Author Archives: Authors Alliance

Read your open access publishing agreements, or: how you might accidentally give Elsevier or Wiley the exclusive right to profit from your OA article

Posted June 5, 2023

Reading publishing agreements–even for short academic articles–can be extremely time consuming. For many academic publishers, you’ll find an array of information about your rights and obligations as an author, often spread across multiple websites and guides, in addition to the publishing contract itself. It’s tempting to just assume that these terms are standard and reasonable. For open access publications, I’ve unfortunately found this attitude to be especially prevalent because authors tend to think that by publishing on an OA basis, the only contract terms that really matter are those of the Creative Commons license they choose for their article.

That can be a dangerous strategy. Elsevier and Wiley OA publishing agreements, which have long-standing issues along these lines as noted here, here, here, and here, highlight the problem really well.

Those publishing agreements do provide what many authors want in OA publishing–free online access and broad reuse rights to users. But, if authors select the wrong option, they are also giving away their own residual rights while granting Elsevier or Wiley the exclusive right to commercially exploit their work. That includes the right for those publishers to exclude the author herself from making or authorizing even the most basic of commercial uses, such as posting the article to a for-profit repository like Researchgate or even SSRN. This is not a result I think most authors intend, but it’s hard to spot the problem unless you read these publication agreements carefully.

Let’s dig into the agreements to understand what’s going on.

CC License Restrictions and Some Thoughts on Why Authors Choose Them

First, a quick primer on open access licensing (you can read a longer introduction and overview of open access in our dedicated guide on the topic). Just about every major academic publisher now offers some option to make your scholarly article available open access. I won’t get into the debate about what exactly constitutes “open access.” I think its sufficient to say that for most authors, “open access” means at minimum free online access to the work combined with some grant of permissive reuse rights to readers. While there are some exceptions, Creative Commons licenses have emerged as the defacto default legal infrastructure through which those reuse rights are granted.

Creative Commons licenses give rightsholders a number of options to exercise control over their work even while freely distributing it. The most common and basic CC license, CC-BY, does so by allowing basically all types of reuse (copying, commercial distribution, creation of derivative works) on the condition that the reuser appropriately attribute the original work. Creative Commons also has other licenses that limit downstream reuse in a few ways. Two of the most common for scholarly works are CC-BY-NC, and CC-BY-NC-ND, which respectively limit reuse to non-commercial uses (non-commercial or “NC”) and limit reuses to disallow distribution of derivative works (no derivatives or “ND”). Creative Commons also offers a CC-BY-ND license, which permits commercial uses but not the distribution of derivative works, but this is a less popular option. OpenAlex (an awesome research tool from OurResearch) indicates that there are some 5.5+ million scholarly works (mostly articles and similar) published under CC-BY-NC and CC-BY-NC-ND licenses.

In my experience, authors select these more restrictive licenses for a few reasons. Typically, authors will select a non-derivatives (ND) license because they’re concerned about some downstream user modifying their work and creating a new work that misrepresents the original or that is just of poor quality (think of a bad translation). For those authors, they want a say in how their work is built upon to create new derivatives. I’ve found this to be especially important to authors of controversial works that could be recast or adapted in ways that don’t include appropriate context.

For authors selecting the non-commericial (NC) license restriction, the reasons are more varied, but I typically hear authors express concern about others profiting without their consent, especially from those who are attuned to the problems of large corporate interests who may seek to republish their work for a profit without the author’s input.

The Elsevier and Wiley OA Publishing Agreements

I have never had an author say that they selected a CC-BY-NC or CC-BY-NC-ND license because they wanted to be sure that only their large, multinational commercial publisher could profit from their article, to the exclusion of everyone else including the author herself. Yet, if you read these agreements closely, that’s exactly what some publishers’ agreements do.

Let’s start with Elseiver. It’s agreement is at least somewhat upfront about what’s going on. Elsevier’s sample CC-BY-NC publishing agreement states in the first paragraph that the author grants Elsevier “an exclusive publishing and distribution license in the manuscript identified above . . . in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world, for the full term of copyright, and the right to license others to do the same[.]”

The key word in that license grant is the word “exclusive,” which means that Elsevier has the right to exclude everyone else (including the author) from using the article, except as agreed through the CC-BY-NC-ND license. In case there was any doubt, Elsevier makes clear on the same page that “I understand that the license of publishing rights I have granted to the Journal gives the Journal the exclusive right to make or sub-license commercial use.” The agreement does include a narrow carve out for authors to engage in some narrow categories of reuse that may go beyond the CC-BY-NC-ND license (e.g., lengthen the article to book form), but they are a far cry from the rights the author would otherwise have had he or she retained copyright and granted Elsvier a simple non-exclusive license to publish the article.

The Wiley journal agreement ultimately accomplishes a similar result, though in my opinion it is a bit more misleading. First, authors will find Wiley’s OA sample publishing agreements through a page that advertises “Retain copyright with a Creative Commons license.” It states, innocently, that “with Creative Commons licenses, the author retains copyright and the public is allowed to reuse the content. You grant Wiley a license to publish the article and to identify as the original publisher.”

If you read the sample Wiley agreements for publishing under a CC-BY-NC or CC-BY-NC-ND license, you will in fact find that the agreements do in fact provide that “The Contributor . . . retains all proprietary rights, such as copyright and patent rights in any process, procedure or article of manufacture described in the Contribution.”

This sounds great! The problem comes if you keep reading the rest of the agreement. Later in the agreement, you will find that while the author “retains copyright,” that copyright is reduced to a shell of itself. You’ll see that Wiley (which actually refers to itself as the “Owner,” to set the tone) has the author agree to grant “to the Owner [Wiley], during the full term of the Contributor’s copyright and any extensions or renewals, an exclusive license of all rights of copyright in and to the Contribution that the Contributor does not grant under the CC-BY-NC-ND license.” So, if the author’s intent is to retain control over commercial reuse or derivative works, think again.

Like Elsevier, Wiley does grant back some slivers of those rights to authors. For example, the right to make a translation as long as you only post it to your personal website, or the right to reuse the article in a collection published by a scholarly society (but, it definitely can’t be in any work with outside commercial sponsorship; Wiley seems particularly concerned with volumes sponsored by pharmaceutical companies, which they specifically target in the agreement).

A few tips for reading your OA publishing agreement

Read (and negotiate) your publishing agreement! Clearly, reading your agreements is important. For OA agreements, you should specifically look for language that either transfers copyright to the publisher or language that grants the publisher a broad exclusive license. If it does contain such a grant or license, think about what rights you might need that go beyond the rights granted to the general public under the CC license that you chose. The best publishing agreements are simple and straightforward, granting the publisher a license to publish and otherwise leaving all rights with the author. There are lots of good examples–e.g., this is one of my favorites, from Emory and the University of Michigan for long-form scholarship. And for more tips on understanding and negotiating your publishing agreement, check out our dedicated guide on the topic.

Don’t buy the website sales pitch. If there is a conflict between what the publisher says on its website and what the contract says, the contract will absolutely control. Be careful about any assurances that exist outside the four corners of your contract. More than once I’ve found authors ask editors via email about reuses that go beyond the agreement. Typically, editors are happy to assure authors that they can do reasonable things with their own articles, but unfortunately, the standard publishing agreements are far less reasonable than most editors. Where the editors’ assurance and publishing agreements conflict, once again the terms of the publishing agreement will prevail.

Watch for contract language about retaining rights. Don’t be fooled into thinking that you’ll retain significant rights in your work by the sleight of hand that says you “retain copyright,” or that you will have “copyright in your name.” If a publisher is obtaining a license of exclusive rights from you, that means the publisher can exclude you and everyone else from making use of those rights unless the agreement contains an explicit grant back of rights to engage in those activities. This is actually very common in non-OA publishing agreements, but as the Elsevier and Wiley agreements illustrate, you need to watch out for it in OA publishing agreements as well.

Book Talk: Digital Copyright with Jessica Litman

Authors Alliance is pleased to announce the next in our joint book talk series with the Internet Archive. Join us as we host Internet Archive’s founder BREWSTER KAHLE in conversation with JESSICA LITMAN to talk about her book, Digital Copyright.

In Digital Copyright (read now), law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of such laws on the exchange of information in a free society?

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Read Digital Copyright now.

PROFESSOR JESSICA LITMAN, the John F. Nickoll Professor of Law, is the author of Digital Copyright and the co-author, with Jane Ginsburg and Mary Lou Kevlin, of the casebook Trademarks and Unfair Competition Law: Cases and Materials.

BREWSTER KAHLE, founder and digital librarian of the Internet Archive, has been working to provide universal access to all knowledge for more than 25 years.

Book Talk: Digital Copyright
April 20, 2023 @ 10am PT / 1pm ET
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Book Talk: Athena Unbound by Peter Baldwin, Moderated by Chris Bourg

Posted March 3, 2023

“In Athena Unbound, Peter Baldwin offers an admirably pragmatic yet principled approach to the perennial problem of encouraging both the production and distribution of knowledge.” – Paul Romer, Nobel Laureate and University Professor, NYU

Book Talk: Athena Unbound
March 28 @ 10am PT / 1pm ET
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Read or purchase Athena Unbound from MIT Press. (Pub date: March 28, 2023)

Open access (OA) could one day put the sum of human knowledge at our fingertips. But the goal of allowing everyone to read everything faces fierce resistance. In Athena Unbound, Peter Baldwin offers an up-to-date look at the ideals and history behind OA, and unpacks the controversies that arise when the dream of limitless information slams into entrenched interests in favor of the status quo. In addition to providing a clear analysis of the debates, Baldwin focuses on thorny issues such as copyright and ways to pay for “free” knowledge. He also provides a roadmap that would make OA economically viable and, as a result, advance one of humanity’s age-old ambitions.

Baldwin addresses the arguments in terms of disseminating scientific research, the history of intellectual property and copyright, and the development of the university and research establishment. As he notes, the hard sciences have already created a funding model that increasingly provides open access, but at the cost of crowding out the humanities. Baldwin proposes a new system that would shift costs from consumers to producers and free scholarly knowledge from the paywalls and institutional barriers that keep it from much of the world.

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Rich in detail and free of jargon, Athena Unbound is an essential primer on the state of the global open access movement.

About our speakers

PETER BALDWIN is Professor of History at UCLA, and Global Distinguished Professor at NYU. His recent books are Command and Persuade: Crime, Law, and the State across History (MIT Press); Fighting the First Wave: Why the Coronavirus Was Tackled So Differently across the Globe; and The Copyright Wars: Three Centuries of Trans-Atlantic Battle. He serves on the boards of the New York Public Library, the American Council of Learned Societies, the Wikimedia Endowment, the Central European University, the Danish Institute of Advanced Studies, and as chair of the Board of the Center for Jewish History. His journalistic writings have appeared in the New York Times, the Los Angeles Times, CNN, Newsweek, New Republic, Huffington Post, Der Spiegel, Berliner Zeitung, Publishers Weekly, American Interest, Chronicle of Higher Education, Prospect, American Interest, and Zocalo Public Square.

CHRIS BOURG is the Director of Libraries at Massachusetts Institute of Technology (MIT), where she also has oversight of the MIT Press. She is also the founding director of the Center for Research on Equitable and Open Scholarship (CREOS). Prior to assuming her role at MIT, Chris worked for 12 years in the Stanford University Libraries. Before Stanford, she spent 10 years as an active-duty U.S. Army officer, including three years on the faculty at the United States Military Academy at West Point. She received her BA from Duke University, her MA from the University of Maryland, and her MA and Ph.D. in sociology from Stanford.

Book Talk: Athena Unbound
March 28 @ 10am PT / 1pm ET
Register now for the virtual event

Trump v. Woodward, Copyright Ownership of Interviews, and Government Works

Posted February 2, 2023

Earlier this week, you might have seen news that former President Donald Trump has filed a new lawsuit, this time against journalist Bob Woodward and his publisher Simon & Schuster. The suit alleges, among other things, that Bob Woodward and Simon & Schuster are infringing Trump’s copyright interests by copying and distributing eight hours of “raw” interviews that Trump gave to Woodward over the course of 2019 and 2020. The complaint alleges that the interviews were recorded by Woodward for purposes of his book, Rage, which was released in September 2021, on the condition that the recordings only be used for that book. In October of 2022, and without Trump’s consent, Woodward and Simon & Schuster released The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump, which contained nearly complete audio recordings of the interviews, prompting Trump’s lawsuit.

The suit is actually pretty interesting from a copyright perspective and might yield some lessons for those who work with interviews or oral histories, or who interact with papers of elected officials. We thought it was a good opportunity to talk about some of the issues that it raises that we commonly hear about from authors:

Copyright in Interviews

A important question in the suit will likely be whether Trump has any copyright ownership interest in the interviews. Ownership of copyright in interviews is not as clear cut as you might think. In a typical interview, oral history, or similar recording you’d have at least two people contributing – the interviewer (in this case, Woodward) and the interviewee (Trump). Assuming for a moment that such contributions are sufficiently original and creative–not a high bar– and knowing as we do that they are adequately fixed since they were recorded at the direction of both parties, you’d probably conclude that rights in the interviews would rest at least originally with one or both of Woodward or Trump.

Over the years a few commentators have written about the issue of rights in interviews, and two basic approaches to ownership have emerged:

A “split copyright” theory: concluding that the contribution of the interviewer and interviewee are actually two separate works, each owned independently of the other.
A “joint ownership” theory: concluding that the contribution of the interviewer and interviewee were created with “the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” and therefore there is just one work with two copyright owners.

Surprisingly, there isn’t much clear case law on point. Probably the most helpful case is Suid v. Newsweek, a 1980 district court case that takes the “split copyright” approach. That case was brought as a federal copyright infringement claim by Lawrence Suid, who in 1978 published a 357-page book titled “Guts Glory-Great American War Movies.” The book included previously unpublished interviews that Suide conducted with figures such as Bruce Wayne, Jack Valenti, and Michael Wayne. Newsweek in 1979 published a four page article about John Wayne that included interview quotes copied from Suid’s book. Suid sued for copyright infringement. For the interviews, the court concluded that Suid did not have a valid claim because the quotes originated with the interviewee (in this case, Wayne) and not Suid himself. The court explained, “the author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work since the author may not claim originality as to those statements.”

This “split copyright” approach is also the one apparently taken by the U.S. Copyright Office when it reviews registration applications for interviews. The Copyright Office Compendium III (Section 719) explains that:

The U.S. Copyright Office will assume that the interviewer and the interviewee own the copyright in their respective questions and responses unless (i) the work is claimed as a joint work, (ii) the applicant provides a transfer statement indicating that the interviewer or the interviewee transferred his or her rights to the copyright claimant, or (iii) the applicant indicates that the interview was created or commissioned as a work made for hire.

Though the Copyright Office guidance isn’t binding on the courts in this case–and for that matter, neither is the decision of the district court in Suid–it is the long-standing position of the Copyright Office going back to at least 1984 (see Section 317 of the Compendium II).

For the “joint copyright” approach – the logic is straightforward and favored by several commenters including prominent treatises such as Patry on Copyright and Nimmer on Copyright. John A. Neuenschwander, author of the extremely helpful A Guide to Oral History and the Law also favors this view. Because a joint work is only created when there is intent that the contributions be merged, it does raise important factual questions about what the parties were thinking when they conducted the interview.

As for Trump and Woodward, the difference between which of these two approaches might apply could matter a great deal. If the interviews are considered two separate works, and Trump actually owns rights in his portion of the interview (a big “if” – more below), he may well have a valid copyright infringement claim. If it is a joint work, however, he may not have an infringement claim but could have a claim to a share of the royalties. That’s because for a joint work, an owner of an interest in that work is allowed full use of the work, but has to account to the other joint owners for any profits resulting from that use.

Government Works

Whether Trump has any interest at all–either as a joint-owner and independently–depends on at least one other determination: whether Trump’s contributions are a “work of the United States Government.” It’s an important question for this case, but also an issue whose resolution could have important implications for authors who are using source materials that originate with U.S. Government officials, particularly elected officials.

Section 105 of the Copyright Act provides that “Copyright protection under this title is not available for any work of the United States Government.” And, a work of the U.S. Government is in turn defined as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”

For Trump’s case, this matters because he was President at the time that he granted the interviews. So, the question is whether Trump’s contributions are a “work of the United States government” – i.e., were they prepared by “an officer or employee” of the government, and were they made “as part of that person’s official duties”?

As you might imagine, for most people receiving a paycheck from the federal government, this is a pretty straightforward question. Their employment status and job description are well defined, and it’s usually easy to identify when a work falls within or outside their official duties. For example, a lawyer for the Department of Justice who at night writes fantasy novels would be just as entitled to copyright protection for those novels as any other author would for their own novel. Similarly, when that same lawyer writes a memo for a case they are working on, it would be well within the scope of their employment.

But, the office of the President is a bit different, and as far as we’re aware, there isn’t clear guidance on whether creative works of the President in this context would be covered by Section 105. The statute isn’t widely litigated-–there are only about ten published cases ever that say anything about what it actually means–-but the Supreme Court in Georgia v. Public.Resource.Org recently had the opportunity to explain that “the bar on copyright protection for federal works . . . applies to works created by all federal ‘officer[s] or employee[s],’ without regard for the nature of their position or scope of their authority.” And for its part, the Copyright Office has interpreted this to mean that “this includes works created by the President; Congress; the federal judiciary; federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties.” One would imagine that Trump’s lawyers would push back on such a view–potentially arguing that the President is neither an “officer” or “employee” of the U.S. Government, but in a category all its own (an argument not without precedent in other contexts) or alternatively, that even if he is covered as one of those categories of individuals, his interviews were not part of his “official duties.” Whether either argument would be successful, we don’t know.

If this suit actually moves forward, it will be an interesting one to watch, especially for authors engaged in writing that relies on interviews, oral histories, or materials related to the President.

Other notes, if you care to read more

If you’re interested in the issue of copyright in interviews, there are a handful of cases addressing ownership in interviews under common law copyright (i.e., state law that was formerly applicable, but not here). A few of the most cited are Estate of Hemingway v. Random House, a NY case from 1968 in which Hemingway’s estate asserted a common law copyright claim against Random House for publication of Hemingway’s oral statements, and Falwell v. Penthouse International, a case arising under Virginia law in which Reverend Jerry Falwell sued Penthouse for publication of his oral statements. Both those cases raised issues about rights in oral statements that were never “fixed” (e.g., written down, recorded) with the authorization of the speaker. But neither is particularly helpful for this Trump-Woodward case, both because federal law applies and because it seems clear that Trump authorized the recordings.

You may also encounter an unusual case, arising under federal copyright law, titled Taggart v. WMAQ Channel 5 Chicago, a short opinion from the Southern District of Chicago from 2000. The case was brought as a pro se action by Arthur Taggart, an individual who was convicted of and incarcerated for multiple felonies. Taggart was interviewed by WMAQ, a Chicago TV station while in prison. WMAQ then broadcast portions of those interviews, which Taggart did not consent to, highlighting unfavorable facts that Taggart admitted to on tape. Taggart sued for copyright infringement, but the court dismissed his claim. The court made several highly questionable assertions about Taggart’s potential interest in the work. For example, suggesting that even though the work was recorded with Taggart’s approval, because Taggart was not directly in control of the recording device, he could not claim an interest: “if anyone was the ‘author,’ ” the court reasoned, “it may very well have been the cameraman who fixed the ideas into a tangible expression, the videotape.” The court also suggested that, despite Taggart communicating quite vividly in the interview, and WMAQ reproducing his expression verbatim, “the utterances made during an interview are not an expression of an idea for the purpose of copyright law, they are simply an idea, and thus not subject to copyright protection.” This approach to fixation and creativity have been criticized in several places (e.g., this helpful law review note by Mary Catherine Amerine) and seems to us a clear outlier.

‘Negotiating with the Dead’

Posted January 30, 2023

This is a guest post by Meera Nair, PhD, Copyright Specialist for the Northern Alberta Institute of Technology (NAIT), commenting on the recent extension of copyright term in Canada. It was originally published at https://fairduty.wordpress.com/2023/01/10/negotiating-with-the-dead/.

When it became evident that our copyright term was to be extended by twenty years, with no measures to mitigate the excess damage wrought by such action, Margaret Atwood’s book of this title kept returning to mind. A foray into the relationships that exist between writers and writing, a book where the word copyright did not feature among those ruminations, the title nonetheless feels apt for the days ahead.

Works of long-since-dead authors will now—in the best of situations—literally become objects of negotiation. This is purportedly to the benefit of those authors’ heirs, whereas on balance the true beneficiaries will be international publishing conglomerates and collective societies. In the worst of situations though, works will simply fade away with no surviving copy to emerge seventy years after their authors’ deaths. Those authors will be forgotten, and the public domain will remain poorer.

Atwood has been a prominent advocate for a stronger scope of protection in the name of copyright, famously remembered for her characterization of exceptions as expropriation and theft during a Standing Committee Meeting of the Department of Canadian Heritage in 1996. Two decades later, when she gave the 2016 CLC Kreisel Lecture at the University of Alberta, fair dealing was called out by name. Nonetheless, that lecture was a delight to listen to, grounded as it was on Atwood’s own experiences of being a Canadian writer.

It is her life that lies at the foundation of Negotiating, which took form through the Empson Lectures at the University of Cambridge in 2000. The combination of literature, literary criticism, book history, and history itself, written as only Margaret Atwood can, makes for compelling reading. In this book she comes perhaps closest to answering an age-old question about writing: what does it mean to write? There is no neat and tidy answer; at the very least it is blood, sweat, and tears amid negotiations between oneself, the society of the living, but also that of the dead.

To be sure, financial wherewithal is relevant to any impetus to write. Money appears approximately three times among the 74 reasons for writing taken “from the words of writers themselves (xx-xxii).” Yet, perhaps unintentionally, Atwood lays bare why copyright was not, nor ever will be, a broad determinant of success (either literary or material) for Canadian writers and publishers. From identifying the limitations of the Canadian publishing sector in the early to mid-twentieth century (to say there was disinterest in Canadian authors is putting it mildly), to stripping away the facades of originality and individuality (which underpin copyright’s structure of rights) in literary endeavor, there is much here to remind us that Canada’s phenomenal success in developing literary talent (see here and here) has occurred despite copyright, not because of it.

After borrowing the book repeatedly from the Edmonton Public Library, I had to buy it. Or rather, I had to buy it in the original form. Because what I had borrowed was a book titled On Writers and Writing, by Margaret Atwood, identified as a Canadian reprint of her earlier work, Negotiating with the Dead.

My preference was to buy Negotiating; in the peculiarities of my own mind, somehow it felt more authentic. As it turned out though, my instincts were correct. The two books are not the same. The difference lies, not in Atwood’s words, but in the representation of what copyright is. While both books specify the copyright as belonging to O.W. Toad (the name of Atwood’s enterprise), similarity ends there.

In Negotiating, published by The Press Syndicate of The University of Cambridge, readers are told: “This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press (emphasis mine).”

There it is. A clear indication that statutory exceptions exist and are relevant; meaning that some reproduction might not require permission. Whereas in Writers, published by Emblem (an imprint of McClelland & Stewart, a division of Random House of Canada Limited, a Penguin Random House Company), readers are told that permission is always needed for even a particle copied:

“All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisher – or, in the case of photocopying or other reprographic copying, a license from the Canadian Copyright Licensing Agency – is an infringement of the copyright law (emphasis mine).”

Despite what a publisher might prefer, Canada’s Copyright Act permits unauthorized uses of insubstantial parts of a work and unauthorized uses of substantial parts which comport with fair dealing or other exceptions. As the Supreme Court (with unanimity) stated in 2004, “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright (para 48).” And yet, willful misinformation is standard fare among books issued in Canada.

Given the stunting of our public domain by term extension, fair dealing is even more important now as it provides some allowance of use of older, protected, material. But even a large and liberal interpretation of fair dealing, as required by our Supreme Court, is no substitute for a vibrant public domain.

With the Act expected to undergo change this year, Canada could still introduce a system of registration associated to a longer term of copyright. Owners of works which continue to be commercially successful fifty years after an author’s death, will likely choose to register and thus receive the additional twenty years of protection. Whereas works that did not have such longevity with respect to commercialization, and works that were never intended for revenue generation, would likely not be registered and thus would enter the public domain without the twenty year delay. Such a system was recommended by a former Industry Committee to uphold our obligations under CUSMA, ensure that commercial works which may benefit by a longer term are able to capture that gain, and continue to grow the public domain.

The difficulty is to convey to current Canadian lawmakers the importance of the public domain. Too often, its intangibility has meant that the public domain is perceived as being of lesser value. That an author’s work is not protected somehow deems it and the author as being unworthy. Even the way older works are spoken of, that they have “fallen into the public domain,” carries an aura of degradation familiar to the plight of “fallen women.” Whereas the public domain is precisely the opposite; it enables new works to emerge. As Jessica Litman wrote in The Public Domain (1990):

To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined. … The public domain should be understood not as the realm of material undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use (966-968).

That this truism went unexamined and unarticulated is a testament to the difficulty of capturing the intricacy of the relationships between old works and new authors. Margaret Atwood not only undertook such an exploration but also elegantly articulated the journey that underlies every literary endeavor.

It is only fitting then that Margaret Atwood should have the last words:

… All writers must go from now to once upon a time; all must go from here to there; all must descend to where the stories are kept; all must take care not to be captured and held immobile by the past. And all must commit acts of larceny, or else of reclamation, depending how you look at it. The dead may guard the treasure, but it’s useless treasure unless it can be brought back into the land of the living and allowed to enter time once more – which means to enter the realm of audience, the realm of readers, the realm of change (p.178).

Authors Alliance Annual Report: 2022 In Review

Authors Alliance is pleased to share this year’s annual report, where you can find highlights of our work in 2022 to promote laws, policies, and practices that enable authors to reach wide audiences. In the report, you can read about how we’re helping authors meet their dissemination goals for their works, representing their interests in the courts, and otherwise working to advocate for authors who write to be read.

Click here to view the report in your browser.

Authors Alliance Signs on to Amicus Brief in Gonzalez v. Google

Posted January 20, 2023

Yesterday, Authors Alliance joined a diverse group of creators of online content on an amicus brief in Gonzalez v. Google, a case before the Supreme Court. The case is about Section 230 of the Communications Decency Act and whether it protects curated recommendations by platforms. Section 230 protects online service providers from legal liability for content generated by users, and is considered by many to be essential for a vibrant and diverse internet. By shielding platforms from liability for speech their users make on these platforms, Section 230 enables the free flow of ideas and expression online, including speech on controversial topics. This is consistent with First Amendment values and the functioning of the internet as we know it.

The case concerns ISIS recruitment videos posted on YouTube, which the petitioner alleges were recommended by the platform. Gonzalez argues that Section 230 should not shield Google from liability, and that it aided in ISIS recruitment by recommending these videos to users. Google, on the other hand, contends that Section 230 shields it from liability for recommendations made on the platform, including the recommendations at issue in the case.

Our brief makes three principal arguments. First, it argues that Congress intended Section 230 to foster a free Internet where diverse and independent expression thrives. We explain that 230 was meant to facilitate free expression online, which is precisely what it continues to do.

Second, our brief argues that platform recommendations contribute to the flourishing of free expression, creativity, and innovation online. Authors like our members are served by platform recommendations and curation: for authors whose works may not appeal to a general audience, platform recommendations enable readers interested in a particular topic or type of work to discover them. In this way, platform recommendation can serve authors’ interests in seeing their works reach broad and diverse audiences. This is particularly important for authors just starting out in their careers who have not yet found an audience, and platform recommendations can and do help these authors grow their audiences.

Finally, we argue that altering Section 230’s protections for recommendations could have dire consequences for current and future creators—including authors— and could chill the free flow of ideas online. If platforms were to be held liable for content created by users, we believe they would be inclined to take a more conservative approach, moderating content to avoid the threat of a lawsuit or other legal action. This could reasonably lead platforms to avoid hosting content on controversial topics or content by new and emerging creators whose views are unknown. An author’s ability to write freely, including on controversial topics, is essential for a vibrant democratic discourse. And if platforms were reluctant to recommend content by new creators, who may be seen as less “safe,” dominant and established creators could be entrenched, doing a disservice to less established creators. Were platforms to censor certain writings or ideas to avoid lawsuits, the internet would become less free, less vibrant, and more sanitized—doing a disservice to all of us.

Authors Alliance thanks Keker, Van Nest & Peters LLP for their invaluable support and contributions to this brief, as well as our fellow amici for sharing their stories.

Announcing the “Text and Data Mining: Demonstrating Fair Use” Project

Posted December 22, 2022

We’re very pleased to announce a new project for 2023, “Text and Data Mining: Demonstrating Fair Use,” which is generously supported by the Mellon Foundation. The project will focus on lowering and overcoming legal barriers for researchers who seek to exercise their fair use rights, specifically within the context of text data mining (“TDM”) research under current regulatory exemptions.

Fair use is one of the primary legal doctrines that allow researchers to copy, transform, and analyze modern creative works—almost all of which are protected by copyright—for research, educational, and scholarly purposes. Unfortunately, in practice, not everyone is able to use this powerful right. Researchers today face the challenge that fair use is often overridden by a complex web of copyright-adjacent laws. One major culprit is Section 1201 of the Digital Millennium Copyright Act (“DMCA”), which imposes significant liability for users of copyrighted works who circumvent technical protection measures (e.g., content scramble for DVDs), unless those users comply with a series of specific exemptions to Section 1201. These exemptions are lengthy and complex, as is the process to petition for their adoption or renewal, which recurs every three years.

Text data mining is a prime example of work that demonstrates the power of fair use, as it allows researchers to discover and share new insights about how modern language and culture reflect on important issues ranging from our understanding of science to how we think about gender, race, and national identity. Authors Alliance has worked extensively on supporting TDM work in the past, including by successfully petitioning the Copyright Office for a DMCA exemption to allow researchers to break digital locks on films and literary works distributed electronically for TDM research purposes, and this project builds on those previous efforts.

The Text Data Mining: Demonstrating Fair Use project has two goals in 2023:

1) To help a broader and more diverse group of researchers understand their fair use rights and their rights under the existing TDM exemption through one-on-one consultations, creating educational materials, and hosting workshops and other trainings; and

2) To collect and document examples of how researchers are using the current TDM exemption, with the aim of illustrating how the TDM exemption can be applied and highlighting its limitations so that policymakers can improve it in the future.

We’ll be working closely with TDM researchers across the United States, as well organizations such as the Association for Computers and the Humanities, and will be actively exploring opportunities to work with others. If you have an interest in this project, we would love to hear from you!

About The Andrew W. Mellon Foundation

The Andrew W. Mellon Foundation is the nation’s largest supporter of the arts and humanities. Since 1969, the Foundation has been guided by its core belief that the humanities and arts are essential to human understanding. The Foundation believes that the arts and humanities are where we express our complex humanity, and that everyone deserves the beauty, transcendence, and freedom that can be found there. Through our grants, we seek to build just communities enriched by meaning and empowered by critical thinking, where ideas and imagination can thrive. Learn more at mellon.org.

Please Support Authors Alliance This Holiday Season!

Posted December 6, 2022

Dear Members and Allies,

Since 2014, you have helped Authors Alliance fulfill our mission to advance the interests of authors who want to make the world a fairer and more just place, to spark new conversations, and to be read by wide audiences. But our continued existence is not guaranteed, and we need your help to continue to advocate for authors who write to be read. Each year, we launch a year-end fundraising campaign and this year, we need your support more than ever.

In 2022, we continued to speak out in favor of laws and policies that empower authors to reach wide audiences, with a new focus on and expansion of our advocacy work. We submitted amicus briefs in five separate federal lawsuits (our most ambitious amicus docket yet!), defending authors’ ability to exercise their fair use rights at home and abroad, create transformative derivative works, reach readers via controlled digital lending by libraries, and more. We helped authors speak out against publishers whose actions weren’t aligned with their interests, magnifying author voices in the face of a sudden loss of access to their works. We also continued to partner with allied organizations to urge Congress to reject maximalist copyright policies, weighed in on several Copyright Office rulemakings, and much more.

We’re proud of our many accomplishments in 2022, and cannot wait for you to see what we have in store for 2023. You can expect a brand new guide to legal issues related to writing about real people, a wealth of advocacy work related to strengthening authors’ ability to engage in text data mining, and more amicus briefs to represent your interests in the courts.

Please consider making a tax-deductible donation today to help us carry on our work in 2023. Every contribution enables us to do our part to help you keep writing to be read!

Please support Authors Alliance today!

Book Talk: Data Cartels

Posted November 11, 2022

We’re excited to invite you to join us for another book talk, co-sponsored with Internet Archive, with author Sarah Lamdan about her book Data Cartels.

Join SPARC’s Heather Joseph for a chat with author Sarah Lamdan about the companies that control & monopolize our information.

Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph
Co-sponsored by Internet Archive & Authors Alliance
Wednesday, November 30 @ 10am PT / 1pm ET
Register now for the virtual discussion.
Purchase Data Cartels from The Booksmith

In our digital world, data is power. Information hoarding businesses reign supreme, using intimidation, aggression, and force to maintain influence and control. Sarah Lamdan brings us into the unregulated underworld of these “data cartels”, demonstrating how the entities mining, commodifying, and selling our data and informational resources perpetuate social inequalities and threaten the democratic sharing of knowledge.

Sarah Lamdan is Professor of Law at the City University of New York School of Law. She also serves as a Senior Fellow for the Scholarly Publishing and Academic Resources Coalition, a Fellow at NYU School of Law’s Engelberg Center on Innovation Law and Policy.

Heather Joseph is a longtime advocate and strategist in the movement for open access to knowledge. She is the Executive Director of SPARC, an international alliance of libraries committed to creating a more open and equitable ecosystem for research and education. She leads SPARCs policy efforts, which have produced national laws and executive actions supporting the free and open sharing of research articles, data and textbooks, and has worked on international efforts to promote open access with organizations including the United Nations,, The World Bank, UNESCO, and the World Health Organization.

Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph
Co-sponsored by Internet Archive & Authors Alliance
Wednesday, November 30 @ 10am PT / 1pm ET
Register now for the virtual discussion.