Author Archives: Authors Alliance

Fagundes & Perzanowski on Abandoning Copyright

Posted May 19, 2020
Photo by Ben Cliff on Unsplash

Authors Alliance is grateful to Nicolas Charest, Copyright Research Assistant, for providing this review of an academic article proposing a legal framework to facilitate copyright abandonment.

In a new article, Abandoning Copyright, Dave Fagundes, Professor of Law at the University of Houston, and Aaron Perzanowski, Professor of Law at Case Western Reserve University, review the doctrine of copyright abandonment and suggest reforms to facilitate copyright abandonment and promote a richer public domain.

Copyright abandonment refers to the voluntary and permanent relinquishment of an owner’s rights in a copyrighted work prior to the expiration of the work’s copyright term. In general, an author abandons her copyright by forming an intent to relinquish her rights and engaging in an overt act reflecting that intent. Abandoned works become part of the public domain, free from copyright and available for anyone to use. Fagundes and Perzanowski propose that copyright law should facilitate the legal and administrative process of abandonment, suggesting that doing so would realign copyright law with the constitutional intent of incentivizing creation to enrich the public.

The authors acknowledge that abandoning copyrights prevents an author from extracting the economic value of a work that is derived from exploiting exclusive rights. In addition, an author who abandons copyright also gives up the ability to prevent uses to which they would object. However, the public welfare is greatly benefited as the work becomes freely available for anyone to access and use. As such, abandonment can encourage new creative production by making more “raw material” available for other creators to use in their own works, whether it be original creation or derivative works (the authors point to examples of multiple movie adaptations based on literary works in the public domain, such as Alice in Wonderland, Peter Pan, The Jungle Book, Sherlock Holmes, King Arthur, and Robin Hood).

Fagundes and Perzanowski criticize the current state of the law surrounding copyright abandonment: The lack of a clear, reliable way to abandon copyright frustrates authors who wish to abandon their copyrights, and the practical effectiveness of abandonment is undermined by the lack of a broadly accessible record of abandoned works. The Copyright Act of 1976 contains no explicit provision on how an author may opt out of copyright law’s grant of economic rights. They also highlight that although the U.S. Copyright Office records notices of abandonment, it does not indicate whether such recordation is legally effective in actually abandoning the copyrights. Finally, they point out that the doctrine of abandonment is ill-defined and courts are inconsistent in their rulings, often mixing abandonment with other doctrines such as forfeiture or waiver. They ultimately conclude that these shortcomings might discourage authors who would otherwise be inclined to abandon their works because the practice appears inaccessible.

In light of the above, Fagundes and Perzanowski propose the following:

  • Courts should clarify the standard for copyright abandonment and distinguish abandonment from other related doctrines.
  • Courts should favor clear written and oral statements of intent to abandon and narrowly interpret all other forms of evidence of intent, especially those based on the physical disposition of copies of a work.
  • Congress should amend the Copyright Act to specifically provide for the power to abandon copyrights and dedicate works to the public domain and to define a standard and associated mechanism for abandonment.
  • Congress could empower the Copyright Office to define a standard for abandonment and develop administrative mechanisms for evaluating, recording, and publicizing notices of abandonment. This filing process should be free.
  • The law should clarify the public domain status of works subject to private dedication instruments like Creative Commons’ CC0 license, and a complete and authoritative registry should be developed to search for abandoned works.

Fagundes and Perzanowski also consider strategies to bend the incentives of copyright owners towards abandonment.

The full text of the article can be found here.

Authors Alliance Voices Support for Public Access to Federally Funded Research

Posted May 11, 2020

Authors Alliance submitted a comment to the Office of Science and Technology Policy urging the adoption of a federal policy that would make the results of all federally funded research immediately available for the public to freely access and use. Removing price and permission barriers is consistent with most scientific authors’ wishes; supports learning, teaching, research, and practice; and creates a more hospitable environment for scientific advancement.

Our comment recommends:

  • That the results of all federally funded research be made immediately available, with a zero-embargo policy. The current 12-month embargo period allows for an unnecessary delay that hinders the progress of knowledge.
  • That scholarly publications resulting from federally funded research be made publicly available under a Creative Commons Attribution (CC-BY) license. Licensing scholarly publications under a CC-BY license removes permission barriers that could otherwise prevent other researchers and the general public from fully accessing, sharing, and reusing scholarly publications.
  • That data resulting from federally funded research be made available and dedicated to the public domain using a CC0 license. When data are readily available in the public domain, other researchers and the general public are able to validate, replicate, and build on previous research.

Read the full text of the comment here.

Authors Alliance is grateful to student attorney Kennedy Smith and Professor Blake Reid of the Samuelson-Glushko Technology Law & Policy Clinic (TLPC) at Colorado Law for their assistance drafting this comment.

Federal Court of Appeal Deals Access Copyright Huge Blow as it Overturns York University Copyright Decision

Posted May 4, 2020

We thank Professor Michael Geist for sharing this analysis of the York University v. Access Copyright decision, cross-posted from his website where it was made available under a CC BY 2.5 CA license.

York University Station by wyliepoon https://flic.kr/p/HGWRpp (CC BY-NC-ND 2.0)

The Federal Court of Appeal delivered its long-awaited decision the York University v. Access Copyright case yesterday, setting aside the lower court ruling that I had described as “a complete victory” for Access Copyright. The latest ruling will not leave York University and the education community completely happy given the court’s fair dealing analysis, but winning on the mandatory tariff issue removes both the threat of mandated payments to Access Copyright as well as the possibility of a copyright infringement lawsuit by the copyright collective. That represents an enormous win both for York and for a fair approach to copyright licensing that ensures users have licensing choice.

Access Copyright quickly claimed the decision was a “mixed outcome”, but losing on the mandatory tariff issue eliminates its ability to force the education community to enter into its licence. The copyright collective has spent much of the past decade lobbying the Canadian government to reverse the 2012 copyright reforms that added the education purpose to fair dealing. That approach was rejected by the Government’s copyright review, which opened the door to a further expansion with a “flexible fair dealing” model. But the real story of education and copyright in Canada for the past twenty years has been the string of appellate decisions that have largely unravelled the legal underpinnings of the Access Copyright model. The Supreme Court’s CCH decision brought user rights and an emphasis on fair dealing. The Access Copyright v. Alberta decision ended the claim that there was a meaningful distinction between student copying and teachers’ copying for students. This latest decision addresses the mandatory tariff issue, confirming that educational institutions can opt-out of the Access Copyright licence as appropriate and that any claims of infringement will be left to copyright owners to address, not Access Copyright.

To be clear, the decision does not mean that there is no compensation for authors and publishers nor that their copyrights are unenforceable. Copyright law still grants them exclusive rights over their works subject to users’ rights such as fair dealing. This right includes the ability to pursue infringement claims backed by statutory damages. Rather, users have choice in how they obtain the necessary rights for the works they use. Access Copyright has long claimed there was effectively no choice as its approach was mandatory once copying was captured by the licence. This decision canvasses decades of legislative history to conclusively demonstrate that this was never the case. Instead, the Access Copyright licence – even once certified by the Copyright Board – is an option available to users. However, educational users today have a wide range of alternative options including site licensing, open access materials, transactional licences, and fair dealing. Many institutions now use a combination of these paid and unpaid approach as a better approach.

Where does that leave Access Copyright? The copyright collective must compete in the market by offering a compelling value proposition to potential licensees, who will compare the Access Copyright licence to the other available licensing options. If authors or publishers believe that that licensing still leads to infringement, they – not Access Copyright – are entitled to pursue statutory damages in court.

Read the rest of Professor Geist’s analysis of the case and the court’s discussion of the mandatory tariff and fair dealing issues here.

Update: Georgia v. Public.Resource.Org

Posted April 27, 2020

Today, the Supreme Court of the United States issued a decision in Georgia v. Public.Resource.Org Inc, holding that the annotations in Georgia’s Official Code are ineligible for copyright protection.

Background

The Code Revision Commission (the “Commission”), an arm of the State of Georgia’s General Assembly, is mandated to ensure publication of the statutes adopted by the General Assembly. It does so by contracting with the LexisNexis Group (“Lexis”) to maintain, publish, and distribute the Official Code of Georgia Annotated (“OCGA”), an annotated compilation of Georgia’s statutes. Following guidelines provided by the Commission, Lexis prepares and sells OCGA, which includes the statutory text of Georgia’s laws and annotations (such as summaries of judicial decisions interpreting or applying particular statutes). Lexis also makes unannotated versions of the statutes available online.

Public.Resource.Org (“PRO”) is a non-profit organization that promotes access to government records and primary legal materials. PRO makes government documents available online, including the official codes and other rules, regulations, and standards legally adopted by federal, state, and local authorities, giving the public free access to these documents. PRO purchased printed copies of the OCGA, digitized its content, and posted copies online through its own website.

Georgia filed suit against PRO claiming copyright infringement. For a brief history of the litigation, see our earlier post on the case.

Supreme Court’s Decision

The issue before the Supreme Court was whether Georgia can claim copyrights over the OCGA annotations or if it is prevented from doing so because the annotations are an “edict of government.” Under the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.

Reviewing earlier cases involving the government edicts doctrine, the Court was guided by an animating principle that “no one can own the law.” The majority opinion found that under the government edicts doctrine, legislators may not be considered the authors of the works they produce in the course of their official duties as legislators. The Court held that the rule applies regardless of whether a given material carries the force of law, and that it applies to the annotations in OCGA because they are authored by an arm of the legislature in the course of its official duties.

As a result, the Court affirmed the 11th Circuit’s decision that the annotations in Georgia’s Official Code are ineligible for copyright protection and finding in favor of PRO.

Law and Ethics of Copying: Copyright Infringement vs. Plagiarism

Posted April 22, 2020

While the terms “copyright infringement” and “plagiarism” are often incorrectly used interchangeably, they are different harms.

Authors Alliance is grateful to Nicolas Charest, Copyright Research Assistant, for providing this overview for authors to clarify how copyright infringement and plagiarism differ.

Copyright infringement is a harm that is grounded in law: It is a violation of the exclusive rights of a copyright holder to reproduce and distribute a copyrighted work, to prepare derivative works, or to perform or display the work publicly. An infringement of one of these rights, such as the unauthorized reproduction or distribution of a copyrighted work, gives rise to a claim under federal law where a copyright holder may be entitled to a monetary remedy and a court can order the infringing party restrain from further infringement.

Plagiarism, on the other hand, is a harm that is grounded in ethics. Put simply, plagiarism is the act of using another’s work or ideas and not giving proper credit, instead falsely presenting it as the user’s own. There is no statutory prohibition against plagiarism. Instead, plagiarism is governed by community norms and the consequences of plagiarism are most likely to be professional or academic sanctions. To avoid plagiarizing another’s work or ideas, authors should properly credit the source of the ideas or words used in their text, with adequate references and citations appropriate to their discipline, and use quotation marks where appropriate when quoting directly.

Sometimes plagiarism also rises to the level of copyright infringement, but not always. For example, authors may freely use materials in the public domain without concern for copyright liability, and some unauthorized uses of copyrighted material are permitted under exceptions to copyright like fair use. While these uses are not copyright infringement, they may still be plagiarism if the work is used in a manner that presents the work or ideas as the user’s own. Likewise, usurping the ideas of another creator without properly crediting the source of the idea is not copyright infringement (copyright protects expression, not ideas), but may be plagiarism.

On the flip side, a use may be copyright infringement, but not plagiarism. For example, unauthorized copying may be copyright infringement if it does not fall under an exception to copyright, but if the source is attributed and the user is not claiming the work as her own, it is unlikely to also be plagiarism.

New Report: Evaluating the Benefits and Costs of a 25-Year Termination Right in Canada

Posted April 14, 2020
Red and white Canadian maple leaf flag against a blue sky
photo by RonnyK | CC0

A new report by Paul Heald recommends that Canada adopt a right for an author (or their heirs) to terminate a transfer of copyright 25 years after the transfer was made. Relying on empirical data, Heald concludes that a carefully crafted termination right would provide measurable benefits to authors and to the Canadian public.

Under section 14(1) of Canada’s current Copyright Act, any grant of interest in a copyrighted work made by an author (except for a grant made in a will) after June 4, 1921 automatically reverts to an author’s estate twenty-five years after an author’s death. As a part of a review of Canada’s Copyright Act, Canada’s Standing Committee on Industry, Science and Technology Committee and the Standing Committee on Canadian Heritage recommended that authors should have a non-waivable right to regain control of a copyright twenty-five years after the initial assignment of rights in the work (rather than twenty-five years from the author’s death). Heald’s report was commissioned by the Heritage Committee to evaluate the effect of such a change.

Heald’s report reviews the private and public benefits of providing a statutory right to terminate transfers. As detailed in the report, providing a termination right gives authors the ability to renegotiate a contract or to bring a work back into print with a new publisher or by self-publishing. The public, in turn, benefits from a measurable increase in the availability of works to the public. Drawing on data from the US, UK, and Canadian book markets, Heald shows the negative effect of copyright term length on the availability of books in print and how rights reversion can increase the ability of book titles.

The report also examines the private and public costs of a statutory reversion right. Heald evaluates claims that publishers will offer diminished compensation to acquire rights that are subject to termination. He concludes that because publishers of books, for example, can anticipate earning 99.5% of the present value of the book by year 25, the potential that an author will terminate a transfer of rights at year 25 should not change the business models of rational book publishers. On the public cost side, Heald argues that potential costs (such as exacerbation of orphan works problems and potential issues for investors in derivative works) can easily be minimized by careful drafting of the termination right.

In sum, Heald recommends that Canada adopt a termination right that:

  • provides creators a non-assignable, non-waivable right to terminate any transfer of an exclusive right no earlier than 25 years after the execution of the transfer;
  • extinguishes itself five years after it becomes available;
  • takes effect no earlier than twelve months after the creator is notified of the intent to exercise the right;
  • requires that notice be subject to registration;
  • requires that termination can only be exercised by claimants holding 51% or more of the termination right; and
  • provides protection for a transferee who properly licensed the copyrighted work to create its own authorized original work of authorship.

The full report is available here.

Resource List: Copyright and COVID-19

Posted April 1, 2020

We’ve collected resources to answer questions that you might have about fair use, access to educational materials, and temporary changes to Copyright Office operations during the COVID-19 outbreak. We’ll continue to add to this resource list as relevant resources are released; please check back often.

Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research

A group of library copyright specialists recently released a Public Statement on Fair Use & Emergency Remote Teaching & Research to provide clarity for U.S. colleges and universities about how copyright law applies to remote teaching and research in the wake of the COVID-19 outbreak. In response to concerns that copyright may pose impediments to a rapid shift to remote instruction—or conversely, that copyright is not relevant—the Statement authors review how fair use and the Digital Millennium Copyright Act (“DMCA”) apply to remote teaching. As they conclude, “[w]hile legal obligations do not automatically dissolve in the face of a public health crisis, U.S. copyright law is, thankfully, well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.” Read the Statement here.

Resilient Digital Materials for College and University Teaching and Learning: Copyright and Open Education Strategies

The Program on Information Justice and Intellectual Property is presenting a series of webinars to help teachers navigate concerns around copyright when finding digital teaching materials:

April 17, 03:00 PM ET: Educational fair use in the COVID-19 emergency: yes you can scan (and more) for colleges and universities (watch the webinar recording here)

April 24, 03:00 PM ET: Finding teaching materials for Fall 2020 and beyond: evaluating resilient digital teaching and learning materials from open and commercial sources for college and university teaching (including finding materials and evaluating licensing) (watch the webinar recording here)

May 1, 03:00 PM ET: Creating teaching materials for Fall 2020 and beyond: authoring and adapting Open Educational Resources for colleges and universities (strategies, systems, and sources for creating OER)

Register here for the entire Higher Education track or for individual webinars within the track.

Reading Aloud: Fair Use Enables Translating Classroom Practices to Online Learning

As many teachers face an abrupt shift to online teaching, there have been questions about how copyright law applies to the translation of classroom-based practices of reading aloud to students to the digital environment. This guide examines how fair use applies to read-aloud activities online, concluding that “[w]hen researchers translate classroom practices of reading aloud to online student facing tools, such as distribution through a school website, learning management system, or live webcast, fair use enables most of the same practices online that take place in person. Read the guide here or watch the webinar recording.

Over 50 Publishers Offering Free Content on Project MUSE

In response to challenges created by COVID-19, Project MUSE has partnered with more than 60 publishers to temporarily make scholarly content freely available to assist with access for the many students, faculty, and researchers now working remotely. More than 15,000 books, and over 230 journal titles—comprising well over 10,000 issues and more than 185,000 articles—are available through this initiative. More details on the content and the full list of participating publishers are available on the Project MUSE website.

United States Copyright Office’s Public Notice Regarding Timing Provisions Involving Certain Registration Claims and Notices of Termination for Persons Affected by COVID-19

The United States Copyright Office has announced temporary extensions for registering copyrights and recording notices of termination for those unable to comply with deadlines as a result of the COVID-19 emergency. The Copyright Office has provided this temporary measure to accommodate copyright owners who may be prevented from completing and submitting materials in a timely manner due to lack of access to physical documents, including deposit copies of copyrighted works, or the inability to deliver materials to a mail carrier. To qualify, applicants must submit a statement certifying under penalty of perjury that they would have met the deadline but for the national emergency. For applications that can be submitted entirely in electronic form, the timing provisions are unchanged. For more information, visit the Office’s webpage dedicated to operational updates during the COVID-19 pandemic.

Authors Alliance Weighs in on the Next Register of Copyrights

Posted March 23, 2020
photo by Carol Highsmith

Authors Alliance has provided guidance in response to the Librarian of Congress’ request for public input on the expertise needed by the next Register of Copyrights and the top three priorities for the next Register.

In our submission, we encourage the Librarian of Congress to appoint a Register who has a demonstrated willingness to take into account the diversity of viewpoints among creative communities, has the knowledge and skills to support the Office’s modernization efforts, and places a high value on developing practices and policies that are informed by empirical data.

In addition, we identify three priorities for the next Register:

  • Improving Ownership Records: The Register should prioritize plans to ensure that the public record of copyright ownership is accurate, complete, and timely. Alongside modernization efforts to make registration easier, the Register should work with Congress to identify and implement meaningful incentives to ensure copyright records, including those reflecting transfers of ownership, are accurate.
  • Providing Comprehensive Access to Records: The Register should prioritize efforts to make registration records and recorded documents fully available and searchable online. The information included in these documents needs to be readily accessible to the public to help facilitate permissions requests, prevent works from becoming orphans, and establish how long copyright lasts for any given work.
  • Making Fees Affordable: The Register should prioritize adopting methods for differentiating fees, giving particular consideration to authors whose works have an unproven or low commercial value. Empirical evidence suggests that registration decreases in response to small increases in registration fees. Affordable fees will bolster the public record and help ensure authors’ legacies are not lost.

Read our full submission at this link.

Authors Alliance Submits Comments to USCO on the Meaning of Publication in the Online Context

Posted March 20, 2020
Photo by Luis VIllafranca on Unsplash

Authors Alliance has submitted comments to the U.S. Copyright Office in response to its request for public input on the meaning of “publication” in the online context. The Office sought comments to support its effort to provide additional guidance regarding the determination of a work’s publication status for registration purposes.

Our comment encourages the Office to promulgate a regulation to allow applicants to identify a work as having been first “published” online. In the Internet age, distribution through online, digital, and electronic channels is the primary primary means by which copyrightable content reaches the public at large, and has eclipsed if not eliminated many traditional, non-electronic forms of distribution. There is no reason why applicants should not have the option to specify such a widespread mechanism of distribution as the means by which their works were published.

We further encourage the Copyright Office to adopt guidance that “publication” occurs when a work is first offered, under the rights-owner’s authority, for viewing online without technological restrictions that prevent downloading or other reuse. To do so would add much needed clarity and promote broader use of copyrightable works.

Authors Alliance thanks the exceptional team at Latham & Watkins for preparing these comments. To read the full comment, click here.

New Empirical Study of Australian Publishing Agreements: A Case for Statutory Reversion Rights for Authors

Posted March 11, 2020
Photo by Helloquence on Unsplash

Authors Alliance is grateful to Nicolas Charest, Copyright Research Assistant, for contributing this post.

New findings based on empirical research by Joshua Yuvaraj and Rebecca Giblin highlight serious deficiencies in publication contracts, especially with respect to provisions for returning rights to authors. In Are contracts enough? An empirical study of author rights in Australian publishing agreements, Yuvaraj and Giblin analyze 145 book publication contracts from the archive of the Australian Society of Authors and conclude that the contracts are generally not sufficient to protect authors’ interests in the long-term availability of their works. Given this, the authors propose introducing baseline minimum protections to improve author incomes, investment opportunities for publishers, and access for the public.

The United States and many other countries give authors statutory rights to terminate transfers of copyright (often called “reversionary” or “termination of transfer” laws). Among other benefits, these rights give creators the ability to give new life to works that have outlived their commercial lives but are nonetheless historically and culturally valuable. By getting rights back, authors can seek alternative distribution outlets, whether it be publication on new platforms, translation and distribution of works in new languages and in new territories, adaptation into movie scripts, or releasing works under a public license. Beyond statutory termination provisions, authors may also be able to regain rights through provisions in their publication contracts.

Since Australia does not give authors a statutory right to regain their copyrights from their publishers, Yuvaraj and Giblin’s new paper explores whether the provisions in the contracts they reviewed were adequate to protect the interest of authors to regain unexploited rights. Yuvaraj and Giblin conclude that provisions were generally deficient. Their observations include:

  • The Rights Assigned or Licensed to Publishers are Extremely Broad: Authors typically hand over overwhelmingly broad and long-lasting rights, with 83% of agreements covering the right to print, publish, and/or license the work for at least the entire copyright term, and 19% of those specifically include any future extensions of that copyright term. Most of these licences or transfers also secured the publisher’s rights over any and all territories, and almost half included rights in all languages.

  • “Out-of-Print” Clauses are Rarely Based on Objective Criteria: While 87% of the contracts examined had some form of out-of-print reversion clause, most relied on a “technical availability” standard to determine whether a rights in a work are eligible for reversion to the author. Only 7% of out-of-print clauses were based on objective criteria like the number of copies sold. A further 5% left the determination of out-of-print status entirely to the publisher’s discretion.

  • Authors Face Long Waits Before They Can Reclaim Rights: When reversion rights are provided in the agreements, Yuvaraj and Giblin observe that there are often built in delays before the author can revert rights. In the contracts analyzed by the authors, delays include: a period after initial publication (ranging from 1-7 years), a period after the book goes out of print (ranging from 6 months to 3 years), and a period of notice to the publisher to reprint the book (from 2 months to 2 years).

  • “Use it or Lose it” Clauses are Rare and Some Contracts Fail to Provide for Reversion in the Event of Liquidation: Just 6% of the contracts provided for the return of unexploited language and territory rights (“use it or lose it” clauses). A full 30% of the contracts failed to provide for reversion of rights to authors in the event of a publisher going out of business.

Yuvaraj and Giblin argue that in light of these findings, contracts cannot be relied on as the only way to protect authors rights and recommend that minimum reversion rights for authors should be include in copyright statutes. They suggest that lawmakers explore possible avenues for introducing new minimum reversion rights for authors, including 1) rights to revert where a book is no longer being meaningfully exploited; 2) use-it-or-lose-it rights; 3) a right to revert when the publisher enters liquidation; 4) reversion for failure to pay royalties or provide reasonably transparent royalty statements; and 5) reversion after a certain period of time.

Click here to access the full paper.

Reference: Yuvaraj, Joshua and Giblin, Rebecca, Are contracts enough? An empirical study of author rights in Australian publishing agreements (Nov. 19, 2019). Melbourne University Law Review, Vol. 44, No. 1, 2020.