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.
Manufacturing controversy October 1, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, international IP , add a commentSome copyright cases just don’t grab one’s attention, and I have to admit that I saw reports of the decision in Omega v. Costco several times before the potential impact on academic libraries began to sink in. The case involves chapter 6 of the Copyright Act, referred to as the manufacturing clauses. Since the principle requirement of the chapter, that works be manufactured in the US in order to be eligible for copyright protection, expired in 1986, I pretty much ignored the case the first few times I read about it. Now I think that was a mistake.
The case is fairly complicated, and there is a nice summary of it here, on the IP Law blog. The basic ruling, however, from the Ninth Circuit Court of Appeals, was that the doctrine of first sale, the rule that says that one who purchases a lawfully made copy of a copyrighted work may lend, resell, or otherwise dispose of that particular copy, does not apply to works that are manufactured and sold outside the US. Basically, the court held, on reasonably good authority, that such works do not qualify as “lawfully made under this title (i.e. the Copyright Act),” which is a condition on the application of first sale.
Once I paid attention, it became very clear why this is a cause for concern in libraries. Academic libraries especially buy lots of foreign materials, often from overseas distributors. If first sale does not apply to those materials, can libraries lend them at all? A negative answer could devastate our services in support of all kinds of language programs and area studies. This possibility is raised in passing in this amicus brief urging the Supreme Court to review the case, filed by the Electronic Frontier Foundation. Interestingly, however, the major library associations have not taken a position on the petition asking the Supremes to hear the case. I was given two different reasons for this decision not to act, one which seems sound to me and one which leaves me with some concern.
One reason for not encouraging the Supreme Court to “take cert” (that is, agree to review the lower court’s opinion) is that there is real danger that the Supreme Court would affirm the decision. That would make a problematic case from the West coast into binding law throughout the country. Better, perhaps, that this remain an anomalous precedent only impacting libraries in the nine western states that comprise the Ninth Circuit. Several authorities (Patry on Copyright and a concurring opinion in an earlier Supreme Court case) seem to support the position taken by the appeals court, and asking for cert might be asking for trouble.
More reassuring, but more problematic, is the other reason given for not taking action on this case — the exception for libraries that is built into the manufacturing clauses. Section 602(a)(3) excludes certain copies purchased by libraries for lending or archival purposes from the general statement in 602 that importation of copies of copyrighted works purchased overseas into the US is an infringement of the distribution right. That seems to let libraries off the hook. But it is not entirely clear that this exception, specific as it is to section 602, actually solves the first sale problem created by the Ninth Circuit. Even if it does, however, I am left with two concerns.
First, the section 602(a)(3) exception explicitly excludes audiovisual works from its scope. For those works, only a single copy for archival purposes is allowed, and no mention of lending is made. This suggests that even if print collections of foreign materials purchased overseas are OK, collections of film are not. That would be a crippling lacunae for academic libraries.
The other problem is that, if the Ninth Circuit ruling stands, it might encourage textbook publishers to move their manufacturing and distributing operations overseas in order to be able to shut down secondary markets and thereby increase their profits. The exception for libraries would not apply to resale of used textbooks, on which so many students depend to reduce their educational costs. Closing off those used book markets would not directly harm academic libraries, but it would certainly hurt higher education. Also, it hardly seems sensible to add to the incentives that are luring American manufacturing overseas.
I am thus left on the horns of a dilemma. I want to see this decision overturned, but I agree that the review that would be necessary to reverse it would also carry a significant risk of an affirmation, which would be far worse. It is an uncomfortable place to be, and one in which a good outcome is difficult to imagine.
What problem can open access solve? September 27, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 2commentsA recent conversation on an e-mail list for theological librarians (the branch of academic librarianship in which I began my own professional career) has lead me to reflect on exactly what problem it is that open access is designed to solve.
The exchange involved a journal called “Studies in Religion,” which is subscribed to primarily by seminaries and other small religious colleges and universities. The journal has just announced that it will move from being published by Wilfrid Laurier University Press to Sage Publications, and the cost of an institutional subscription will rise from $64 per year to $300, an increase of about 470%. For freestanding seminaries a “price break” will keep the increase down to a mere 350%.
The humanities have been largely insulated from the journal pricing increases that are the origin of the so-called crisis in scholarly communications, but they are fast catching up, unfortunately. In this case, the motive for moving to a new publisher is probably to have “Studies in Religion” included in a large package of online journals. The ironic result, of course, is that many schools with no interest in this title will be forced to subscribe to it while those institutions where it is most needed will likely have to cancel.
I have frequently argued that the solution to the continuing copyright battles in higher education is for scholars to stop transferring copyright to publishers and preserve their right to make their work available in open access. Widespread open access can indeed reduce the need for scholars to ask permission to use their own works and the risk of copyright litigation against colleges and universities. But it will not, by itself, solve the problem of journal prices.
We need to distinguish between the problem of skyrocketing journal costs and the access problem, of which costs are only part of the cause.
There was a time when publication in a prestigious journal, or even a second tier one, brought with it an assurance that all the people to whom a scholar’s work would be important would have a chance to see it. Times have changed dramatically, and that sense of assurance based on publication in a toll-access journal is simply no longer possible. Cost is certainly part of the problem; an increasing number of a scholar’s colleagues will be working at institutions that have had to cancel access to the journal or database in which her work has been published. But it is also the cases that fewer and fewer researchers begin their work by browsing journals, or even journal databases. Internet searches are the first recourse for many seeking information about a new topic or trying to stay current on a familiar one. Articles in toll-access journals may not be found by such searches, or when they are found, the links will not work if the toll has not been paid. Thus new technologies, and the research strategies they generate, are as much a cause of the access problem as prices are. And it is the greater “findability” that open access offers that make it primarily an opportunity for greater access and impact rather than a solution to the pricing crisis.
“Not really a settlement at all” September 18, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 1 comment so farThe hearings last week before the House Judiciary Committee about the proposed settlement in the copyright infringement lawsuit over the Google Books project once again showed the disparate opinions that the proposed settlement has generated. There is a NY Times report on the hearings here.
One of the most interesting features of the hearing was the statement by Marybeth Peters, the US Registrar of Copyrights. This was the first time the Copyright Office has really weighed in on the settlement, and I think many were surprised by the strong opposition Ms. Peters expressed. I had to nod in agreement when I read her statement that the Copyright Office had come to realize that “the settlement was not really a settlement at all” but was, in fact, a mechanism to create a new and exclusive business model for Google. A class-action settlement, as Peters points out, usually resolves claims over past acts and provides some remedy going forward. An example would be a suit brought by consumers over a flaw in a car design; the usual remedy would be a financial penalty and a commitment to repair the flaw. In the Google case, however, the alleged infringement will be allowed to continue, with the blessing and financial participation of some percentage (but not all by any means) of the rights holders whose rights have allegedly been infringed.
Perhaps the widely divergent interpretations of the settlement agreement are due to the fact that it does not so much settle past wrongs as project a new business model into the future. This begs people to evaluate the predicted consequences and to base their judgments on those predictions, rather than on a clear view of how past actions will be remedied. A recent blog post entitled “The Google Books Settlement — What Did You Choose? confirms this sense of an either/or choice to be made — either love it or hate it. Balancing Registrar Peters’ negative opinion, in this worldview, is this editorial from The Economist endorsing the settlement.
If you read the two contrasting opinions, it seems like they are talking about complete different projects. Is Google creating a universal library where the whole world can access the wisdom of the ages, or is it a massive power and money grab by an overly ambitious company willing to corrupt the US legal system to gain its ends? The interesting thing about this stark choice, however, is that both opinions may well be true.
It is important to remember that there are limits on the judge’s power in assessing this settlement. His role is to determine the fairness between the parties before him, not to decide if the settlement is good for society as a whole. And, of course, there will not be any party to the lawsuit who will oppose the settlement or appeal its approval, since a major effect of the deal is to align the economic interests of plaintiff and defendant. Only, I suspect, a negative report from the Department of Justice (on the anti-trust issue, which is possible) or a threat of Congressional intervention (which is apparently unlikely) might interfere with approval of the settlement, and then the question arises “what next?”
In her statement to the Judiciary Committee, Peters did go on to acknowledge some positive aspects of the settlement, specifically the creation of the books Rights Registry, access for people who are blind or print disabled, and the ability of libraries to offer “immediate, unfettered and risk-free” access to millions of copyrighted works. Those aspects, she said, “should be encouraged under separate circumstances.” But that, of course, is the $64,000 question. Under what circumstances, short of a compulsory license, would these advantages be possible? If a class action suit is not the way to create such a license (and I agree that it is not), how else could it be done? I find myself wondering if Registrar Peters was really asking the Congress to consider addressing the orphan works probably in a new way — through a compulsory licensing mechanism rather than a remission of damages. If we really want the benefits of the Google Books Settlement without the monopoly it would create, it would probably take such a legislative revolution to get it done.
UPDATE — shortly after this post was written, it was announced that the Justice Department has filed with the court recommending that the agreement NOT be approved as it stands. See a story on the filing here.
The joy of statistics September 15, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, international IP , 5commentsThe World Economic Forum recently published its 2009 Global Competitiveness Report, and I was struck by one particular statistic, as well as the conclusion drawn from it by the US Chamber of Commerce. One of the many statistical tables in the WEF report ranks the perceived strength of national protection for intellectual property. The United States ranks 19th on this chart, out of 133 countries rated. As this blog post from IP Watch reports, that ranking prompted The US Chamber of Commerce to call for stronger protection measures in the US.
As someone who believes that IP protection in the US is certainly strong enough and is often over-enforced, I was struck by several flaws in the reasoning of the Chamber of Commerce or, at least, differences about what I think the report could mean.
First, the Chamber of Commerce thinks that 19 out of 133 is a low ranking, a judgment that seems questionable at best.
Second, it is important to note that this chart reports “executive perceptions” about the strength of IP protection in a country. While that may make sense for a report about international competitiveness, it is too subjective a measure to cause Congress to hasten to strengthen our copyright laws.
Finally, I wonder how strength of IP protection actually correlates to economic growth. There is a pretty good correlation between perceived strength of protection and competitiveness in the WEF report, but of course, those books are cooked, since the results of the survey are part of the data on which conclusions are based. I decided to try an experiment, which even as a non-economist I recognize to be crude, albeit interesting. I started with this list of countries based on economic growth (the growth rate of the Gross Domestic Product) using data from the CIA World Fact Book. The US is 67th in GDP growth rate, and I made a list of ten countries from the G-20 group of nations with higher growth rates than that of the US and compared that list of ten countries to the rankings of perceived strength of IP protection. All ten of these countries, it turns out, are perceived to have weaker IP protection than the US. To choose an obvious example, China has the fastest economic growth rate of any of the G-20 economies, but is ranked far below the US — at 61st — on the list of strong IP protectors.
It is easy to lie with statistics, of course, but this simple comparison suggests that weaker IP protections might actually correlate with economic growth, or that in any case there is a median position where IP protection is correctly calibrated to encourage economic growth, and the US has passed that point. This search for the correct level of protection, I think, is something the World Intellectual Property Organization is struggling with as it considers its “development agenda” recommendations. At the very least, nations need to preserve flexibility in their IP laws and recognize that the what is best for Big Content is not necessarily good for a nation.
