Author Archives: Authors Alliance

New IP Handbook for Teachers and Researchers

Posted December 12, 2014

Kevin Smith, Duke University’s Director of Copyright and Scholarly Communication and an Authors Alliance founding member, has just published a handbook on copyright and related issues for teachers and researchers that will be a useful resource for many Authors Alliance members. Kevin introduces the book, its approach, and his motivations below.

The idea that I might write a handbook about intellectual property that was aimed specifically at scholars and researchers was originally suggested by a publisher, although not the publisher who ultimately published Owning and Using Scholarship: An IP Handbook for Teachers and Researchers. I was eager to write such a book, but spent a lot of time pondering how it should be shaped.

I have a lot of experience trying to explain various IP laws and best practices to scholars, and I have encountered the same frustration many times. Even though someone may appear to understand the abstract concepts that I have been explaining, when the next concrete situation arises, they struggle to apply the rules and ideas to that factual setting. It has occurred to me, observing this struggle, that that is why lawyers are taught using cases, with a so-called Socratic method. There is a real advantage to starting with specific facts and circumstances, and allowing the principles to emerge from comparison and contrast. As frustrating as that is to law students, it may be more fruitful than teaching “bright line” rules in the abstract, without clear examples of their application.

For the teachers and researchers with whom I work, I think that the lack of concrete examples of application is part of the difficulty they have when being taught about IP. The other problem, different yet related to the first, is that scholars want to know “why” when they are faced with rules. While for many people the why behind the law might seem unnecessary and confusing, for many academics it is a key component in moving from understanding to application.

So in this handbook I have tried to address both sides of this difficulty. There are lots of concrete examples of the application of copyright law, especially, to specific research and teaching situations scattered throughout the book. These are often drawn from real situations I have encountered, or things I have been told about be colleagues. But the book is more than rules and examples. Without, I hope, being too long-winded, I have tried to provide enough background – enough of the policy decisions and reasoning that underpin the law – so that my particular audience can do what they do best, which is to grasp, analyze, and apply abstract ideas in new contexts. That is the key to making good IP management decisions, as it is central in so many other parts of the academic world.

One kind of new and complex decision that academics face in the digital age involves how, where, and under what conditions to publish their work. Two of the seven chapters in my Handbook are dedicated to helping authors make those decisions about how best to manage copyright, which is one of the most important intellectual assets a scholar has, and to sort out the different publishing options that are now available.

These decisions became very real for me as I needed to look for a publisher rather late in the process. Given the values to which I am committed, it was important to me to find a publisher that was willing to let me retain the copyright in my book and, I hoped, to allow some form of open access to at least a part of its contents. That is not yet the norm in academic publishing, especially for a new author. I was extremely fortunate to find, in the Association of College and Research Libraries, a publisher who shared my values and was willing to accept a license to publish rather than a transfer of copyright, and willing to post a complete PDF copy of the book in open access form. ACRL was an ideal publisher for this particular volume, and the lesson I have learned it that I should have known that it was sure to be librarians who would best understand and cooperate with the way I wanted my work released.

Purchase the handbook.
Download the open access PDF.

Using Fair Use to Improve Access to Orphan Works in Libraries and Archives

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Guest post by Founding Member David Hansen

Today we celebrate a new tool that will make it easier for libraries and archives to apply the important copyright doctrine of fair use to their collections containing orphan works, especially as they put those works online. I, along with research teams at American University and UC Berkeley, am pleased to announce the release of the Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions.

The orphan works problem is one of the best examples of why the United States needs comprehensive copyright reform. Since the enactment of the Copyright Act of 1976, the U.S. has extended copyright protection, shrunken the public domain, increased the range of statutory damages, and, through the elimination of copyright formalities, made it easier than ever for copyrighted works to become irretrievably separated from their owners.

Because of those policies, orphan works—i.e., copyrighted works whose owners cannot be located—have become increasingly common, especially in collections of older works such as those held by libraries and archives and used by authors to do research and create new works.

Libraries, authors, and readers are unsure of what they can do with orphan works because they face a risk of liability should they use them only to have an unfindable owner reappear to file a lawsuit. Earlier this year Pamela Samuelson wrote on this blog about why orphan works are so important for authors, and why the Authors Alliance has made these issues a priority in its Principles and Proposals for Copyright Reform.

Although bad U.S. copyright policy has created this problem, many now recognize that one shining example of good U.S. copyright policy—the commitment to a strong and flexible fair use doctrine—can limit its effect. Fair use, as the U.S. Supreme Court has explained, “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Among other things, fair use is what lets authors quote, excerpt, and even copy works for purposes of criticism, comment, parody, and other new “transformative” uses.

The Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions helps put fair use to work by giving members of the library and archive community guidance about how to apply fair use to the digital preservation of, and provision of access to, special collections containing orphan works.

The Statement helps libraries and archives make uses that are supported by key fair use considerations: making uses that are transformative, using the work for a different purpose from the original, and making uses that minimize the likelihood of harm to the potential market for the work. The statement also focuses on making uses that are ethically grounded and in good faith, aspects of the fair use doctrine that librarians and archivists emphasized were important considerations for their community.

Libraries and archives have for long asserted fair use in making collections containing orphan works more available. Since the late 1990’s the Library of Congress has asserted fair use when providing digital access to orphan works in its American Memory collections. More recently, librarians and archivists have explained similar uses in their submissions to Copyright Office requests for information about orphan works. Scholars (notably, UC Berkeley’s Jennifer Urban) have also made the case for how fair use can help solve the orphan works problem.

The value in this Statement is that it documents and shares community thinking about best practices—emphasizing not just that fair use is an option, but how it can be applied most effectively within community norms. Best Practices like this have a good history of helping user communities make collective progress in asserting fair use. Communities of documentary film makers, research libraries, journalists, and so on have created similar highly-successful fair use best practices of their own.

This orphan works best practices Statement will benefit authors as well, in at least three ways.

For one, the principles that it articulates are can be used by authors in their own orphan works uses. To be sure, this Statement was created by and for librarians and archivists, but authors who have access to orphan works in their personal collections can draw from these guidelines as well to make orphans more available.

Second, the improved access to orphans works that libraries and archives will provide will facilitate research by authors who can then draw upon them in creating new works.

Third, improved access to these collections will help reconnect works formerly thought to be orphans to their owners. By putting works in a format that the public can use online, long-neglected works are more likely to be rediscovered, researched, and hopefully reunited with their authors. For “authors who write to be read” this is the best possible outcome.

Of course, the application of fair use to orphan works in libraries and archives, and the release of this Statement in particular, does not solve every aspect of the orphan works problem. Those who create commercial derivative works, for example—a translation or a documentary film—might need more assurance than fair use can provide regarding long-term use of orphan works even after an owner emerges.

Small tweaks to copyright law, such as limiting the types of remedies (including injunctive relief) that are available after an individual conducts a reasonably diligent search, and new recording requirements designed to prevent works from becoming orphans in the first place, might be appropriate. Members of the UC Berkeley Digital Copyright Project Team, of which I am a member, have proposed just such reforms in comments to the Copyright Office and in a recent article published in the Columbia Journal of Law & the Arts titled Solving the Orphan Works Problem for the United States.

Still, this Statement represents a positive development in enhancing access to library and archive collections that authors rely upon to create new works and to preserve and disseminate their own works to new readers.

Educational Fair Use Update: Congressional Hearings and Cambridge University Press v. Patton

Posted November 18, 2014

Pam Samuelson & Mike Wolfe

At Authors Alliance we keep a close eye on what’s going on in fair use litigations that could have lasting effects on authors whose primary goal is create and disseminate their works with the purpose of advancing knowledge. We are not the only ones, of course, who are monitoring developments on the fair use front. In fact, tomorrow the House Judiciary Committee is holding a hearing on fair use in educational settings.

One case we’ve been following closely is the lawsuit between a group of academic publishers—Cambridge University Press, Oxford University Press, and Sage Publications—and officials of Georgia State University. The lawsuit arose because GSU policies have allowed professors to post excerpts from books for use by their students. This has included course websites where professors could upload such materials and an “E-Reserves” system run by the university library whereby professors could arrange for excerpts from works in the library’s collection to be posted online for student access.

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Lydia Loren on Semaphore Press

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Authors Alliance Founding Member Lydia Loren from Lewis and Clark Law School explains how her publishing company, Semaphore Press, is working to produce affordable, high-quality casebooks for use in law school classrooms. She discusses how the Semaphore Press business model is designed to both adequately remunerate casebook authors and ensure that students have access to the educational materials they need.

Learn more about Semaphore Press.

Why I Joined: Paul Courant

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Authors Alliance is always seeking new members to join its community. Advisory Board member Paul Courant explains below why he became a part of the Authors Alliance.

Photo courtesy the Ford School of Public Policy, the University of Michigan

I joined the Authors Alliance because it has the promise of giving voice to the interests of writers and readers of academic literature, who are best served by an environment that makes it easy to find and use works that have little commercial value. (Works that have substantial commercial value are always easy to find, because someone is getting paid to make them available.) Much scholarly literature, current and past, is of little commercial value, but the ability to find and combine insights and results from the corpus of millions of such works is at the heart of the expansion of knowledge in the arts, humanities and sciences. I have worked on behalf of scholarly literature as a faculty member, as a dean and provost, as a publisher, and as a librarian. I have published dozens of academic papers that are available to students and faculty at universities that have good libraries, and that are very hard for anyone else to find. I am hopeful that the Authors Alliance will helps scholars, publishers and libraries to develop a scholarly ecosystem that will make these kinds of works easy to find and use, to the benefit of individuals and society at large. Academic authors also have special interest in the long-term preservation of their published work, and I am hopeful that the Authors Alliance will be effective in articulating that interest and in helping authors to be secure in the knowledge that the work that they do today can continue to be used years and decades hence.