Authors who want to incorporate source materials into their writings with confidence may find themselves faced with more questions than answers. What exactly does fair use mean? What factors do courts consider when evaluating claims of fair use? How does fair use support authors’ research, writing, and publishing goals? Fortunately, help is at hand! This Fair Use/Fair Dealing Week, we’re featuring a selection of resources and articles to help authors understand and apply fair use.
Fair Use 101
Authors Alliance Guide to Fair Use for Nonfiction Authors: Our guidebook, Fair Use for Nonfiction Authors covers the basics of fair use, addresses common situations faced by nonfiction authors where fair use may apply, and debunks some common misconceptions about fair use. Download a PDF or purchase a copy today.
Authors Alliance Fair Use FAQs: Our Fair Use FAQs cover questions such as:
Can I still claim fair use if I am using copyrighted material that is highly creative?
What if I want to use copyrighted material for commercial purposes?
Does fair use apply to copyrighted material that is unpublished?
Codes of Best Practices in Fair Use: The Center for Media and Social Impact at American University has compiled this collection of Codes of Best Practices in Fair Use for various creative communities, from journalists to librarians to filmmakers.
Fair Use and Publication Contracts: Learn how to tell if your publication contract allows you to rely on fair use when you incorporate third-party content into your work—and options for negotiating if it doesn’t.
Authors Alliance thanks Matthew Sag, professor at Loyola University Chicago School of Law, for this guest post (originally published on InfoJustice.org).
The World Intellectual Property Organization in Geneva has requested comments on a series of questions about whether “use of the data subsisting in copyright works without authorization for machine learning constitute an infringement of copyright?” I have joined other copyright experts in a submission to WIPO commenting on their questions. This note explains in more detail some of my reservations about use of the phrase “use of the data subsisting in copyright works without authorization” in WIPO’s questions and in our general thinking about the relation between copyright and text and data mining.
The phrase “use of the data subsisting in copyright works without authorization” is unhelpful, to say the least.
To begin with the most obvious problem, the “use” of the data or facts subsisting in copyright works generally requires no authorization. For example, this morning I “used the data” in on the weather page of to my local newspaper to decide whether I should shovel snow or wait for more snow to fall. No doubt, the newspaper is protected by copyright, but the facts contained therein are not.
Moreover, the second problem with the question WIPO proposed is that my “use” of the weather data required no authorization because it did not involve any action on my part implicating the exclusive rights of the copyright owner. I did not make a copy of the newspaper, I did not publicly perform it, I did not turn it into a digital audio transmission, etc.
Both of these points are Copyright 101, but it is easy to lose sight of the fundamentals when contemplating new and unexpected uses of copyrighted works in a rapidly evolving technological environment. It does not make sense to ask “Should the use of the data subsisting in copyright works without authorization for machine learning constitute an infringement of copyright?” in the abstract. Instead, we need to focus with more precision on the potential copyright issues that are actually raised by AI in particular contexts, and to do that we need to understand the relationship between text data mining, on the one hand, and machine learning and AI, on the other.
Text data mining refers to any computational processes for applying structure to unstructured electronic texts and it generally involves employing statistical methods to discover new information and reveal patterns in the processed data.
Machine learning refers to a cluster of statistical and programming techniques that give computers the ability to “learn” from exposure to data, without being explicitly programmed.
The term AI or artificial intelligence is mostly used to refer more sophisticated forms of machine learning, or else to describe speculative accounts of what might be possible with future technology. If we put science fiction and hyperbole to one side, we can proceed to talk about machine learning and AI interchangeably in terms of the relevant copyright issues.
If moving beyond the premise that AI is a magical process that defies human understanding, we can see the third fundamental problem with the phrase “the data subsisting in copyright works.” The notion that AI is using data that “subsists” in copyright works reflects a fundamental misunderstanding of the technology at issue. Unless the copyrighted work is something like a book of used car values, the data does not subsist in the work waiting to be extracted. The data is not a subset of the work. In almost every real-world use case of AI and machine learning, the data is derived by making an external observation about the work.
This is an important point: the non-expressive metadata produced by text data mining does not originate from the underlying copyrighted works. It does not subsist in those works. Instead, it is derived from them by acts of external observation.
“Imagine plagiarism detection software that reports that student term paper B is substantially similar to an earlier paper A. Paper A originated with student author A, but the observation as to its similarity with student B’s term paper does not originate with either A or B. It originates with the software algorithm programmed to detect plagiarism.
Likewise, a word frequency table derived from Moby Dick did not originate with Herman Melville. Melville obviously realized that he would be writing the word “whale” over and over, but presumably he never set out to make an exact count. In both examples, to the extent the metadata about the work owes its origin to anyone, that person would be the person who derived the data, not the author of the underlying work.”
The false premise that the non-expressive metadata produced by text data mining already “subsists” in the copyrighted works from which it is derived leads to false conclusion that when the data is used, something is taken from the original author. On the contrary, producing non-expressive metadata takes nothing from the original author because under any version of the idea-expression distinction, latent facts are not the property of the author. But even if they were, these are not their facts.
If you have questions about copyright registration, you’re not alone! Authors often ask us why they should register copyright in their works and when and how to do so. Read on for a primer on the benefits of copyright registration, how to register your copyright, and situations where you may want to update or supplement the Copyright Office’s record of your work.
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Copyright registration is a claim to copyright filed with the Copyright Office which creates a public record of facts about a copyrighted work, including authorship and ownership information. Although authors do not need to register their works in order to enjoy the protection of copyright law (under today’s copyright laws, copyright protection for original, creative works is automatic), timely registration has several benefits which make it an advantageous practice. For example, registration establishes a public record of ownership, registration is necessary before initiating an infringement suit, and registration within three months of publication (or prior to infringement of the work) opens up the possibility of statutory damages and attorneys’ fees. Read more about why registration is an advantageous practice for authors in our post Why Register Your Copyright?
Copyright registration includes three essential elements: a completed application form, a filing fee, and a “deposit” (a copy of the work submitted to the Copyright Office). To learn about how to register your works with the U.S. Copyright Office, read our post How to Register Your Copyright.
While copyright owners no longer need to renew registration under U.S. copyright law, there are several situations in which updating or supplementing the Copyright Office’s record of your work is beneficial (or, in the case of termination of transfer, required). Learn more about filing a supplementary registration, registering derivative works, recording transfers or copyright ownership and other documents pertaining to copyright, and recording terminations of transfers in our post on When to Update or Supplement a Copyright Registration.
It is worth noting that as a part of the its modernization plans, the Copyright Office has announced a forthcoming pilot program through which participants will be able to electronically submit for recordation most types of transfers of copyright ownership and other documents pertaining to a copyright. (Notices of termination will not be part of the pilot program when initially launched.) We applaud the Office’s modernization efforts and will provide updates as the program develops.
As a part of our series of open access success stories that spotlight noteworthy openly accessible books and their authors, we’re featuring Cynthia Willett, Professor of Philosophy at Emory University and Julie Willett, Associate Professor at Texas Tech University.
In their new book Uproarious: How Feminists and Other Subversive Comics Speak Truth, Willett and Willett address theories of humor through the lens of feminist and game-changing comics. They take a radical and holistic approach to the understanding of humor, particularly of humor deployed by those from groups long relegated to the margins, and propose a powerful new understanding of humor as a force that can engender politically progressive social movements.
Authors Alliance: Can you tell us why you opted to make Uproarious openly available?
Cynthia Willett & Julie Willett: Our reconceptualization of humor draws from feminist stand-ups and other post-9/11-era comics. Just as our claims are driven by popular culture, we think open access too helps us engage in global conversations. In an era with the fortunes of academics and educational institutions caught up in growing social inequality, we also hope that open access allows our research to be more accessible not only to students at elite institutions but also to those who lack resources yet often drive the conversations on trending fields like humor.
AuAll: Did your audience and/or the subject matter of your research influence your decision to publish openly?
CW & JW: As a philosopher and a historian, we began this project hoping to reach out to a larger audience across academic disciplines and to general interest readers. The book addresses a topic of heightened relevance at a time when a twitter joke can shift the political climate overnight. At a time when so much of our political culture is driven by comedy and comedy both as an art form and a tool of politics is driven by the internet and social media, open access couldn’t seem more relevant.
AuAll: Before this book project what was your impression of open access publishing?
CW & JW: We tended to associate open access with cutting edge work in the sciences and we are excited to be part of this expansion into the humanities.
AuAll: What results have you seen from publishing your book openly?
CW & JW: Perhaps the most unexpected result has been the contacts and conversations we are having with stand-up comedians who help us think about the new directions for this field of study. We have also enjoyed wider interest for our work from the media, including an interview on Free Speech TV.
AuAll: Could you share some lessons learned and/or other suggestions for authors?
CW & JW: Co-authorship made the entire process more creative and joyful. Coupled with the added benefit of working across disciplines we strive to communicate our ideas free of jargon. Moreover, the topic of our book arises from beyond the academic context and we attempted to frame the book in terms of that wider political concern.
Authors Alliance is grateful to Elizabeth H. Yandell, associate at Latham & Watkins, for contributing this post about a recent decision interpreting the “non-commercial” element of Creative Commons licenses.
The Ninth Circuit Court of Appeals recently issued an important opinion interpreting a widely used Creative Commons “Non-Commercial” license. The case, Great Minds v. Office Depot, Inc., addresses whether the license terms are violated when a bona fide non-commercial user pays a for-profit enterprise, like a copy shop, to make copies at the non-commercial licensee’s direction. The court’s answer is no: “Under the License, a non-commercial licensee may hire a third-party contractor, including those working for commercial gain, to help implement the License at the direction of the licensee and in furtherance of the licensee’s own licensed rights.”
In other words, a licensee may rely on contractors like Office Depot to assist in its own non-commercial use of the work without violating the license, even when the contractor earns a profit for its trouble. The opinion provides valuable confirmation of the license’s scope and will ensure continued ease of access to the more than 300 million works licensed under Creative Commons’ non-commercial licenses.
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Many in this community are familiar with Creative Commons and may have interacted with their public licenses. For those who are not: Creative Commons is a non-profit organization that has developed a suite of free-to-use, off-the shelf copyright licenses. Authors use these licenses to communicate that others are legally free to use their works, so long as certain conditions are satisfied. For instance, the license at issue in the lawsuit requires that the licensed work be used only for “non-commercial” purposes, in addition to other conditions.
The lawsuit concerned an elementary school math curriculum called Eureka Math, which is created and published by Great Minds. Great Minds sells Eureka Math in print form, and makes a digital version available for download and non-commercial use pursuant to the license. The most common licensees of Eureka Math—school districts that incorporate Eureka Math into their curriculum—often engage commercial copy shops, including Office Depot, to create copies of the Eureka Math course packet. Great Minds sued Office Depot over these copies, claiming they were not “non-commercial” in nature, even if done at the direction of the non-commercial licensee school districts, because Office Depot made a profit. Great Minds’ position was that Office Depot became a licensee in its own right, and was therefore required to abide the terms of the license. It argued that Office Depot’s for-profit copies violated the license’s non-commercial requirement, and therefore infringed Great Mind’s copyright in Eureka Math.
Creative Commons recognized that Great Minds’ position, if adopted, would severely undermine the utility of its non-commercial licenses. It would mean that bona fide non-commercial users, such as the school districts that use Eureka Math, would be required to handle all intermediate steps in-house (i.e., copying and shipping), or else find contractors that were willing to pay a royalty to the licensor. In turn, Great Minds’ position could also have discouraged or prevented proper licensees who do not have sufficient resources to perform these services themselves from using the works at all.
Creative Commons decided to take action. Represented by the law firm Latham & Watkins, Creative Commons submitted an amicus curiae (friend of the court) brief in support of Office Depot to provide its interpretation of its license and the applicable law. Creative Commons’ submission explained that it is the end-user who is the licensee, and that it is only the end-user licensee’s purpose that must be non-commercial. Creative Commons explained that the alternative interpretation would yield absurd and arbitrary results. For instance, under Great Minds’ interpretation, a school district can rent or purchase a copy machine and have their employee, who is paid a salary, make copies on it, but may not pay a non-employee contractor to use the same machine. It could also send the same employee to pay a fee to “hit copy” on Office Depot’s copy machines, but could not pay Office Depot to have its employees press the same button.
The court agreed with Creative Commons’ interpretation and held in favor of Office Depot. The court’s decision holds that a “licensee’s hiring of a third-party copy service to reproduce licensed material strictly for the licensee’s own permitted use does not turn that third party into a licensee that is bound to the License terms” and that the license “extends to all employees of the schools and school districts and shelters Office Depot’s commercial copying of Eureka Math on their behalf.”
The Ninth Circuit’s decision is consistent with the Second Circuit’s decision in an earlier lawsuit by Great Minds that made the same claims against FedEx. These results provide important guidance and confirmation for the open access community, and will protect and encourage continued use of works that benefit the broader community and public. Authors Alliance members seeking to share their works with non-commercial licensees can rest assured that those individuals can access and use materials to the fullest extent intended.
At Authors Alliance, we enjoy keeping up with all the latest news related to authorship and copyright, and we know that our members do, too. In that spirit, we’ve collected a few new resources to keep you informed about the latest in making documents accessible, the fundamentals of Creative Commons, and arguments for and against giving copyright protection to works generated by AI machines.
Have recommendations for our next reading list? Send us an email today with your suggestion!
Understanding Document Accessibility
Notwithstanding significant strides made toward making digital content more accessible over the past decade, the prevalence of inaccessible digital content continues to be problematic. In 2018, we released a report discussing the unique role authors play in making digital works accessible. We’re thrilled to share a new resource, Understanding Document Accessibility by The Chang School at Ryerson University, which provides detailed instructions to help authors ensure their documents are structured correctly so that people using assistive technologies can interact with their digital content. Intended for a general audience, this CC BY-SA licensed resource reviews the tools available for creating accessible documents and provides application-specific instructions on creating accessible word processed documents, spreadsheets, presentation slides, and PDF documents, among others, so they are accessible to everyone.
Creative Commons for Educators and Librarians
Creative Commons has recently released a companion book to its CC Certificate program, Creative Commons for Educators and Librarians. The book provides in-depth coverage of CC licenses, open practices, and the ethos of the commons. In addition to explaining the layers and elements of CC licenses and how they interact, the book shares techniques for finding works in the public domain, advice for assessing and revising institutional policies for open education, information on complying with open licensing requirements, and much more. A valuable resource for anyone creating or working with CC-licensed materials, Creative Commons for Educators and Librarians is available as a CC BY licensed PDF that can be downloaded here or in print from the ALA Store. Educators and librarians interested in learning more can also take a 10-week online CC Certificate course for a fee.
The Machine as Author
With recent review of issues related to intellectual property and artificial intelligence being undertaken by the US Patent and Trademark Office and the World Intellectual Property Organization—as well as the generation of news articles, poetry, paintings, and more by AI machines—now is a good time to brush up on your knowledge on this topic. A recent article, The Machine as Author by Daniel Gervais, Professor at Vanderbilt Law School, reviews arguments for and against giving copyright protection to literary and artistic works generated by AI machines, concluding that productions that do not result from human creative choices belong in the public domain. Read the full article to learn more about Gervais’ proposed test to determine which productions should be protected.
Authors Alliance is grateful to Nicolas Charest, Copyright Research Assistant, for researching and drafting this post.
There is longstanding confusion between trademarks and copyrights, which can sometimes lead to controversy in author communities. Notably, in 2018 an author sparked what came to be known as “CockyGate” after she registered a trademark for the word “cocky” in connection with her series of romance novels and asked Amazon.com to take down all romance novels with “cocky” in the title. The trademark application was later surrendered and cancelled following legal proceedings (more details here). More recently, another author sought trademark registration for the word “dark,” used in the titles of a series of her books, though she also later abandoned the application.
In light of these recurring issues, what should authors know about trademarks and copyrights, and how they might apply to their works? We’ve got you covered with this Q&A providing an overview of trademark rights and copyright and how these rights can arise in the publishing industry.
What are copyrights and trademark rights?
Copyright protects original works of expression and gives the author the exclusive rights to reproduce the work, to distribute the work, to prepare derivative works (like translations or movie adaptations), or to perform or display the work publicly. Each of these rights can be transferred by the author to a third party through an assignment or license.
A trademark is a word, phrase, symbol, or design (or a combination thereof) that identifies and distinguishes goods from one source from those manufactured or sold by others. Rights in a trademark are used to prevent others from using similar signs that would cause confusion to consumers in the marketplace, helping to avoid situations where products from another vendor would be mistakenly believed to come from the trademark owner or suggest such an association. The United States Patent and Trademark Office (“USPTO”), the federal agency responsible for the registration of federal trademarks in the U.S., has adopted the view that the title of a book cannot be registered as a trademark, but the title of a collection or series can. This is because the latter is more likely to identify a source of goods than the former.
Examples of trademarks from the publishing industry include the Penguin Group’s illustration of a black and white penguin on an orange background and the words “For Dummies” in a series of books from Wiley.
What is the purpose of copyrights and trademark rights?
While copyrights and trademarks are both intellectual property rights, they serve markedly different functions in the publishing world. In short, copyright controls the ways a work can be copied, distributed, and adapted, while trademark rights control the use of signs which have become distinctive to a particular author, series, or publisher.
For example, copyright protects the thirteen volumes of Lemony Snicket’s Baudelaire Orphan series, allowing the copyright owner to control the printing and selling of new copies of the books. A copyright owner’s rights are said to be “infringed” if someone exercises one or more of the copyright owner’s exclusive rights—by reproducing one of the books in the series, for example—without authorization or a copyright exception covering that use.
The trademarks “A SERIES OF UNFORTUNATE EVENTS” (TM Reg No. 2732326) and “LEMONY SNICKET” (TM Reg No. 5432563), on the other hand, give the trademark owner the right to prevent others from using these word signs in contexts that would cause consumer confusion as to the source or affiliation of the goods sold under the mark. This gives consumers assurance that books marked as being part of the “Series of Unfortunate Events” come from the author, Daniel Handler, publishing under the pseudonym Lemony Snicket, and indicates to potential readers that any books bearing the mark will be of the same literary quality and style as the other books in the series.
Trademarks are not limited to words. For instance, the exterior appearance of a collection of books can be a distinguishing sign that indicates a source and could be considered a trademark, over which the editor or publisher could claim trademark rights. Examples of such abound, including the recognizable layout of the paperback Penguin Classics collection and the Aspen Casebook Series, which the editor says is “famously known amongst law faculty and students as the ‘red and black’ casebooks.”
An author or publisher may wish to secure a trademark as an indicator of source to protect the goodwill created by the works of the author and to prevent other from usurping the reputation of the author.
How are copyrights and trademark rights obtained?
Under today’s copyright laws, copyright protection for original, creative works is automatic from the moment the work is “fixed in a tangible medium” (e.g., as soon as the author puts pen to paper, paintbrush to canvas, or saves a computer file). Although authors do not need to register their works in order to enjoy the protection of copyright law, registration with the United States Copyright Office has several benefits which make it an advantageous practice. Authors interested in the advantages of registering a copyright in their work can read our blog post Why Register Your Copyright.
“Common law” trademark rights can arise based solely on the use of a mark in commerce where it is used as source identifier over a period of time and consumers recognize the mark as indicative of the specific source. However, like copyright, there are significant benefits to registering the work with the USPTO, including: a legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods listed in the registration; public notice of your claim of ownership of the mark; listing in the USPTO’s online databases; and the ability to bring an action concerning the mark in federal court. Federal trademark applications can be filed on the basis of the mark being used in commerce in connection with the goods specified or on and “intent-to-use” basis. A registration of a trademark at the state level is also available, though the protection that it offers is limited to that state only.
How long do copyright and trademark protection last?
Under current copyright law in the United States, copyright lasts for the life of the author plus 70 years. Rights in a federally registered trademark can last indefinitely if you continue to use the mark and file all necessary maintenance documents with the USPTO. Common law trademark rights can continue as long as the sign remains distinctive.
As we ring in the New Year, authors have one more reason to celebrate: another batch of works has entered the public domain in the United States. Last year, the new year brought works published in 1923 that had previously been protected by copyright into the public domain—the first time in 20 years that published works have entered the public domain due to copyright expiration. This January 1, the trend continued as we welcomed works published in 1924 that were previously protected by copyright into the public domain. Many of these works have been out of reach long beyond their creators’ lifetimes and for decades after their commercial potential was exhausted.
According to the Center for the Study of the Public Domain at Duke, new public domain works include Thomas Mann’s The Magic Mountain, E. M. Forster’s A Passage to India, Edith Wharton’s Old New York, Agatha Christie’s The Man in the Brown Suit, and A. A. Milne’s When We Were Very Young.
While 2020 brings certainty that works first published in the United States in 1924 are in the public domain, changes in copyright duration and renewal requirements during the 20th century mean that works first published in the United States between 1925 and March 1, 1989 could also be in the public domain because their copyrights were not renewed or the copyright owner failed to comply with other “formalities” that used to be required for copyright protection. Analysis undertaken by the New York Public Library reveals that approximately 75% of copyrights for books were not renewed between 1923-1964, meaning roughly 480,000 books from this period are most likely in the public domain.
Once in the public domain, works can be made freely available and can be adapted into new works of authorship. Last year, we covered some of the benefits of the public domain:
Media sources report that the Trump Administration is considering a policy to make the results of federally funded research immediately available for the public to freely access and use. Current policy requires results of federally funded research be made available in pre-print form within 12 months of publication. The rumored policy would eliminate the 12-month embargo. As an organization with a mission to advance the interests of authors who want to serve the public good by sharing their creations broadly, Authors Alliance strongly supports such a policy.
Many of our members are authors who rely on taxpayer dollars to fund their research and want the results of that research to be immediately available for potential readers to readily locate and access without being turned away by paywalls. Immediate and free online availability increases their works’ visibility, helping it to reach readers and benefit the public. Absent a federal policy, many authors simply do not have the bargaining power necessary to demand from publishers the level of access they want for their research.
Removing barriers to access creates a more hospitable environment for future scientific advancements. Medical patients and their family members have especially compelling needs for this information. Many students, teachers, researchers, and other professionals from low- and middle-income countries struggle to get access to prohibitively expensive subscription-based journals. Even individuals at U.S.-based institutions may find that their libraries do not have the resources to subscribe to relevant journals in their fields. By removing price barriers, it is easier for students, teachers, researchers, and practitioners to access the information they need to learn, teach, research, and practice in their fields.
The rumored policy change does not require publishers to make the final version of articles based on federally funded research free—just for authors to make the pre-publication versions available. Publishers can still charge subscriptions for access to the final published version of these articles, not to mention all of the articles not funded by taxpayer dollars. Or publishers can charge for their value-added publishing services to those institutions who want professional peer review. By paying for publishing services rather than paying for the right to read, institutions can use their budgets to pay for publishing rather than for subscriptions, publishers can earn a living, and the public can then read taxpayer funded research without paying for the privilege.
A policy requiring the outputs of federally funded research be made immediately available would maximize the value of investment in research by ensuring that more readers can access research results than if the works were available through restricted means alone. For these reasons, Authors Alliance supports a policy that would ensure that the public is not made to pay both to create and to read research and would open up opportunities for others to build upon research, accelerating the pace of innovation and discovery.