Category Archives: Blog

How the Rightsback.org Termination of Transfer Tool Helps Authors

Posted October 12, 2017

The following is a guest post by Luke Ewing, student attorney at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic. We’d like to thank Luke and his classmates Sean Doran and Andi Wilt, and their supervisor Blake Reid, at Colorado Law; and law students Eric Malmgren, Erica Row, and Julia Wu, and their supervisor Jack Lerner, at UC Irvine Intellectual Property, Arts, and Technology Clinic for their assistance with the development of the Termination of Transfer tool and templates.

Erica Row, Julia Wu, Pamela Samuelson, Mike Wolfe, Eric Malmgren, and Jack Lerner (not pictured: Sean Doran, Luke Ewing, Andi Wilt, and Blake Reid)

Yesterday, Authors Alliance and Creative Commons released the Termination of Transfer tool at rightsback.org. You may be wondering what the tool does and how termination helps authors. Along with many other beta testers, student attorneys at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic and the UC-Irvine Intellectual Property, Arts, and Technology Clinic helped verify that the tool accurately reflects the state of termination law. We scoured statutes, regulations, and case history to determine what is required to make the termination process go smoothly under a wide range of circumstances. We also tested the tool to ensure that its results accurately reflect the current state of the law. Finally, we drafted a standardized form and written guidance that make the paperwork simple once an author decides to exercise their termination right.

Authors who assigned their copyrights many years ago may feel that their works are being underutilized or misrepresented, or they may want to renegotiate their earlier agreements. Fortunately, Congress devised a mechanism by which authors can take back those rights. This is a critical opportunity for authors who made less-than-advantageous deals early in their careers, saw their works become unavailable when a publisher went bankrupt, or want to release their works into the public domain or under an open access license. But because the window for termination opens decades after that original transfer of rights and requires navigating a particularly difficult and complex area of copyright law, exercising termination rights can be daunting.

Termination windows are determined by three separate subsections of the Copyright Act (§ 203, 304(c), and 304(d)), the format and instructions for notifying the Copyright Office are spelled out in a list of very particular regulations, and each subsection of the Copyright Act yields a different list of regulations. Determining whether the window is open for a copyrighted work, or which subsection applies, depends on a number of variables, including:

  • Was it published?
  • If so, when was it published?
  • When were rights transferred?
  • Did those rights include the right of publication?
  • Has the agreement already been renegotiated?
  • Were there multiple authors involved, and do they all agree to terminating the transfer?
  • Are all the authors still alive?
  • And more.

Every one of these questions is relevant, and every answer leads down different branches of a decision tree that indicates whether, when, and how an author may exercise termination rights rights. Without help, trying to understand these rights can be tedious and discouraging.

The tool makes understanding the process easy.  It knows which questions to ask and what to do with the answers to those questions. Within minutes, the tool helps authors better understand how termination of transfer works. Congress intended for authors to exercise these rights, and Authors Alliance wants to simplify the process by removing as much confusion and uncertainty as possible. If you want to learn more about taking back the rights to your work, or are just curious about the process, you can try out the tool right now. It’s free, simple, and only takes a few minutes.

And if you decide to exercise your termination rights, check out our termination of transfer resource page for notice of termination templates, a cover letter, and instructions on how to notify the Copyright Office as well as any relevant parties.

New Resource: Termination of Transfer Templates

Posted October 11, 2017

Earlier today, we announced the launch of our new Termination of Transfer tool, developed with our partners at Creative Commons. The online tool, located at rightsback.org, helps authors understand the eligibility and timing requirements for terminating transfers. To effectuate a termination right, authors need to provide notice to the party whose grant is being terminated and submit a copy of that notice to the U.S. Copyright Office. So to complement the tool, we developed a new resource that includes notice of termination templates and accompanying information.

We’re grateful to law students Sean Doran, Luke Ewing, and Andi Wilt, and their supervisor Blake Reid, at the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic; and law students Eric Malmgren, Erica Row, and Julia Wu, and their supervisor Jack Lerner, at UC Irvine Intellectual Property, Arts, and Technology Clinic for their assistance with the development of these templates.

Check out our new Termination of Transfer resource page for more information about the online tool, the templates, and related news!

20170928 ToT Templates

Authors Alliance & Creative Commons Launch New Termination of Transfer Tool

Posted

creative commons infographic

Authors Alliance and Creative Commons are pleased to announce the official launch of our jointly-stewarded Termination of Transfer tool, now available at rightsback.org. The tool is designed to help authors navigate the “termination of transfer” provisions of U.S. copyright law.

Authors who enter into publishing, recording, or other types of agreements involving their creative works are routinely asked to sign away their rights for the life of copyright—which generally lasts 70 years after the author dies in the United States. Fortunately, authors do have options if they come to regret these decisions and want to share (or renegotiate the terms of sharing) at a later date. The termination of transfer provisions, when exercised properly, let authors walk away from or renegotiate their copyright transfers. The key feature that makes these rights so powerful is that termination rights can’t be signed away. They apply “notwithstanding any agreement to the contrary.”

Termination of transfer allows creators (or, in some cases, their family members) to regain copyrights to creative works they may have signed away decades ago. Our tool helps them understand if those termination rights exist, and if not, when they may exist in the future. With rights back in hand, authors have many options for getting their works in front of new audiences, from sharing their works with the public using a Creative Commons license to negotiating new agreements with publishers.

Though these termination rights are an extremely powerful boon for authors, exercising them can be daunting. The law is complex and difficult to navigate, requiring attention to detail and careful timing. The termination process is only available within a five-year window, and can only be exercised if notice is provided significantly in advance of the actual termination.

Rightsback.org is the result of a partnership between Authors Alliance and Creative Commons, and draws on the expertise of both organizations to demystify this little-known area of U.S. law. The tool provides basic information about the eligibility and timing of termination rights based on user input, along with suggestions on next steps that authors may wish to take in securing rights.  While this tool is currently U.S.-based only, Creative Commons plans to develop a database of other country laws that enable authors and creators to similarly terminate or reclaim their rights when their agreements are governed by those other laws.

We encourage users to try out the tool and to contact us with any questions or suggestions. We are excited to share this resource with our creative communities, and look forward to your comments!

Authors Alliance and Creative Commons are grateful to the Arcadia Fund, a charitable fund of Lisbet Rausing and Peter Baldwin, for their generous support of the creation of the Termination of Transfer tool. See our full list of personnel and thank-yous at rightsback.org/about.

Copyright Office Reports on Extended
Collective Licensing Inquiry

Posted October 5, 2017

In 2015, Authors Alliance submitted comments to the U.S. Copyright Office in response to a proposal in the Report on Orphan Works and Mass Digitization to establish a pilot program for Extended Collective Licensing (ECL) for mass digitization projects. We suggested that the Copyright Office’s proposal, while well intentioned, is not the solution we need to realize the potential of mass digitization, and urged the Office to reconsider implementing its proposed pilot program.

Yesterday, the Copyright Office announced that it submitted a letter to Congress reporting on the results of the Office’s public inquiry on establishing the pilot program. The letter explains that the proposal was met with a lack of stakeholder consensus on key elements of such a program, and concludes that proposed legislation in this area would be premature at this time.

We still believe that mass digitization plays a crucial role in disseminating knowledge for the public good, and welcome the attempts to simplify the copyright and permissions complexities that can impede digitization efforts. However, as we wrote in our comment, the ECL proposal did not adequately address the interests of authors who write to be read, nor did it consider the complexity and feasibility of managing permissions and licenses across multiple groups of potential rightsholders. For these reasons, we are pleased to see that the Copyright Office declined to move forward with its proposal at this time.

 

 

A Tale of Two Cases: Fair Use in Who’s Holiday!
and KinderGuides

Posted September 28, 2017
Photo of Dr. Seuss drawing the Grinch

Dr. Seuss (Ted Geisel) at work on a drawing of a grinch, the hero of his forthcoming book, “How the Grinch Stole Christmas”  /  World Telegram & Sun photo by Al Ravenna | Courtesy of the Library of Congress

We would like to thank Authors Alliance legal research assistant Allison Davenport for writing the following analysis.

Two courts in the Southern District of New York recently decided two fair use cases that, on the surface, may appear to be similar but ultimately reached different outcomes. In one, a beloved children’s classic is grown-up for an adults-only stage adaptation. In another, classic adult novels are presented as colorfully illustrated children’s books. Yet, the former was judged to be a fair use and the latter was not. What led the court to these opposite rulings, and what can it teach us about how fair use works?

Fair Use

Fair use is a limitation on U.S. Copyright law which allows authors to use portions of a copyrighted work without permission or payment, so long as that use is “fair.” Courts consider at least four factors when determining whether a use is fair: 1) the purpose and character of the challenged use (often asking if the use is “transformative”), 2) the nature of the copyrighted work, 3) the amount and substantiality of the copyrighted work used, and 4) the effect on the potential market for the copyrighted work. These four factors do not work in isolation and must be carefully weighed together to determine if a work is fair.

Who’s Holiday!Matthew Lombardo and Who’s Holiday, LLC v. Dr. Seuss Enterprises

“In creating these juxtapositions, the Play, rather than trading on the character of Cindy-Lou Who and the setting of Who-Ville for commercial gain, turns these Seussian staples upside down and makes their saccharin qualities objects of ridicule.”

Who’s Holiday! is a one-woman stage play by Matthew Lombardo which features a 45-year-old Cindy-Lou Who from How the Grinch Stole Christmas recounting the circumstances that led to her life as a drug addict living in a trailer, alone on Christmas. In the play, Cindy retells the events of Seuss’ story but then goes on to describe how she became pregnant with the Grinch’s baby at 18, married him, and suffered through unemployment and starvation before eventually killing the Grinch and being imprisoned for his murder. The play is told in rhyming couplets similar to the style of Seuss’ original, with a few exceptions.

Continue reading

Authors Alliance Welcomes Allison Davenport

Posted September 20, 2017

Headshot of Allison DavenportWe are delighted to announce that Allison Davenport has joined the Authors Alliance team as a legal research assistant. Allison comes to us with a solid background in copyright and intellectual property law, having previously worked as a Legal Fellow at the Wikimedia Foundation and as a law clerk at the U.S. Copyright Office, where she focused on the Digital Millennium Copyright Act, fair use analyses, and other IP issues. We look forward to working with Allison to further our legal research, writing, and policy goals, and wish her a warm welcome to Authors Alliance!

 

David Hansen on Proposed Changes to Section 108 of the Copyright Act

Posted September 18, 2017

On September 15, the U.S. Copyright Office released a Discussion Document outlining proposed changes to Section 108 of the U.S. Copyright Act, which would update and expand on limited exceptions to copyright for libraries and archives. David Hansen, Director of Copyright & Scholarly Communications at Duke, has written a thoughtful consideration of the proposed changes. We’re grateful to him for his careful attention to the topic and for granting permission for us to reprint the following post, which originally appeared on the Scholarly Communications @ Duke blog.


DavidHansenEarlier today the U.S. Copyright Office released its long-awaited review of improvements to Section 108 of the Copyright Act, the section which grants limited, specific exceptions to copyright for libraries and archives. Over a decade ago the Office convened the Section 108 Study Group* to assess improvements to this section, and in 2008 that group produced its report. Since then (and with recent inquiries from the Office to stakeholders) we’ve been waiting to hear from the Copyright Office about its views on updates to Section 108. This Section 108 “Discussion Document” does just that.

Before getting into the document I want to start with two observations. The first is that Section 108 is horribly outdated. Most of its text is exactly the same as enacted in 1976. The piecemeal updates that have been added to address modern library and archives practices, including online uses, haven’t worked well and are awkward additions. I–and many others–have written about the need to update Section 108.

The second is that I’m leery of asking Congress to revise any part of the Copyright Act, including Section 108. From someone who thinks that copyright law already unnecessarily restricts access to lots of information in ways that have no positive effect on the copyright system’s underlying purpose–encouraging the creation and dissemination of new creative works–I don’t think Congress has a great track record on legislative revisions. Since the 1970s Congress has consistently made copyright terms longer, dramatically expanded the number of works protected, and has made using those works riskier. Asking Congress to revisit Section 108 could mean that it gets much worse, rather than better.

All that said, I think many of the Office’s suggestions are pretty good. I can’t go into every detail in this blog post–the Discussion Document is around 60 pages long, and it needs every one of those pages–so, for now, I thought I’d point out the top three positives I see in this document:

1) The Office suggests in a number of places removing hard numerical limits on the number of copies allowed. For preservation purposes, for example, the proposal would allow libraries, archives, and museums to reproduce works “as many times as is reasonably necessary for preservation and security.” This is a major problem under the current statute, which generally only allows for making three preservation copies. Perhaps more significantly, the proposal would also low eligible institutions to make incidental, temporary copies that are needed for making resulting preservation copies and for copies made for users. This is important when thinking about digital access because it would eliminate concerns about whether 108 can apply at all when incidental copies are made in the course of transfer from one machine to another.

2) It would expand the categories of works to which Section 108 applies. The current statute makes several Section 108 exceptions inapplicable to musical works, pictorial, graphic or sculptural works, and to motion picture or other audiovisual works. That restriction currently limits 108’s usefulness–and makes it all the more difficult to understand and apply–without providing a clear benefit for rightsholders of those kinds of works. This document also reframes how the Section 108 exceptions would apply to “published” versus “unpublished” works (the current Section 108 treats unpublished works differently, with the idea that unlike published works, there generally isn’t a commercial market to be harmed by the use of those materials ). The new proposal opts instead to make distinctions based on whether the work was ever “disseminated to the public” by the copyright owner. “Publication” is a notoriously difficult concept, so the move away from it to something a bit broader is welcome, though I’m not sure the concept of “disseminated to the public” is going to be easier to apply in practice.

3) It suggests that institutions should be able to provide remote digital access to users, albeit in some cases limited to one user at a time, for a limited time. This most directly applies to works “not disseminated to the public,” (i.e. unpublished works). For archives, this enhancement could be significant when thinking about how to provide access to preservation copies. Would an online reading room, with technology to allow for controlled digital lending, be permissible under these terms?

The Office’s 108 document also has parts that are likely to cause some controversy. One big one is a suggestion that eligible libraries, archives, and museums could be exempt from copyright liability for violating non-negotiable contract terms that prohibit institutions from engaging in preservation activities otherwise permitted under Section 108. I think this is an incredibly important suggestion, given the number of click-wrap, consumer-oriented license agreements that libraries enter into so they can provide electronic access to their patrons. Many of those contracts prohibit making copies necessary for preservation purposes, but if libraries aren’t saving copies there is a great risk that in the long term, those works may one day become entirely inaccessible to everyone.

Another part of the document likely to cause some controversy is the requirement that eligible institutions implement reasonable digital security measures. I understand the desire for such a limitation, but this is an area where the devil is going to be in the details. Who decides what is reasonable is an open question, and how compliance with that provision is monitored and assessed could be extremely burdensome for some institutions.

Overall, I have to say that I’m impressed. I think the Office did good work in pulling together the results of the Section 108 Study Group report as well as feedback from stakeholders in creating this document. As proposed, the Section 108 envisioned in this document still wouldn’t provide all or even most of what libraries, archives, and museums need to fulfill their missions,  and fair use would remain an important and probably overriding consideration when making uses of copyrighted works. But, as a sort of safe harbor for institutions seeking certainty for activities that they commonly engage in, the types of improvements outlined in this document would be welcome and a great help in facilitating modern (as opposed to 1970s-era) libraries, archives, and museums.

___________

* The 108 study group was jointly convened by the The National Digital Information Infrastructure and Preservation program of the Library of Congress and the Copyright Office.

Authors Alliance Petitions for New Exemption to Section 1201 of the DMCA

Posted September 14, 2017
photo of CD with padlock

photo by 422737 |CC0

Last month, we reported in detail on our petition to the U.S. Copyright Office to renew exemptions to the DMCA for lawful uses in multimedia e-books. Now, together with Professor Bobette Buster and the Organization for Transformative Works, we have also filed a petition to modify the exemption to Section 1201 as part of the Copyright Office’s seventh triennial rulemaking process.

The new petition, filed today, requests the following:

  • Lawful circumvention of DRM for use in fiction multimedia e-books (the current exemption is restricted to nonfiction multimedia e-books);
  • Allowing circumvention of DRM for use in multimedia e-books on other subjects besides film analysis (the current exemption allows for uses in film analysis only);
  • Removing limitations that refer to screen-capture technology.

We’re grateful to law students from legal clinics at the UC Irvine and the University of Colorado, Boulder for their work preparing the petition.

Further details can be found in the full text of our petition. Hover over the document below to view the petition in your browser, or download here.) Authors Alliance believes that multimedia e-books are an important form of authorship and wants to see authors empowered to fully realize their promise. We will continue to track the progress of the 2017-2018 rulemaking and provide updates as they become available.

Authors Petition for Modification

Spotlight on Open Access and Academic Publishing:
Barton Beebe

Posted September 12, 2017

Head shot of Barton Beebe

In the third part of our series on innovative academic publishing models—which has also featured Q&As with Eric von Hippel and James Boyle and Jennifer Jenkins—we asked Professor Barton Beebe of NYU Law School to tell us a bit about his decision to publish Trademark Law: An Open Source Casebook as an open access work. Now in version 4.0, this Creative Commons-licensed work for intellectual property law students was updated in July 2017 with updates and new statutory examples. The book is freely available for download, and is being used in over 30 law schools nationwide, with additional professors adopting it each year.

Authors Alliance: Given the many incentives to publish textbooks via traditional channels, why did you choose open access for Trademark Law: An Open Source Casebook (TLOSC)?

Barton Beebe: I chose online open access for a bunch of reasons. First, it’s just much easier to reach readers through open access. Even micropayments can be an insurmountable barrier for students without credit cards (which describes most students around the world). Instructors are also predisposed to assign the book if they know that students can easily access it and at no cost. This helps with adoptions.

Second, my experience has been that traditional for-profit textbook publishers in law offer almost no value added. They provide no editorial advice and often rely on authors to format and proofread the book. Meanwhile, they set ridiculously high prices, typically very little of which flows through to their authors.

Third, I really like the idea of giving the book away, especially since it’s a book for students, and it seems like classroom materials are what I already get paid to produce. TLOSC is already being used in something like thirty law schools around the world, with three or four added each year (which I think is not bad for a book about a little topic like trademark law). I sort of love that so many students are using my book and that they didn’t have to pay for it. That’s worth more to me than whatever royalties I would get through the for-profit model.

AuAll: How did you select which Creative Commons license to apply?

BB: Though TLOSC is available without charge, I do care about attribution, so insisted on that in the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license. I also like the viral nature of the ShareAlike provision, which means that anyone may adapt my book, but their adaptation must also be made available under the same CC license. For purposes of this book, I also see the noncommercial provision as basically viral in nature. It encourages others to use the book only in noncommercial ways.

AuAll: What results do you see from publishing your books openly? What do you see as the pros and cons of embracing this model?

BB: I think the main result of using the open access model is that a lot more people have used the book and so maybe it has had more influence than it otherwise might have. Another result is that the open access model seems to create a different relationship between authors and their readers. The book is offered as a kind of gift (it’s not exactly a birthday present!—but still it’s something human-made, meaningful, and useful that is happily given away). Readers are maybe a little more gentle in their attitude to the book, and maybe a little more prone to write me with corrections, suggestions, and kind words of thanks.

More generally, I hope that publishing the book openly is part of a broader trend in academics towards open access. I very much support the adoption of the principle that if a book or other work of scholarship is not made available through open access, it should not be considered a “publication” for purposes of things like academic tenure or promotion. If royalties were a significant part of how academics support themselves, I’d think differently, but they’re not. It’s especially weird (and disheartening) to see so many academic books in the humanities that advance strongly progressive views but that the author publishes under a traditional closed-access (and even for-profit) model—with the result that at best 1% of the world will have any real access to the book. There are definitely institutional pressures to distribute one’s work in this way, but already we’re seeing academic institutions shifting towards emphasizing open access.

AuAll: Could you share some lessons learned and/or other suggestions for authors on how they can make their works available in the ways that they want?

Even if a book author goes with a traditional closed-access publisher, it might be worthwhile to try to bargain for a contract provision in which the author can make the book available in a digital open access format at some point after the book goes out of print. This seems particularly important for scholarly works. For journal articles, try to bargain for a provision allowing the author to post a manuscript version of the article to their personal website or some equivalent repository.


Barton Beebe is the John M. Desmarais Professor of Intellectual Property Law at NYU. He specializes in the doctrinal, empirical, and cultural analysis of intellectual property law.

Spotlight on Open Access and Academic Publishing:
James Boyle & Jennifer Jenkins’ Open IP Casebook

Posted August 29, 2017
“The 1950’s distribution mechanism for the casebook…
needs to go the way of the whale oil merchant,
the typing pool and the travel agent.”
— James Boyle and Jennifer Jenkins

Cover of IP textbookThis summer, Authors Alliance founding members James Boyle and Jennifer Jenkins released the latest legal supplement to the third edition of their law school casebook, Intellectual Property: Law & the Information Society – Cases & Materials. As part of our series on innovative publishing models, we are featuring their insightful examination of the pros and cons of their model, and why they ultimately chose to forgo traditional textbook publishing.

Boyle and Jenkins have written extensively about their experience with writing a casebook and distributing it freely online under a Creative Commons license, and in 2015, when the book was first released, they co-authored a law review article of FAQs on open legal educational materials:

“Why do we do this? Partly, we do it because we think the price of legal casebooks and materials is obscene. Law students, who are already facing large debt burdens, are required to buy casebooks that cost $150–$200, and “statutory supplements” that consist mainly of unedited, public domain, Federal statutes for $40 or $50. The total textbook bill for a year can be over $1500. This is not a criticism of casebook authors, but rather of the casebook publishing system. […] Legal education is already expensive; we want to play a small part in diminishing the costs of the materials involved.”

“This is a broken market and one that reflects troubling pedagogical and, to be quite frank, moral choices on the part of both authors and publishers.”

We highly recommend the entire FAQ article for its thoughtful approach to an alternative publishing model, and—thanks to open access—it is available to read in full. We recently caught up with Boyle and Jenkins to ask specifically about their experiences from the authors’ perspective; here’s what they had to tell us:

Authors Alliance: What kind of feedback have you received from your students?

Boyle & Jenkins: They have generally been very positive. Obviously the price is nicer, particularly if it is free, but the benefits of openness come out in other surprising ways.  For example, visually impaired students have told us they really appreciate an open electronic text that can be customized using their favorite programs—to produce a machine-generated audiobook, for example, in whatever format they choose.  Other students like the ability to grab chunks of the textbook and paste directly into their notes.  For law students who often can’t get electronic versions of their—very heavy—casebooks, being able to take the casebook home for Thanksgiving is a plus.

AuAll: Do you have a key piece of advice or encouragement for other authors looking to follow your example? Anything you wish you’d known before you started?

Boyle: Just do it! As far as things we learned—I’d been doing open publishing since I was part of the founding of Creative Commons, so I probably had a head start—but we were surprised and delighted by the way in which openness changes the adoption of a textbook from a 0/1 decision—you do or you don’t—to something in which someone can grab our chapter on the history of copyright, or the economics of intellectual property, and pop it into their class without disrupting anything else.  As we say in the article, it is the shift from the “album” version of textbooks, in which you must by all or none, to the iTunes version where you can take a single track.

AuAll: Are there any other comments/insights that you would like to share with your fellow Authors Alliance members?

B&J: Both of us would say that we believe in Authors Alliance because we think open access to scholarly work is a moral imperative wherever it is reasonably possible.  But in our own lives, it is striking how much tangible benefit in terms of citation, influence, and so on that strategy has yielded.  When it comes to open access to scholarship, doing good can be very compatible with doing well.

James Boyle is William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School. Jennifer Jenkins is a Clinical Professor of Law and Director of Duke’s Center for the Study of the Public Domain.