Author Archives: Authors Alliance

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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Authors Alliance Joins Public Knowledge to Raise Concerns About The Journalism Competition and Preservation Act

Posted June 17, 2021
Photo by Raphael Ferraz on Unsplash

Today, Authors Alliance joined Public Knowledge and four other civil society groups to urge Congress to amend the Journalism Competition and Preservation Act (“JCPA”) to clarify that the bill does not expand copyright protection to article links and that authors and other internet users will not have to pay to link to articles or for the use of headlines and other snippets that fall within fair use.

The JCPA (H.R.1735 in the House and S.673 in the Senate) proposes to create a four-year “safe harbor” from antitrust law, allowing print, broadcast, and digital news companies to band together to negotiate compensation terms for their news stories with the largest online platforms. While the goal of the bill—to preserve a strong, diverse, and independent press—is commendable, the bill’s framework relies on a fundamental mischaracterization of U.S. copyright law. As currently drafted, there is a risk that the JCPA could be interpreted by courts to implicitly expand the scope of copyright.

As our letter explains, linking is outside of the scope of copyright in the U.S., as merely linking to external content does not implicate any of a copyright owner’s exclusive rights. Furthermore, the use of brief snippets of content—such as headlines, images, or short excerpts—that often accompany links are minimal quotations of copyrighted material have been consistently found to be fair uses under copyright law, and protection for these types of uses is mandated by the Berne Convention. These fair uses cannot be banned or substantially curtailed without running afoul of Supreme Court jurisprudence, the First Amendment, and multilateral international obligations.

To address these issues, our letter asks Congress to create a savings clause that makes it clear that copyright protections are not being expanded to include linking, or fair uses of snippets from the linked material. The full text of our letter is available here.

Spotlight on Rights Reversion & Termination of Transfer

Posted June 9, 2021
Photo by Hulki Okan Tabak on Unsplash

Readers familiar with Authors Alliance’s work will know that we offer a suite of resources to help authors get back the rights to their works, including information on how to revert rights by exercising a contractual provision or through negotiating with a publisher and resources on how to terminate a transfer of copyrights under U.S. law. Authors who get their rights back can increase their works’ availability and reach more readers by making an out-of-print book more widely available, releasing their work in a more affordable format or under an open access license, or re-packaging and releasing books with a new look and feel.

In today’s post, we’ve gathered some resources about the concepts of rights reversion and termination. Whether you are a rights back newbie or a reversion and termination aficionado, we think you’ll learn something new by digging into these resources.

Reversion & Termination Basics

Rights Reversion
Reversion can be a powerful tool for authors, but many authors do not know where to start. A right of reversion is a contractual provision that permits authors to work with their publishers to regain some or all of the rights in their books when certain conditions are met. But authors may also be able to revert rights even if they have not met the triggering conditions in their contract, or if their contracts do not have a reversion clause at all. Our guide to Understanding Rights Reversion arms authors with the information and strategies they need to get their rights back and give their books a new life. We also provide templates and guidance on how to craft a persuasive rights reversion request letter.

Termination of Transfer
In the United States, termination of transfer laws enable authors to regain rights in their works that might have been signed away—even if their contracts contain language prohibiting it. To learn more about termination of transfer and how to evaluate whether a work is eligible for termination under U.S. law, authors can explore the Termination of Transfer Tool, which we developed in partnership with Creative Commons. Authors can also refer to Authors Alliance’s guidance and templates for how to provide notice of termination to rightsholders and record the termination with the U.S. Copyright Office.

A Deeper Dive

Reversion of Copyright in Europe
Assembling three contributions from a special section of the European Intellectual Property Review, this paper examines the topic of rights reversion in the context of the adoption of the Directive on Copyright in the Digital Single Market (2019), which introduced a new right of revocation to the EU copyright framework entitling authors and performers to reclaim rights in their works when they are not being exploited (a “use-it-or-lose-it” principle). Included is an article by Ula Furgal which explains that there is a lack of understanding what “sufficient exploitation” means, especially in the digital context, which should be addressed when implementing the revocation right. Also included is an article by Elena Cooper which argues that the common law tradition of freedom of contract is compatible with constraints on contractual transfers, and that U.K. reversion provisions historically were a direct response to the significant increase in the copyright term in 1911.

Foreign Contracts and U.S. Copyright Termination Rights: What Law Applies?
Judge Richard Arnold and Professor Jane Ginsburg discuss the choice of law issues that arise when agreements which are subject to the laws of other countries assign U.S. copyrights and purport to do so in perpetuity. Arnold and Ginsburg examine the question of what law governs the permissible scope of an author’s grant in light of U.S. law’s inalienable termination rights. Using the recent U.S. and English cases, Ennio Morricone Music Inc. v. Bixio Music Group Ltd. and Gloucester Place Music Ltd v. Le Bon, to illustrate the problem, the authors conclude that U.S. termination rights cannot be overridden by a contract subject to a different law.

Making Sense of the Termination Right: How the System Fails Artists and How to Fix It
A report by Public Knowledge demonstrates how the termination right is failing to protect the very creators that termination was designed to serve. The report critiques the complex eligibility, timing, and filing formalities for termination, which are exacerbated by ambiguities in the law and its application. On top of the onerous procedural requirements, the report highlights power asymmetries governing the negotiation, assignment, and reversion of ownership rights that also harm authors—particularly creators of color—who seek to exercise their termination rights. The report recommends six policy actions to help restore fairness and functionality to termination of transfer rights.

Author’s Interest Project: Preliminary Findings on Benefits of Copyright Reversion
Preliminary findings from the Author’s Interest project suggest that granting authors minimum reversion rights would open new economic opportunities for authors and publishers and help promote ongoing availability to the public. The research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to U.S. termination of transfer laws.

Libraries, National Emergencies, and Access to Credible Information: Are we protecting libraries’ multiple roles during emergencies?

Posted June 3, 2021

Authors Alliance is grateful to Argyri Panezi for this guest post. Panezi is an Assistant Professor at IE Law School where she teaches contracts, copyright law, and principles of LegalTech. Her current work focuses on copyright issues related to digital libraries, on law and AI (contractual and extra-contractual liability), and on legal technologies, specifically examining e-Justice developments within the EU. She is also a research fellow at the Digital Civil Society Lab at Stanford University, where she explores the notion of critical digital infrastructure as well as state and federal regulatory frameworks that govern ISPs in the context of public internet access, focusing on access for critical utilities during emergency situations. She holds a law degree from the University of Athens, an LL.M. from Harvard Law School, and a Ph.D. from the European University Institute.

On June 1, 2020, four publishing houses, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, filed before the US District Court for the Southern District of New York a copyright infringement action against the Internet Archive for the Archive’s operation of what it called a “National Emergency Library” (NEL) after the first US shelter-in-place orders in response to the COVID-19 pandemic. Indeed, on March 24, 2020, the Internet Archive had announced the launch of a temporary online NEL to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries were closed due to COVID-19.” In their announcement the Archive called on authors and publishers to support the effort, which would ensure “temporary access to their work in this time of crisis.” It provided an opt-in option for authors who wanted to donate their book(s) to the NEL, and an opt-out option for authors who wanted to remove their book(s) from the NEL.

The NEL collection ceased operation on June 16, 2020, and the Internet Archive returned to its previous system of controlled lending of copyrighted works (on Controlled Digital Lending (CDL) see previous posts here and here). Even though the operation of the NEL was limited in time, argument about its propriety continues and has wider implications relating to the libraries’ multiple roles during and beyond emergencies. Stakeholders’ reactions to the NEL appear to be mixed. The Association of American Publishers, for example, issued a public statement opposing the Internet Archive’s NEL initiative. Meanwhile, the Archive has published a number of stories from librarians, educators, parents, and researchers endorsing the initiative.

The pending case, Hachette v. Internet Archive, introduces a new dimension to existing debates around electronic access to library material, particularly around e-lending, raising at least two important questions: Did the emergency created by the COVID-19 shutdowns introduce new market failures as regards access to critical educational and research material, or as regards access to library works in general—or do these emergencies merely highlight possible already-existing failures? Furthermore, can emergencies justify additional exceptions to copyright laws covering electronic access to library material, and if so, under what circumstances?

In my recent article, A Public Service Role for Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform and the Emergency Electronic Access to Library Material (forthcoming, 31 Cornell J.L.& Pub. Pol’y_ _ (2021)), I examine the ongoing Hachette v. Internet Archive litigation, placing it in the context of earlier US copyright case law that deals with the digitization or the making available of copyrighted works for educational, research, and other purposes (notably: Authors Guild v. Google, Authors Guild v. HathiTrust, and Cambridge University Press v. Becker). There is also a global debate focusing on similar issues, apparent, for example, in similar cases brought before courts in Europe (Technische Universität Darmstadt v. Eugen Ulmer KG and Vereniging Openbare Bibliotheken v. Stichting Leenrech), India (University of Oxford v. Rameshwari Photocopy Service), and Canada (CCH Canadian Ltd v. Law Society of Upper Canada and the recent York University v. Access Copyright).

Taking the Hachette v. Internet Archive case as a starting point, my article reflects on the current and potential future role of copyright doctrine in preserving institutional functions of libraries and discusses how the COVID-19 emergency exposed new but also highlighted existing market failures.

Libraries’ public service role includes safeguarding and providing equal access to research, to educational material, but also to credible information, including in the digital environment. Both on- and offline libraries serve a function as trusted and, in principle, neutral places dedicated to equalizing access to credible information and knowledge in societies with structural inequalities and biases. Particularly during this pandemic, libraries have embraced their institutional role and joined the fight against misinformation, including about the pandemic. The article examines the extent to which current US copyright law supports libraries in these increasingly pertinent functions and advocates for the copyright framework to provide enhanced support to libraries.

Update: Post-Hearing Letter on 1201 Exemption to Enable Text and Data Mining Research

Posted May 25, 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 research on literary works that are distributed electronically and motion pictures. Last week, Authors Alliance responded to questions posed by the Copyright Office as it considers the merits of the proposed exemption following last month’s public hearing on the exemption.

Text and data mining (“TDM”) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use. But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize.

Following last month’s hearing, the Copyright Office asked proponents and opponents of the proposed exemption to: 1) describe minimum security measures eligible institutions should be required to use to secure corpora of literary works or motion pictures used for TDM research and 2) share views on potential regulatory language that would limit a researcher’s ability to view literary works or motion pictures included in corpora. In addition, opponents were given the opportunity to respond to changes proponents proposed in our reply comment to address opponents’ concerns.

Security Standards and Controls

With respect to security measures, our response describes the flexible process that information security and data management professionals at research institutions use to select and apply security controls to research data. This approach tracks the processes laid out in international standards and federal agency procedures. We explain why these risk assessment frameworks are superior to a globally applied fixed list of minimum security requirements and how they are consistent with the Office’s approach to information security in previous exemptions.

Our letter provides examples of common and effective security controls used in many research settings, including user authentication, use of encryption, event logging, and maintaining physical security of the resources housing the data. We recommend that the Office should identify these controls as examples of reasonable security measures, while leaving room for information security departments and researchers to fine-tune the precise security controls used to the specifics of the research corpus and the information system in which it is housed.

Prohibiting Researchers from Viewing Text and Images

With respect to the extent to which regulatory language should limit a researcher’s ability to view literary works or motion pictures included in corpora, we clarify that 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. This verification requires that researchers have some ability to view corpus text or images. That ability is consistent with the research environments of both HathiTrust Data Capsules and Google Book Search, and it is consistent with fair use precedent.

Our letter explains why researchers need to view enough of a corpus to verify their methods and their findings. By way of example, if an algorithm tells the researcher that frame #133292 of a corpus copy has a high probability of being a scene of violence, and that frame corresponds to a scene in the film Pulp Fiction, the researcher would not watch a copy of the DVD or digital download in its original format to verify that finding. But at some point, either the researcher or peer reviewer may need to locate and examine frame #133292, a designation that exists only in the corpus copy, to verify the algorithmic finding. Our response explains that a blanket prohibition on viewing text or images would comprehensively undermine TDM research relying on the exemption and would provide little added value or protection given the other restrictions in the proposed exemption. For this reason, we recommend that—although we do not believe an express viewability limitation is warranted—should the Office choose to include one, it should use the model of the HathiTrust Research Center’s Non-Consumptive Use Policy rather than an outright ban on viewability.

* * *

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.

Authors Alliance Participates in Oral Arguments in Access Copyright v. York University

Posted May 24, 2021
Photograph of Supreme Court of Canada in the fall
Photograph of Supreme Court of Canada by lezumbalaberenjena, CC BY-NC-ND 2.0

Authors Alliance, together with Professor Ariel Katz and represented by Sana Halwani of Lenczner Slaght, participated in oral arguments before the Supreme Court of Canada in Access Copyright v. York University. Our arguments furthered the views we shared in our factum submitted last month.

The case involves a claim by Access Copyright, a Canadian copyright collective, which seeks to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in its 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 (fair dealing is the Canadian analogue to fair use). The case raises 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.

At oral argument, we began by explaining to the court that Access Copyright does not represent the interests of all authors. Authors Alliance represents authors whose primary concern is their works having the greatest possible impact by reaching the largest possible audience. Unfortunately, the flawed approach to fair dealing taken by the courts harms these interests, and undermines our members’ efforts to support education and informed public discourse, by creating a chilling effect on the dissemination of copyrighted works. Our members’ dissemination goals are advanced by a robust approach to fair dealing.

We further explained how the fair dealing factors in this case were incorrectly dealt with because they were not anchored to specific instances of alleged infringement. The abstract nature of that inquiry was a result of the lower courts’ willingness to make a determination of infringement outside of an infringement action without the proper parties and necessary evidence. The trial court concluded that there were reproductions that entitled Access Copyright to royalties—that there was infringement—without identifying any particular reproduction that was not fair dealing.

One example of why this approach is problematic is illustrated by the way the lower courts handled the “effect of the dealing” factor. The effect of the dealing factor is intended to consider the market impact of the defendant’s actions with respect to the plaintiff’s work on the sale of or royalties from that particular work. But instead, the lower courts looked to the effect on the market generally. This general market approach untethers the analysis from the economic interests of the specific authors of the works at issue, instead bringing in irrelevant evidence of copying by other institutions and of the impact of the copying on the sales of other works.

This was a mistake and the lower courts should have addressed only whether the reproduced work adversely affects or is likely to compete with the original work, not with the market generally. We asked the court to find that it was an error of law to consider this factor in aggregate and at a market-wide level, and to reaffirm the correct approach to the effect of the dealing factor is an investigation into the effect of a specific dealing on a specific work.

Authors Alliance is grateful to Sana Halwani for skillfully representing our interests at oral argument, and to the entire Lenczner Slaght team, including Paul-Erik Veel, Jacqueline Chan, and Anna Hucman, for pro bono assistance with this intervention. We will keep readers updated on the outcome of the case.

Carla Hesse Elected President of Authors Alliance Board of Directors

Posted May 17, 2021

Authors Alliance is pleased to announce that Carla Hesse has been elected president of the Authors Alliance Board of Directors.

Carla is a Professor of History at the University of California, Berkeley. A fellow of the American Academy of Arts and Sciences since 2009, she is a specialist in modern European History and the history of communication. She is the author of Publishing and Cultural Politics in Revolutionary Paris (1991) and The Other Enlightenment (2001), among other works.

Carla’s dedication to promoting authorship for the public good will be a tremendous asset to Authors Alliance. “Empowering authors in the public sphere is critical to our future,” said Carla. “I look forward to supporting Authors Alliance’s work to sustain and expand public access to our cultural and scientific heritage and to support the authors who are making that happen.”

The Board and staff of Authors Alliance are grateful to Pam Samuelson, co-founder Authors Alliance, for her service as Authors Alliance’s Board President since our founding. Under Pam’s leadership, Authors Alliance has established its presence as a voice advancing the interests of public-minded authors through policy interventions and educational outreach. Pam will continue to have a hand in shaping the future of the organization as she serves as a member of the Board.

“In the seven years since Authors Alliance launched, it has had much success in providing authors with several guides to address ways in which they can achieve their goals for their works and in serving as a public voice for authors who support fair uses and balanced copyright policies in response to various policy proposals,” said Pam. “There is, of course, much more work that needs to be done. I am grateful to Carla Hesse, my fellow co-founder of this organization, who will carry on leadership for Authors Alliance.”

Rights Reversion Success Story: Benjamin Keele

Posted May 4, 2021

We recently sat down with Benjamin Keele, Research and Instructional Librarian & Lecturer in Law at Indiana University and co-author (with James Heller and Paul Hellyer) of The Librarian’s Copyright Companion (2nd Edition), to learn more about his efforts to revert rights to the book. Thanks to their successful reversion, The Librarian’s Copyright Companion is now available for all to read under a CC BY 4.0 license.

Authors Alliance: What motivated you and your co-authors to request your rights back?

Benjamin Keele: When Jim, Paul, and I were writing the second edition of the Librarian’s Copyright Companion (Jim wrote the first edition), I had the notion that it would be great to release it open access from the beginning. However, we wanted the production, marketing, and imprimatur of a reputable publisher like Hein, so the book needed to make some commercial sense. Giving the book away eventually was always in the back of my mind. The Authors Alliance’s guide reminded me that it was possible to ask for the rights back, and after nearly ten years, I figured the book may have completed the commercial stage of its life.

I’m privileged enough to work in a research library, and I regularly hit paywalls and other access barriers to useful information. Making the book open access was a way we could make information about copyright available to anyone that found it useful.

AuthsAll: Can you walk us through the process of regaining rights and the arrangement you reached with your publisher?

BK: It was easier than I had expected. I emailed Hein’s editor we had worked with when preparing the book for publication. She then communicated with the other appropriate people within the company. Hein then supplied a contract amendment that eliminated future royalties and gave Hein a right of first refusal if the co-authors ever decide to write a third edition of the book. These conditions were acceptable, so we all signed the amendment.

AuthsAll: Is there anything that surprised you with the process?

BK: It had not occurred to me that there may be interest in a third edition on Hein’s part. The co-authors all agreed we don’t have the bandwidth at the moment for a new edition, but it is something to keep in mind for the future.

AuthsAll: How has reversion helped you (or how do you expect it will help you) reach your goals for your book?

BK: Our main goal for the book was to provide information on copyright law with a tilt toward users’ interests. When the book was published, our primary audience was other librarians whose institutions could buy copies for librarian professional development and for patrons. Now we can shift our audience to researchers who cannot borrow a copy for some reason or who are doing most of their research in digital resources. The reversion has let us make the book open access and with a permissive license. Maybe someone will choose to translate it or update portions. We have heard the book was assigned as a reading in library science courses. Making the book open access will make it easier to use for faculty and students.

AuthsAll: What advice do you have for other authors who might want to pursue a reversion of rights?

BK: First, focus on finding the right person to ask. Hein is a relatively small organization and we were fortunate that our editor was still with the company. I am trying to help my mom obtain a rights reversion for her book. It was published with a small publisher that has since been acquired by a much larger company, and it seems if you don’t find the right person to contact, your request can easily be ignored.

Second, approach this like a medium- to long-term project and expect things to take some time. On the publisher’s end, rights reversions are probably not a very high priority, so even once you’ve found the person who can make a decision, some patience will be necessary.

Third, think about what you’d like to do with your work when you obtain the copyright. Maybe the publisher will be interested in working with you in a way that will further your goals. You can also do some preparations; the co-authors had all reached agreement on where we’d share the book (through the Internet Archive and our respective institutions’ digital libraries), so once the copyright was reverted, it took just a few clicks to put the book online.