Category Archives: Blog

A Nuanced Approach to Attribution and Integrity Rights

Posted March 28, 2017
“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

Since our launch, Authors Alliance has endorsed the idea that Congress should extend statutory protections for attribution (the right of an author to be credited as the author of his or her work) and integrity (the right of an author to prevent prejudicial distortions of the work) as part of its copyright reform initiatives. In our Principles and Proposals for Copyright Reform, we wrote that the “law should recognize the right of authors to be acknowledged as creators of our works.”

Last week, Authors Alliance President Pamela Samuelson identified eight reasons why it is in the interest of authors as well as the public for authorial attribution and integrity to be statutorily recognized in U.S. copyright law. In this second post in our series on moral rights, we set out some additional contours for the scope of these rights.

Limitations and Exceptions

To prevent attribution and integrity rights from stifling onward creativity and speech, these rights should be carefully cabined through limitations and exceptions. Three of these limitations and exceptions are fair use, first sale, and “reasonableness.”

A Case For Recognizing Attribution and Integrity as Authorial Rights

Posted March 22, 2017

The following is a guest post by Authors Alliance President Pamela Samuelson. We welcome your comments as we continue to explore the topic of moral rights over the coming weeks.

In preparing Authors Alliance’s forthcoming comments in response to the Copyright Office’s Notice of Inquiry for its Study on the Moral Rights of Attribution and Integrity, I thought of eight reasons why it is in the interest of authors as well as the public for authorial attribution and integrity to be statutorily recognized in U.S. copyright law, as they are in the laws of virtually every other nation on earth.

First and foremost, many authors care deeply about having their names associated with the works they create and about their works being available to the public in the form in which their creators authorized dissemination. These authors experience lack of attribution and mutilation of their works as significantly injurious to their well-being.

Second, statutory recognition of attribution and integrity interests would send an important signal to the public about the respect that members of Congress have for the myriad contributions that authors make to the ongoing “progress of Science,” consonant with the constitutional clause under which Congress enacts copyright laws.

Third, recognition of authorship attribution and work integrity is in the public interest insofar as members of the public care about the authenticity of creative works with which they interact. Readers, viewers, and listeners want reassurance that the works to which they have access were created by specific individuals and have been vetted by the authors as the works authorized for public dissemination. For example, someone who has read several William Gibson novels and just purchased another will want to see Gibson’s name on the cover and be assured that the book just purchased is in the form the author wanted to reach his readers.

Fourth, being attributed as a work’s author and being able to control the integrity of one’s work is important to building and maintaining authorial reputations. Although it is often difficult to quantify the value to authors of reputation enhancement by virtue of public dissemination of their works, the value is real and meaningful to authors. It is indeed akin to the goodwill that firms build up over time associated with trademarks as the public comes to trust products or services bearing the protected mark.

Authors Alliance Supports Federal Funding for National Endowments

Posted March 16, 2017

When Authors Alliance launched in 2014, we announced that our mission would be “to further the public interest in facilitating widespread access to works of authorship by assisting and representing authors who want to disseminate knowledge and products of the imagination broadly.”

As an organization that advocates for the rights of authors and creators, we are shocked and saddened by the news that President Trump’s proposed federal budget for 2018, released earlier today, calls for a total elimination of the National Endowments for the Arts and Humanities. Although their share of the budget is vanishingly small, both programs support thousands of art, community, and cultural projects in all 50 states, and in every congressional district. The NEA in particular provides grants to support libraries, up-and-coming authors, new work, and small presses—all crucial to members of our creative community and to the overall health and well-being of a free and democratic society. The proposed cuts to these and other federal programs would hurt independent authors, creators, and the academic community, and impede the progress of the arts and sciences. Especially hard-hit will be thousands of creators in the heartland—the Midwest and the South—who have depended on these modest subsidies to enrich the cultural environment of their locales and enable them to sustain their creative work.

When the NEA and NEH were created by President Lyndon B. Johnson in 1965, the Act establishing the programs read in part: “The practice of art and the study of the humanities require constant dedication and devotion. While no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent.”

Financial backing for cultural endeavors is often tenuous at best, but never before have the core assumptions about the inherent worth of the arts and humanities come under such vicious attack. We encourage our members and allies to resist this assault on the fundamental values that encourage and celebrate freedom of expression.

Resource Roundup: Fair Use

Posted March 8, 2017
 “"Rustam Lassos Rakhsh", Folio from a Shahnama (Book of Kings)” by Abu l Qasim Firdausi (935–1020) via The Metropolitan Museum of Art is licensed under CC0 1.0

“”Rustam Lassos Rakhsh”, Folio from a Shahnama (Book of Kings)” by Abu l Qasim Firdausi (935–1020)
via The Metropolitan Museum of Art, licensed under CC0 1.0

As many of our readers know, fair use is one of our favorite subjects here at Authors Alliance, and we enthusiastically joined with libraries and other like-minded organizations in the celebration of Fair Use Week last month. For this installment of our periodic Resource Roundup, we’ve compiled a collection of helpful online guides and tools on the subject of fair use. Although by no means comprehensive, we hope it will inspire you to explore and create using the incredible array of materials now available online!

Codes of Best Practices in Fair Use
Comprehensive guides for various creative communities from the Center for Media and Social Impact at American University

Fair Use Evaluator Tool
This step by step tool, created by the ALA, enables users to support and document their assertions of fair use

Fair Use Toolkit
A comprehensive collection from the ACRL of copyright and fair use tools and websites

Fair Use Week Resource List
Includes this year’s “Myths and Facts About Fair Use” infographic

U.S. Copyright Office Fair Use Index
A searchable database of legal opinions and fair use test cases

And, in case you missed it, here is a terrific new resource released last month that has no restrictions on reuse and remixing:

375,000 works from the Metropolitan Museum of Art, now freely available under CC0 license thanks to a partnership with Creative Commons

Got suggestions for other sites you depend on for quality content in your writing, teaching, or creative pursuits? Let us know, and we’ll feature them in a future Roundup!

Can Fair Uses Be Made of Copyrighted Works for Online Courses?

Posted February 23, 2017

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The following is a Fair Use Week guest post by Authors Alliance President Pamela Samuelson.

Faculty members who assign a few scholarly book chapters to their students for nonprofit educational purposes should be able to rely on fair use when posting them on course websites, according to the brief Authors Alliance filed in support of Georgia State University’s (GSU’s) fair use defense in the copyright lawsuit brought by Cambridge University Press (CUP).

GSU’s fair use defense was bolstered by various limits it put on the posting of copyrighted book chapters. Faculty members had to fill out fair use checklists, taking into consideration, among other things, whether the amount assigned was reasonable in light of the pedagogical purpose they had in assigning the materials. Only enrolled students could access the in-copyright materials, they could access them only through password-protected course reserves, and this access was only authorized during the term the students were enrolled in that class or seminar. For the most part, only one chapter per work was assigned. GSU faculty mostly used the online course websites for supplemental materials, having assigned readings from textbooks and other materials that students had to buy. The overwhelming majority of the chapters at issue were scholarly works written by academic authors on specialized topics used for small courses or seminars from works published a decade or more before. All of these factors supported the trial court’s fair use ruling.

The Authors Alliance brief explained that academic author incentives to write scholarly book chapters would, contrary to CUP’s claim, not be harmed and might well be enhanced by such uses of the chapters for GSU classes. Academic authors generally write scholarly book chapters to share the knowledge and insights they have attained with others and hope that publishing the chapters will enhance their reputations for contributions the authors made to their fields. In addition, publishers’ incentives to continue to publish scholarly books should not be harmed by the limited uses GSU faculty and students were making of the book chapters because publishers get the chapters for free and expect to derive revenues largely from sales of books.

The fair use calculus changes if course websites hosting such materials are open to the general public, if multiple chapters from the same book are utilized in online courses, if the chapters are from textbooks relevant to especially large enrollment classes, and if the online course is part of a for-profit enterprise.

This is not to say that such uses could not be fair, but faculty members would be well-advised to be more cautious in posting in-copyright materials, such as book chapters, on course websites under these circumstances.

Fortunately, the proliferation of scholarly articles and book chapters on pre-print servers in various fields, the adoption of open access policies by universities, leading foundations, and government granting agencies, and the greater willingness of publishers to agree to nonprofit educational uses or open access licenses means that there are many scholarly works available to be used for online courses these days. It is unfortunate for authors who assigned copyrights in book chapters or journal articles back in the days when pre-print servers and open access policies were not available that their works will be less widely read than they would wish, but it may be worth asking publishers to be willing to agree to at least limited nonprofit educational uses such as those being made by GSU faculty and students.

That being said, CUP has filed an appeal of the trial court’s findings of fact and conclusions of law that all but a few of the challenged GSU online course reserves uses were fair. Until the appellate court ruling comes down, one cannot be sure that GSU’s uses are fair. Still, the appellate court upheld much of what the trial court held about fair use the last time CUP ruled, and sent the case back for further proceedings under a somewhat revised framework that the appellate court spelled out. Because the trial court carefully followed that revised framework and made findings in line with the appellate court’s guidance, I am cautiously optimistic that the court of appeals will affirm.

For further reading on fair use, refer to the Fair Use FAQ on the Authors Alliance Resources page.

First Sale, Fair Use, and Digital Downloads:
Capitol Records v. ReDigi

Posted February 22, 2017

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In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.

Fair Use Week: Our Best Practices Guide is Underway!

Posted February 21, 2017

ARL-FairUseWeek-Logo-BlueThis Fair Use/Fair Dealing Week, we’re highlighting a new project that’s of special interest to any non-fiction author who has ever been baffled by fair use. Following on the success of our educational guides for rights reversion and open access, we are hard at work on our latest project: a new guide to fair use best practices for non-fiction authors. Inspired by the work of Peter Jaszi and Patricia Aufderheide at the Center for Media and Social Impact at American University, the third volume in our growing library of educational resources will focus on best practices for nonfiction authors—from biographers to science writers, historians to literary critics, memoirists to academics, and beyond—who depend on the use of copyrighted materials in their work.

Authors Alliance is partnering with the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley Law to draft the guide, which will feature extensive input from non-fiction authors, copyright experts, and partner organizations. The goal of this fair use guide is to empower authors to exercise their right to use source materials to further their research and writing goals by helping them to make confident fair use decisions. The guide will help nonfiction authors who want to do things like:

  • Include song lyrics in an academic paper discussing musical trends;
  • Use several lines from a novel to analyze the author’s use of metaphors in a work of literary criticism;
  • Use a chart in a scientific paper to demonstrate a process;
  • Incorporate a photograph in a biography to provide historical context;
  • And much more!

We plan to release the guide this year, and look forward to keeping our members, allies, and partner organizations up to date on the project. If you have a question, concern, or real-life example of a fair use issue that you would like to see addressed in the guide, let us know! We can always be reached at info@authorsalliance.org.

“The Best Panel I Attended”: Authors Alliance at the AWP Conference

Posted February 15, 2017

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The Authors Alliance team is back from Washington, DC, and we’re happy to report that our time at the 2017 Association of Writers and Writing Programs (AWP) conference was a great success. We’d like to extend a warm welcome to the many new members who joined Authors Alliance at AWP!

Now in its 50th year, the AWP conference draws 12,000 attendees, including MFA students, writing teachers, publishers, booksellers, and authors of all stripes. From February 9-11, Brianna Schofield and Erika Wilson hosted a table at the AWP Bookfair and were gratified by the level of interest and engagement from the writing community. Conference attendees kept us busy with questions about our resources and tools, especially our rights reversion handbook and our forthcoming guides to publication contracts and to best practices in fair use. We were thrilled to have so many enthusiastic new members join Authors Alliance. If you’d like to be part of our growing community of authors and creators, it’s easy to sign up online (basic membership is free).

In addition to staffing a robust information table, we also presented a conference panel on “Demystifying Copyright: A Crash Course in the Law of Literature,” featuring Authors Alliance executive director and intellectual property expert Rebecca Tushnet of Georgetown Law School. (Our third panelist, Jessica Silbey of Northeastern University, was unable to attend due to winter weather in Boston.) The session drew a large and engaged audience, and a number of attendees told us that it was the most useful panel they attended during the conference. We discussed topics ranging from Creative Commons licenses to fair use to publication contract language.

We thoroughly enjoyed this wonderful opportunity to meet hundreds of writers, share our resources, and share the Authors Alliance mission with our new members!

 

Authors Alliance Amicus Brief Supports Fair Use Defense in Georgia State Case

Posted February 13, 2017

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Since our founding, Authors Alliance has supported a robust interpretation of fair use that helps authors keep their works discoverable and in the hands of readers. We’ve published a number of opinion and policy articles on the subject, and our members and allies may recall that we filed an amicus brief in support of Google in the Authors Guild v. Google Books litigation, in which we argued that Google’s snippet views of scanned books from libraries made books more discoverable and served a public good by enhancing access to millions of works. We welcomed the Supreme Court’s decision not to hear the case, thereby ending the decade-long litigation and allowing the district court’s ruling in favor of fair use to stand.

Now, Authors Alliance has weighed in again on the fair use question, this time in the matter of Cambridge University Press v. Albert. The case turns on whether faculty at Georgia State University (GSU) infringed Cambridge University Press’ and other publishers’ copyrights by assigning chapters from scholarly books to their students via secure course websites. GSU argues that this limited use for nonprofit educational purposes falls within fair use, and we have filed an amicus brief with the 11th Circuit in support of that argument. In the brief, we highlight that academic authors’ primary motivation to write and publish scholarly works is grounded in their desire to share and advance knowledge. Many of our members are academic authors, and one of our members is the author of a chapter at issue in the case. They—and we—believe that this limited use of copyrighted content in a nonprofit educational setting meets the test for fair use. In the brief, we present three main arguments in support of this interpretation:

  • Incentives to write and publish scholarly book chapters will not be impaired by a ruling that nonprofit educational uses of these chapters is fair use.
  • The use of fact-, method-, and theory-intensive scholarly book chapters assigned primarily because of the originality of ideas, theses, research, data, and methods they contain, rather than on originality of expression, should tip in favor of fair use.
  • New options in digital publishing and trends toward open access in scholarly communications favor the fair use ruling.

The full text of the brief may be read here. We will continue to follow the case and provide updates on new developments in the litigation.