The first new tool worth noting is from the Copyright Office itself — a new ingestion system that permits, for the first time, online registration of copyrights. It is hard to believe that this is the first time the Copyright Office has stepped away from paper forms, but that is the case. Starting July 1 it is possible to submit an online registration form and pay a fee that is $10 lower than the standard $45 cost of registration. The deposit requirement, which mandates that copies of a registered work be sent to the Library of Congress, will still have to be fulfilled by U.S. mail. It is also possible to track the status of a registration process that is done online. In addition to the online system, there is also a new paper form which uses barcodes to speed processing; the applicant fills out the form online, prints it off and mails it with the regular fee, but it does not take as long, in theory, for the Copyright Office to process. Since registration is still necessary before a copyright holder can file suit for infringement, a quicker registration system should help speed the judicial process a little. It will also make it easier to find copyright owners for works that are relatively new or newly registered.

Searching for copyright owners will become much more urgent if any version of the Orphan Works legislation pending before Congress actually is enacted, so copyright renewal records are as important, if not more important, than initial registrations. For new works, there is no doubt that copyright protection is in force unless there is some form of waiver like the Creative Commons license. But for those works most likely to be orphaned — works published between 1923 and 1963 — it will be vital to know if a copyright was renewed and, if so, by whom. Stanford University has offered a database of copyright renewal records for some time, and now there is a single XML file of both renewal records and original registration records from 1978 onwards available from Google. The digitization of these records required the efforts of several dedicated organizations, including Carnegie Mellon’s Universal Library Project and the Project Gutenberg.

Once this XML file became available, it did not take long for some copyright geeks (no offense intended; I am one myself) to design a simple interface to search these records. This site designed by a law student at Tulane University, under the direction of Professor Elizabeth Townsend Gard, should make it much easier to examine the Copyright Office records, and they are promising a more sophisticated tool by Fall. Whether or not we actually get orphan works legislation, it remains very difficult to find rights holders for lots of different kinds of works, and we must be grateful to all of the folks who have created these tools to make that important task a little bit easier. All of the sites, however, come with the warning that it is never certain, based on a search of these records, that a copyright was NOT registered or renewed; while they will tell us who did file for registration or renewal, it will remain something of a risk to use a work for which one does not find a record in these databases. That is why orphan works legislation is needed, so that a user who makes the effort to search these records and cannot, in good faith, find a rights holder is subjected to a much lesser risk than one who uses a work without any attempt to find out if copyright persists and by whom it is held.

See tomorrow’s post for discussion of a different kind of new tool — a statement of best practices for fair use in online video.

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Based on the common understanding of ownership, it is easy to see what Carrie is getting at here, and to agree with it. There are fundamental differences between real property and intangible intellectual property. The most obvious is that borrowing or sharing intellectual property does not diminish the supply of it. And a rights holder loses his or her rights after a set period of time, the period set by the statutory grant of those rights. This makes it very clear that intellectual property rights are indeed a creature of law, created by legislative action and not by natural right.

But in truth, all property ownership, at least in the 500-year-old Anglo-American tradition, is similarly limited. It is a truism of property courses in law school that owning a piece of land means holding a bundle of rights, most importantly the right to exclude others from the property. But once real property ownership (as well as ownership of “chattel”) is seen as a bundle of rights (just as copyright is), the distinction between real and intellectual property seems less clear and telling. In a recent blog post about the Israeli copyright scholar Orit Fischman Afori, William Patry has occasion to quote the British philosopher Jeremy Bentham on this topic: “there is no such thing as natural property; it is entirely a creature of the law. … Property and law were born together, and would die together. Before the laws property did not exist; take away the laws, and property will be no more.” If real property is subject to the same limitations as intellectual property — each is a limited set of rights granted by statute rather than a permanent and uncompromisable outgrowth of natural law — it is interesting to ask what the real consequences of the analogy between owning IP and owning a car or a piece of land might be.

This analogy, of course, is a favorite of copyright “maximalists” who frequently complain, for example, that car thieves get thrown in jail while “pirates” of copyrighted music must be sued individually and at great cost to the rights holder. Many would like to view ownership of IP as a kind of “allodial,” or absolute, ownership, and would be surprised to learn that no ownership under our system of law derived from feudalism is actually so absolute. All ownership is subject to limitations imposed by law to achieve a fair balance between exclusive possession and socially beneficial use. If maximalists got their way and IP ownership was really treated just like owning real estate, they might regret what they wished for.

Real property ownership is, after all, subject to lots of limitations. Zoning laws, for example, place strict limits on the use of particular parcels of land; I cannot open a law office in my garage in the neighborhood in which I live because it is zoned for residential use only. Not really very different from all those restrictions on the exercise of copyright found in sections 107-122 of Title 17. And in the world of both real and personal property, the “doctrine of first sale” is virtually absolute; the law looks very suspiciously on any attempt to restrict the “free alienability” of land and often will not enforce such restrictions. IP owners who have recently tried to attack first sale in several court cases would not benefit much if the analogy with real property were strictly applied. Finally, property rights in the bundle that land owners get can be lost if they are not exercised. If I occupy a piece of land for a set period of time — 15 years in many states — and the owner makes no attempt to eject me, I will become the new owner of that land. Imagine how our orphan works problem would diminish if we applied that same principle to copyrights. On this score, copyright owners, whose rights persist for life plus 70 years whether they exercise them or not, are much better off than are those who own land. A copyright holder can choose to exercise their exclusive rights in one case, then ignore other infringements for many years before electing to enforce their rights again; a landowner does not have that luxury.

The relationship between real property ownership and the same concept regarding intellectual property is complex, but both are bundles of rights that are subject to many limitations and exceptions in statute and in common law. Neither copyright maximalists nor those who advocate for more limited IP rights have the argument all their own way when the analogy with land is invoked, but especially for the copyright owner who asserts that his or her rights should be treated just the way real property ownership is treated the message is ‘be careful what you wish for.”

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Dear Professor _____________,

Congratulations on the paper! The first step in complying with the NIH public access policy is to be sure you retained the right to deposit the article when you signed a publication agreement. If you signed Nature’s usual author’s license, a copy of which is available here — http://www.nature.com/nature/authors/submissions/final/authorlicense .pdf — there will not be any problem. That license allows the author(s) to retain copyright, although it gives Nature an exclusive right to publish, and it specifies that the author can place the article in a funder’s open access database subject to a six-month embargo.

Assuming that this is the license you signed, your next step is to actually deposit the article in PubMed Central. You do this using the NIHMS system; there are instructions and links here — http://publicaccess.nih.gov/submit_process.htm . We are being told by those who have used it that the submission process is fairly easy and straightforward. Nevertheless, if you have any difficulties, just let me know and I or one of the librarians will be glad to come to your office and help you with it.

Once you have submitted the article, along with any supplemental material, all you have to do is wait. NIH will send you, or the principle investigator named on the appropriate grant if that is someone other than you, a final copy of the article as it will appear in PubMed Central for verification. It is important to review the article at that time to be sure everything is correct, just as you would do with the page proofs for the journal, and respond to that e-mail.

At some point in the process you will be asked to verify that you have the right to authorize PMC availability and to tell PMC about any embargo. As I said, if you signed the usual Nature license you do have the right to authorize availability and you should indicate a six month embargo. Even though you should submit your article immediately, it will not appear in the PMC database until six months after publication in Nature, in accordance with your license obligation.

For future reference in any paperwork submitted to the NIH, you will need to obtain the PMC ID number for your article. This helps NIH track compliance with the policy and is now required on renewal applications, progress reports and the like. Again, library staff can help you find this number if you have any difficulty.

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This first question was a version of the very common inquiry about when campus showings of films require either public performance rights or a license. The particular inquiry involved a group of films on a speific theme that were already owned by the University Libraries; the questioner, from one of our interdisciplinary centers, wondered rather generally about the legal requirements for show some of these films to groups.

The starting point is that a copyright owner has the exclusive right to authorize public performances of their works. For most films, the copyright owner will be the production company. A public performance is any performance given to a group other than the “normal circle of a family and its social acquaintances,” so almost all performances on campus (other than in a dorm room) are likely to be considered public.

There is one relevant exception to the general rule that the copyright owner has the sole right to allow or forbid public performances, and there are two general ways in which permission is obtained when that exception does not apply.

First, the exception is for performances “in the course face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction.” This broad exception is what allows the screening of films in classrooms by course instructors all over most college campuses, but there are also many campus screenings to which it does not apply. The language of this exception does not limit the allowed performances only to credit-bearing courses scheduled by the registrar, so there is apparently some leeway here. If a regular student group that meets for a clearly educational purpose wants to view a film, for example, I think that performance is allowable under the exception and does not require permission, especially if there is a faculty advisor for the group or some other clear connection to the institution’s curriculum.

On the other hand, campus showings of a film solely for entertainment (such as college film societies) or to which a general invitation is extended so that people with no connection to a specific educational focus of the institution might attend seem outside the scope of the exception. These sorts of showings have traditionally been based on some form of permission.

One way in which permission is obtained is by renting a copy of the film from an agency that includes a license for public performance in the fee charged. Campus film societies often use such an agency; Swank (http://www.swank.com/) is one that is a common source for campus licenses.

In this case, since the university already has the films, the next question would be whether any of them were sold with public performance rights. Some films purchased by the library do have such rights and some filmmakers only sell their work that way; generally these films cost about 10x more than a film without public performance rights, so price can tell us a lot about whether such rights were obtained (although it is not definitive).

Based on the general tone of the question, it sounds like the performances suggested would require permission, but since extensive detail about the intended audience for the films was not given, only the questioner ultimately will know enough to decide if these are public performances that fall outside the scope of the exception for face-to-face teaching activities.

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When our “new” Copyright Act was adopted in 1976, one of things it did was explicitly preempt state copyright protection. Before the 1976 Act, unpublished works were protected by a wide variety of different state laws (many with perpetual duration), and federal copyright protection usually only took effect when something was published. This created lots of confusing and difficult situations, so Congress took almost all works, published and unpublished, under federal protection, including the limited federal term of protection.

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 US could finally be sold here as well. The recording industry frequently lobbies Congress for full performance rights in sound recordings, and there was legislation to add such rights introduced into both houses late last year (the “Performance Rights Act”). Whether or not it is a good idea to subject radio stations to all the licensing fees such a law would require, this seems like a good time to demand a quid pro quo in the shape of repealing the foolish overprotection of historical sound recordings.

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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.

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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.

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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.

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When I transfer an entire right or my whole copyright (i.e., I keep nothing for myself), that is called an assignment or transfer of the right. Most transfers of copyright must be in writing. In the past, most publication agreements required that an author assign his or her copyright to the publisher; authors rarely retained any of their rights. Today many publication contracts still require a copyright transfer, but they allow authors to retain certain rights like the right to post an article on a personal web page or use it for a conference presentation. Essentially, the publisher who receives the assignment grants these rights back to the author. But increasingly we are seeing another method for sharing the rights in intellectual property being used – the license. As we shall see, a license can be used to make it either much easier or much harder to use a work of intellectual property.

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This provision greatly reduces the risk when academics think about fair use, since it eliminates most of the money that can be awarded if it is found that the user was mistaken in their fair use analysis. But it is important to note that the belief that a use is fair must be in good faith, which means it has to be both subjectively honest (I really did believe it was fair use) and objectively reasonable (a reasonable person could have come to the same conclusion). In those circumstances, Congress has created an incentive (by reducing what one has to lose) to make reasonable fair uses of protected material. If after carefully considering the fair use factors (this checklist can help), one reasonably believes the use is fair, it is often possible that the educational value of going forward will outweigh this reduced risk of getting it wrong.

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