Category Archives: Issues

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.

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

Posted February 23, 2017

fair-use-week-logo-sm

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.

Copyright Week 2017: New Media and New Rules for 21st-Century Creators

Posted January 19, 2017

OG-CopyrightWeek

It’s copyright week! This week, Authors Alliance is joining a group of organizations in reflecting on some of the principles that help make copyright law an engine of creativity.

Copyright is intended to fuel creativity by helping creators secure the rights they need to comfortably and profitably continue with their work. But creators come in all shapes and sizes and many internet-age creators have very different needs from the copyright system than some of their more traditional peers. We need a system that works to foster these digitally-empowered voices, but too often the system we have does just the opposite.

In particular Section 1201 of the Digital Millennium Copyright Act, which provides legal protection for digital locks on copyrighted goods, has been deeply problematic for new and important creative works. We have written previously about Authors Alliance’s effort to obtain an exemption to this law that preserves authors’ right to make one important kind of fair use in the digital age. The exemption, which we explained in detail here and here,  protects the fair use rights of e-book authors, allowing them to bypass the encryption on DVDs, Blu-ray, and other media in order to use film clips in multimedia e-books.

In comments filed with the U.S. Copyright Office in 2015, we asked for an exemption to allow multimedia e-book authors to circumvent technological protection measures in order to embed video content into their works for fair use purposes, just as they have been able to embed quotations and images into their paper books. We requested that the previous 2012 exemption be modified to allow authors to access  more kinds of video content and use it in their multimedia ebooks for any fair use, not just film analysis.

While we were pleased to see the Acting Librarian of Congress announce a Final Rule preserving and expanding this important exemption, the solution is a patch at best: a sliver of fair use preserved for a sliver of authors for a short term of years. We need long-term solutions that ensure that the law both allows and fosters digital creativity that depends on fair use.

New technologies open up creative possibilities unheard of even a decade ago. Instead of being locked down, these innovations should be fostered, and creators allowed to fully rely on fair use in the digital world.

Copyright Week 2017: Foster Transparency and Representation in Copyright and Provide Input on the Next Register of Copyrights

Posted January 18, 2017

7562151102_032d74bb85_o

It’s copyright week! This week, Authors Alliance is joining a group of organizations in reflecting on some of the principles that help make copyright law an engine of creativity.

Copyright law has many stakeholders, including creators of all kinds and the consumers of their works. Traditionally, however, only a narrow band of copyright’s constituents have had real representation in setting copyright policy, which has typically put the interests of certain classes of commercial creators and industries first. From the start, Authors Alliance has worked to bring the voices of creators who wish to share their work broadly to these important debates.

Today, the United States is at a critical inflection point in how it makes copyright policy and whose interests are considered in the process, with a new Librarian of Congress currently working to appoint a new Register of Copyrights (the highest ranking official at the United States Copyright Office and the U.S. government’s leading copyright expert).

In fact, the resignation of Register of Copyrights Maria Pallante last fall brought about renewed scrutiny of the entire U.S. Copyright Office, as well as calls for reform—notably from Rep. Goodlatte and the House Judiciary Committee in December.  Key points under consideration are the Office’s relationship to the Library of Congress, its organizational structure, and the pressing need for modernization and technological upgrades.

The Library of Congress is currently seeking input from the public on the qualifications and priorities for a new Register of Copyrights. The Copyright Office is tasked with serving a diverse constituency whose values and goals are often at odds with one another. The leadership transitions at LOC and the Copyright Office have created a significant opportunity to see a copyright office that is both more effective at its core functions (most especially, registering copyrights and copyright transfers), and more cognizant of the diversity of interests in our copyright system. The debates are real, and the consequences far-reaching. Now is the time for those of us who support openness, a broad view of fair use, and protections for individual creators, to advocate for our values.

Authors Alliance is closely following these developments at the Copyright Office in the coming year, and is committed to continuing seeing our members’ interests represented in these kinds of venues. We encourage all of our members and allies to take the LOC’s survey by the January 31 deadline to ensure that we—as authors and creators whose work is both helped and hindered by copyright policy—have a voice in the ongoing debates on copyright reform.

 

Is it time for authors to leave SSRN?

Posted July 17, 2016

Since we first heard of mega-publisher Elsevier’s acquisition of SSRN, the popular social sciences pre-print and working paper repository, we have expressed concern. Elsevier is not known to be an avid supporter of the open access publishing practices favored by many of our members, and has historically taken a restrictive stance toward author control and ownership of scholarship.

In response, we reached out to Elsevier and to SSRN with a set of principles the service could adopt that would reassure authors that SSRN could continue to be a go-to resource for those looking to refine and share their work. We have since heard back from SSRN: they would not commit to adopting even one of our principles. They offered more general reassurances that their policies would continue as before. We were not satisfied, but we decided to wait and see whether our fears would be borne out.

As feared, it now appears that SSRN is taking up restrictive and hostile positions against authors’ ability to decide when and how to share their work. Reports are surfacing that, without notice, SSRN is removing author-posted documents following SSRN’s own, opaque determination that the author must have transferred copyright, the publisher had not consented to the posting, or where the author has opted to use a non-commercial Creative Commons license. One author, Andrew Selbst, reported that SSRN refused his post even though the article’s credits reflected his retained copyright.

This policy fails to honor the rights individual authors have negotiated in order to put their work on services like SSRN. It misreads the Creative Commons licenses authors adopt in order to share their work. And it is a marked departure from the standard notice and takedown procedures typically used to remove user-uploaded copyright-infringing works from the web, eliminating both any apparent notice from the putative copyright owner and any clear recourse for the affected authors.

SSRN authors: you have not committed to SSRN. You can remove your papers from their service, and you can opt instead to make your work available in venues that show real commitment to the sharing, vetting, and refinement of academic work.

Just recently, SocArXiv—a new social sciences preprint archive built on the model pioneered in physics by arXiv—opened their doors to submissions. SocArXiv is supported by the University of Maryland, not run for profit, and formed with an explicit commitment to openness in academic writing. They are still in early days, but appear to be building a promising successor community to SSRN.

It is also important to remember that your work does not need to be restricted to any one venue. Try SocArXiv, but also see if you can host your work in an institutional repository or on a personal website. Make your work available wherever it can best reach your readers. It is also worth protesting the practices that would restrict your work’s availability and reach by leaving the services adopting them. If the reports about SSRN’s new practices are accurate, then it may be time to leave SSRN and adopt more author-friendly alternatives. Authors, tell us about your experiences with SSRN and other repositories by sending a note to info@authorsalliance.org.

Europe’s Fractured Public Domain: An Update on Anne Frank’s Diary

Posted April 26, 2016

anna_frank-EVENT_cover1200x420April 26 is World Intellectual Property Day—an opportunity to highlight and learn more about IP issues around the world. This year, a group of Polish and European organizations has provided a sobering example of what can go wrong with overlong, complicated, and internationally inconsistent copyright terms.

To call attention to these issues, Centrum Cyfrowe, in Poland, has published The Diary of Anne Frank online—but most would-be readers won’t be able to actually see it. Due to a quirk of copyright law, the original manuscripts of the diary are in the public domain in Poland, but not in the much of the EU or the United States. That means that the text of the Diary will be visible to readers within Poland only, and will be geo-blocked throughout the rest of the world. CC Poland’s project website provides a succinct explanation of this strange state of affairs.

Authors Alliance wrote an analysis of the unfortunate status of this beloved book late last year, when it appeared that the Diary might come into the public domain in parts of Europe on January 1, 2016. However, even within Europe copyright terms are set by a confusing patchwork of inconsistent national laws. According to CC Poland’s analysis, the Diary will finally be released into the public domain in 2037 (in the Netherlands) and 2042 (in the US). Other countries, such as France, Spain, and the UK, all have their own term lengths.

When copyright terms are overly long and conflict with one another, as in the case of The Diary of Anne Frank, public access to culture and knowledge is unnecessarily curtailed. Europe would benefit from consistent, reasonable laws across borders. In the words of CC Poland, “if we want to fully unlock the potential of our rich cultural heritage we need clear rules that allow anyone to determine whether a work is still protected by copyright.” For public-minded authors, having their works eventually enter the public domain, where they might be shared and stewarded by communities across national borders and languages, is a safeguard for their legacies. Access to works of global importance should not be arbitrary. World Intellectual Property Day reminds us that we can do better.

Pamela Samuelson Explains How Google Books and Fair Use Benefit Authors

Posted October 28, 2015

Authors Alliance co-founder Pamela Samuelson has published an opinion piece in today’s Chronicle of Higher Education on the substantial benefits the recent fair use ruling in the Google Books case brings to scholarly authors.  She outlines four reasons why the ruling in favor of Google in the Authors Guild v. Google case advantages authors and researchers, despite the Guild’s arguments to the contrary. The Authors Guild has announced that it will petition the Supreme Court to review the decision. If the Court does take the case, we at Authors Alliance will continue our involvement to show our support for authors, scholars, researchers, and the public—all of whom benefit from fair use access to knowledge and information.

Read the full editorial here.

Fair Use Affirmed On Appeal in Google Books Case

Posted October 16, 2015

Today the Second Circuit Court of Appeals issued a widely anticipated ruling in favor of the defendants in the Authors Guild v. Google case, marking a major victory for fair use in a lawsuit which has been making its way through the courts for a decade.

A brief summary of the litigation highlights the crucial importance of this decision. In 2005, the Authors Guild filed suit against Google, claiming massive copyright infringement due to the digitization of copyrighted works by Google Book Search. After protracted negotiations, a controversial settlement agreement was proposed in 2009, but ultimately rejected in 2011 by Judge Denny Chin. In November 2013, the case was dismissed on the grounds that Google Books’ use of digitized materials met the criteria for fair use, and was of significant public benefit.  Chin also rejected the plaintiffs’ argument that Google Books does economic harm to copyright holders; on the contrary, he stated that Book Search can, in fact, increase sales. In April 2014, Authors Guild appealed that decision, but the Second Circuit has now unequivocally reaffirmed the earlier rulings in favor of Google.

Today’s decision states that “Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.”

For those who have been following the Authors Guild litigation, today’s decision—significant as it is—was not unexpected. In recent years, a growing body of caselaw has developed around fair use, some of which originated with another unsuccessful lawsuit. That case, Authors Guild v. HathiTrust, filed in 2011 as a parallel action to Google Books and concerning the use of books digitized by Google and shared among a consortium of libraries, had already been decided in the defendants’ favor in 2012, a ruling that was upheld on appeal by the Second Circuit in June 2014.

As an organization whose members believe in making their work available and accessible, Authors Alliance stands firmly on the side of fair use.  Last July, we filed an amicus brief with the Second Circuit in support of the fair use defense in this case, because Book Search increases the discoverability of work without threatening its marketability. One year ago, we expressed our hope that the court would rule in favor of Google and Book Search. Today, we applaud the courts’ decisive reaffirmation of fair use in helping authors to make their work more widely available and accessible to researchers, students, and the public.

Keeping Your Books Available

Posted April 9, 2015

Nicole Cabrera and Jordyn Ostroff

That book you published a few years ago is no longer selling like it used to, but it still contains useful information. Why don’t you ask your publisher for your rights back? You may be surprised to know that your publisher might be quite willing to give you back your rights if you ask. In fact, your publisher might also be quite willing to work with you to increase your book’s availability.

Don’t worry if you are unsure about how to approach your publisher. A new guide created by Authors Alliance will help you through the process, each step of the way.

Today, Authors Alliance releases Understanding Rights Reversion: When, Why, & How to Regain Copyright and Make Your Book More Available, a guide that arms authors with the information and strategies they need to revive their books. This guide is the product of extensive outreach to the publishing industry. In the process, we interviewed authors, publishers, and literary agents, ranging from a CEO of a major publishing house to contracts and rights managers of trade and academic presses, editorial assistants, novelists, and academic authors.

We were happily surprised by the consistency of publishers’ responses: across the board, publishers told us that they want to work together with their authors and that they are often willing to give authors their rights back if its in the books’ best interests. Publishers share the desire to “do the right thing” by books that would otherwise languish out of print. Time and again, we received a warm reception from the publishers, authors, and agents that we spoke with during our outreach, all of whom saw the value in a guide that would help authors keep their works available to readers.

Today’s technologies offer tremendous opportunities for authors to make their out-of-print or otherwise unavailable books more widely available. Some authors want to revive their books by creating e-books, while others may want to use print-on-demand technology or deposit their books in openly accessible repositories. We hope that the guide empowers authors to advocate on their own behalf to make their works more widely available, and we believe that many authors can work with their publishers to increase their books’ availability by following the strategies articulated in the guide: Be Reasonable, Be Flexible, Be Persistent, and Be Creative.

Page through Understanding Rights Reversion, and consider the ways you might make your book more available to your readers. This new guide will help you take an active role in your book’s future.

Download Understanding Rights Reversions (PDF)
Download from Unglue.it