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 State protection, which was usually created by judges rather than legislators, often allowed perpetual protection for unpublished works, but were not designed to deal with other materials.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
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.
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.
How is copyright transferred? (weekly widget) January 10, 2008
Posted by Kevin Smith in : Copyright Information Notes , 1 comment so farCopyright, like most other “property” rights, can be sold, inherited through a will, given away or otherwise passed to other people (or corporate bodies). Since copyright is really a bundle of rights – reproduction, distribution, public performance, etc. – it can also be divided up and the different pieces transferred to different people under all kinds of different terms. Thus I can sell my right to reproduce and distribute a song I write to a music publishers, give my right to authorize public performances of that song to my sister (a singer), and will my right to allow translations of the song into other languages to my children.
