Category Archives: Fair Use

Authors Alliance Guides Now Available on Project MUSE

Posted April 2, 2019

We’re pleased to announce that our educational guidebooks for authors—which cover rights reversion, open access, fair use, and publication contracts—are now available on Project MUSE, a repository for monographs and journals created by Johns Hopkins University in cooperation with libraries and university presses. Founded in 1995, Project MUSE is a non-profit home for scholarship in the humanities and social sciences, and now contains over 674 journals and 50,000 books.

The full range of titles on the platform is available via library subscription; many works (including all Authors Alliance titles) are also freely available to everyone on open access terms thanks to the Open Access Books Program, an initiative funded by the Andrew W. Mellon Foundation with the goal of enabling OA works on the platform to be “broadly shared, widely discoverable, and richly linked.”

Four Authors Alliance guidebooks displayed on a shelf

Starting with the publication of Understanding Rights Reversion in 2015, each Authors Alliance guide has been made freely available to view and download on our website and via the Internet Archive. For those who prefer a traditional book format, the guides are also available for purchase in print.

Now, thanks to Project MUSE, our guides also contain rich metadata to make them discoverable and available to libraries. The PDFs also meet the Project MUSE standards of accessibility for print-disabled readers. We are grateful to Kelley Squazzo and Philip Hearn at Project MUSE for their assistance in making our guides available via the Project MUSE platform. Publishers interested in adding their titles to the Open Access Books Program at Project MUSE can learn more here.

Fair Use, Innovation, and Controlled Digital Lending

Posted March 5, 2019

We’d like to thank co-authors Kyle K. Courtney and David R. Hansen for permission to re-post the following article, which originally appeared on the Copyright at Harvard Library blog on March 1, 2019.


One of the beautiful things about fair use is how it can soften the copyright act, which is in many ways highly structured and rigid, to provide flexibility for new, innovative technology.

To understand how, it’s worth appreciating the structure of the Copyright Act. If you look at the table of contents of Chapter 1 of the Act (“Subject Matter and Scope of Copyright”), you see the first several sections define basic terms such as copyrightable subject matter. Included in that first half of the chapter is Section 106, which defines the exclusive rights held by rights holders: the right to control copying, the creation of derivative works, public distribution, public performance, and display.  In the bottom half of the Act, Sections 108 to 122 provide for a wide variety of limitations and exceptions to those owners’ exclusive rights. These exceptions are largely for the benefit of users and the public, including specific exceptions to help libraries, teachers, blind and print-disabled users, non-commercial broadcast TV stations, and so on.

Then, there’s fair use. As if perfectly positioned to balance between the broad set of rights granted to owners and the specific limitations for the benefit of users and the public, “fair use” is codified in Section 107, though it really isn’t a creature of statute. Fair use is a doctrine, developed by courts as an  “equitable rule of reason” that requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has facilitated all sorts of technological innovations that Congress never could have anticipated, allowing copyrighted works and new technology to work together in harmony.

One particularly innovative system developed to enhance access to works is “controlled digital lending” (“CDL”):

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation….[I]t could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

While the courts have yet to weigh in directly on the CDL concept, we now have some guidance from a case in the Second Circuit Court of Appeals, Capitol Records, LLC v. ReDigi Inc. This case is about the development of an online marketplace created by ReDigi, which facilitated the sale of “used” mp3 music files. Capitol Records sued ReDigi, alleging that ReDigi infringed its exclusive rights to reproduction and distribution when it attempted to use a particular transfer method to sell the used mp3s.

The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the public distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made.

The court also rejected ReDigi’s fair use assertion. It found that the use was commercial in nature, was considered non-transformative, and replicated works exactly and precisely; simply put, they created mirror image copies of existing digital files.  Further, though the libraries associations in their briefs had raised the issue of a nexus of connection between fair use and specific copyright exceptions, such as Section 109 and 108, as an extension of Congressional policy that should influence the fair use analysis, the court did not discuss that argument.

That the court ruled ReDigi, a commercial enterprise, had interfered with the market for iTunes-licensed mp3s and their effort was not a transformative fair use, comes as no surprise to most lawyers and copyright scholars.

However, the decision, written by the creator of the modern transformative fair use doctrine, Judge Pierre Laval, contains several important lessons for CDL.

Transformative Use

First, the case raises a significant question as to whether CDL of digitized books may be “transformative” in nature. In the decision, examining the first factor, Judge Leval explains that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” For physical books, especially those that are difficult to obtain, this application of “transformative use” has a direct correlation to the core application of CDL.

Further, this quote interprets another critical technology and fair use case from the U.S. Supreme Court, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), famously called the “Betamax case.” Since its decision in 1984, the Sony ruling helped establish and foster the creation of new and vital technology, from personal computers and iPods to sampling machines and TiVo. This Sony quote was most recently used in another Second Circuit case, Fox News Network, LLC v. TVEyes, where the same court laid out this particular reading of Sony. So, ReDigi here is drawing upon the precedent of two important transformative fair use cases to make its point. Under this transformative use definition, CDL should be determined to be transformative by the courts, especially if the commercial rights of the rights holder are not unreasonably encroached.

Therefore, while the court found ReDigi’s use to not be transformative, the Second Circuit opened the door for continued technological development, especially for non-commercial transformative uses under the first factor, like CDL. In fact, according to several scholars (Michelle Wu, Kevin Smith, Aaron Perzanowski), this creates a much stronger argument that CDL would be ruled a transformative fair use by a court.

Market Harm

The Second Circuit held that the ReDigi system caused market harm under the fourth factor of the fair use statute. Again, this is not a surprise to the copyright world. The court found that the service provider had no actual control of the objects being sold and that it “made reproductions of Plaintiffs’ works for the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.”

What does this mean for CDL’s analysis under the fourth factor? Here, again, based on the language of the ReDigi decision, CDL looks pretty different. The ReDigi resales were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the operative market experiencing harm. For digitized copies of print books used for CDL, the substitutionary effect is far less clear. With most 20th-century books—the books that we feel are the best candidates for CDL—the market to date has been exclusively print. For those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

CDL doesn’t compete with a recognized market. When a library legally acquires an item, it has the right, under the first sale doctrine, to continue to use that work unimpeded by any further permission or fees of the copyright holder. CDL’s digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it’s one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The CDL “own-to-loan ratio” ensures that the market harm for the digital is the exact same as circulating the original item.

Again, the language of the ReDigi court should be examined closely. The court distinguishes substitutionary markets from those that are complementary and natural extensions of the use inherent with purchasing the original: “to the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use just as the copying at issue in Sony was fair use.” Reading this language through the lens of CDL, a modern reproduction service, such as CDL, that further enhances the owner’s use of materials that were purchased under first sale or owned under other authorized means would also qualify as a fair use.

All in all, the ReDigi case most certainly does not settle the CDL issue; if anything, the specific language of the court emphasizes the potential for more non-commercial transformative uses like CDL.


David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Kyle K. Courtney is Copyright Advisor and Program Manager at Harvard Library’s Office for Scholarly Communication (OSC). Before joining the OSC, Kyle managed the Faculty Research And Scholarly Support Services department at Harvard Law School Library.

Fair Use Resource Roundup

Posted February 28, 2019
Neon-lit sculpture of cowboy on rearing horse
Photo by Jakob Owens on Unsplash

Fair use can be a tricky concept to pin down. What exactly does fair use mean? What makes it such an important part of U.S. copyright law? What are the “four factors” that courts consider when evaluating claims of fair use? And, perhaps most importantly of all, how does fair use support authors’ research, writing, and publishing goals? Authors who want to incorporate source materials with confidence, while also respecting copyright and the integrity of their fellow creators, may find themselves faced with more questions than answers. Fortunately, help is at hand!

Just in time for Fair Use/Fair Dealing Week, we’re featuring this selection of resources to help understand and apply fair use.

Authors Alliance Fair Use Resource Page

Cover of the Fair Use Guide for Nonfiction Authors

The FAQ on the fair use resource page on our website covers 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?

While you’re there, you can also download a PDF or purchase a copy of our guidebook, Fair Use for Nonfiction Authors.

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 step by step tool, created by the ALA, enables users to support and document their assertions of fair use.

Fair Use Toolkit

Check out this comprehensive collection of copyright and fair use tools and websites from the ACRL.

U.S. Copyright Office Fair Use Index

The USCO maintains this searchable database of legal opinions and fair use test cases.


Do you have suggestions for other sites you depend on for quality content in your writing, teaching, or creative pursuits? Let us know, and we’ll feature them in a future Roundup!

Spotlight on Publication Contracts: Fair Use and Third-Party Permissions Clauses

Posted February 26, 2019
Shelf with colorful books and Authors Alliance logo on blue background

In our Spotlight on Book Publication Contracts series, we are shining the light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

In this week’s installment of our Spotlight on Publication Contracts, we’re celebrating Fair Use Week by highlighting an important aspect of your publication contract that defines whether your publisher expects you to obtain permissions for any third-party content you use in your book, or whether your contract explicitly allows you to rely on fair use.

It is common for book contracts to include terms requiring authors to deliver documents to their publishers showing that they have obtained all necessary third-party permissions: i.e., that the author is legally authorized to use any materials incorporated into the book where the copyright is owned by third parties. Permissions may be required to use someone else’s copyrighted work—such as artwork, illustrations, or photographs. However, under certain circumstances, an author’s use of a reasonable amount of another’s work to, for example, prove or illustrate the author’s point may be fair use, which does not require third-party permission or payment.

Often, permissions clauses do not acknowledge the right of an author to rely on exceptions and limitations to copyright like fair use. Instead, they may stipulate that an author “shall be responsible for obtaining written permissions from the respective copyright owners to reproduce materials from third-party copyrighted works.” Clauses like this do not explicitly allow you to rely on fair use. If you plan to rely on fair use to use third-party material in your book, you may want to ask for a clause like this:

If the Author uses any copyrighted text, tables, illustrations, or other materials in the Author’s Work, whether these are the Author’s own or those of another, and if this use does not meet the criteria specified in the fair use section of U.S. copyright law, the Author agrees to obtain and deliver to the Publisher proper and complete permissions to reprint such materials from the owners of the copyrights….

For more information about fair use, check out Authors Alliance’s Fair Use for Nonfiction Authors or the codes of best practices in fair use for a variety of disciplines.

“Misleading on Fair Dealing”: Michael Geist on Educational Uses of Content in Canada

Posted November 29, 2018

The following post is part of a series entitled “Misleading on Fair Dealing,” by Professor Michael Geist of the University of Ottawa. Here, Geist shares his recent testimony before the House of Commons’ Standing Committee on Canadian Heritage. Canada is currently considering a comprehensive copyright review, and these comments shed light on the issues surrounding educational uses of copyrighted content. Authors Alliance has been actively following this and other discussions of fair use and educational limitations and exceptions to copyright, both in the U.S. and abroad. We thank Professor Geist for sharing his testimony with our readers; the original post can be viewed here.

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I appeared yesterday before the Standing Committee on Canadian Heritage via videoconference as part of its study on remuneration models for artists and the creative industry. The Heritage study is designed to provide additional context and information for the Industry committee’s copyright review. My opening statement is posted below. It focused on recent allegations regarding educational copying practices, reconciled the increased spending on licensing with claims of reduced revenues, and concluded by providing the committee with some recommendations for action. An audio version of the opening statement is posted here.

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. I appear in a personal capacity as an independent academic representing only my own views.

I am sorry that I am unable to appear in person but I am grateful for the opportunity to participate in your study on remuneration models via videoconference.

I have been closely following the committee’s work on this issue, which will undoubtedly provide valuable input to the INDU committee’s copyright review. Last week I was dismayed to hear witnesses claim that Canada’s teachers, students and educational institutions are engaged in illegal activity. This claim is wrong and should be called out as such.

I’d like to address several of the allegations regarding educational copying practices, reconcile the increased spending on licensing with claims of reduced revenues, and conclude by providing the committee with some recommendations for action.

First, notwithstanding the oft-heard claim that the 2012 reforms are to “blame” for current educational practices, the reality is the current situation has little to do with the inclusion of “education” as a fair dealing purpose. You need not take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the Board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court. While I think that the addition of education must have meant something more than what was already found in the law, its inclusion as a fair dealing purpose was better viewed evolutionary rather than revolutionary.

Second, the claim of 600 million uncompensated copies – which lies at the heart of the allegations of unfair copying – is the result of outdated guesswork using decades-old data and deeply suspect assumptions.

The majority of the 600 million – 380 million – involve K-12 copying data that dates back to 2005. The Copyright Board warned years ago that the survey data is so old that it may not be representative. Indeed, it is so old there are cabinet ministers who could have been the actual students in the K-12 schools at the time they were last surveyed on copying practices.

Of the outdated 380 million, 150 million involves copies that were over-compensated by tens of millions of dollars as determined by the Copyright Board and upheld by the Federal Court of Appeal. Education has had to file a lawsuit to get a refund of those public dollars. I can only imagine the public response if the federal government was found to have overpaid for services by tens of millions of dollars and it failed to take action to recoup that money.

The remaining 220 million comes from a York University study, much of which as old as the K-12 study. Regardless of its age, however, extrapolating some dated copying data from a single university to the entire country is not credible. It would be akin to sampling a few streets in Ms. Dabrusin or Mr. Blaney’s ridings and concluding that they are representative of the entire country.

Third, the committee has heard suggestions that the shift from print coursepacks to electronic course material systems (CMS) is irrelevant from a copying perspective. This is wrong. The data is unequivocal: printed coursepacks have largely disappeared in favour of digital access. For example, the University of Calgary reports that only 53 courses used printed coursepacks last year for a student population of 30,000.

Why does this matter? Three reasons:

First, as universities and colleges shift to CMS, the content used changes too. For example, an Access Copyright study at Canadian colleges found that books comprised only 35% of materials. The majority was journals and newspapers, much of which is available under open access licenses or licensed by other means.

Second, the amount of copying with CMS is far lower than with print. While Access Copyright argues there should be a one-to-one ratio – for every registered student the assumption should be that every page is accessed even for optional readings – the data (and common sense) tells us this is unlikely.

Third, CMS allows for the incorporation of licensed e-books. At the University of Ottawa, there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Tens of thousands of the e-books are from Canadian publishers and in many instances universities have licensed virtually everything offered by those Canadian publishers.

What this means is that the shift from an Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licenses that provide both access and reproduction. These licences get universities access to the content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for materials you already have.

With the increased spending, why do some report reduced revenues? There may be several reasons.

First, licensing is often perpetual, meaning that payment comes once, not as an annual royalty.

Second, many works aren’t being used or copied. UBC reports that 69% of their physical items have not been used since 2004.

Third, despite the shift to digital, Access Copyright’s Payback system excludes all digital works. In terms of eligibility, its rules exclude “blogs, websites, e‐books, online articles and other similar publications. Only print editions can be claimed.” Moreover, the Payback system also excludes all works that are more than 20 years old on the grounds that they are rarely copied.

Fourth, Access Copyright has refused to adopt transactional licences, thereby sending licensing money elsewhere. Education is spending millions each year on transactional licensing which permits copying for a specific course, yet Access Copyright has not entered that market.

Fifth, consistent with what this committee heard from Bryan Adams, it may be that part of the problem lies with the relationship between authors and publishers, with authors under-compensated for the digital revenues.

Let me conclude with a few thoughts on solutions on remuneration.

First, efforts to force the Access Copyright licence on educational institutions through statutory damages reforms should be rejected. Education should be free to pursue the best licences the market offers, an approach that is in the best interests of both education and authors. At the moment, that comes directly from publishers and other aggregators, not Access Copyright.

Second, the government should work with Canadian publishers to ensure their works are available for digital licensing either in bundles or through transactional licenses. Given that digital licenses are sometimes the only source of revenue – Access Copyright’s Payback doesn’t compensate for older works and print sales of old books is typically non-existent – embracing the digital opportunities with a forward looking approach may be the only revenue source for some authors.

Third, governments should continue to pursue alternative publishing approaches that improve both access and compensation. For example, last week’s Economic Update announcement of funding for creative commons licensed local news should be emulated with funding for open educational resources that pays creators up front and gives education flexibility in usage.

Fourth, non-copyright policies must be examined. For example, how is that Canadian content rules for film and television production still treat Canadian book authors as irrelevant for Cancon qualification?

Despite the criticism, the 2012 reforms were about establishing rules to foster a digital market for the benefit of all stakeholders. It is still early in the process, but we have already seen a huge shift to digital for both education and the publishing industry, with hundreds of millions spent on digital licensing. That’s a win for everyone except for an outdated licence that now offers little value when compared to other market and legal options.

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Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Centre for Law, Technology and Society. His website, michaelgeist.ca, provides coverage of intellectual property, technology, and copyright issues in Canada.

Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)

Posted October 26, 2018

We thank Krista L. Cox, Director of Public Policy Initiatives at ARL, for the following analysis, which originally appeared on the ARL Policy Notes blog. Authors Alliance submitted an amicus brief in support of fair use in the second appeal to the Eleventh Circuit in 2017, and we continue to track the progress of the case.

The long saga of the Georgia State University (GSU) e-reserves case continues as the Court of Appeals for the Eleventh Circuit reversed the district court’s ruling which had found that the vast majority of GSU’s use of works in its e-reserves constituted a fair use. This is the second time the Eleventh Circuit has reviewed the case, and the second time it has reversed.

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

On October 19, 2018, the Eleventh Circuit released its 25 page opinion—more than a year after hearing oral arguments in the case—finding that the district court again erred in its evaluation of fair use. The Eleventh Circuit suggests that the district court was only mandated to re-evaluate its analysis on the second and third factors, but had instead also re-evaluated its analysis on factor four (in which the district court found in the first trial that in 31 cases, the fourth fair use factor weighed against fair use).

Additionally, the Eleventh Circuit points out that “The district court again applied a mathematical formula in its overall analysis of fair use,” which it had been instructed against. Although the district court couched the given weights as “initial” and “approximate,” the Eleventh Circuit found that the district court only adjusted these factors in four instances and di not adjust the other factors in the overall analysis. Thus, “We conclude that the district court’s quantitative rubric was an improper substitute for a qualitative consideration of each instance of copying in the light of its particular facts.” The Eleventh Circuit has remanded the case, directing the district court to use a holistic approach to fair use, and avoid any mathematical approach with respect to the four factors.

Another issue the Eleventh Circuit opinion addresses is whether the cost of purchasing licenses affects the third factor; the district court in the second trial considered the price of use on two ocassions. The Eleventh Circuit rules that price should not be taken into account when evaluating the amount and substantiality of the portion of the work used.

While the Eleventh Circuit reversed and remanded on the above issues, it affirmed the district court’s decision not to reopen the record. Publishers in 2015 filed a motion to reopen, asserting the need to introduce “Evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term)” as well as evidence of the availability of digital licenses. Here, the Eleventh Circuit notes that this decision is within the discretion of the trial court.

Kevin Smith posted about the GSU case on In the Open, with an excellent summary of what the Eleventh Circuit’s opinion (as well as its last opinion) does not do, and what, as a result, the publishers have lost on:

…But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.

Library of Congress Expands 1201 Exemptions to All Nonfiction Multimedia E-books

Posted October 25, 2018

photo of CD with padlock

photo by 422737 |CC0

Today, the Library of Congress adopted exemptions to section 1201 of the Digital Millennium Copyright Act (DMCA) that prohibits circumvention of technical protection measures. As a part of this rulemaking process, Authors Alliance petitioned to renew the existing exemption that allows authors to bypass encryption to make fair use of film clips in nonfiction multimedia e-books offering film analysis, and we additionally advocated to modify the exemption to allow for the use of film clips in e-books for purposes other than film analysis and in fictional works.

We are pleased to report that the Library of Congress renewed the existing multimedia e-book exemptions and expanded the exemption to all nonfiction multimedia e-books (that is, the exemption is no longer limited to multimedia e-books offering film analysis). The Acting Register of Copyrights found that examples presented in our comments showed a variety of uses of short excerpts in nonfiction multimedia e-books to provide criticism or commentary beyond film analysis and also found that the brevity and transformative nature of the proposed uses favor an exemption because these uses are unlikely to substitute for the original work. The Acting Register concluded that an expansion to all nonfiction multimedia e-books is unlikely to harm, and may increase, the availability of copyrighted works and that the proposed uses will facilitate criticism, comment, teaching and/or scholarship.

The Acting Register declined to recommend to expand the exemption to cover fictional e-books, finding that the record lacked sufficient evidence demonstrating a need to expand the current exemption. We are disappointed that the Copyright Office and the Library of Congress passed on the opportunity to extend the exemption to authors of fictional multimedia e-books, such as fanfiction authors, whose transformative expression fits within the fair use doctrine.

We are grateful to the student attorneys and their supervisors at the Intellectual Property, Arts, and Technology Clinic at UC Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law for their work supporting this exemption.

Stay tuned for additional analysis of the 1201 rulemaking for multimedia e-books from the student attorneys at UC Irvine and Colorado Law.

Authors Alliance Testifies in Support of Fair Use at the Library of Congress

Posted April 12, 2018

Photo of the 1201 testimony team

Authors Alliance and friends in Washington – April 11, 2018

A key policy issue at Authors Alliance is our support for authors’ right to make fair use in the digital age. In May 2015, we participated in the U.S. Copyright Office’s sixth triennial rulemaking, and testified in support of exemptions to Section 1201 of the DMCA that would protect the fair use rights of e-book authors, allowing them to bypass the encryption on DVDs, Blu-ray, and other media in order to use film clips in multimedia e-books.

Now, for the seventh triennial rulemaking session in 2018, Authors Alliance has returned to Washington, DC to advocate for an expanded exemption that would allow for the use of film clips in e-books for purposes other than film analysis, and in fictional works as well as nonfiction. The exemption, which is explained in greater detail here, would expand on the more limited exemption that the Copyright Office has already recommended be renewed. Yesterday, Executive Director Brianna Schofield testified in support of this modified exemption in a hearing at the Library of Congress alongside a team of authors, filmmakers, and scholars, as well as representatives from the Intellectual Property, Arts, and Technology Clinic at the UC Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law.

We were very glad to have the opportunity to answer the Office’s questions at the hearing and to provide additional information demonstrating why these exemptions are important to authors. Authors Alliance provided examples showing the importance of modifying the exemption to no longer require that e-books taking advantage of the exemption “offer film analysis.” Under the current exemption, the authors who want to incorporate film clips in their e-books at best have their projects clouded with uncertainty as to whether the current exemption applies to these uses, and at worst they abandon these projects after concluding that exceptions won’t apply.

We hope that our efforts in this rulemaking will help the Copyright Office recognize that authors should be able to make responsible fair use of film clips in fields beyond film analysis and that these uses should be expanded to include fictional as well as nonfiction e-books.

We expect to hear the results of the hearing later this year, when the Librarian of Congress adopts a final rule for the seventh triennial rulemaking session. As always, we will provide timely updates on the status of these exemptions and our other policy and advocacy issues.

Authors Alliance Submits Reply Comment in 2018 DMCA Rulemaking

Posted March 15, 2018

photo of CD with padlock

photo by 422737 |CC0

In December 2017, Authors Alliance submitted comments to the U.S. Copyright Office in support of a modified exemption to Section 1201 of the Digital Millennium Copyright Act (DMCA) for multimedia e-books. The proposed modification would broaden the application of the current exemption (which allows for lawful circumvention of digital rights management technologies in non-fiction works offering film analysis) to embrace fictional e-books and e-books on subjects other than film analysis. This would allow a more diverse group of creators, such as fanfiction authors, to access the clips they need from DVD and Blu-ray discs to make fair use of video clips in their e-books.

Responses to that initial comment were filed last month. Now, joined by the American Association of University Professors, Organization for Transformative Works, the Interactive Fiction Technology Foundation, and Professor Bobette Buster, we have in turn submitted reply comments as part of the U.S. Copyright Office’s seventh triennial rulemaking process for 2018. The full text of the comment is included below.

Our comment explains that creators are interested in exercising their fair use rights by engaging in criticism and commentary in their creations, and it provides evidence that creators of content have been and will continue to be harmed absent the proposed modification to the current exemption.

Our advocacy in this area is ongoing. In 2015, as part of the sixth triennial rulemaking, Authors Alliance traveled to Washington, DC to testify in hearings before the U.S. Copyright Office. We will do so again in April of this year and will keep our readers updated on that testimony, as well as the results of the seventh triennial rulemaking.

2018.03.14 Reply Comment MM EBooks AuAll AAUP OTW IFTF Buster

 

Revisiting Georgia State: Fair Use and Academic Incentives

Posted March 1, 2018

What effect does fair use have on incentives to create? For some academic authors, there is growing evidence that fair use will not diminish, and may even enhance, their incentives to create and distribute scholarly works because it promotes their goals of advancing the progress of knowledge, builds reputational capital, and increases the impact of their works.

Last year, Authors Alliance filed an amicus brief with the Eleventh Circuit in support of Georgia State University’s fair use defense in Cambridge University Press v. Becker. One issue we discussed in our brief is 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.

Our brief highlighted quotes from 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. For example, 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!”

A subsequent survey of authors conducted by Brandon Butler and David Hansen reinforced these observations about academic authors’ incentives to create. Butler and Hansen wanted to test the hypothesis that most academics expect their work to be used freely for teaching, partly because academic authors make such uses themselves. They surveyed the authors affected by Georgia State litigation—primarily academic authors whose works had been excerpted by GSU professors in support of their teaching. Their results, although based on a small sample size, suggest that academic authors expect that their works will be used for educational purposes; indeed, many of them make such uses of others’ works as well, and are not highly incentivized to write by copyright restrictions or the promise of royalties.

As Hansen and Butler write in their survey analysis, “Authors faced with a publishing contract that includes a copyright transfer or license should consider whether they trust the publisher to enforce those rights in ways consistent with academic values and expectations.” This and other issues of interest to those considering publication options will be addressed in our forthcoming guide to publication contracts. The guide will be the fourth volume in our series of educational handbooks—stay tuned for a release later this year.

In the meantime: