known in recent times, these estimates are usually built on false assumptions. The recording industry, for example, often assumes that each unauthorized song download costs the industry the full price of a CD. But there is no reason to believe that that is true; the consumer might be unwilling to pay for an entire CD to get one song and prefer to forgo the music altogether or pay to download a single track if the free option were not available. Likewise, an article shared over a peer-to-per network does not translate to a lost subscription or even, necessarily, to a lost per-article fee. We just do not know how much access would be worth to a consumer, and the copyright monopoly has prevented us from ever getting reliable market data.
Second, we should remember that there is a big difference between music file-sharing and the swapping of academic journal articles. In the latter case, academics are on both ends of the transaction; they are the authors as well as the consumers of the articles that are exchanged. If it were not for the academic practice of giving away copyright to publishers, this would be no big deal at all. Because of the lack of a financial incentive for academic authors, file-sharing of academic articles causes no economic lose to producers. What makes it newsworthy, and, from the academic point of view, necessary, is that copyright is held by entities other than the authors. By transferring copyright wholesale, instead of granting temporally-limited licenses to publish, academic authors have help create the access problem they are now trying to solve with file-sharing networks. That doing so is potentially an infringement of copyright is evidence of how harmful this practice has become to the fundamental mission of colleges and university.
And this gets me back to the point about copyright as an author’s right. For copyright to function, it must serve the needs of creators; if it does not, its fundamental purpose, which is to create incentives that encourage authorship and other forms of creative expression, is defeated. When academic authors give away their copyrights, and then have to resort to “illegal” file-sharing to get access to fundamental research, the copyright system has broken down. Only by reclaiming their copyright entitlement can academic solve this problem.
In a few days I will look at this problem of copyright as an author’s right from a very different perspective, based on an article about the finances of F. Scott Fitzgerald.
Through the copyright looking glass October 29, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom , add a commentIt is getting both monotonous and annoying to write repeatedly about badly reasoned court decisions in the area of copyright. Unfortunately, when they directly impact higher education, we cannot ignore these pernicious errors by our federal courts.
Earlier this month, a district court in Michigan handed down such a decision in yet another “course pack” case in that state. There was a twist this time, however, which the court chose to ignore. In this case, brought by Blackwell, Elsevier, Oxford, Sage and John Wiley publishers, the copy shop received photocopied course packs from professors, than handed them to individual students who made copies for their own use. Amazingly, the court found that this practice constituted direct infringement by the copy shop of the copyright holder’s exclusive rights of reproduction and distribution.
The problem, of course, is that no employee of the copy shop took any action that actually implicated either of these rights. The shop, owned by Excel Research Group, actually made no copies of any of the material over which the suit was brought. Judge Avern Cohn contemptuously dismisses this point, asserting that “the fact that the students push a button on a copier in the manner described is of no significance.” But such facts are exactly what are significant in legal reasoning, and the judge offers no principled reason for ignoring this fact other than his apparent desire to see the plaintiffs win their case.
Even more troubling was the treatment of the distribution right, which the court said was infringed by the shop handing out the course packs it was given. For this to be true, those copies would have to be unlawfully made, so that the doctrine of first sale did not apply to them. But Judge Cohn made no such finding; he simply noted that the packs were brought to the shop by professors who assigned the readings to their students. Again, the judge seems disinterested in either the details of the law or the facts before him; he simply appears anxious to arrive at the conclusion he thinks is desirable.
This startlingly bad reasoning serves a purpose for both the court and the publishers, of course. It is the only way, albeit one that requires ignoring both law and facts, to hold the copy shop liable without also saying that the copies made by faculty members and students were themselves infringing. The shop’s liability, if any, is clearly contributory to direct infringement by students and their instructors. But the court did not want to hold this way, and I am sure the publishers did not ask them to. To find direct infringement would be so obviously to attack the basic necessities of education, and would so clearly contravene the intention of Congress when they included “multiple copies for classroom use” in the list of examples of fair use, that it was too politically dangerous. And publishers would fear, no doubt, a decision that would suggest to their customers that their products truly are unusable. So rather than find direct infringement by teachers and students so as to hold the copy shop indirectly liable, the court rendered an incoherent decision in which Excel is held liable for directly infringing copyright without making a single copy.
There is some excellent analysis of this decision by Peter Hirtle here and by Shourin Sen here.
The result of this case is similar to what we have been decrying for some time now — a creeping expansion of the exclusive rights in copyright way beyond the boundaries Congress set for them. Here that expansion has been abeted by a judge who apparently sees his role as a kind of knight-errant, righting every wrong he perceives, regardless of the legal foundation.
Technological neutrality as a rhetorical strategy October 18, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Technologies , 1 comment so farThere has been some really good attention paid recently to the issue of how our linguist choices really frame the debates about copyright law and, often, prejudge them. In his new book, William Patry (who will be speaking at Duke Law School on October 22) devotes quite a bit of space to analyzing the language of moral panics and the metaphors employed by the copyright industries to skew an honest debate. In a June 2009 article called “Why Lakoff Still Matters: Framing the Debate on Copyright Law and Digital Publishing,” Diane Gurman makes a similar plea for those who oppose the ever-expanding reach of copyright to create their own frames that would balance the rhetoric of theft and piracy.
Although it is often easy to spot the linguistic excess coming from the copyright industries, a recent letter to the Senate Judiciary Committee from the National Music Publishers Association took a more subtle, and even more dangerous, approach. There is a CNET news story about this letter here. The theme of the letter, that copyright law should be technologically neutral, seems benign enough, but the work that the music publishing industry tries to get that rhetoric to do is very troubling. The thrust of this “technological neutrality” appeal is a claim that music publishers should collect a fee for a public performance of a musical composition every time there is a digital download of a piece of music.
To call this grasp at a wholly new income stream “technological neutrality” shows amazing nerve; it is really the opposite of such neutrality. Music publishers do not collect a public performance fee when a CD is sold because there is no way to prove or assume that a public performance (as opposed to a private one, over which rights holders have no control) will take place. Why should a digital download be different?
Fred von Lohmann of the Electronic Frontier Foundation, who is quoted in the article, suggests that this is just a turf war between different rights societies over who will collect a fee and, hence, get a “cut.” He is surely right about that, as he is when he points out that copyright law has never been technologically neutral. Some exceptions (such as the section 108 library exceptions) apply only to certain technologies or treat different technologies differently. There is a special rule, after all, for digital audio tape. But pointing put the triviality of this use of “technological neutrality” may not be enough. We should notice something really pernicious that is happening behind this smokescreen.
The language of copyright neutrality has quite a bit of appeal for copyright policy makers. The fantasy of a law that adapts automatically to new innovation appeals to a legislative sense of economy. That attraction is being used, in this letter, to attempt to vastly expand the scope of the exclusive rights protected by copyright. And this is not the first time. We should remember that copyright owners do not get absolute control over their works, only control within the scope of the enumerated rights.
A single line in the CNET story really encapsulates the problem here — “composers, songwriters and publishers are asking for a guarantee that they will get paid for a public performance even if there isn’t a public performance.” In this letter, the apparently benign call for technological neutrality is being used to disguise an attempt to enlarge beyond all reason the scope of the public performance right. This is not the first effort to use that right to expand the reach of the copyright monopoly. As I wrote about here, the debacle regarding the Kindle text-to-voice feature was based on an attempt to expand “public” performance deeply into the private use of new technologies. For another example, see this report on the unsuccessful attempt recently by music publishers to collect a fee for every ring-tone “performance” of copyrighted music. So the desire to expand the reach of copyright control is well-established, what changes is the disingenuous rhetoric behind which these efforts are hidden.
I can’t define it, but I know it when I see it October 13, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Licensing , add a commentNo, the title, a paraphrase of a famous remark by Justice Potter Stewart, does not refer, in this instance, to pornography, but to non-commercial uses of copyrighted works.
One of the persistent criticisms — or perhaps reservations is the correct word — about the Creative Commons licensing scheme has been that one of the major terms used in CC licensing — non-commercial use — is too vague and subject to varying interpretations. The core purpose of the Creative Commons, of course, is to allow copyright holders to license their works in a way that assures subsequent users that they can make use of the works within defined parameters. Two of those parameters are attribution, which is protected by CC licenses even though not adequately ensured under U.S. copyright law alone, and, often, a restriction to non-commercial uses. But if there is no agreement on what it means to call a use non-commercial, then there is a real problem with the licensing scheme; it would fail to provide that assurance, which reduces the need for transaction costs involved in seek permission, that is its basic purpose.
Now the Creative Commons has released a voluminous report it commissioned to study this potential problem. Although “Defining Noncommercial” is a massive document that I have not read in its entirety, it is clear from the executive summary and a perusal of the survey data that the situation is not really as serious as some feared. The report suggests that although a comprehensive definition of noncommercial remains elusive, there is not a major problem with its use in CC licensing. Basically, most people seem to agree that “they know it when they see it.”
Two specific findings in the report struck me as particularly supportive of the continued use of “non-commercial” as a licensing term. First, the marketing firm that did the research found that there was broad agreement on what non-commercial meant. Most creators and users agreed that a use that made money for the user or involved advertising was commercial, while those that did not, were not. This broad agreement helps explain why the millions of items licensed under CC licenses have generated so little litigation in the eight years since its founding.
Even more interesting was the finding that showed that when creators and users disagreed about whether or not a use was commercial, it was the users who were more likely to err on the side of seeing a use as commercial, and thus not covered by an “nc” license. The reason this is such an encouraging finding is that it suggests that users will ask permission in doubtful cases, even when the creators (who hold the rights) do not think permission is needed in the particular situation. Thus CC licenses can reduce the transaction costs involved in seeking permission, but they will not eliminate all need for permission and users are likely to ask when they are in doubt. CC licensing, of course, facilitates asking permission as well, since works so licensed will have an identifiable rights holder.
This finding is consistent with our experience at the Duke University Libraries, where we placed most of our web pages under a CC license over two years ago. We still do receive some requests for permission, even for pages that carry the CC license. I try to inquire about why people are asking when the page carries a prior permission that almost always covers the proposed use. Invariably I am told (mostly by other librarians) that they consider asking both the cautious and the courteous thing to do. So while we believe that the license empowers many users and reduces transaction costs, we also see that users who are in doubt feel free to contact us for clarification. This confirms that the non-commercial term is not the problem that some have feared.
Creative Commons has always striven to make its licenses effective and useful, and this study is one more tool for understanding how those licenses are and can be employed. The CC itself suggests three lessons that we can take away from this study:
the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use.
Good advice, available for those who want to be sure that, in regard to non-commercial use, we “know it when we see it.”
Falling down before the finish October 7, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 3commentsThis article from the Guardian UK about how “Google Books deal forces us to deal with copyright” had me nodding in agreement, right up until its last few paragraphs. Like author Nick Harkaway, I am cautiously relieved by the intervention from the Department of Justice that has forced a postponement of the hearing on the settlement in the Google Books copyright infringement case. Harkaway expresses my feelings very succinctly when he writes that “it wasn’t the idea I objected to, but the method.” As I sometimes put the same sentiment, bad law in the service of a worthwhile end can still create unfortunate consequences. So I am hopeful that the extra time and renewed negotiations will lead to a more thoughtful implementation of the books project, perhaps less sweeping but also less monopolistic.
Harkaway also has my agreement when he expands his discussion to the problem of orphan works, and suggests that the Google Books deal gives added incentive to a broader, more generalizable solution for the millions of works still protected by copyright yet for which no rights holder can be found. Harkaway embraces a familiar solution to this problem when he endorses renewed recourse to a renewal system. Under this plan, rights holders would have to renew their copyright claim periodically in order to prevent the work from dropping into the public domain. Thus orphan works would become free for use once a renewal period passed without action by the rights holder. There are other ways to approach the orphan works problem, but it clearly needs to be addressed, and the renewal suggestion would be one very effective approach.
Unfortunately, I stopped agreeing with Harkaway right at the end of his article, when he suggested that data-mining and other new uses for copyrighted works should be sources of new income for rights holders. This is an old mistake based on thinking that whenever new technologies enable new uses, a new right is created. But copyright does not work that way, and there has never been a “use right.” Copyright holders do not get the right to control every use of their work, and thinking about how such a right might work should tell us why — it raises a huge problem of censorship; imagine, for example a book author or film producer who could use copyright to prevent negative reviews. Instead, rights holders get the exclusive right to control copying, distribution, public performance and public display, as well as the creation of derivative works. This is a lot of control, but these rights do not impinge on using a lawfully obtained copy, at least for private purposes like research. Everytime a new technology comes along, however, some rights holders are seduced into thinking that they should gain from it, even if it does not implicate any of these exclusive rights.
If digital copies of the world’s books are legally created, through a Google settlement or in some other way, use of those copies for data-mining and other research uses will be, and should remain, free for all users. It may sound plausible when Harkaway complains that Google will be improving its search algorithm using his work and making money from that improvement. But where does a use right stop? Should the heirs on John Updike be reimbursed if digital copies of his work are used to create a Updike concordance? Should an academic who wants to study a certain grammatical construction across a huge range of published literature, a use contemplated by the Google settlement, have to pay the copyright owner of every book in the corpus for that opportunity? It quickly becomes clear why a separate use right within the copyright bundle would be a very bad idea. I can follow Harkaway through most of his article, but when he gets to those last three paragraphs, it is clear he has gone astray.
