Category Archives: Issues

Authors’ Rights Beyond Attribution and Integrity:
The Rights to Revive and Revise

Posted April 6, 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

The following article, by Authors Alliance co-founder Molly Shaffer Van Houweling, continues our series of posts on the topic of moral rights. Molly is Professor of Law and Associate Dean at UC Berkeley, and a faculty co-director of the Berkeley Center for Law and Technology. She also serves as Board Chair of Creative Commons.

The Copyright Office is considering whether U.S. Copyright law ought to recognize authorial attribution and integrity rights. Authors Alliance submitted comments in support of these rights—if they are carefully crafted and limited—but also proposes two other authorial rights: one to revive one’s work and the other to revise one’s work if the copyright is owned by another.

Here’s why:

Consider the plight of an author who has assigned her copyright to a publisher who is no longer printing the book or making it available online. Perhaps the publisher has lost interest because sales are low; but the author still maintains a strong interest in having her work available to readers. Authors Alliance member Paul Heald’s research suggests just how prevalent this problem is.

The only tool that U.S. copyright law currently provides to authors of works that are effectively locked up in a publishers’ vault is a right to terminate a copyright transfer 35 years later. In theory, authors could use the termination of transfer provision to revive works that have fallen out of print. In practice, the daunting intricacies of the scheme make it difficult for many authors to take advantage of their rights. These challenges are not insurmountable. Authors Alliance and Creative Commons are making efforts to help authors exercise their rights. But even if it works as smoothly as possible, the termination of transfer provision is an awkward solution for authors who want to revive their works. Most glaringly, termination does not take effect for decades after a work was created. In most cases this will be long after a book has gone out of print.

Now consider an author who has changed her mind, on the basis of new research, about an argument she made in a book to which a publisher owns the copyright. She wants to disseminate a revised edition but the publisher denies her permission to create a derivative work based upon the original. An author who is not the owner of copyright in her own work cannot insist, under U.S. law, on her right to revise that work beyond what is permitted by fair use. And, again, the termination right might not be a timely or practical solution.

The prospect of these dilemmas is one motivation for authors who are increasingly retaining and managing their own copyrights. Unfortunately, that movement comes too late for authors who have already assigned their copyrights to publishers. For some such authors, it may be possible to exercise a contractual right of reversion or renegotiate as described in the Authors Alliance Guide to Understanding Rights Reversion. But not every contract includes a reversion clause and not every publisher is willing to renegotiate—even assuming that the publisher is still the copyright owner and can be easily identified and located that purpose (not a safe assumption in light of the well-documented problem of orphan works).

Perhaps what these authors need—in addition to rights of attribution and integrity—are statutory rights to revive and revise their works. Although such rights are not separately identified as part of the authors’ rights tradition, there are some features of copyright laws of other nations that at least nod toward their importance. In a recent article in the Houston Law Review, I explain how the U.S. could borrow from and improve upon these approaches to prevent the dilemmas faced by authors for whom copyright stands as an obstacle to reaching readers with both their existing works and their new ideas.

For more in our series on moral rights, read on!

Pam Samuelson on “A Case for Recognizing Attribution and Integrity as Moral Rights”

Authors Alliance on “The Need for a Nuanced Approach to Attribution and Integrity Rights”

Our comments in response to the Copyright Office study on moral rights

“When Everything’s Made Up”: Authors Alliance
on the Free Press

Posted April 3, 2017

The following guest post was written by Thomas Leonard, University Librarian emeritus and Professor of Journalism emeritus at UC Berkeley, and a member of the Authors Alliance board of directors. Leonard is an expert in the history of American journalism; his books include The Power of the Press: The Birth of American Political Reporting and News For All: America’s Coming of Age With the Press

Some of the most damning lines about American media are gaining new currency these days:

“Nothing can now be believed which is seen in a newspaper,” President Thomas Jefferson said in 1807. Now, slightly revised, it is a Trump line.

“Whenever his liquor begun to work, he most always went for the government”—Huck Finn’s verdict on his father may be a fair statement about many of us, dazed by our new President’s administration.

It took some hard lessons before our Constitution’s glorious words about freedom of the press were understood as a libertarian sacrament in the early Republic. The John Adams administration managed the arrest of some two dozen critics under the Alien & Sedition Acts before the Constitutional principle of a free press took its modern shape, following the realization that this could happen to anyone not holding the reins of power.

Similarly, respect for the press was not robust at the creation of American government. This value developed through political struggle. The first U.S. copyright law of 1790 provided the privilege for books, maps and charts; just how authors of newspaper and magazine stories were to protect themselves was not addressed. The first Congresses did not report their own proceedings in any detail, let alone make it easy for journalists to hear what was going on. Rights for a free press and for the citizens who would need it were built over time, and with a variety of special interests doing much of the lifting.

Consistency and purity of motives have never been common features of our civil society, particularly in our history of a free press. Self-interest has been the anchor (perhaps a better one than idealism alone), and self-interest across the political spectrum is likely to deflect the harshest threats against the press today. Until recently, Donald Trump’s most noted attack on journalists was his statement in February, 2016 about how they could be brought to heel: “We’re going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Since taking office, the President has suffered from a case of libel nerves. Last week, he went after the New York Times with the tweet, “Change libel laws?” The question mark is significant. The Supreme Court’s New York Times v. Sullivan decision of 1964 famously protected journalists against libel actions.  But it protects politicians as well when they say harsh things about other public figures. Politico reported last week that Trump is hearing that he might be sued. Office holders would surely become large contributors to law firms in an attempt to protect themselves from defamation suits (especially if they were tweeters who did not weigh every word about public figures they dislike).

“Whose Line Is It Anyway?” was a game show that many will remember fondly. It had comforting rules: “Everything’s made up and the points don’t matter.” This is amusing but wrong in every respect when applied to politics. Holding all political actors to the law, and reminding them what they have to lose in dreaming up punishments for critics, matters tremendously. The age-old dispute between people in power and a press that would bring them to account, requires all the wisdom we can summon.  Authors Alliance, whose members share common values and diverse means of expression, must be ready to meet this challenge.

Authors Alliance Submits Comments on Moral Rights to the U.S. Copyright Office

Posted March 30, 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

Today, Authors Alliance submitted comments in response to the U.S. Copyright Office’s study of moral rights. We support creators’ rights to integrity and attribution (subject to some limitations and exceptions that protect downstream creative reuse), and we believe that these non-economic authorial rights should be formally recognized in U.S. copyright law—as they are in many other countries. We also encourage the Copyright Office to consider recognizing other non-economic author rights, namely, the right to revive one’s work if it is no longer available commercially and the right to revise one’s work over time.

Hover over the document below to view in your browser, or download here. We will continue our series of posts on moral rights in the coming weeks and will keep our readers up to date on developments at the Copyright Office.

AuthorsAlliance_MoralRightsComment

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

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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.

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

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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.