Author Archives: Authors Alliance

Copyright Office Report: Copyright and State Sovereign Immunity

Posted September 7, 2021
Photo by Markus Winkler on Unsplash

Last week, the Copyright Office released a report on Copyright and State Sovereign Immunity, concluding its year-long study on the topic. Sovereign immunity is a doctrine that makes states and state entities immune from lawsuits under federal law in some cases. Congress sought to eliminate sovereign immunity in the copyright context in a 1990 federal law, which was overturned by a 2019 Supreme Court decision. In response, Senators Leahy and Tillis asked the Copyright Office to conduct a study to determine whether copyright infringement by state entities is an ongoing problem warranting a new legislative remedy. The report is a culmination of that effort.

Background

State sovereign immunity immunizes states and state entities—like state government agencies, public hospitals, and state universities—from lawsuits under federal law without their consent, with roots in the Eleventh Amendment to the U.S. Constitution. But state sovereign immunity is not absolute, and can be modified or eliminated in some contexts. In 1990, Congress passed the Copyright Remedy Clarification Act (“CRCA”), which sought to eliminate state sovereign immunity with regards to copyright claims, known as abrogation, under the authority of the Intellectual Property Clause of the Constitution.

The validity of the CRCA was recently examined by the Supreme Court in Allen v. Cooper. The case concerned the state of North Carolina’s use of copyrighted images of a pirate ship found off the coast without permission from the photographer rights holder. The Court held that Congress lacked the authority to abrogate sovereign immunity under the Intellectual Property Clause, making the attempt to do so in the CRCA invalid. The Court also noted that Congress could have abrogated state sovereign immunity with regard to copyright claims under its 14th Amendment powers, but that the way it did so with the passage of the CRCA did not meet the requirements of its 14th Amendment powers. Under the 14th Amendment, Congress must enact legislative solutions that are “congruent and proportional” to the problems it seeks to address. The Court held that the record before Congress did not show the widespread, intentional infringement which would justify the total abrogation of sovereign immunity for copyright claims in the CRCA.

In response to the decision in Allen v. Cooper, Senators Leahy and Tillis asked the Copyright Office to investigate the topic of sovereign immunity for Copyright. In June 2020, the Copyright Office issued a notice of inquiry announcing a study to “evaluate the degree to which copyright owners are experiencing infringement by state entities” and the extent to which these infringements are “based on intentional or reckless conduct.” The Copyright Office also asked whether other remedies available to rights holders under state law were adequate to address the problem of infringement by state entities.

The Report

The Copyright Office’s new report is based on public comments, public roundtables, and its own legal research conducted during the course of its year-long study. In addition to reviewing the history of the study and relevant legal background, the report summarizes allegations of state infringement submitted in connection with the study, describes documentation provided by representatives of state entities regarding their policies for preventing and responding to allegations of infringement, and examines the extent to which copyright owners have other legal remedies against state entities if those state entities are immune to an infringement lawsuit. Finally, the Office sets out its recommendations for Congress in light of this study.

With respect to allegations of state infringement, the report reviews a total of 132 cases submitted by commenters which involve copyright infringement disputes brought against state entities, of which about 59% involve specific allegations of intentional infringement. The Office also summarized survey results from a survey distributed by Copyright Alliance, in which 115 of 657 respondents self-reported experiencing infringement by a state or state entity. The Office also summarized critiques of the survey, including its reliance on respondents’ subjective beliefs that infringement had occurred and the fact that it did not account for exceptions or defenses other than sovereign immunity that may have precluded liability. Indeed, a review of the raw survey data submitted by Copyright Alliance after the public roundtable reveals some misunderstandings about the scope of copyright and misplaced responses relating to previous court decisions in Authors Guild v. Google and Authors Guild v. HathiTrust, highlighting the unreliability of these self-reported allegations. Finally, the Office’s report discusses additional comments describing instances of alleged infringement by state entities relating to news content, music, computer programs, photographs and video, and books.

The report then turns to a discussion of state policies for preventing and responding to allegations of infringement, acknowledging that the record developed for the study indicates that many state universities and libraries have developed policies regarding the proper use of copyrighted material (though very little evidence was submitted regarding the policies of other state entities). First, commenters pointed to the Higher Education Opportunity Act (“HEOA”), which requires institutions receiving federal funding take certain measures to discourage copyright infringement. Commenters also highlighted institutional policies designed to prevent or respond to allegations of copyright infringement, educational efforts aimed at faculty, students, and other employees about copyright infringement, and cultural norms and expectations that reduce the likelihood of widespread intentional infringement by state educational institutions.

Copyright Office’s Recommendations

The Office concludes that, although the Office’s study surfaced a number of allegations of state infringement, it is far from certain that the record would be found sufficient to meet the constitutional test for abrogation. The Office acknowledges that few of the allegations that were surfaced in the study have been adjudicated on their merits. The Office further states that case law indicates that violations by states must be sufficiently numerous and serious to constitute a pattern of unconstitutional conduct, and that there is a material risk that a court could find even the “more robust record” of alleged infringement surfaced by this study insufficient to meet constitutional abrogation standards. That said, the Office indicated that, if Congress decides not to proceed with new abrogation legislation, the Office supports considerations of alternative approaches to abrogation to ensure that copyright owners have adequate relief if their copyrights are infringed by state entities.

* * *

Authors Alliance will monitor any Congressional action regarding the abrogation of sovereign immunity in the copyright context, or alternative approaches to potential infringement by state entities, and we will continue to update members and readers as new developments emerge.

Update: Fair Use in the Courts in 2021

Posted August 31, 2021
“Prince Mural” by red.wolf is licensed under CC BY-NC-SA 2.0

In April, we published a post on two major fair use decisions from this year: Google v. Oracle and The Andy Warhol Foundation v. Goldsmith. In the post, we expressed our uncertainty about how the decision in Google, which concerned a specific question related to software, would impact fair use analysis for literary and artistic works. Earlier this month, the Second Circuit answered this question, at least with regards to fair use jurisprudence in that circuit.

The Andy Warhol Foundation v. Goldsmith concerned the question of whether Warhol’s screen prints of Prince, based in part on a photograph taken by Goldsmith, constituted fair use. The court found that the works were not fair use, in large part because it believed that Warhol’s screen prints were not transformative, but instead, the same works as Goldsmith’s photograph, but with a new aesthetic. The court signaled that the screen prints were closer to derivative works based on the original photograph than fair uses of the photograph. In contrast, the Supreme Court in Google v. Oracle did find that Google’s use of Oracle’s APIs in its Android platform was a fair one, in part because the Court found the use to be highly transformative.  

After the Google decision was handed down, the Warhol Foundation requested a re-hearing in its case, asking the Second Circuit to consider whether the Google decision would change its fair use determination. The court then issued an amended decision, and for the most part affirmed its earlier ruling, reiterating that the screen prints did not constitute fair use. The court held that the ruling in Google v. Oracle did not have much bearing on determinations about fair use when it comes to literary and artistic works. The court also underscored the Supreme Court’s statement that copyright protection is weaker for functional works—like software—and stronger for literary or artistic works—like Warhol’s screen prints, further making the Google decision inapplicable to its case. 

Another small revision in the Warhol court’s amended decision was notable for its bearing on fair use: the original decision stated that derivative works were “specifically excluded” from being considered fair use as a categorical matter, but in the amended decision, the court stated that derivative works may fail to qualify as fair use, walking back its earlier statement. By leaving open the possibility that a derivative work might still be a fair use, the court reinforced the idea that fair use is a context and fact-specific determination, a principle that also animated the decision in the Google case.

For an in-depth discussion of Google v. Oracle and the original decision in The Warhol Foundation v. Goldsmith, see our earlier post.

Update: 1201 Exemption to Enable Text and Data Mining Research

Posted August 24, 2021
Abstract pattern of green oblong shapes on black background
Photo by Michael Dziedzic on Unsplash

Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining (“TDM”) research on literary works that are distributed electronically and motion pictures. Recently, we met with representatives from the U.S. Copyright Office to discuss the proposed exemption, focusing on the circumstances in which access to corpus content is necessary for verifying algorithmic findings and ways to address security concerns without undermining the goal of the exemption.

Access to Corpora for Verification

In response to suggestions from opponents that the exemption, if granted, should ban researchers from accessing text in their corpora, David Bamman, associate professor at the School of Information at UC Berkeley, shared circumstances in which a researcher would need to access text in a corpus to verify research findings. Drawing from his co-authored article The Transformation of Gender in English-Language Fiction, Dr. Bamman used two examples to demonstrate why access to the research corpus is necessary to verify anomalous research findings. First, Dr. Bamman executed code that produced all lines of text in Nathaniel Hawthorne’s The Scarlet Letter that include both female gendered pronouns and capitalized words to investigate an algorithm’s failure to identify any female characters in the novel. Second, Dr. Bamman executed code that produced all lines of text that included the word “legs” to investigate why this was one of the objects most associated with male characters in the research corpus.

As we have previously explained, while researchers do not need this exemption for the purpose of viewing the full text or images of the works that they or their institutions have already obtained lawfully, researchers must be able to verify their research methods and research results. The scale of many research projects would make verification of anomalous research findings without access to the research corpus prohibitively time-consuming. An outright ban on accessing text in the corpus would make many TDM projects impossible because researchers would not be able to interrogate the conclusions reached by the code they had developed. Moreover, the ability to view corpus text or images is consistent with the research environments of both HathiTrust Data Capsules and Google Book Search, and it is consistent with fair use precedent.

Security Measures

As a threshold matter, we shared our view that the approach of existing § 1201 exemptions that require reasonable security measures keyed to particular, identified risks is consistent with the decisions in Google Books and HathiTrust. In both cases, the Second Circuit identified security measures that were reasonable responses to actual risks. This is consistent with past Copyright Office recommendations that identify the risk to be guarded against, but do not prescribe the security controls to guard against it. To this aim, we suggested language to add to the exemption to more specifically define the harms that exemption users must guard against when implementing security controls—dissemination, downloading, and unauthorized access. We also explained that we not object to the inclusion of the requirement that researchers wishing to avail themselves of the exemption consult with their institution’s information technology office. Institutions of higher education are well positioned to provide this kind of advice, and it would ameliorate some of opponents’ concerns.

In addition, we discussed the various specific security controls and standards opponents advocated for in their post-hearing letters. We explained that while we continue to believe that the Copyright Office’s reasonableness approach is the right one, the intended exemption beneficiaries would still be able to avail themselves of the exemption if certain controls are imposed. These include encryption on the server, limiting access to the collection to those with a legitimate and authorized need, deletion of the collection upon conclusion of the applicable research need, and mechanisms to detect and prevent downloading of stored materials. Other security controls proposed by opponents, however, would render the exemption unusable, and we explained our concerns with these proposals to the Office.

* * *

We look forward to working with the Copyright Office to address opponents’ concerns without undermining the purpose of the proposed exemption. The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students and faculty from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.

Legal Literacies for Text Data Mining: New OER

Posted August 10, 2021

Authors Alliance is pleased to share the news of the open release of a comprehensive open educational resource (OER) on legal issues related to text data mining.

The new OER covers material taught at the Building Legal Literacies for Text Data Mining institute (funded by the National Endowment for the Humanities and led by Rachael Samberg and Tim Vollmer of UC Berkeley Library), and covers copyright, technological protection measures, privacy, and ethical considerations. It also helps other digital humanities professionals and researchers run their own similar institutes by describing in detail how the programming was developed and delivered, and includes ideas for hosting shorter literacy teaching sessions. Authors Alliance’s Executive Director, Brianna Schofield, co-authored a chapter on copyright in the OER.

Until now, humanities researchers conducting text data mining in the U.S. have had to maneuver through a thicket of legal issues without much guidance or assistance. The new OER empowers digital humanities researchers and professionals (such as librarians, consultants, and other institutional staff) to confidently navigate United States law, policy, ethics, and risk within digital humanities text data mining projects so that they can more easily engage in this type of research and contribute to the advancement of knowledge.

The resource is in the public domain under the CC0 Public Domain Dedication, meaning it can be accessed, reused, and repurposed without restriction. 

Authors Alliance Partner Program (A2P2) Resources Now Openly Available

Posted August 4, 2021
Photo by Ankush Minda on Unsplash

Authors Alliance is thrilled to announce the open release of our Authors Alliance Partner Program (A2P2) resources. For the past two years, we have been collaborating with library partners to develop a suite of resources that scholarly communications and library professionals can deploy to help faculty, researchers, and students understand and manage their rights throughout their careers. Starting today, A2P2 materials—including workshops in a box, webinars, and issue briefs—are available for everyone to freely use, adapt, and share under Creative Commons licenses. 

Workshops in a box (WIBs) are the centerpiece of our A2P2 resources. These all-in-one tool kits contain all the materials trainers need to host educational workshops at their institutions. In addition to an illustrated slide deck, all of our WIBs include presenter notes, audience FAQs and answers for presenters, overview handouts, presentation notes, hands-on exercises, and marketing materials. Current WIBs cover Rights Reversion, Understanding and Negotiating Book Publication Contracts, Fair Use for Nonfiction Authors, Open Access, and Copyright for Graduate Students. Corresponding on-demand webinars are available to supplement A2P2 in-person training.

Alongside the WIBs and webinars, we offer an ongoing series of issue briefs which provide timely and approachable introductions to emerging topics in copyright and publishing. These digestible summaries help scholarly communications and library professionals keep abreast of and navigate developments in the rapidly changing scholarly communications landscape. 

By leveraging these materials and Authors Alliance’s expertise in copyright, open access, publication contracts, and getting rights back, organizations can expand their educational capacity to serve authors on their campuses, and ultimately improve the availability and discoverability of knowledge and culture.

We are grateful to Arcadia—a charitable fund of Lisbet Rausing and Peter Baldwin—for a 2018-20 grant to support this initiative, and to the pilot partners who helped us to shape these resources. We look forward to continuing to collaborate with existing partners and building new partnerships as we develop new resources and identify new ways to contribute to author education efforts on campuses. If your organization would like to learn more about how to support the success of this program, please see the Support A2P2 page or reach out to info@authorsalliance.org for more information.

Authors Alliance Applauds Today’s Decision in Access Copyright v. York University

Posted July 30, 2021
Photograph of Supreme Court of Canada in the fall
Photograph of Supreme Court of Canada by lezumbalaberenjena, CC BY-NC-ND 2.0

This morning, the Supreme Court of Canada issued a unanimous opinion in Access Copyright v. York University, finding that approved tariffs for works in a collective copyright society’s collection were not enforceable against a user that chose not to be bound, and suggesting that the lower courts had applied an unduly narrow interpretation of fair dealing. Authors Alliance applauds this decision, the last to be authored by renowned Justice Rosalie Abella before her retirement from the bench.

The case involved a claim by Access Copyright, a Canadian copyright collective, which sought to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in Access Copyright’s collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raised the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.

Authors Alliance, together with Professor Ariel Katz, intervened in the case, submitting a factum to the Court and participating in oral arguments. On the issue of whether the approved tariffs are mandatory vis-à-vis users, we supported the Federal Court of Appeal’s finding that the approved tariffs bind copyright collectives but cannot be imposed on users as mandatory tariffs. On the issue of fair dealing, we argued that in the absence of specific allegations of copyright infringement from copyright owners, the lower courts should not have dealt with the issues of infringement and fair dealing. In addition, we urged the court to consider that Access Copyright does not represent the interests of all authors, and especially not the authors whose primary concern is their works having the greatest possible reach and impact.

In the decision, Justice Abella dismissed both York University’s and Access Copyright’s appeals. On the issue of mandatory tariffs, she found that the interim tariff set by Access Copyright was not enforceable upon users who chose not to be bound, as Authors Alliance argued in our factum. Justice Abella further stated that Access Copyright was not given authority by Parliament to make such licensing schemes mandatory on all users of the works in its collection. Emphasizing that the statutory scheme allowing collective administration of tariffs is intended to protect users from “unfair exertion of [] societies’ market power,” Justice Abella pointed out that allowing a society to “foist a license on an unwilling user” was inconsistent with “the protective purpose of the regime.” She emphasized the right of users to access texts in other ways than by obtaining a license from Access Copyright—which, as Authors Alliance pointed out in our factum, is a non-exclusive licensing agent that does not have a monopoly on the use of the works in its collection—and paying the interim tariffs.

The Court did not make a ruling on the issue of fair dealing because, in light of the finding that the tariff was not mandatory against York University, it found there was no live dispute between the parties and that it therefore need not reach the issue of fair dealing. Authors Alliance had urged such an approach in our factum, pointing out that without specific allegations of infringement from copyright owners, the lower courts should not have dealt with infringement and fair dealing.

Nonetheless, Justice Abella stated forcefully that the Supreme Court did not endorse the narrow vision of fair dealing set forth by the Federal Court and Federal Court of Appeal. This is because the lower courts inappropriately “approached the analysis from an institutional perspective only, leaving out the perspective of students that used these materials.” Under a view of fair dealing that did consider the students as the users of these materials, the educational purpose of the copying would weigh in favor of a finding of fair dealing. Instead, the fair dealing question before the lower courts should have been whether the copying “actualizes the students’ right to receive course materials for educational purposes in a fair manner.” Authors Alliance applauds the renewed focus on the educational purposes of the copying in this case and Justice Abella’s emphasis on these purposes as supporting a finding of fair dealing.

Authors Alliance is pleased with the Court’s ruling, which adopted many of the principles set forth in our factum. We pointed out that authors are not a monolith, and Access Copyright did not represent the interests of all authors. By emphasizing that Access Copyright had no standing to sue for copyright infringement, as it was not a copyright holder, the court signaled that the mandatory tariffs were not aligned with the interests of all authors. Indeed, many authors have as their highest goal seeing their works reach broad audiences and contribute to the progress of knowledge, such as being used in higher education, as the works in the case were. The robust interpretation of fair dealing offered in the decision was consistent with the thrust of our factum—that Authors Alliance’s members interests are best served by a robust application of fair dealing that does not interfere with these dissemination goals.

Authors Alliance is grateful to Lenczner Slaght attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan, as well as law clerk Anna Hucman, for pro bono assistance with this intervention.

Quantifying Copyright Reversion

Posted July 20, 2021

Authors Alliance is grateful to Cory Doctorow for sharing this piece, originally published on Pluralistic.net under a CC BY license. Doctorow is a science fiction author, activist and journalist. He is the author of many books, most recently Radicalized and Walkaway, science fiction for adults; How To Destroy Surveillance Capitalism, nonfiction about monopoly and conspiracy; In Real Life, a graphic novel; and the picture book Poesy the Monster Slayer. His latest book is Attack Surface, a standalone adult sequel to Little Brother.

Photo by Annie Spratt on Unsplash

At its outset, American copyright provided for 14 years of exclusivity, renewable for another 14 years by the author, but – crucially – not by the publisher. This was a shrewd move by the US Framers, because it meant the publisher had to convince the author to file paperwork.

Most authors have very little bargaining leverage at the outset of their publishing deals, and even when the author’s prior accomplishments afford them some bargaining power, a new book is, by definition, an unknown quantity, and the fair price for it is debatable.

Then (as now), the majority of works are no longer commercially viable after 14 years. But for authors of the minority of works that thrive over long terms, renewal is an opportunity to reopen publisher negotiations from a position of strength.

The author could say, “When I sold you this book, neither of us could say how it would fare, so you paid me a modest sum. 14 years later, it is earning for you, and if you wish to continue to enjoy exclusive rights to it, I demand that you share that bounty with me.”

If the publisher demurred, the author could simply walk away from the negotiations. The book’s copyright would not renew, other printers could produce their own editions at or near the marginal cost. The publisher would lose all, the author would be no worse off.

Some form of renewal endured in US copyright for many years, and even after it was abolished, US copyright retained a measure intended to address creators’ unbalanced negotiating power with their investors (studios, labels, publishers, etc): Reversion.

Essentially, US copyright lets creators to claim back their rights after 35 years (depending on the work’s age), even if their contracts are for longer terms. This right can’t be contracted away, either: a clause that says “I won’t ever revert my rights” is not enforceable.

Reversion could allow creators to renegotiate their deals, but it has other benefits. For scholarly authors – who must sign away all rights, for free, to publish in journals that charge fortunes for access – it’s a chance to get those works into the public domain.

For authors, it’s a partial answer to the conundrum of ebooks and print-on-demand, which have made contractual reversion obsolete (publishers historically gave your rights back when the book was out of print, but ebooks and PoDs are never out of print).

And for creators who were tricked into signing away their rights, it’s a chance to get them back.

But for all that, reversion is woefully rare, because the process is so complex, uncertain and obscure.

For years, the Authors Alliance has provided tools for creators seeking to revert their works, but even with this assistance, the process is daunting.

Efforts to improve the system have been hampered by a huge data-void. The US Copyright Office’s databases are woefully and infamously clunky, incomplete, out-of-date and under-resourced.

This is a crisis for all creators – if we want to sell our works, then having clear records of our claims on them is essential, first, so buyers can find us, and second, so we can prove that we have the right to sell.

The rights reversion data void hampers international efforts to improve copyright for creators, as in South Africa, where US entertainment cartels exploited the gap to sow fear, uncertainty and doubt in a bid to prevent South African authors from winning reversion rights.

Which is why “U.S. Copyright Termination Notices 1977-2020: Introducing New Datasets” represents such a milestone. A group of Australian scholars present the first ever comprehensive data on US copyright reversions.

The authors – Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham, Genevieve Grant – scraped all Copyright Office data pertaining to reversion, painstakingly processed it, and published it. Here’s the data and here’s the codebooks.

The paper is up on SSRN, and has been accepted for publication in the prestigious Journal of Empirical Legal Studies. It’s an eye-popping read, and it reveals the truly dismal state – and vital necessity – of reversion.

Few creators have managed to revert but the ones that have are fascinating. Stephen King is a leading reverter, as are George RR Martin, Nora Roberts and David Eddings – successful authors who are able to claim back their works and seek new deals based on their track records.

A single YA author – Francine Pascal – accounts for nearly all the YA reversions, thanks to her reclaiming of all 305 of her Sweet Valley High novels (in kids’ books, Ann Martin attains another high-water mark for reverting the Baby-Sitters Club books).

But the most fascinating entry is funk titan George Clinton, who pursued his former manager Nene Montes for years, claiming he’d forged Clinton’s signature and defrauded him to steal the rights to most of Clinton’s prodigious and profitable catalog.

Thanks to reversion, Clinton was able to finally settle all question of title without expensive litigation – he simply reverted 1,413 works.

These are just the preliminary findings from this landmark, open-access dataset. Other researchers are encouraged to mine it further.

For policy-makers and creators’ advocates, this data finally puts a sound evidentially footing beneath the debate over reversion. US reversion does help creators, but it is badly hamstrung by needless complexity and poor record-keeping.

Improving reversion – simplifying it, or even making it automatic at 25 years – is a no-brainer if you want to improve creators’ share of the bounty of their most successful works.

Not coincidentally, Giblin (one of the authors) and I collaborated on THE SHAKEDOWN, a forthcoming book on how copyright, labor, contracting, and antitrust reforms could actually improve the creators’ share of the profits from their labor.

Authors Alliance Supports Copyright Exceptions in South Africa’s Copyright Amendment Bill

Posted July 13, 2021
photograph of Cape Town with buildings in foreground and Table Mountain in background
photo by Martina79 | CC0

The Parliament of the Republic of South Africa is currently considering the Copyright Amendment Bill, an update of the country’s 1978 copyright legislation. In response to an invitation from the the Portfolio Committee on Trade and Industry, we submitted comments in support of the copyright exceptions included in the draft bill.

Our comments explained that authors can benefit from exceptions to copyright throughout the creative process and long thereafter. We shared how copying, quoting, and generally reusing existing cultural material is critically important to the production of new creative works and the advancement of knowledge. Nonfiction and fiction authors alike rely on exemptions to enable criticism, commentary, and illustration, among authors uses, to create new works and contribute to public discourse.

With respect to exceptions in the draft bill for educational and academic activities, we described the ways in which exceptions for these uses can also benefit authors, enabling them to reach wider audiences, helping them to build reputational capital, and amplifying their ability to contribute to the advancement of knowledge. And finally, regarding proposed exceptions for libraries, archives, museums, and galleries, we shared how these exceptions promote the long-term interests of authors, ensuring that their works are discoverable and preserved.

Including carefully crafted exceptions to copyright in South Africa’s copyright laws will promote a vibrant creative ecosystem and serve the public good. We commend the Parliament of the Republic of South Africa for the inclusion of these provisions in the draft Copyright Amendment Bill and look forward to tracking its progress. For the full text of our comment, click here.

Online Instruction and Copyright: Why We Developed Our New FAQ

Posted June 29, 2021
Photo by Chris Montgomery on Unsplash

Last week, we released a brand new resource on frequently asked questions regarding copyright ownership in course materials produced for online learning—the product of a semester’s worth of work by student clinicians at the Georgetown Law iPIP clinic, Elise Widerlite and Harry Levin, supervised by Amanda Levendowski and Nina Srejovic. In this week’s post, we share some of the stories and copyright challenges that led us to develop this resource. The FAQ is in large part a response to the changes made in higher education instruction during the COVID-19 pandemic, but there is reason to believe that the information it contains will continue to be relevant and informative for university faculty in the future.

Universities Grapple with Copyright Policies

Even prior to the start of the pandemic, online instruction had for years been increasing in popularity, and universities were grappling with how to handle copyright issues in materials created for online learning. By custom or through policy, many universities allow faculty to retain copyright ownership over traditional academic materials they create, such as syllabi and lesson plans, but this arrangement can and often does differ for materials created for instruction in non-traditional settings—such as those created for online courses. 

In October 2019, Purdue University adopted an intellectual property policy that treated all online courseware and online modules as “works for hire,” meaning that the university would own the copyright in these materials rather than the professor-creators. Once in-person instruction moved online in the early months of 2020, faculty became concerned that the university could claim ownership over traditional course materials that had moved to an online format due to the exigencies of the pandemic, and asked the university to pledge that it would not seek ownership over these materials or use them commercially without the professors’ consent. In response to faculty complaints, Purdue clarified that it did not seek ownership in traditional course materials used in courses that had moved online, and agreed to seek permission from instructors before commercializing the online course materials that it did consider to be works for hire. 

The disconnect between Purdue’s 2019 IP policy and the faculty expectations during the pandemic shows the challenges that the shift to online instruction caused for universities and professors alike. Uncertainty in copyright ownership helps no one, and we created our new FAQ to shed some light on how various university policies can interact to govern copyright ownership in online course materials. 

New Copyright Challenges in Online Instruction

The move to remote instruction also exposed some oddities in university intellectual property policies. At American University (“AU”), the university sent professors guidance on intellectual property rights in the course materials they created prior to the start of the Fall 2020 academic term. The university policy stipulated that if faculty members produced materials for online instruction using commercial software (like Skype or Google Hangouts), those faculty members would own the copyrights in those materials. If, however, the faculty members used the university-provided Blackboard software to develop those same types of materials, AU would own the copyright in the works. Faculty members pointed out that it was strange that the copyright ownership in these materials depended on the software used to produce them and not their content: a lecture recorded using Blackboard would be subject to different copyright ownership rules than an identical lecture recorded using Skype. And other university faculty chimed in with similar stories: at some universities, faculty are even unable to delete videos they recorded using Blackboard software from university course pages. 

Faculty members at AU also expressed fears that the Blackboard-created course materials could be used by the university once they were no longer teaching there, such as in the event of a labor dispute between faculty members and the employing university. In our FAQ, we discuss the possibility of a university using online course materials created by a faculty member once that faculty member no longer teaches at the university to help faculty members who may find themselves in this situation. 

Unexpected Consequences: The Ghost Professor

Changing copyright ownership structures in materials created for online learning can result in unexpected consequences for students and the academic community. In January of this year, a student at Concordia University in Canada discovered that the professor of the online course he was enrolled in was, in fact, deceased. Incredibly, the student only made this discovery when he attempted to email his professor about a matter related to the course. Concordia confirmed that the professor of record for the course was deceased and stated that the course materials had been part of the university’s online catalogue prior to the pandemic: the now-deceased professor recorded the lectures with an understanding that they would be used for online instruction without further in-person involvement by the professor. 

While the precise copyright ownership structure that led to this result is not known, it shows an unexpected consequence of handing over rights in online course materials to a university. As we discuss in the FAQ, handing over all rights can result in a lack of control for the professor over how course materials are disseminated in the future. 

Online Instruction Going Forward

While many academic institutions that had implemented distance learning during the 2020-2021 academic year will begin offering in-person classes for the upcoming fall semester, there is reason to believe that the copyright and authorship challenges exposed by the temporary move to remote instruction are here to stay. A recent survey of university students found that students had a more positive outlook on online learning than they did before the start of the pandemic, and that a higher percentage of students wanted online learning options compared to before the start of the pandemic. Additionally, faculty at a number of universities have expressed a desire for flexibility in where and when they work. Like many employees across sectors, many university faculty do not wish to return to working in-person five days a week, due to challenges of the pandemic or the adjustments these challenges necessitated. Where in-person instruction is not possible or feasible full-time, online learning can fill the gap, just as it did during the pandemic, making copyright issues in materials produced for online learning of continuing relevance. 

Our FAQ seeks to address these issues and more. We hope it will prove a valuable resource for university faculty that will create or have created online course materials and seek clarity regarding who owns the copyrights in those works and how the works can be used. We encourage you to dig in to the FAQ and share it with those in your professional or personal circles that may find it useful.

FAQ: Copyright Ownership & Online Course Materials

Posted June 22, 2021

Authors Alliance is grateful to Harry Levin and Elise Widerlite, student attorneys at Georgetown Law practicing D.C. law pursuant to D.C. App. R. 48 under the supervision of Amanda Levendowski and Nina Srejovic, for researching and authoring this FAQ.

Photo by Sigmund on Unsplash

Many universities’ policies and customs provide that professors have full copyright ownership in the traditional academic materials they create, such as syllabi and lesson plans. However, this arrangement may differ for online course materials. For example, universities may assert ownership over copyrights in materials that are created for online presentation outside of the confines of the traditional classroom or academic term. As such, materials produced for an online class, a hybrid course taught over the summer, or for a project with a third-party provider may be subject to different rules. Since the shift to a virtual learning environment brought on by the COVID-19 pandemic has prompted faculty at many universities to create new course materials to facilitate distance learning, many faculty authors have questions about who owns the copyrights in these materials. Because the allocation of copyrights affects how course materials can be used, modified, and shared, it is important for faculty to have clarity about copyright ownership in the materials they create.

This FAQ answers common questions faculty may have about how to determine who owns copyrights in the materials they create for online courses, as well as whether and how uses of those materials may be limited. It is for faculty who have created or will create online course materials and want to understand their rights under their faculty contracts, university policies, and other agreements with their institution. It provides faculty with the information they need to navigate the terms that govern copyrights in the online course materials they create and provides resources for learning more about the copyright issues involved.

This FAQ addresses U.S. copyright law. It does not address other areas of law, including privacy, trademark, and state law issues. This FAQ is not legal advice nor does using this FAQ create an attorney-client relationship. Please consult an attorney if you would like legal advice about your rights, obligations, or individual situation.

This FAQ has three parts. Part I provides an introduction to online course materials and copyright as it relates to those materials. Part II explains how course agreements can shape how you and your university can use, modify, and share online course materials. Finally, Part III provides additional guidance and resources. To get the most out of the FAQ, you may wish to have your institution’s intellectual property policies, your employment contract(s), and any project-specific contract(s) in hand.

For a pdf version of this FAQ, please click here.

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