Category Archives: Issues

The Termination Right and Authors’ Human Rights

Posted October 18, 2017

We are delighted to feature the following guest post by Professor Graeme Austin of Victoria University of Wellington (NZ) and Melbourne University (Australia).

Headshot of Graeme AustinIf people think of “international copyright law” at all, they probably think of the IP chapters in international trade agreements.  These agreements are mostly about economic links between groups of countries. Protecting copyrights, along with other kinds of IP, is the quid pro quo for access to commodity markets and markets for services.  The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) brought copyright squarely into the world trade regime with the requirement that World Trade Organization members must protect copyrights up to certain minimum standards.

But there’s a whole other side to the rights of authors that many people don’t know about: international human rights law.  In 1948, the Universal Declaration of Human Rights (UDHR) announced: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” A similar guarantee appears in the American Declaration on the Rights and Duties of Man (1948). Authors’ rights are also included in the International Covenant on Economic, Social and Cultural Rights, which came into force in 1976.  “Material interests” means financial support: the ability to earn an income from creative work.  “Moral interests” spring from the emotional and spiritual connections between creators and their works. They can be given force through legal prohibitions against subjecting works to certain kinds of derogatory treatment or prohibitions against failing to name the author of a work when it is released to the public.

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Why is an Author Able to Terminate a Transfer of Copyright?

Posted October 17, 2017

We are grateful to Professor Lydia Pallas Loren of Lewis & Clark School of Law for contributing the following guest post.

Headshot of Lydia LorenThe U.S. Copyright Act is clear: Authors have a right to terminate a transfer of their copyrights 35 years after they have signed on the dotted line.* That right to terminate cannot be waived, nor is there any way to “contract around” it. It does not matter if the contract purports to assign the copyright for “the entire term of copyright” or “in perpetuity” or if the contract prohibits any attempts at termination. Why did Congress include this significant, unwaivable right in its comprehensive revision of the Copyright Act?

Some assert that the reason for the termination rights is paternalistic—it seeks to protect authors who, in general, lack business acumen. By providing authors with an ability to recapture their copyrights, the law gives authors, who need government protection, a second bite of the apple. But, if authors on a whole lack business acumen, what makes us think the author would be any better at obtaining a deal on more favorable terms 35 years later?

In fact, the evidence points in another direction to explain Congress’ decision. Congress recognized that often transfers of copyright are entered into before the authors have solid information from which to assess the value of the copyrighted work. This puts the author in what Congress called an “unequal bargaining position.” After 35 years has passed, they should have more information about the work’s value, and that would be an appropriate time to allow the author to enter into a new bargain, based on a better assessment of the value of the work. In other words, Congress viewed the termination right as a way for authors to obtain compensation at a level that more accurately reflects the true value of their works.

For the author who sold their copyright for a pittance and the work turned out to be a blockbuster, termination can play out the way Congress thought it might. But the termination right is not just about money. For an author who thinks her publisher has not done enough to market the book and that explains its lackluster sales, terminating that transfer allows the author to seek out a new publisher. For the author whose work has failed to gain a commercially viable audience, but whose work has noncommercial value, such as for research, terminating the transfer allows the author to seek out a new “home” for that copyrighted work. Once the copyright has been recaptured by the author, that new home might be with a new publisher, or it might in the public domain (through a dedication to the public), or on an open access platform.

Armed with the information gained about the appeal of the work over the 35 year period in which the copyright was owned by someone else, Congress provided the author with a way to renegotiate the deal. And that is precisely what Congress intended when it created the termination right.


* Note that the timing of the termination right can vary depending on the circumstances and the date of the contract—see the Authors Alliance/Creative Commons Termination of Transfer tool for more information.

Lydia Pallas Loren is Henry J. Casey Professor of Law at Lewis & Clark Law School in Portland, Oregon. Professor Loren is the author of Renegotiating the Copyright Deal in the Shadow of the ‘Inalienable’ Right to Terminate.

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.

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Termination of Transfer FAQs

What does termination of transfer mean?

Termination of transfer is a way for authors (or their family members) to reclaim rights to works that they previously signed away (after a statutorily specified amount of time). An author’s ability to exercise this option depends on many factors, including how old the work is, when the transfer agreement was signed, and whether the work was ever published.

Why would I want to get my rights back in a work? What can I do with the rights once I have them?

There are number of reasons you may wish to get your rights back in a work. Sometimes, you may be motivated by the work’s lack of performance as currently licensed, such as when your book is no longer being printed or isn’t selling well anymore. Or maybe your work is performing even better than expected and you now want leverage to renegotiate a long-outdated contract. You may even wish to open your work up to more readers through digital distribution or free licensing.

Whatever reason you have for getting your rights back, there are a variety of options available to you once you have them. You may relicense the work to another publisher or to the same publisher under different terms, you may release the work under an open access license, or you may self-publish the work either in a new print or digital edition. Success stories from authors who have received their rights back can be found here.

It is important to remember that terminating a transfer of rights is contract-specific only applies to the rights you initially contracted for. These rights will come back to you, though your publisher may retain certain rights to derivative works, international publications, etc. If you have contracted your rights out to multiple publishers, you will have to execute a termination for each contract.

How does termination work?

Congress has granted authors the right to terminate a transfer of their copyright through three subsections of the Copyright Act (§§ 203, 304(c), and 304(d)). Whether termination is available for a given work is determined according to a long list of factors; however, a work typically must be at least 35 years old to qualify for termination, and notice must be given at least two years in advance before the right is exercised. Works much older than 35 years may still be covered under these provisions, and notice can be given up to ten years before termination so these windows vary greatly. If you think a work may be eligible for termination, we encourage you to go to rightsback.org and use the tool to get a sense of how these windows are calculated. In order to effectively terminate a transfer, the author must first give notice to both the publisher and the U.S. Copyright Office. Check out Authors Alliance’s guidance and templates for submitting a notice of termination.

If your work is not old enough or does not otherwise qualify for termination, seeking a rights reversion instead may be your best option for getting your rights back.

How is termination different from reversion?

Reversion is a process through which an author can get back some or all of the rights she has signed away to a publisher, either through a contractual provision that permits her to regain rights in her book when certain conditions are met, or through voluntary negotiations if her contract does not have a reversion clause. To learn more about reversion, visit our Rights Reversion Portal.

The main difference between termination of transfer and reversion is that termination of transfer is a mandatory right granted by the U.S. Copyright Act, whereas reversion is a contractual commitment or a voluntary act by your publisher. Even if there is a clause in your contract that prohibits termination of transfer, you may still exercise this option. Reversion, on the other hand, is not always guaranteed.

Reversion can also occur at any time, whereas a work must be at least 35 years old in order for termination of transfers to apply. Thus, if your work is relatively new, reversion may be your best option for regaining rights in your work.

How can I determine if termination is an option for a given work?

Authors Alliance and Creative Commons have collaborated on a free and easy Termination of Transfer Tool, located at righstback.org, which educates users about termination of transfer and roughly estimates whether and when a work may be eligible for termination based on hypothetical scenarios. This tool is not legal advice, but may be helpful in an author’s initial information gathering before deciding whether termination is an option they are interested in pursuing. If you are not sure whether termination of transfer provisions apply to your work, you may want to seek legal advice from a licensed attorney.

What role does Authors Alliance play in this? Can Authors Alliance help me get my rights back?

Authors Alliance collaborated with Creative Commons to create the Termination of Transfer Tool which can be a useful resource for authors researching termination of transfer for the first time. While Authors Alliance cannot represent any individual authors seeking termination rights, we will continue to educate authors about their options regarding their copyrights. Our mission is to assist authors who want to reach wider audiences by disseminating their work more broadly, and termination of transfer is just one of the tools in an author’s toolbox to achieve that goal.

Where can I learn more?

More in-depth resources about termination of transfer can be found at Rightsback.org, including detailed information about how to calculate notice windows, what types of contracts are covered by this statute, who can terminate, and where you can gather the information needed to use the tool. If you have any additional questions about termination, you can send them to info@rightsback.org.

For more information about what to do once you have successfully gained your rights back, we encourage you to visit our Open Access Portal or our Rights Reversion Portal, which discuss how to use your copyright effectively to maximize your readership.

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