Author Archives: Authors Alliance

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.

District Court Finds Majority of Uses to be Fair in Georgia State E-Reserves Case

Posted March 4, 2020

On Monday, a district court in Georgia issued a decision in the Cambridge University Press v. Becker case, concluding that 37 of the 48 infringement claims at issue in the case are fair use. This is the latest decision in a case that began in 2008 when publishers sued Georgia State University (“GSU”), alleging that faculty at GSU infringed Cambridge University Press’ and other publishers’ copyrights by assigning chapters from scholarly books to their students via secure course websites. The case has bounced back and forth between the district court and the Eleventh Circuit, with the Eleventh Circuit reversing and remanding the case to the district court twice. For details on the history of the litigation here, see this summary by Krista Cox.

In 2017, we filed an amicus brief with the Eleventh Circuit in support of GSU’s position that limited use of copyrighted material for nonprofit educational purposes falls within fair use. In our brief, we discussed how our members’ experiences accord with the district court’s conclusion that academic authorial incentives to create scholarly book chapters would not be impaired by a fair use ruling.

We explained that the primary motivation of academic authors to write scholarly book chapters is generally to share the knowledge and insights they have gained, and the type of reward that academic authors have generally sought and hoped to attain through writing scholarly book chapters is enhancement of their reputations. Bolstering the case for fair use, we discussed how the use of fact-, method-, and theory-intensive scholarly book chapters assigned primarily because of the originality of ideas, theses, research, data, and methods they contain, rather than on originality of expression, should tip in favor of fair use.

Many of our members are academic authors, and one of our members is the author of a chapter at issue in the case. Our brief highlighted the views of several authors of book chapters at issue in the case who reflected on the benefit of fair use to their goals of reaching readers and contributing to academic discourse. Norma Mertz, Professor of Higher Education Administration at University of Tennessee, Knoxville, wrote “I have no objection to the fair use of chapters from my books. Indeed, I find the suit to prevent use of such chapters a serious hindrance to the advancement of knowledge.”

Other authors pointed to the benefits of publishing academic works. Douglas Harper, Professor Emeritus of Sociology at Duquesne University, wrote “There is reputational benefit… to doing this work. … The point of this work is to share it!”

Many of our members believe that this limited use of copyrighted content in a nonprofit educational setting meets the test for fair use. We applaud the district court’s latest decision finding the majority of the uses of unlicensed excerpts of copyrighted works in the e-reserves to be fair.

Fair Use Resource Roundup

Posted February 25, 2020
Photo by Carlee Dittemore on Unsplash

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

Cover of the Fair Use Guide for Nonfiction Authors

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 Evaluator Tool: This tool, created by the ALA, helps users support and document their assertions of fair use.

Dig Deeper

U.S. Copyright Office Fair Use Index: The U.S. Copyright Office maintains this searchable database of legal opinions and fair use test cases.

Dr. Seuss, Picasso, and Grease: Learn about three current cases involving the doctrine of fair use working their way through the courts.

Fair Use and Text Data Mining: Explore the intersection of fair use and non-consumptive text mining in this new chapter on legal issues in text data mining.

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.

Does Copyright Require Authorization to Use Data “Subsisting in Copyright Works?”

Posted February 20, 2020

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.[1]

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.[2]

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.

As I have explained in a recent paper:

“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.”[3]

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.

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