Category Archives: Law and Policy

Authors Alliance Submits Comment to U.S. Copyright Office in Support of Registration Modernization

Posted January 17, 2019

Authors Alliance submitted comments in response to the United States Copyright Office’s Notification of Inquiry for Registration Modernization. The Office is building a modernized copyright registration system intended to improve user experience, increase Office efficiency, and decrease processing times. We have written previously about the benefits to authors and the public associated with a robust record of copyright registration, and our Copyright Fundamentals resource page has more information on how and why to register. Our comments therefore support the following proposals:

Make registration more affordable to all copyright owners by considering alternative methods for calculating fees that would provide equity to users and encourage registration;
Build a registration interface that allows users to update rights and permissions information without having to submit a supplementary registration and additional fees;
Accept optional data documenting licensing terms, including information about any applicable public license (such as a Creative Commons license), with a registration application; and
Connect registration and recordation records in order to clarify chain of title information.

In our comments, we also encourage the Office to initiate or commission an empirical study of authors’ views on the advantages of and barriers to registration to evaluate why only a fraction of eligible works are registered. With additional information from authors, the Office could restructure incentives to register copyright claims in order to promote greater participation in the Office’s registration system.

Further details can be found in the full text of our comment. Hover over the document below to view the comment in your browser, or download here.

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Authors Alliance Submits Brief Supporting Reversionary Rights in Canada

Posted December 10, 2018

photo by RonnyK | CC0

Canada’s Copyright Act, last updated in 2012 through the Copyright Modernization Act, is currently under review. In early 2018, Canada’s Standing Committee on Industry, Science and Technology adopted a work plan under which it is conducting a statutorily mandated review. Under this plan, the Committee invited written briefs from stakeholders. Today, Authors Alliance submitted a brief urging the retention of reversionary rights in Canada’s Copyright Act and recommending amendments to the provision that will enhance the utility of reversionary rights.

Under section 14(1) of Canada’s Copyright Act, any grant of interest in a copyrighted work made by an author (except for a grant made in a will) after June 4, 1921 automatically reverts to an author’s estate twenty-five years after an author’s death. Similar to the justifications for the termination of transfer provisions in U.S. law, the reversion mechanism is intended to address “a situation where a work, following the author’s death, had become more valuable over time,” giving the author’s heirs “the opportunity to re-negotiate the royalty terms to reflect the increased value of the work.”[1]

But reversionary rights also give creators the ability to give new life to works that have outlived their commercial lives but are nonetheless historically and culturally valuable. For creators who want their works to be widely shared and enjoyed, reversions are a powerful option for getting their works back out in front of audiences.

Because of the tremendous benefits of reversionary rights for authors and the public, Authors Alliance’s brief recommends retaining a reversionary right provision in the Copyright Act of Canada. To further maximize the benefits of the current provision, our brief also recommends several changes to Section 14(1):

Amending Section 14(1) to allow authors to terminate transfers of copyright a set number of years after the transfer of those rights;
Requiring triggering conditions and/or recordation of ownership information if rights are reverted exclusively to the author, while allowing reversion of non-exclusive rights to the author remain automatic; and
Amending Section 14(1) to make it clear that reversionary rights do not apply to non-exclusive licenses.

Read more about our recommendations by viewing the document below or clicking here to download the brief. For more about termination of transfer under U.S. law, visit the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org and the Authors Alliance termination of transfer resource page.

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[1] A.A. Keyes, Copyright in Canada Proposals for a Revision of the Law 76 (Apr. 1977).

Guest Post: Analysis of Rulemaking and Exemptions to the DMCA in 2018

Posted December 5, 2018

photo by 422737 |CC0

The following analysis was written by Harrison Grant and Brian Trinh of UCI Intellectual Property, Arts, and Technology Clinic and Colleen McCroskey and Corian Zacher of Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, under the supervision of Professors Jack Lerner and Blake Reid. We are grateful to the student attorneys and their supervisors for their tireless work securing exemptions to Section 1201 for authors and for this careful analysis of the results of recent rulemaking proceedings related to multimedia e-books.

On October 26^th, the Library of Congress announced important new exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA) that will improve authors’ ability to create in the digital environment. Thanks to the work of a coalition of authors’ organizations including Authors Alliance and two law clinics who represented them, today authors of any non-fiction multimedia e-book can use content from DVDs, Blu-ray, and digitally transmitted video to make fair uses of copyrighted material in their own works.

Authors Alliance Supports Limitations and Exceptions for Education at WIPO SCCR/37

Posted December 3, 2018

photo by hpgruesen | CC0

Last week, Authors Alliance participated in the thirty-seventh session of the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights (SCCR/37) in Geneva. Among other topics, the Committee addressed copyright limitations and exceptions for educational and research institutions.

Authors Alliance presented a statement to the Committee on how limitations and exceptions for education can benefit authors, without undermining fundamental purposes of copyright policy, and can encourage the diffusion of knowledge:

Limitations and exceptions for educational purposes can help authors reach wider audiences. Limitations and exceptions facilitate engagement with works that users would otherwise forego due to the cost, difficulty, or even impossibility of licensing, allowing authors to reach new readers without interfering with the normal market for their works. This in turn helps authors establish a larger readership.

Educational limitations and exceptions also promote significant reputational benefits for authors. Educational limitations and exceptions help authors build reputational capital because the uses they enable, such as the use of excerpts from a work in a classroom, signal that the author has made significant contributions to their field. These benefits are especially pronounced for academic authors, whose scholarly reputations are enhanced when their works are assigned as classroom reading.

Educational limitations and exceptions can also reinforce academic authors’ incentives to create. Limitations and exceptions amplify authors’ abilities to contribute to the advancement of knowledge by allowing readers to more readily discover, make use of, and build on their works. These benefits are particularly motivating to academic authors, who often create works in order to share their knowledge, insights, and ideas with a new generation of learners.

Equitable considerations also favor expanded academic limitations and exceptions. Many authors of works that are still in copyright did not have access to the expanded array of dissemination options that exist in today’s publishing ecosystem, including more open frameworks. If they had, they might have chosen to make their works more readily available to the public, but instead their works are often under the control of third-party rights holders. As more academic authors are making their scholarship openly accessible, educators increasingly have the option to assign freely available academic works. As a result, authors of earlier works will be disadvantaged if educational limitations and exceptions do not provide a mechanism by which educators can readily assign reasonable portions of their works for educational purposes.

Insofar as authors are also learners, researchers, and educators, educational limitations and exceptions benefit them by allowing them to access and use the copyrighted works that they need to build their knowledge, engage in research activities, and instruct their students. For example, graduate students and professors need to be able to access and assign limited portions of works in order to teach new generations of learners. If educational limitations and exceptions do not permit limited unremunerated uses for limited educational purposes, essential learning, research, and teaching activities would be unreasonably frustrated.

We are grateful to Zachary Freeman, a third-year law student at New York University School of Law, for providing background research to support our work at WIPO.

Also of note during the session, Professor Sean Flynn from American University introduced a proposed Treaty on Educational and Research Activities (TERA), which aims to harmonize limitations and exceptions and protect cross-border sharing of works in order to promote education and research around the world. TERA includes a general flexible mandate to adopt exceptions for education and research modeled on Berne Article 10(2) and extended to include research activities. The proposed treaty applies to all works—including digital works—used by teachers, students, researchers for teaching, learning, materials creation, and research activities, as long as the use is restrained to the extent justified by a lawful purpose and is compatible with fair practice. Learn more about TERA here.

Authors Alliance will continue to report on the progress of educational limitations and exceptions at WIPO.

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 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 Applauds U.S. Implementation of the Marrakesh Treaty

Posted October 10, 2018

In March 2018, a bipartisan coalition in Congress introduced a bill to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. On September 26, Congress passed the Marrakesh Treaty Implementation Act, and today the Act has been signed into law by the President.

Adopted by the World Intellectual Property Organization (WIPO) in 2013, the goal of the Marrakesh Treaty is to create a set of mandatory limitations and exceptions for the benefit of blind, visually impaired, and otherwise print disabled readers. The treaty requires that contracting states enact copyright exceptions that allow books and other creative works to be made available in accessible formats, such as braille and audiobooks, and to allow for the import and export of such materials. It is a tremendous step toward ensuring equal access for readers in participating countries, including many in the developing world, where the need for resources and access is especially acute.

Authors Alliance has written previously about our support of proposed legislation to implement the Marrakesh Treaty. Earlier this year, the Senate Foreign Relations Committee held a hearing on the Implementation Act, and we joined with other organizations—including the National Federation of the Blind, the Authors Guild, and the American Library Association, among many others—in signing onto a letter urging Congress to pass the proposed legislation in order to improve access for print-disabled readers around the world.

The treaty is now in force in the U.S. and more than 40 countries around the world (and growing). The International Federation of Library Associations (IFLA) has created a multilingual guide for libraries to assist in making their works available under the terms of the treaty, and we recently published a report highlighting the role of creators in making digital works more widely accessible to people with disabilities. Authors Alliance will continue to support legal and policy efforts that improve the ability of authors to reach readers.

Authorship & Accessibility Guest Post: Blake Reid

Posted October 2, 2018

We would like to thank Blake Reid of the University of Colorado Law School for the following review of Reading Sounds: Closed-Captioned Media and Popular Culture by Sean Zdenek.

I’m delighted to join my colleagues at Authors Alliance with this contribution to their ongoing series on Authorship and Accessibility, an outgrowth of a collaboration between Authors Alliance, Silicon Flatirons (where I’m a faculty director), and the Berkeley Center for Law & Technology, which held a roundtable on the topic with technologists, authors, academics, lawyers, and disability advocates in Berkeley last year, summed up in this report co-authored by my students in the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic.

By random chance, my first advocacy project as a lawyer was working for Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI) and a coalition of deaf and hard of hearing consumer groups and accessibility researchers on closed captions for online video as a part of the Federal Communications Commission’s implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). Ever since, I’ve been fortunate enough to spend a lot of my life as a clinical fellow and law professor working on the law and policy side of the wonderful world of closed captioning.

Consumer groups and advocates have long been concerned about the quality of the captions that convey the aural components of video programming to viewers who are deaf or hard of hearing with video programming. While inaccurate and incomplete captions are often the butt of jokes, they aren’t so funny for people who are deaf or hard of hearing and rely on captions to understand the aural component of a video. For example, a single wrong letter on news captions might mean the difference between a story about a war in Iraq and a war in Iran.

That’s why consumer groups have fought hard for caption quality. Those efforts culminated in the FCC’s 2014 adoption of wide-ranging caption quality standards for television, which require captions to be accurate, synchronous, complete, and properly placed on the screen.

The FCC’s rules aim primarily at establishing a baseline of compliance to ensure that captions deliver a transcription of a program’s soundtracks that is as close to verbatim as possible given the unique attributes of sound and text. There are lots of good reasons that advocates have focused on verbatim captions over the years; in addition to incomplete and incorrect captions, there is a lengthy and complicated history of simplifying and censoring the content of captions, which most recently entered the public eye in the context of Netflix’s censorship of captions on the rebooted Queer Eye for the Straight Guy. Verbatim is a principle that corresponds neatly to the goal of equal access: the captions should give viewers who are deaf or hard of hearing as near an equal experience in watching video programming as their hearing counterparts listening to the soundtrack.

However, advocates have also long urged their counterparts in the video industry to take captions seriously not just as a matter of accessibility, but as a matter of creativity. If filmmakers obsess over every aspect of a movie’s cinematography and sound design, why not the captions? In a production that spends millions of dollars to get all the details right, captions that are front and center for a film’s deaf and hard of hearing audience shouldn’t be an afterthought—they should be a core part of the creative process.

Sean Zdenek’s 2015 book Reading Sounds is one of the first efforts to rigorously explore the creative dimensions of captioning. Zdenek, a technical communication and rhetoric professor, endeavors to explore captioning as “a potent source of meaning in rhetorical analysis” and not simply a legal, technical, or transcription issue.

Zdenek’s exploration is an essential encyclopedia of scenarios, showing how captioning leaves creative choice, nuance, and subtlety to captioners and filmmakers. While captioning spoken dialogue seems on first blush to pose a relatively straightforward dialogue, Zdenek identifies nine (!) categories of non-speech information that are part of soundtracks, including:

Who is speaking;
In what language they are speaking;
How they are speaking, such as whispering or shouting;
Sound effects made by non-speakers;
Paralanguage—non-speech sounds made by speakers, such as grunts and laughs;
Music, including metadata about songs being played, lyrics, and descriptions of music; and
Medium of communications, such as voices being communicated over an on- or off-screen television or public address system.

Tricky scenarios abound. What if one speaker is aurally distinct from another, but his or her identity is unknown? (Imagine Darth Vader being identified as “Luke’s Father” in the early going of The Empire Strikes Back.) How should a captioner describe the unique buzzing sound made by Futurama’s Hypnotoad? How should the captioner describe an uncommon dialect that may not be familiar to a hearing viewer, or which may have been invented by the filmmaker? What are the lyrics to “Louie, Louie,” exactly?

Zdenek expands into a variety of other problematic scenarios such as undercaptioning (the omission of non-speech sounds), overcaptioning (making prominent the exact content of ancillary speech happening in the background that a hearing viewer may be unable to parse precisely), and transcending the context of a scene to convey information that the viewer shouldn’t know. Delayed captions are all too familiar to deaf and hard of hearing viewers, but Zdenek explores the subtle relationship between caption timing, punctuation, the spoilage of time-sensitive elements afforded by the ability to read ahead of the dialogue, such as reading the aural punchline to a visual setup, and the inadvertent creation of irony by captions that linger on the screen for too long. Zdenek even highlights the need to caption silence in dynamic contexts, such as a phone ceasing to ring or a person mouthing inaudible dialogue—scenarios that call to mind the controversial “silent” scene in The Last Jedi, which many hearing theater-goers were sure was a glitch but was an intentional choice by director Rian Johnson.

Zdenek also explores the role of captions in situating video in broader cultural contexts. For example, should a captioner identify a narrator who is a well-known actor with whom the audience will likely be familiar but who is uncredited in the film? How should music, such as the iconic NBC chimes, be described in text? And how can captioners be trained to capture cultural significance—especially if a captioner is a computer program converting text to speech automatically?

Zdenek does not offer complete solutions to all these questions and scenarios. But he extrapolates in unsparing detail (much of it presented in audiovisual context on the book’s companion website) how they arise and what considerations captioners and filmmakers might take into mind in thinking not just about how to comply with captioning law, but how to author captions.

In doing so, he has also created a compelling reference for lawmakers and policy advocates to develop a richer, more nuanced understanding of the role that captions can play in advancing the civil rights of Americans who are deaf or hard of hearing to access video programming on equal terms. Zdenek is identifying dimensions of captioning that the next generation of video accessibility policy needs to consider and address.

Blake E. Reid studies, teaches, and practices in the intersection of law, policy, and technology. He is an Associate Clinical Professor at Colorado Law, where he serves as the Director of the Samuelson-Glushko Technology Law & Policy Clinic (TLPC) and as the Faculty Director of the Tech Policy Initiative at the Silicon Flatirons Center.

Authors Alliance Supports Controlled Digital Lending By Libraries

Posted September 28, 2018

woman sitting in a chair holding an e-reader

photo by Pexels | CC0

Today, Authors Alliance joins a group of organizations, including the Digital Public Library of America, Internet Archive, and UC Berkeley Library, to endorse the Position Statement on Controlled Digital Lending by Libraries. The statement offers a good-faith interpretation of copyright law for libraries considering digitizing works in their collections and circulating the digitized title in place of a physical one. Today’s release of the statement is accompanied by an in-depth white paper by David Hansen and Kyle K. Courtney analyzing the legal arguments for CDL.

For centuries, libraries have provided free access to books to their patrons. Ownership of books gives libraries the right to lend their copies and make them available on bookshelves without seeking copyright owner permissions. In the digital age, libraries have an interest in continuing this time-honored tradition by scanning physical copies of books in their collections and making digital copies available for lending on the same types of terms as they have done with conventional books.

Controlled Digital Lending (“CDL”) is an example of how new technologies can be harnessed to help authors share their creations with readers, promote the ongoing progress of knowledge, and advance the public good. Many authors face technical, legal, and financial barriers that prevent them from sharing their works more widely. When easily accessible online version of their books are not available, their books are effectively locked away, creating a chasm in the public availability of important works.

Under the CDL’s digitize-and-lend model, libraries make digital copies of scanned books from their collections available to patrons (the hard copy is not available for lending while the digital copy is checked out, and vice versa). A library can only circulate the same number of copies that it owned before digitization. Like physical books, the scanned copies are loaned to one person at a time and are subject to limited check-out periods. System design choices and collection decisions, like selecting books that are orphaned (works for which the copyright owner cannot be identified or located), books that are out of print, or books that are non-fiction or primarily factual enhance the fair use arguments that underpin CDL. As Hansen and Courtney explain, CDL is “not meant to be a competitor to Overdrive, nor a replacement for licensing e-books of best-sellers or other currently licensable e-book content,” but CDL is particularly helpful to “address access to the large number of books published in the ’20^th Century black hole’ that have little hope of otherwise bring made available to readers online.”

For these reasons, CDL is particularly beneficial for authors whose works are out of print or otherwise commercially unavailable: In the absence of digitizing and lending these books, many would simply be inaccessible to readers. In fact, some Authors Alliance members have taken the extra step to regain the copyrights to their books from their publishers and make them openly available online, including through HathiTrust, Google Books, and Internet Archive’s Open Library, without one-person-at-a-time lending restrictions. Others have negotiated with their publishers to make open copies of their works available from the moment of publication. These authors are often motivated by their desire to reach readers and promote the dissemination of knowledge and culture beyond the commercial life of their books, or to reach readers whose access to these works is otherwise limited.

Sidonie Smith, Professor of English and Women’s Studies at University of Michigan, regained rights to her 1987 book A Poetics of Women’s Autobiography: Marginality and the Fictions of Self-Representation several years ago. Smith now makes the book available to the public under an open access license, allowing her to reach readers and scholars around the world. According to Smith, this decision means that her book can “live more vibrantly in the public and academic spheres. Through that access I can share ideas more directly with emerging scholars in my fields of autobiography studies and feminist studies of women’s literature; support students and faculty around the globe in their engagement with life writing capaciously defined; and contribute in a small way to the project of educational justice that makes scholarly resources available across differently situated institutions of higher education.”

Robert Darnton, Professor at Harvard University, also opened up access to the first two books he published and made them freely available online after he successfully reverted rights. At the time, he described how distributing works in this way allows authors to “ensure[] that your work’s continuing impact and relevance are not limited by its commercial life.”

While reverting rights, terminating transfers, or negotiating for open terms may be an option for some authors to fully open up access to their works online, the fact remains that millions of books—especially those that have fallen out of print—are, for all intents and purposes, unavailable. The CDL model is a boon to the authors of these and other books, allowing them to find new audiences online.

For all of these reasons, and those outlined in the Position Statement on Controlled Digital Lending by Libraries, Authors Alliance endorses CDL as a beneficial tool for readers and authors alike.

Everything he does, he does it for us. Why Bryan Adams is on to something important about copyright

Posted September 26, 2018

The following post, by Authors Alliance founding member Rebecca Giblin, originally appeared in The Conversation under a CC-BY-ND license. Read more of Giblin’s work on the effects of copyright duration on creators in her recent paper, “A New Copyright Bargain? Reclaiming Lost Culture and Getting Authors Paid.”

Rebecca Giblin, Monash University

Last Tuesday Bryan Adams entered the copyright debate.

That’s Bryan Adams the singer and songwriter, the composer of “(Everything I Do) I Do It for You”, and “Summer of ’69”.

Authors, artists and composers often have little bargaining power, and are often pressured to sign away their rights to their publisher for life.

Adams appeared before a Canadian House of Commons committee to argue they should be entitled to reclaim ownership of their creations 25 years after they sign them away.

No control until after you are dead

In Canada they get them back 25 years after they are dead, when the rights automatically revert to their estate. In Australia our law used to do the same, but we removed the provision in 1968. In our law, authors are never given back what they give away.

Some publishers voluntarily put such clauses in their contracts, but that is something they choose to do, rather than something the law mandates.

Australia’s copyright term is long. For written works it lasts for 70 years after the death of the author. It was extended from 50 years after death as part of the Australia-United States Free Trade Agreement.

What copyright is for

It is meant to achieve three main things: incentivise the creation of works, reward authors, and benefit society through access to knowledge and culture.

Incentive and reward are not the same thing.

The incentive needn’t be big

The copyright term needed to provide an incentive to create something is pretty short.

The Productivity Commission has estimated the average commercial life of a piece of music, for example is two to five years. Most pieces of visual art yield commercial income for just two years, with distribution highly skewed toward the small number with a longer life. The average commercial life of a film is three to six years. For books, it is typically 1.4 to five years; 90% of books are out of print after two years.

It is well accepted by economists that a term of about 25 years is the maximum needed to incentivise the creation of works.

But the rewards, for creators, should be

The second purpose is to provide a reward to authors, beyond the bare minimum incentive needed to create something. Quite reasonably, we want to give them a bit extra as thanks for their work.

But, in practice authors, artists and composers are often obliged to transfer all or most of their rights to corporate investors such as record labels or book publishers in order to receive anything at all.

In the film and television industries it is not unusual for creators to have to sign over their whole copyright, forever – and not just here on Earth but throughout the universe at large.

It means investors don’t just take what is needed to incentivise their work but most of the rewards meant for the author as well.

This isn’t new. Creators have been complaining since at least 1737 that too often they have no choice but to transfer their rights before anyone knows what they are worth.

Other countries do it better

In recognition of these realities, many countries, including the US, have enacted author-protective laws that, for example, let creators reclaim their rights back after a certain amount of time, or after publishers stop exploiting them, or after royalties stop flowing. Other laws guarantee creators “fair” or “reasonable” payment.

Australia stands out for having no author protections at all.

Canada’s law already protects authors by giving rights back to their heirs 25 years after they die. Bryan Adams’s proposal is to change one word in that law. Instead of copyright reverting to the creator 25 years after “death”, he wants it to revert 25 years after “transfer”.

Copyright is meant to be about ensuring access

Handing rights back to creators after 25 years would not only help them secure more of copyright’s rewards, it would also help achieve copyright’s other major aim: to promote widespread access to knowledge and culture.

Right now our law isn’t doing a very good job of that, particularly for older material.

Copyright lasts for so long, and distributors lose financial interest in works so fast, that they are often neither properly distributed nor available for anyone else to distribute.

In the book industry my research into almost 100,000 titles has found that publishers license older e-books to libraries on the same terms and for the same prices as newer ones. That includes “exploding” licences which force books to be deleted from collections even if nobody ever borrows them.

Publishers are interested in maximising their share of library collections budgets, not ensuring that a particular author continues to get paid or a particular title continues to get read.

As a result libraries often forgo buying older (but still culturally valuable) books even though they would have bought them if the publisher cared enough to make them available at a reasonable price.

Restricting access to books is not in the interests of authors or readers.

…and directing rewards where they are needed

If rights reverted after 25 years, as I have proposed and as Adams now proposes, authors would be able to do things like license their books directly to libraries in exchange for fair remuneration – say $1 per loan.

If authors weren’t interested in reclaiming their rights, they could automatically default to a “cultural steward” that would use the proceeds to directly support new creators via prizes, fellowships and grants – much like Victor Hugo envisaged with his idea of a “paid public domain” back in 1878.

We could do it all without changing the total copyright term imposed on us by the Australia-US Free Trade Agreement and other treaties. We could get creators paid more fairly while keeping Australian culture alive.

Reversion is the key.

Rebecca Giblin, ARC Future Fellow; Associate Professor, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.