Author Archives: Authors Alliance

Authors Alliance Submits Comment to U.S. Copyright Office in Support of Mandatory Deposit of Electronic-Only Books

Posted July 17, 2018

In response to a Notice of Proposed Rulemaking, Authors Alliance has submitted a comment to the U.S. Copyright Office in support of the mandatory deposit of electronic-only books.

The U.S. Copyright Act requires the mandatory deposit of all works published in the United States within three months of publication for inclusion in the Library of Congress (subject to the Copyright Office’s ability to exclude certain classes of works from this requirement). In 2010, the Copyright Office issued an interim rule to exempt works published only in electronic form from the mandatory deposit requirement. The Copyright Office now proposes to revise its regulations to make the interim rule final, and to make electronic-only books published in the United States subject to mandatory deposit only in response to an affirmative demand from the Copyright Office.

Authors Alliance believes that making mandatory deposit of electronic-only books dependent on an affirmative demand by the Copyright Office is only the first step to fulfilling the promise of a Library of Congress that preserves and provides access to a rich, diverse, and enduring source of knowledge and creativity. While recognizing the technological challenges of mandatory deposit of electronic-only books, our comment nonetheless encourages the Copyright Office to consider mandatory deposits of all electronic-only books in the future for the benefit of authors and readers.

As our comment states: “Mandatory deposit requirements serve the long-term interests of authors by ensuring that their creative and intellectual legacies are preserved. These requirements also facilitate access to authors’ works, improving chances that these works will be discovered and reach the audiences for which they were intended.”

The full text of the comment may be read below, or click here to download the document:

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Property and Paychecks: Jessica Litman on Copyright and Authors’ Rights

Posted July 11, 2018

Photo by Nima Izadi on Unsplash

Professor Jessica Litman’s recent paper, What We Don’t See When We See Copyright as Property, analyzes how the legal concept of copyright as property tends to reflect broader societal imbalances in wealth and bargaining power.

Although this legal construct might seem to have little bearing on the day-to-day work of earning a living as an author, its effects are keenly felt—particularly when it comes to authors’ paychecks. The article discusses how property rights (known as “alienable rights,” meaning that they can be taken away or transferred, as opposed to “inalienable rights” such as civil rights or human rights) are often construed at the expense of individuals. As Litman writes, “[f]or all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximize their own revenue while shrinking their payouts to authors.”

The article examines historic legislation, including the British Statute of Anne (1710) and the American Dawes Act (1887), in order to explore how the framing of rights as alienable property rights tends to favor the powerful over the disenfranchised. Litman speculates on why authors are often excluded from realizing the benefits of their creative work, and concludes with some suggestions on how the issue of copyright-as-property can be framed constructively to bring about change so that authors have a better chance at receiving their fair share of copyright benefits.

Jessica Litman is John F. Nickoll Professor of Law and Professor of Information at the University of Michigan. This paper was published in May 2018 as part of Michigan’s Law & Economics Research Paper Series. The full text is available on SSRN.

Supreme Court to Weigh in on Copyright Registration Circuit Split

Posted June 28, 2018

photo by MarkThomas | Pixabay License

Today, the U.S. Supreme Court agreed to resolve the question of what the Copyright Act means when it says that a work must be registered prior to filing an infringement lawsuit.

Under the Copyright Act, an infringement action cannot be brought until “registration of the copyright claim has been made” (or, alternatively, registration of the claim has been refused by the Copyright Office). Next term, the Supreme Court will review the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC to resolve a circuit split over what it means to fulfill this requirement. The essential question is whether a copyright owner may commence an infringement suit after delivering the proper deposit, application, and fee to the Copyright Office, but before the Register of Copyrights has acted on the application for registration.

Currently, the Tenth Circuit follows the “registration approach,” which requires that the Register of Copyrights act on the application for registration, either by approving or denying it, before a copyright owner can file and infringement action. The Fifth and Ninth Circuits follow an “application approach,” which requires a copyright owner to file the deposit, application, and fee required for registration before filing a suit for infringement. In the case now before the Supreme Court, the Eleventh Circuit followed the registration approach, explaining that in its view “[t]he Copyright Act defines registration as a process that requires action by both the copyright owner and the Copyright Office.” The Supreme Court will now have the opportunity to review and resolve this circuit split in its next term.

We will follow this case and update our readers as the Supreme Court considers this question.

The ability to bring an infringement lawsuit is just one of the benefits of registration. For more information about registration, read our articles on the benefits of registration, how to register your works with the U.S. Copyright Office, and when to update or supplement a registration.

Calling all Authors: Author Income Survey

Posted June 19, 2018

Authors Alliance is partnering with the Authors Guild and more than 15 author and publishing organizations to learn more about how authors’ earnings have changed in recent years in the evolving digital publishing landscape and what sources of income are most important. To gather accurate information from a broad range of authors, we invite our members who are U.S. resident published authors to participate in the Authors Guild Foundation 2018 Author Income Survey. The survey is conducted by the Codex Group, which will collect and analyze the responses. Data will be shared on an aggregate, anonymous basis only, and individual responses will be kept strictly confidential.

Take the Author Survey

It should take about twenty minutes to complete the survey. By doing so, you will help to gather information that will help support you and your fellow authors.

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If you have already completed this survey through another organization’s invitation, we greatly appreciate your help! Your information is fully recorded; please do not take the survey a second time.

Enter the Thank You Raffle for a chance to win one of one hundred $50 Visa gift cards. You do not need to complete the survey to enter. See details and Official Rules here.

Kickstarter for the Win!

Posted June 15, 2018

photo by Wokandapix | CC0

Hooray! We did it! Our Kickstarter project, “Know Before You Sign on the Dotted Line,” has officially ended, and we’re delighted to announce that we reached our goal. We raised $13,687 to support the creation of our guide to Understanding Book Publication Contracts for release by the end of this year.

It’s inspiring to know that thanks to our backers, we now have the resources to realize our vision of a beautifully-designed, high-quality guidebook that will benefit authors.

We will continue to share updates as work on the Guide progresses. In the meantime, our heartfelt thanks go out to all who pitched in to make our Kickstarter such a success!

Authors Alliance Joins Letter to Copyright Office: Screen Capture is Not a Sufficient Alternative to Circumvention

Posted June 11, 2018

A key policy issue at Authors Alliance is our support for authors’ right to make fair use in the digital age. At the U.S. Copyright Office’s seventh triennial rulemaking session in April, we testified in support of an expanded exemption Section 1201 of the DMCA that would allow authors to bypass the encryption on DVDs, Blu-ray, and other media for the use of film clips in e-books for purposes other than film analysis, and in fictional works as well as nonfiction.

Following the 1201 hearings, the Copyright Office asked participants for additional information explaining why screen capture is not a sufficient alternative to circumvention for educational uses of “short portions of motion pictures” beyond film studies or other courses requiring close analysis of film and media excerpts.

Today, Authors Alliance joins with Library Copyright Alliance, Joint Educators, and the Organization for Transformative Works to explain why screen capture is not a sufficient alternative to circumvention. Our letter explains that many commercially released videos block screen capture programs, making the viability of screen capture as a sufficient alternative a moot issue. Moreover, a range of instructors have pedagogical reason for using quality excerpts, and screen capture programs produce deficient excerpts that do not meet the needs of instructors or authors.

For example, authors of multimedia e-books may want to magnify parts of the frame in order to call attention to specific details that are the subject of criticism and commentary in their work. Attorney and author Heidi Tandy, who writes fan fiction not only to create novel works but also to educate the public about fair use, hopes to create a multimedia fan fiction e-book offering analysis and commentary on the long-running television series Supernatural. To do so, she needs to capture small details from the television show, such as a set artifact or a character’s fleeting facial expression, and then blow up these details to analyze and comment on them. Given the well-documented flaws and degradation present in all screen-capture software, a screen capture requirement would prevent or severely hinder authors’ ability to make fair use using e-book technology.

For more reasons why screen capture is not a sufficient alternative to circumvention, click here or read our full letter below.

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Kickstarter Success — and a Stretch Goal!

Posted

We are thrilled to announce that we reached our goal on Kickstarter late last week! Thanks to each and every one of our backers, “Know Before You Sign on the Dotted Line” was a smashing success. We met our goal of $12,500—with time to spare.

photo by Howard Wilks | CC0

And if you haven’t pledged yet, there’s still time! Encouraged by the overwhelming generosity and support of our backers, we’re going to reach just a little higher with a “stretch goal” of $14,000. If we meet this new target, we’ll use these extra funds to provide 50 (free!) copies of Understanding Book Publication Contracts to libraries, writers’ groups, and other organizations for their reference collections.

You can help us get there by pledging and spreading the word to your networks. Then, if the stretch goal is met by the time our Kickstarter ends on June 15, we’ll ask our backers to recommend recipients of these complimentary guides via a post-project survey. We’ll tally the responses, and the organizations with the most mentions will receive free copies.

We are working hard to prepare Understanding Book Publication Contracts for release by the end of this year, and it’s inspiring to know that we have the financial resources to realize our vision of a beautifully-designed, high-quality guidebook that will benefit authors.

We will continue to post updates as work on the Guide progresses through the summer and fall.

2018: The Year of the Morality Clause

Posted June 6, 2018

We are grateful to professor, consultant, and author Jacqui Lipton for contributing this timely guest post on morality clauses in book publishing contracts.

Headshot of Jacqui Lipton Recent developments in the entertainment industry, notably the #MeToo movement, have led the entire country to focus more on questions of ethics and morality in business, educational, and media settings. The publishing industry, too, has been rocked by story after story of inappropriate behavior by big-name authors, including —to the great disappointment of many—a number of children’s authors. The Society of Children’s Book Writers and Illustrators earlier this year released an anti-harassment policy to address these concerns.

Publishing houses and agents have also faced this conundrum. Enter the morality clause. Increasing numbers of publishing houses and agents are now including such clauses in publishing and agenting contracts, requiring their authors to comply with acceptable professional standards and providing for the possibility of termination of the contractual relationship if the author fails to conduct himself or herself appropriately.

There are several limitations to these clauses, other than as a device to draw parties’ attention to current challenges in the industry. For example, it’s incredibly difficult to draft meaningful contractual clauses that explain what conduct will be regarded as immoral or unacceptable other than in the vaguest possible terms: such as “standards reasonably accepted in the industry,” etc. These clauses by necessity will be vague and subjective and difficult to interpret should they ever be litigated in court.

Additionally, there’s the question of whether these clauses are necessary as a matter of law, whether they add anything meaningful to what’s already in the contract. It’s always been the case in the publishing world that agents can generally terminate a relationship with a client (or vice versa) at will, subject to ongoing financial arrangements with respect to projects already sold by the agent. Publishers, too, generally reserve the right to reject any manuscript that doesn’t meet their standards, and those standards, by nature, tend also to be very subjective.

Of course, many publication contracts may be silent on actual “conduct” of an author as opposed to “content” of the manuscript. However, it’s arguably not particularly difficult for a publisher to cancel a publication agreement by referring to the content of the manuscript even if the underlying concern may be more with the conduct of the author. A case in point is the current litigation between Milo Yiannopoulos and Simon & Schuster. Simon & Schuster cancelled Yiannopoulos’s book contract after he made controversial comments on pedophilia, but argued that the basis for their actions was that the manuscript itself was unacceptable (see Andrew Albanese, Can Milo Yiannopoulos Win His Lawsuit Against S&S?, July 14, 2017, Publisher’s Weekly, available here.) The case is proceeding in New York and may provide some guidance about how effectively existing contractual clauses can be used to address these types of situations, even in the absence of a “morality clause” in a particular contract.

So where does that leave morality clauses? Do we need them? Arguably no, as a matter of law, but possibly yes as a reminder to those signing contracts that publishing is an industry whose participants should adhere to moral and ethical standards of conduct. Should authors need such reminders in this day and age? Theoretically no, but in practice, in the current political and cultural climate, sadly it may be a good idea.

Jacqui Lipton, LL.B. (Hons), LL.M., M.F.A. (fiction), Ph.D. is a professor of law, consultant and author. She is the founder of Authography LLC, a company dedicated to assisting authors and artists with business and legal challenges. She is a regular columnist on legal, business, and associated ethical issues for a number of industry publications and blogs. She’s also the author of the forthcoming Law & Authors: A Legal Handbook for Writers (University of California Press). You can find her online at jdlipton.com.

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Speaking of publishing contracts…we’re on the homestretch of “Know Before You Sign on the Dotted Line,” a Kickstarter campaign to help fund the production of our upcoming Guide to Book Publication Contracts. As of today, we’re almost 90% of the way to our goal, so if you haven’t pledged yet, please do so before the campaign ends on June 15!

Authors Alliance, Teachers, and Copyright Experts Support Limitations and Exceptions for Education at WIPO SCCR/36

Posted May 31, 2018

Panelists at SCCR/36 Side Event: How WIPO Can Contribute to Achieving the Right to Education (photo: Luis Villarroel)

This week, Authors Alliance is participating in the thirty-sixth session of the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights (SCCR/36) in Geneva. Among other topics, the session is addressing copyright limitations and exceptions for educational and research institutions. Yesterday, our Executive Director, Brianna Schofield, participated in a panel discussion on “How WIPO Can Contribute to Achieving the Right to Education,” co-hosted by the Indonesian Delegation to WIPO and Education International. The discussion convened educators, policymakers, and copyright experts to share findings and practical examples of the ways that copyright laws can help and hinder classroom learning.

The panelists, representing organizations from Canada to the E.U. to Indonesia, shared the view that a robust model of copyright exceptions for education must apply to fair uses of all kinds of works (print and digital), by a variety of users (teachers, students, researchers, and institutions) for the full scope of activities that take place in educational settings.

Unifay Rosyidi, president of the Indonesian teachers’ union (PGRI), explained how for Indonesia, as a developing country, access to quality and affordable teaching and learning materials plays a pivotal role in increasing quality education. In order to facilitate this, PGRI promotes increasing access to Open Educational Resources, and also advocates for fair access to and use of copyrighted materials.

Teresa Nobre of Communia presented research showing how licenses in Europe for access to e-resources often subordinate limitations and exceptions for the benefit of license holders. Based on her research, she concluded that contractual arrangements should not be allowed to override legal provisions protecting users’ rights.

Dr. Michael Geist, law professor at the University of Ottawa, reported that flexible fair dealing provisions can enhance educational outcomes without harming publishers and authors. Despite claims to the contrary, he explained how the Canadian experience indicates that fair dealing can co-exist with a successful commercial publication market. Since Canadian reforms were enacted in 2012, there has been increased spending on copyright licensing by educational institutions and larger profit margins for publishers.

Authors Alliance referenced our advocacy in support of fair use in Cambridge University Press v. Becker, as well as subsequent analysis by Brandon Butler and David Hansen suggesting that limitations and exceptions in an educational context may in fact enhance some authors’ incentives to create by furthering these authors’ goals to advance knowledge, build reputational capital, and increase the impact of their works.

In addition to speaking on the panel, Authors Alliance also presented a statement to the Committee on the benefits to authors of reasonable limitations and exceptions to copyright for libraries, archives, and museums; education; and for persons with disabilities.

Meet the Contracts Guide Team!

Posted May 29, 2018

We at Authors Alliance are hard at work on a new guide to Understanding Book Publication Contracts, the fourth volume in our series of educational handbooks that will empower authors to make savvy decisions when negotiating their contracts.

Work on the guide is going smoothly, and it would not have been possible without two standout members of the Samuelson Law, Technology, & Public Policy Clinic at the UC Berkeley School of Law: Karen Hagen and Anna Kuksenkova. Karen and Anna were instrumental in gathering information from authors through surveys and interviews, and they contributed substantially to drafting sections of the guide. We recently turned the tables and interviewed them to learn more about their experience with the project and about their plans now that they are newly-minted JDs.

Karen and Anna interview an author at the AWP conference in March 2018

Authors Alliance: There are lots of opportunities to take on a variety of projects in law school. Why did you decide to work on the Guide to Book Publication Contracts?

Anna Kuksenkova: I’ve always been a huge bookworm. I enjoy sci-fi and fantasy especially, and have even thought about writing my own novel someday. As a law student, my focus and interest is in intellectual property law, specifically copyright. This was such a neat opportunity to work across both these interests.

Karen Hagen: First of all, because I love to read. Hopefully, the Guide will make negotiating publication contracts for authors easier and less scary so that they have more time for writing great books that I, in turn, will read. Furthermore, I loved the challenge of writing for a non-legal audience for a change.

AuAll: What was your favorite part about working on the Guide?

KH: The interviews with the authors! They made our work on the guide meaningful and a lot of fun.

AK: Speaking to real authors! I got to interview some people I’d already heard of and admired, and others I’d never heard of that I was so excited to have a chance to meet. I’m really glad we were able to talk directly to the audience we were writing the book for and tailor our advice to what they wanted and needed in a guide like this. Plus I couldn’t believe some of their stories!

AuAll: Tell us about a key point and/or something surprising that you learned.

KH: A lot of authors believe they don’t have to know about contracts if they have an agent. Of course, having an agent can take a huge load of your shoulders, but how can you as an author discuss with our tell your agent what to negotiate for if you have no idea what publication contracts are all about?

AK: I think a lot of the authors we spoke to cared about their copyright in the book but didn’t have a good idea of what that means in practice. Sometimes, publishers will ask for all the rights to a work, but register the copyright in the author’s name and put the © on the first page next to the author’s name. But that’s not really retaining your copyright, because you’ve still signed away your exclusive rights: the right to copy, distribute, create adaptations, etc. That’s what copyright really is.

AuAll: If you had just one takeaway for authors based on your work, what would it be?

AK: Don’t be afraid to ask! For every time we’ve heard “you’ll never get X,” even from editors, we had another example of someone who HAD gotten X. I’ve never heard of anyone losing a book deal because they merely asked politely to change a term. If you’re sitting at that table, they already want you. It may not feel like you have a lot of power, but you have more than you think.

KH: A lot of the time, the people you’ll negotiate with as an author haven’t really gotten the ins and outs of publication contracts themselves. So simply being knowledgeable about contracts is a big advantage.

AuAll: Now that you’ve graduated, what are your future career plans?

KH: Before eventually moving back to Germany and working as an IP lawyer, I will intern at a Silicon Valley law firm working on technology transactions.

AK: I’m currently studying for the California bar exam and looking for a work opportunity, here or in D.C. I’m excited to see where I go next.

AuAll: Tell us a little something about yourself: What do you love to do when you’re not working on legal issues? Favorite things about Berkeley and the Bay Area? What’s the first thing you’re going to do after taking the bar exam?

AK: When I’m not working, I love quiet evenings in, cuddling with my cat, reading or watching movies. Sometimes I do collaborative writing with my friends back on the east coast, short stories and coda to comics and TV, things like that. I’ve also been showing my grandma, who I invited to come live with me for a little while, around the east bay. I love how much diversity there is here, not only people, but in access to different cultures, too. We’re Russian and she recently emigrated here, and I’ve found so many resources in this area for her, an adult ESL program and Russian community. I just think the culture here is great, even if the traffic and cost of housing are tough to swallow.

The second I’m done with the bar exam I’m heading south to the nearest warm, sunny beach. I think I’m just going to nap there for a week straight!

KH: I love to explore and travel. One of my favorite places in the Bay Area, particularly in the spring, is Point Reyes. Every time I went I saw amazing wildlife: otters, coyotes, barn owls, deer, elk, and whales. Other than that, I love to read. That’s why the first thing I’ll certainly do after taking the bar exam is dive into a page-turning novel. I already have one in mind that one of our interviewees recommended!

In case you haven’t heard, we have launched “Know Before You Sign on the Dotted Line,” a Kickstarter campaign to help fund the production of the Guide to Book Publication Contracts. As of today, we’re almost 75% of the way to our goal, so if you haven’t pledged yet, please do so before the campaign ends on June 15!