The new OER covers material taught at the Building Legal Literacies for Text Data Mining institute (funded by the National Endowment for the Humanities and led by Rachael Samberg and Tim Vollmer of UC Berkeley Library), and covers copyright, technological protection measures, privacy, and ethical considerations. It also helps other digital humanities professionals and researchers run their own similar institutes by describing in detail how the programming was developed and delivered, and includes ideas for hosting shorter literacy teaching sessions. Authors Alliance’s Executive Director, Brianna Schofield, co-authored a chapter on copyright in the OER.
Until now, humanities researchers conducting text data mining in the U.S. have had to maneuver through a thicket of legal issues without much guidance or assistance. The new OER empowers digital humanities researchers and professionals (such as librarians, consultants, and other institutional staff) to confidently navigate United States law, policy, ethics, and risk within digital humanities text data mining projects so that they can more easily engage in this type of research and contribute to the advancement of knowledge.
The resource is in the public domain under the CC0 Public Domain Dedication, meaning it can be accessed, reused, and repurposed without restriction.
Authors Alliance is thrilled to announce the open release of our Authors Alliance Partner Program (A2P2) resources. For the past two years, we have been collaborating with library partners to develop a suite of resources that scholarly communications and library professionals can deploy to help faculty, researchers, and students understand and manage their rights throughout their careers. Starting today, A2P2 materials—including workshops in a box, webinars, and issue briefs—are available for everyone to freely use, adapt, and share under Creative Commons licenses.
Workshops in a box (WIBs) are the centerpiece of our A2P2 resources. These all-in-one tool kits contain all the materials trainers need to host educational workshops at their institutions. In addition to an illustrated slide deck, all of our WIBs include presenter notes, audience FAQs and answers for presenters, overview handouts, presentation notes, hands-on exercises, and marketing materials. Current WIBs cover Rights Reversion, Understanding and Negotiating Book Publication Contracts, Fair Use for Nonfiction Authors, Open Access, and Copyright for Graduate Students. Corresponding on-demand webinars are available to supplement A2P2 in-person training.
Alongside the WIBs and webinars, we offer an ongoing series of issue briefs which provide timely and approachable introductions to emerging topics in copyright and publishing. These digestible summaries help scholarly communications and library professionals keep abreast of and navigate developments in the rapidly changing scholarly communications landscape.
By leveraging these materials and Authors Alliance’s expertise in copyright, open access, publication contracts, and getting rights back, organizations can expand their educational capacity to serve authors on their campuses, and ultimately improve the availability and discoverability of knowledge and culture.
We are grateful to Arcadia—a charitable fund of Lisbet Rausing and Peter Baldwin—for a 2018-20 grant to support this initiative, and to the pilot partners who helped us to shape these resources. We look forward to continuing to collaborate with existing partners and building new partnerships as we develop new resources and identify new ways to contribute to author education efforts on campuses. If your organization would like to learn more about how to support the success of this program, please see the Support A2P2 page or reach out to info@authorsalliance.org for more information.
This morning, the Supreme Court of Canada issued a unanimous opinion in Access Copyright v. York University, finding that approved tariffs for works in a collective copyright society’s collection were not enforceable against a user that chose not to be bound, and suggesting that the lower courts had applied an unduly narrow interpretation of fair dealing. Authors Alliance applauds this decision, the last to be authored by renowned Justice Rosalie Abella before her retirement from the bench.
The case involved a claim by Access Copyright, a Canadian copyright collective, which sought to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in Access Copyright’s collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raised the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.
Authors Alliance, together with Professor Ariel Katz, intervened in the case, submitting a factum to the Court and participating in oral arguments. On the issue of whether the approved tariffs are mandatory vis-à-vis users, we supported the Federal Court of Appeal’s finding that the approved tariffs bind copyright collectives but cannot be imposed on users as mandatory tariffs. On the issue of fair dealing, we argued that in the absence of specific allegations of copyright infringement from copyright owners, the lower courts should not have dealt with the issues of infringement and fair dealing. In addition, we urged the court to consider that Access Copyright does not represent the interests of all authors, and especially not the authors whose primary concern is their works having the greatest possible reach and impact.
In the decision, Justice Abella dismissed both York University’s and Access Copyright’s appeals. On the issue of mandatory tariffs, she found that the interim tariff set by Access Copyright was not enforceable upon users who chose not to be bound, as Authors Alliance argued in our factum. Justice Abella further stated that Access Copyright was not given authority by Parliament to make such licensing schemes mandatory on all users of the works in its collection. Emphasizing that the statutory scheme allowing collective administration of tariffs is intended to protect users from “unfair exertion of [] societies’ market power,” Justice Abella pointed out that allowing a society to “foist a license on an unwilling user” was inconsistent with “the protective purpose of the regime.” She emphasized the right of users to access texts in other ways than by obtaining a license from Access Copyright—which, as Authors Alliance pointed out in our factum, is a non-exclusive licensing agent that does not have a monopoly on the use of the works in its collection—and paying the interim tariffs.
The Court did not make a ruling on the issue of fair dealing because, in light of the finding that the tariff was not mandatory against York University, it found there was no live dispute between the parties and that it therefore need not reach the issue of fair dealing. Authors Alliance had urged such an approach in our factum, pointing out that without specific allegations of infringement from copyright owners, the lower courts should not have dealt with infringement and fair dealing.
Nonetheless, Justice Abella stated forcefully that the Supreme Court did not endorse the narrow vision of fair dealing set forth by the Federal Court and Federal Court of Appeal. This is because the lower courts inappropriately “approached the analysis from an institutional perspective only, leaving out the perspective of students that used these materials.” Under a view of fair dealing that did consider the students as the users of these materials, the educational purpose of the copying would weigh in favor of a finding of fair dealing. Instead, the fair dealing question before the lower courts should have been whether the copying “actualizes the students’ right to receive course materials for educational purposes in a fair manner.” Authors Alliance applauds the renewed focus on the educational purposes of the copying in this case and Justice Abella’s emphasis on these purposes as supporting a finding of fair dealing.
Authors Alliance is pleased with the Court’s ruling, which adopted many of the principles set forth in our factum. We pointed out that authors are not a monolith, and Access Copyright did not represent the interests of all authors. By emphasizing that Access Copyright had no standing to sue for copyright infringement, as it was not a copyright holder, the court signaled that the mandatory tariffs were not aligned with the interests of all authors. Indeed, many authors have as their highest goal seeing their works reach broad audiences and contribute to the progress of knowledge, such as being used in higher education, as the works in the case were. The robust interpretation of fair dealing offered in the decision was consistent with the thrust of our factum—that Authors Alliance’s members interests are best served by a robust application of fair dealing that does not interfere with these dissemination goals.
Authors Alliance is grateful to Lenczner Slaght attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan, as well as law clerk Anna Hucman, for pro bono assistance with this intervention.
Authors Alliance is grateful to Cory Doctorow for sharing this piece, originally published on Pluralistic.net under a CC BY license. Doctorow is a science fiction author, activist and journalist. He is the author of many books, most recently Radicalized and Walkaway, science fiction for adults; How To Destroy Surveillance Capitalism, nonfiction about monopoly and conspiracy; In Real Life, a graphic novel; and the picture book Poesy the Monster Slayer. His latest book is Attack Surface, a standalone adult sequel to Little Brother.
At its outset, American copyright provided for 14 years of exclusivity, renewable for another 14 years by the author, but – crucially – not by the publisher. This was a shrewd move by the US Framers, because it meant the publisher had to convince the author to file paperwork.
Most authors have very little bargaining leverage at the outset of their publishing deals, and even when the author’s prior accomplishments afford them some bargaining power, a new book is, by definition, an unknown quantity, and the fair price for it is debatable.
Then (as now), the majority of works are no longer commercially viable after 14 years. But for authors of the minority of works that thrive over long terms, renewal is an opportunity to reopen publisher negotiations from a position of strength.
The author could say, “When I sold you this book, neither of us could say how it would fare, so you paid me a modest sum. 14 years later, it is earning for you, and if you wish to continue to enjoy exclusive rights to it, I demand that you share that bounty with me.”
If the publisher demurred, the author could simply walk away from the negotiations. The book’s copyright would not renew, other printers could produce their own editions at or near the marginal cost. The publisher would lose all, the author would be no worse off.
Some form of renewal endured in US copyright for many years, and even after it was abolished, US copyright retained a measure intended to address creators’ unbalanced negotiating power with their investors (studios, labels, publishers, etc): Reversion.
Essentially, US copyright lets creators to claim back their rights after 35 years (depending on the work’s age), even if their contracts are for longer terms. This right can’t be contracted away, either: a clause that says “I won’t ever revert my rights” is not enforceable.
Reversion could allow creators to renegotiate their deals, but it has other benefits. For scholarly authors – who must sign away all rights, for free, to publish in journals that charge fortunes for access – it’s a chance to get those works into the public domain.
For authors, it’s a partial answer to the conundrum of ebooks and print-on-demand, which have made contractual reversion obsolete (publishers historically gave your rights back when the book was out of print, but ebooks and PoDs are never out of print).
And for creators who were tricked into signing away their rights, it’s a chance to get them back.
But for all that, reversion is woefully rare, because the process is so complex, uncertain and obscure.
For years, the Authors Alliance has provided tools for creators seeking to revert their works, but even with this assistance, the process is daunting.
Efforts to improve the system have been hampered by a huge data-void. The US Copyright Office’s databases are woefully and infamously clunky, incomplete, out-of-date and under-resourced.
This is a crisis for all creators – if we want to sell our works, then having clear records of our claims on them is essential, first, so buyers can find us, and second, so we can prove that we have the right to sell.
The rights reversion data void hampers international efforts to improve copyright for creators, as in South Africa, where US entertainment cartels exploited the gap to sow fear, uncertainty and doubt in a bid to prevent South African authors from winning reversion rights.
The authors – Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham, Genevieve Grant – scraped all Copyright Office data pertaining to reversion, painstakingly processed it, and published it. Here’s the data and here’s the codebooks.
The paper is up on SSRN, and has been accepted for publication in the prestigious Journal of Empirical Legal Studies. It’s an eye-popping read, and it reveals the truly dismal state – and vital necessity – of reversion.
Few creators have managed to revert but the ones that have are fascinating. Stephen King is a leading reverter, as are George RR Martin, Nora Roberts and David Eddings – successful authors who are able to claim back their works and seek new deals based on their track records.
A single YA author – Francine Pascal – accounts for nearly all the YA reversions, thanks to her reclaiming of all 305 of her Sweet Valley High novels (in kids’ books, Ann Martin attains another high-water mark for reverting the Baby-Sitters Club books).
But the most fascinating entry is funk titan George Clinton, who pursued his former manager Nene Montes for years, claiming he’d forged Clinton’s signature and defrauded him to steal the rights to most of Clinton’s prodigious and profitable catalog.
Thanks to reversion, Clinton was able to finally settle all question of title without expensive litigation – he simply reverted 1,413 works.
These are just the preliminary findings from this landmark, open-access dataset. Other researchers are encouraged to mine it further.
For policy-makers and creators’ advocates, this data finally puts a sound evidentially footing beneath the debate over reversion. US reversion does help creators, but it is badly hamstrung by needless complexity and poor record-keeping.
Improving reversion – simplifying it, or even making it automatic at 25 years – is a no-brainer if you want to improve creators’ share of the bounty of their most successful works.
Not coincidentally, Giblin (one of the authors) and I collaborated on THE SHAKEDOWN, a forthcoming book on how copyright, labor, contracting, and antitrust reforms could actually improve the creators’ share of the profits from their labor.
The Parliament of the Republic of South Africa is currently considering the Copyright Amendment Bill, an update of the country’s 1978 copyright legislation. In response to an invitation from the the Portfolio Committee on Trade and Industry, we submitted comments in support of the copyright exceptions included in the draft bill.
Our comments explained that authors can benefit from exceptions to copyright throughout the creative process and long thereafter. We shared how copying, quoting, and generally reusing existing cultural material is critically important to the production of new creative works and the advancement of knowledge. Nonfiction and fiction authors alike rely on exemptions to enable criticism, commentary, and illustration, among authors uses, to create new works and contribute to public discourse.
With respect to exceptions in the draft bill for educational and academic activities, we described the ways in which exceptions for these uses can also benefit authors, enabling them to reach wider audiences, helping them to build reputational capital, and amplifying their ability to contribute to the advancement of knowledge. And finally, regarding proposed exceptions for libraries, archives, museums, and galleries, we shared how these exceptions promote the long-term interests of authors, ensuring that their works are discoverable and preserved.
Including carefully crafted exceptions to copyright in South Africa’s copyright laws will promote a vibrant creative ecosystem and serve the public good. We commend the Parliament of the Republic of South Africa for the inclusion of these provisions in the draft Copyright Amendment Bill and look forward to tracking its progress. For the full text of our comment, click here.
Last week, we released a brand new resource on frequently asked questions regarding copyright ownership in course materials produced for online learning—the product of a semester’s worth of work by student clinicians at the Georgetown Law iPIP clinic, Elise Widerlite and Harry Levin, supervised by Amanda Levendowski and Nina Srejovic. In this week’s post, we share some of the stories and copyright challenges that led us to develop this resource. The FAQ is in large part a response to the changes made in higher education instruction during the COVID-19 pandemic, but there is reason to believe that the information it contains will continue to be relevant and informative for university faculty in the future.
Universities Grapple with Copyright Policies
Even prior to the start of the pandemic, online instruction had for years been increasing in popularity, and universities were grappling with how to handle copyright issues in materials created for online learning. By custom or through policy, many universities allow faculty to retain copyright ownership over traditional academic materials they create, such as syllabi and lesson plans, but this arrangement can and often does differ for materials created for instruction in non-traditional settings—such as those created for online courses.
In October 2019, Purdue University adopted an intellectual property policy that treated all online courseware and online modules as “works for hire,” meaning that the university would own the copyright in these materials rather than the professor-creators. Once in-person instruction moved online in the early months of 2020, faculty became concerned that the university could claim ownership over traditional course materials that had moved to an online format due to the exigencies of the pandemic, and asked the university to pledge that it would not seek ownership over these materials or use them commercially without the professors’ consent. In response to faculty complaints, Purdue clarified that it did not seek ownership in traditional course materials used in courses that had moved online, and agreed to seek permission from instructors before commercializing the online course materials that it did consider to be works for hire.
The disconnect between Purdue’s 2019 IP policy and the faculty expectations during the pandemic shows the challenges that the shift to online instruction caused for universities and professors alike. Uncertainty in copyright ownership helps no one, and we created our new FAQ to shed some light on how various university policies can interact to govern copyright ownership in online course materials.
New Copyright Challenges in Online Instruction
The move to remote instruction also exposed some oddities in university intellectual property policies. At American University (“AU”), the university sent professors guidance on intellectual property rights in the course materials they created prior to the start of the Fall 2020 academic term. The university policy stipulated that if faculty members produced materials for online instruction using commercial software (like Skype or Google Hangouts), those faculty members would own the copyrights in those materials. If, however, the faculty members used the university-provided Blackboard software to develop those same types of materials, AU would own the copyright in the works. Faculty members pointed out that it was strange that the copyright ownership in these materials depended on the software used to produce them and not their content: a lecture recorded using Blackboard would be subject to different copyright ownership rules than an identical lecture recorded using Skype. And other university faculty chimed in with similar stories: at some universities, faculty are even unable to delete videos they recorded using Blackboard software from university course pages.
Faculty members at AU also expressed fears that the Blackboard-created course materials could be used by the university once they were no longer teaching there, such as in the event of a labor dispute between faculty members and the employing university. In our FAQ, we discuss the possibility of a university using online course materials created by a faculty member once that faculty member no longer teaches at the university to help faculty members who may find themselves in this situation.
Unexpected Consequences: The Ghost Professor
Changing copyright ownership structures in materials created for online learning can result in unexpected consequences for students and the academic community. In January of this year, a student at Concordia University in Canada discovered that the professor of the online course he was enrolled in was, in fact, deceased. Incredibly, the student only made this discovery when he attempted to email his professor about a matter related to the course. Concordia confirmed that the professor of record for the course was deceased and stated that the course materials had been part of the university’s online catalogue prior to the pandemic: the now-deceased professor recorded the lectures with an understanding that they would be used for online instruction without further in-person involvement by the professor.
While the precise copyright ownership structure that led to this result is not known, it shows an unexpected consequence of handing over rights in online course materials to a university. As we discuss in the FAQ, handing over all rights can result in a lack of control for the professor over how course materials are disseminated in the future.
Online Instruction Going Forward
While many academic institutions that had implemented distance learning during the 2020-2021 academic year will begin offering in-person classes for the upcoming fall semester, there is reason to believe that the copyright and authorship challenges exposed by the temporary move to remote instruction are here to stay. A recent survey of university students found that students had a more positive outlook on online learning than they did before the start of the pandemic, and that a higher percentage of students wanted online learning options compared to before the start of the pandemic. Additionally, faculty at a number of universities have expressed a desire for flexibility in where and when they work. Like many employees across sectors, many university faculty do not wish to return to working in-person five days a week, due to challenges of the pandemic or the adjustments these challenges necessitated. Where in-person instruction is not possible or feasible full-time, online learning can fill the gap, just as it did during the pandemic, making copyright issues in materials produced for online learning of continuing relevance.
Our FAQ seeks to address these issues and more. We hope it will prove a valuable resource for university faculty that will create or have created online course materials and seek clarity regarding who owns the copyrights in those works and how the works can be used. We encourage you to dig in to the FAQ and share it with those in your professional or personal circles that may find it useful.
Authors Alliance is grateful to Harry Levin and Elise Widerlite, student attorneys at Georgetown Law practicing D.C. law pursuant to D.C. App. R. 48 under the supervision of Amanda Levendowski and Nina Srejovic, for researching and authoring this FAQ.
Many universities’ policies and customs provide that professors have full copyright ownership in the traditional academic materials they create, such as syllabi and lesson plans. However, this arrangement may differ for online course materials. For example, universities may assert ownership over copyrights in materials that are created for online presentation outside of the confines of the traditional classroom or academic term. As such, materials produced for an online class, a hybrid course taught over the summer, or for a project with a third-party provider may be subject to different rules. Since the shift to a virtual learning environment brought on by the COVID-19 pandemic has prompted faculty at many universities to create new course materials to facilitate distance learning, many faculty authors have questions about who owns the copyrights in these materials. Because the allocation of copyrights affects how course materials can be used, modified, and shared, it is important for faculty to have clarity about copyright ownership in the materials they create.
This FAQ answers common questions faculty may have about how to determine who owns copyrights in the materials they create for online courses, as well as whether and how uses of those materials may be limited. It is for faculty who have created or will create online course materials and want to understand their rights under their faculty contracts, university policies, and other agreements with their institution. It provides faculty with the information they need to navigate the terms that govern copyrights in the online course materials they create and provides resources for learning more about the copyright issues involved.
This FAQ addresses U.S. copyright law. It does not address other areas of law, including privacy, trademark, and state law issues. This FAQ is not legal advice nor does using this FAQ create an attorney-client relationship. Please consult an attorney if you would like legal advice about your rights, obligations, or individual situation.
This FAQ has three parts. Part I provides an introduction to online course materials and copyright as it relates to those materials. Part II explains how course agreements can shape how you and your university can use, modify, and share online course materials. Finally, Part III provides additional guidance and resources. To get the most out of the FAQ, you may wish to have your institution’s intellectual property policies, your employment contract(s), and any project-specific contract(s) in hand.
Today, Authors Alliance joined Public Knowledge and four other civil society groups to urge Congress to amend the Journalism Competition and Preservation Act (“JCPA”) to clarify that the bill does not expand copyright protection to article links and that authors and other internet users will not have to pay to link to articles or for the use of headlines and other snippets that fall within fair use.
The JCPA (H.R.1735 in the House and S.673 in the Senate) proposes to create a four-year “safe harbor” from antitrust law, allowing print, broadcast, and digital news companies to band together to negotiate compensation terms for their news stories with the largest online platforms. While the goal of the bill—to preserve a strong, diverse, and independent press—is commendable, the bill’s framework relies on a fundamental mischaracterization of U.S. copyright law. As currently drafted, there is a risk that the JCPA could be interpreted by courts to implicitly expand the scope of copyright.
As our letter explains, linking is outside of the scope of copyright in the U.S., as merely linking to external content does not implicate any of a copyright owner’s exclusive rights. Furthermore, the use of brief snippets of content—such as headlines, images, or short excerpts—that often accompany links are minimal quotations of copyrighted material have been consistently found to be fair uses under copyright law, and protection for these types of uses is mandated by the Berne Convention. These fair uses cannot be banned or substantially curtailed without running afoul of Supreme Court jurisprudence, the First Amendment, and multilateral international obligations.
To address these issues, our letter asks Congress to create a savings clause that makes it clear that copyright protections are not being expanded to include linking, or fair uses of snippets from the linked material. The full text of our letter is available here.
Readers familiar with Authors Alliance’s work will know that we offer a suite of resources to help authors get back the rights to their works, including information on how to revert rights by exercising a contractual provision or through negotiating with a publisher and resources on how to terminate a transfer of copyrights under U.S. law. Authors who get their rights back can increase their works’ availability and reach more readers by making an out-of-print book more widely available, releasing their work in a more affordable format or under an open access license, or re-packaging and releasing books with a new look and feel.
In today’s post, we’ve gathered some resources about the concepts of rights reversion and termination. Whether you are a rights back newbie or a reversion and termination aficionado, we think you’ll learn something new by digging into these resources.
Reversion & Termination Basics
Rights Reversion Reversion can be a powerful tool for authors, but many authors do not know where to start. A right of reversion is a contractual provision that permits authors to work with their publishers to regain some or all of the rights in their books when certain conditions are met. But authors may also be able to revert rights even if they have not met the triggering conditions in their contract, or if their contracts do not have a reversion clause at all. Our guide to Understanding Rights Reversion arms authors with the information and strategies they need to get their rights back and give their books a new life. We also provide templates and guidance on how to craft a persuasive rights reversion request letter.
Termination of Transfer In the United States, termination of transfer laws enable authors to regain rights in their works that might have been signed away—even if their contracts contain language prohibiting it. To learn more about termination of transfer and how to evaluate whether a work is eligible for termination under U.S. law, authors can explore the Termination of Transfer Tool, which we developed in partnership with Creative Commons. Authors can also refer to Authors Alliance’s guidance and templates for how to provide notice of termination to rightsholders and record the termination with the U.S. Copyright Office.
A Deeper Dive
Reversion of Copyright in Europe Assembling three contributions from a special section of the European Intellectual Property Review, this paper examines the topic of rights reversion in the context of the adoption of the Directive on Copyright in the Digital Single Market (2019), which introduced a new right of revocation to the EU copyright framework entitling authors and performers to reclaim rights in their works when they are not being exploited (a “use-it-or-lose-it” principle). Included is an article by Ula Furgal which explains that there is a lack of understanding what “sufficient exploitation” means, especially in the digital context, which should be addressed when implementing the revocation right. Also included is an article by Elena Cooper which argues that the common law tradition of freedom of contract is compatible with constraints on contractual transfers, and that U.K. reversion provisions historically were a direct response to the significant increase in the copyright term in 1911.
Foreign Contracts and U.S. Copyright Termination Rights: What Law Applies? Judge Richard Arnold and Professor Jane Ginsburg discuss the choice of law issues that arise when agreements which are subject to the laws of other countries assign U.S. copyrights and purport to do so in perpetuity. Arnold and Ginsburg examine the question of what law governs the permissible scope of an author’s grant in light of U.S. law’s inalienable termination rights. Using the recent U.S. and English cases, Ennio Morricone Music Inc. v. Bixio Music Group Ltd. and Gloucester Place Music Ltd v. Le Bon, to illustrate the problem, the authors conclude that U.S. termination rights cannot be overridden by a contract subject to a different law.
Making Sense of the Termination Right: How the System Fails Artists and How to Fix It A report by Public Knowledge demonstrates how the termination right is failing to protect the very creators that termination was designed to serve. The report critiques the complex eligibility, timing, and filing formalities for termination, which are exacerbated by ambiguities in the law and its application. On top of the onerous procedural requirements, the report highlights power asymmetries governing the negotiation, assignment, and reversion of ownership rights that also harm authors—particularly creators of color—who seek to exercise their termination rights. The report recommends six policy actions to help restore fairness and functionality to termination of transfer rights.
Author’s Interest Project: Preliminary Findings on Benefits of Copyright Reversion Preliminary findings from the Author’s Interest project suggest that granting authors minimum reversion rights would open new economic opportunities for authors and publishers and help promote ongoing availability to the public. The research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to U.S. termination of transfer laws.
Authors Alliance is grateful to Argyri Panezifor this guest post. Panezi is an Assistant Professor at IE Law School where she teaches contracts, copyright law, and principles of LegalTech. Her current work focuses on copyright issues related to digital libraries, on law and AI (contractual and extra-contractual liability), and on legal technologies, specifically examining e-Justice developments within the EU. She is also a research fellow at the Digital Civil Society Lab at Stanford University, where she explores the notion of critical digital infrastructure as well as state and federal regulatory frameworks that govern ISPs in the context of public internet access, focusing on access for critical utilities during emergency situations. She holds a law degree from the University of Athens, an LL.M. from Harvard Law School, and a Ph.D. from the European University Institute.
On June 1, 2020, four publishing houses, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, filed before the US District Court for the Southern District of New York a copyright infringement action against the Internet Archive for the Archive’s operation of what it called a “National Emergency Library” (NEL) after the first US shelter-in-place orders in response to the COVID-19 pandemic. Indeed, on March 24, 2020, the Internet Archive had announced the launch of a temporary online NEL to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries were closed due to COVID-19.” In their announcement the Archive called on authors and publishers to support the effort, which would ensure “temporary access to their work in this time of crisis.” It provided an opt-in option for authors who wanted to donate their book(s) to the NEL, and an opt-out option for authors who wanted to remove their book(s) from the NEL.
The NEL collection ceased operation on June 16, 2020, and the Internet Archive returned to its previous system of controlled lending of copyrighted works (on Controlled Digital Lending (CDL) see previous posts here and here). Even though the operation of the NEL was limited in time, argument about its propriety continues and has wider implications relating to the libraries’ multiple roles during and beyond emergencies. Stakeholders’ reactions to the NEL appear to be mixed. The Association of American Publishers, for example, issued a public statement opposing the Internet Archive’s NEL initiative. Meanwhile, the Archive has published a number of stories from librarians, educators, parents, and researchers endorsing the initiative.
The pending case, Hachette v. Internet Archive, introduces a new dimension to existing debates around electronic access to library material, particularly around e-lending, raising at least two important questions: Did the emergency created by the COVID-19 shutdowns introduce new market failures as regards access to critical educational and research material, or as regards access to library works in general—or do these emergencies merely highlight possible already-existing failures? Furthermore, can emergencies justify additional exceptions to copyright laws covering electronic access to library material, and if so, under what circumstances?
In my recent article, A Public Service Role for Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform and the Emergency Electronic Access to Library Material (forthcoming, 31 Cornell J.L.& Pub. Pol’y_ _ (2021)), I examine the ongoing Hachette v. Internet Archive litigation, placing it in the context of earlier US copyright case law that deals with the digitization or the making available of copyrighted works for educational, research, and other purposes (notably: Authors Guild v. Google, Authors Guild v. HathiTrust, and Cambridge University Press v. Becker). There is also a global debate focusing on similar issues, apparent, for example, in similar cases brought before courts in Europe (Technische Universität Darmstadt v. Eugen Ulmer KG and Vereniging Openbare Bibliotheken v. Stichting Leenrech), India (University of Oxford v. Rameshwari Photocopy Service), and Canada (CCH Canadian Ltd v. Law Society of Upper Canada and the recent York University v. Access Copyright).
Taking the Hachette v. Internet Archive case as a starting point, my article reflects on the current and potential future role of copyright doctrine in preserving institutional functions of libraries and discusses how the COVID-19 emergency exposed new but also highlighted existing market failures.
Libraries’ public service role includes safeguarding and providing equal access to research, to educational material, but also to credible information, including in the digital environment. Both on- and offline libraries serve a function as trusted and, in principle, neutral places dedicated to equalizing access to credible information and knowledge in societies with structural inequalities and biases. Particularly during this pandemic, libraries have embraced their institutional role and joined the fight against misinformation, including about the pandemic. The article examines the extent to which current US copyright law supports libraries in these increasingly pertinent functions and advocates for the copyright framework to provide enhanced support to libraries.
