photo by Alexsander-777 | CC0

Authors Alliance submitted comments in response to the United States Copyright Office’s Notice of Proposed Rulemaking for Copyright Office Fees. The Office has proposed a new fee schedule for its services, including increasing fees for several services related to registering and recording copyrights. Because of the benefits associated with registration and recordation, our comment urges the Office to consider adopting a differentiated fee schedule that accommodates all authors—including authors with works of unproven or low commercial value.

As the Office acknowledges, “when fees are set too high, potential users—including non-profit or non-commercial users—will be unable or unwilling to pay and simply will stop participating at all and the public record will suffer.” There is strong precedent for differentiated fees in other areas of intellectual property, namely patents and trademarks. At minimum, we suggest that the Office consider ways to differentiate fees for recording terminations of transfers and to further differentiate fees for registration.

Differentiated fees would help to alleviate the financial burden on individual authors, maximize participation in the registration system, and provide the public with information about the largest possible number of works. Differentiated fees would also make it easier for authors who want to get their rights back to dedicate a work to the public to exercise their termination of transfer rights.

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.

The following guest post, by Jutta Treviranus of OCAD University in Toronto, kicks off our series of articles on the topic of accessible online content for people with disabilities. Building on our recent report on Authorship & Accessibility in the Digital Age, these posts will examine accessibility issues in greater detail over the coming weeks.

Checking Your Unintentional Message

It’s not only what you write that communicates your attitude toward social justice and equity. The format and mark-up of your works can inadvertently discriminate and deny access to a large number of your intended audience. This includes anyone that relies on alternative access systems, such as the millions of people that experience disabilities. It is unlikely that you would intentionally leave out headers, titles, paragraph breaks; jumble the order of your sections; or make your figures and images invisible or undecipherable; but that is the effect for many readers if accessible practices are not followed.

The good news is that the mechanics of avoiding unintentional barriers can be built into the authoring tools you use so that the required process becomes largely automatic, or the tool prompts you to provide the information needed to communicate your intent. This prompting includes asking you what information you hope to convey with an image or visual element, so the message is received by someone that can’t see the image. It can also include checking your work to make sure that you didn’t unintentionally exclude, similar to spell checking and grammar checking.

Unfortunately, most authoring tools still don’t provide these features despite decades of exemplary models. The cost of this omission is considerable. Retrofitting works is far more onerous than authoring them correctly from the start.

Many authoring tools also continue to exclude authors who require alternative access systems. This can mean that even if you currently have no difficulty using the tools, you’ll face barriers to authoring as you age. In effect, this deprives our society of the possible richness and diversity of expression.

The World Wide Web Consortium (W3C), which governs the Web, has created a set of guidelines for authoring tools, the Authoring Tool Accessibility Guidelines 2.0. These guidelines provide criteria for creating authoring tools that ensure that what is authored is accessible from the start, and that people experiencing disabilities can be producers, and not just consumers, of content. It is up to us to demand that the companies, that develop the authoring tools we purchase, follow these guidelines.

Jutta Treviranus is the Director of the Inclusive Design Research Centre and a professor at OCAD University. She was the Chair of the Authoring Tool Accessibility Guidelines Working Group of the W3C.

Authors Alliance founding member Lateef Mtima is Founder and Director of the Institute of Intellectual Property and Social Justice (IIPSJ) and a Professor of Law at Howard University. In the following Q&A, Professor Mtima describes the history of the IIPSJ, current projects, and the intersections of legal policy and social justice.

Authors Alliance: Please tell us a bit about the IIPSJ from your perspective as the founder. What was the catalyst to establish the organization?

Lateef Mtima: IIPSJ was established to promote social justice in the field of intellectual property law and practice, through core principles of access, inclusion, and empowerment. The initial catalyst for creating IIPSJ was derived from my experience in practicing IP law in the 1980s and 90s. It seemed that most IP attorneys and members of the bench acknowledged the existence of and critical need to redress many IP-related social injustices and deficiencies—from the history of unfair exploitation of black artists in the entertainment industry to the lack of access to medicines in the developing world—but they did not believe that solutions could or should be found in the IP law itself.

Instead, most considered these conditions and issues to be problems of social welfare extrinsic to the purpose of IP protection, and that “tampering” with the IP legal regime to address these problems was both inappropriate and unnecessary. I disagreed with this perspective. I believed that the IP law can only fulfill its Constitutional mandate to promote the progress of the arts and sciences if it is interpreted and applied so as to require the broadest and most socially equitable participation in the IP system—everyone in society should have an equitable opportunity to contribute to and to enjoy the fruits of the national storehouse of creative and innovative output.

A social justice perspective of the role of IP protection in the political economy actually ensures fulfillment of the Constitutional directive: Socially equitable access to IP and IP protection engenders widespread participation in and contribution to the IP ecosystem, and socially equitable dissemination of the results therefrom reignites and perpetuates the creative and inventive cycle to society’s ultimate benefit.

AuAll: When was IIPSJ established?  How has it evolved since its initial formation?

LM: IIPSJ’s genesis occurred in stages. The earliest efforts to develop the concept were focused through a prism of continuing legal education (CLE) work intended to raise awareness within the IP legal bar.  My joining the legal academy in 1998 provided the opportunity to reflect upon a full spectrum of programmatic endeavor, culminating in collaborative conceptualizations with my Howard Law School colleague Steve Jamar in 2001, along with some parallel collaboration with patent attorney Tom Irving in connection with organizing a structured CLE initiative.

By 2003, all of the components of the current infrastructure were in place: IIPSJ’s work mission would range broadly be implemented through scholarly examination of intellectual property law from a social justice perspective; advocacy for social justice cognizance in the shaping and implementation of intellectual property legislation and policy; initiatives to increase the diversity and social justice awareness of the IP bar; and programs which promote greater awareness, understanding, and use of intellectual property protection, particularly among  historically and currently disadvantaged and underserved groups, to empower them to exploit intellectual property effectively.

However, even at that juncture in its development, some of what today are IIPSJ’s “signature” initiatives were still largely aspirational. In reflecting upon IIPSJ’s origins, I often find it somewhat reminiscent of the historical formation of the NAACP—to focus on the year the organization was formally “chartered” would be to ignore its roots and maturation in the predecessor Niagara Movement and thus derive an incomplete and somewhat inaccurate understanding of its actual formation.

AuAll: What accomplishments are you especially proud of?

LM: We’re most proud of how the term “IP social justice” has become a familiar and durable part of the IP scholarly and policy lexicon, and increasingly, a part of the lay-public IP discourse. When we first used the term around the turn of the century, a few experts regarded the concept as at best, quixotic; most thought it an outright oxymoron.

Today the social justice obligations of IP law and policy are routinely contemplated in the IP scholarly, policy, and now even the civil and human rights discourse. That’s not to say that in establishing IIPSJ, we were the first to promote the idea that IP protection should serve as a mechanism through which to “do good.” For example, in the latter decades of the twentieth century, various scholars and social activists argued for the infusion of human rights theory and principles into IP law and policy, toward solving problems of global development.

However, IP social justice theory differs from these predecessor approaches and stratagems in that it is grounded in the perspective that social justice obligations are inherent to IP law. While we certainly agree that IP doctrine can benefit from consideration of other legal principles, we believe that the IP legal regime was “born” with a built-in social conscience.

AuAll: How can IP (or perhaps more specifically, copyright) influence social justice, and vice versa? Can you provide some examples of how those issues play out in people’s day-to-day lives outside of academia? What do you see as the most persistent or pressing issue(s) in the intersection of IP and social justice?

LM: Copyright plays a critical role in providing secular incentives to create and disseminate artistic and expressive material. It can be used and misused to determine whether creators receive attribution and/or a fair share of the revenues derived from their artistic efforts, or whether communities have access to knowledge—even books that are no longer in print.

In the Information Age, social movements thrive on the public’s ability to share information about important socio-political developments, such as video footage of law enforcement conduct or public demonstrations on controversial issues, and copyright can be used to control access to this material. One of the most persistent copyright social justice issues is the question of fair compensation for music artists, particularly artists of color.

Beyond copyright, many marginalized creators and digital entrepreneurs who are uninformed about trademark and publicity rights find their creative output misappropriated by those who enjoy advantages of racial and economic capital and other privileges. From the “Fleek Girl” to the rural college athlete, IP social justice is concerned with self-empowerment through equitable exploitation of the greatest natural resource available to any society: the human creative and inventive spirit.

AuAll: What inspires you in your work?

LM: The response we receive from creators, social activists and policy makers, particularly legislative staffers, is the most important inspiration for this work. So much of the contemporary IP constituency is extremely receptive to these ideas and appreciative of the work done by IP scholars and practitioners to establish both a doctrinal basis upon which to frame social justice proposals for law and change, and the concomitant effort to implement theory through practical, grassroots empowerment initiatives that resonate in the real world.

Another important motivation is the persistent “ivory tower elitism” demonstrated by some IP academics, who cling to marketplace abstractions which ignore social realities, often the result of the myopia of privilege. The former inspiration affirms that our work is valuable; the latter confirms that our work is necessary.

AuAll: As an organization dedicated to the empowerment of authors, we were especially intrigued by the Creative Control initiative—what can you tell us about that project?

LM: Creative Control is a community IP education and outreach initiative conceived by veteran civil rights attorney Kim Tignor, who in addition to serving as the Policy Director for the Lawyers’ Committee for Civil Rights Under Law, contributes countless volunteer hours to IIPSJ’s mission. Creative Control is designed to empower creators, activists, and entrepreneurs of color through providing access to intellectual property expertise by bringing the knowledge to them—where they live, create, and inform. Creative Control is a community of lawyers, creatives, inventors, activists, entrepreneurs, and academics who collectively advocate for the creative rights of people of color, by helping them to understand how to use IP protection to counter cultural and creative appropriation and otherwise toward self-empowerment.

Now hosted in cities throughout the country, each Creative Control event is something of an “indoor block party” of IP education panels and one-on-one information sessions presented in an atmosphere of food, entertainment, and community—words don’t really describe it but I guarantee that one look at the short video on our website will have you marking your calendar for the next event!

AuAll: Do you have any advice/resources for authors and other creators who are interested in learning more about authors’ rights, IP, and social justice advocacy?

LM: Today there is a growing number IP empowerment initiatives oriented toward promoting IP community education and social justice advocacy, so we’ve compiled a resources tab on the IIPSJ website. It includes information on everything from government programs to law school pro bono IP clinics, and we add to it as we become aware of additional programs—it’s a useful place to start and the destination links in turn lead to new and other resources.

Lateef Mtima is the Founder and Director of IIPSJ; he is also a Professor of Law at the Howard University School of Law.  Professor Mtima received his J.D. degree from Harvard Law School, where he was the co-founder of the Harvard BlackLetter Journal (later renamed the Harvard Journal on Racial and Ethnic Justice), and in 2007 he was a member of the founding Editorial Board for the American Bar Association’s IP periodical Landslide.  Professor Mtima writes in the areas of copyright, publicity rights, and diversity in the legal profession, and is the editor/contributing author of Intellectual Property, Social Justice, and Entrepreneurship: From Swords to Ploughshares (Edward Elgar 2015) and a co-author of Transnational Intellectual Property Law (West Academic Publishing 2015).

image by Myriams-Fotos | CC0

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

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

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

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

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

Photo by Nima Izadi on Unsplash

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

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

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

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

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

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

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

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

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

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

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

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