Category Archives: Law and Policy
STM’s “Open Access” Licenses: Extend, Embrace, and Extinguish
Posted August 18, 2014Guest-blogged by Authors Alliance founding member Ariel Katz, Associate Professor of Law and Innovation Chair in Electronic Commerce at the University of Toronto.
Authors Alliance recently joined a coalition of research, science, and education organizations that called on the Association of Scientific, Technical and Medical Publishers (STM) to withdraw a set of New Model Licenses for purportedly “open access” publishing.
Beyond the flaws in those Model Licenses, the STM move raises some potentially serious antitrust issues. In other words, by adopting these set of model licenses and recommending that their members adopt them, STM and its member publishers might have broken the law. This is problematic for authors who write to be read, and who deserve a competitive publishing environment that allows them to find publishers who share their commitment to openness.
Authors Alliance Joins Call for STM to Withdraw its Open Access Licenses
Posted August 11, 2014Authors Alliance firmly believes in the importance of open licensing to vibrant and productive scholarship. But open licensing is legally complex and simply calling a license “open” does not make it so. We need open licenses that work to promote access and that enable open resources from various publication platforms to be used together in innovative ways.
The Association of Scientific, Technical and Medical Publishers (STM) recently released a set of model licenses for use in open access publication. Unfortunately, these licenses do not actually provide the openness they promise. Instead, each license places significant restrictions on reuse of covered publications, including a vague and ominous prohibition on “misrepresent[ing]” the “meaning, interpretation, context and conclusions” of a covered work. Even worse, the licenses are incompatible with existing standard licenses (including Creative Commons licenses), and they will therefore cause more confusion and expense than progress.
Accordingly, Authors Alliance has joined with more than fifty other organizations in calling for STM to withdraw its licenses.
Authors Alliance wants a world in which, as the letter says, knowledge “is accessible, usable, reusable and interoperable.” Going forward, we should “work within the legal frameworks that have already been globally adopted as a base for building the rest of the tools we need to make this a reality.”
Why Digital Humanities Researchers Support Google’s Fair Use Defense
Posted July 31, 2014Guest-blogged by Authors Alliance member Matthew Sag, a professor at Loyola University Chicago School of Law. Authors Alliance supports Google’s fair use defense because it helps authors reach readers. Matthew provides another reason why this case is important to the advancement of knowledge and scholarship.
Earlier this month a group of more than 150 researchers, scholars and educators with an interest in the ‘Digital Humanities’ joined an amicus brief urging the Second Circuit Court of Appeals to side with Google in this dispute. Why would so many teachers and academics from fields ranging from Computer Science, English Literature, History, Law, to Linguistics care about this lawsuit? It’s not because they are worried about Google—Google surely has the resources to look after itself—but because they are concerned about the future of academic inquiry in a world of ‘big data’ and ubiquitous copyright.
For decades now, physicists, biologists and economists have used massive quantities of data to explore the world around them. With increases in computing power, advances in computational linguistics and natural language processing, and the mass digitization of texts, researchers in the humanities can apply these techniques to the study of history, literature, language and so much more.
Why the Authors Alliance Amicus Brief Supports Google’s Fair Use Defense
Posted July 10, 2014By Authors Alliance co-founder Pamela Samuelson.
It was nearly a decade ago that the Authors Guild and three of its members brought a class action lawsuit against Google. It charged that Google’s digitization of in-copyright books from major research library collections for its Book Search project was copyright infringement. The plaintiffs have asked for an award of $3 billion in statutory damages against Google and an injunction to remove Book Search from the Internet.
What a tragedy it would be if the Authors Guild prevailed in this lawsuit—and not just for members of the public who have come to depend on Book Search to find information, but also for the overwhelming majority of authors who want their books to be discoverable through full-text searchable databases such as Book Search.
Google’s main defense has always been that this scanning was fair use because it helps users to find books containing information relevant to their queries without harming the market for the books. Indeed, by providing links to online stores from which the books can be purchased, Book Search is likely to enhance the marketability of books in this database.
Google won its fair use at a lower court last fall. The Authors Guild appeal is now pending before the Second Circuit Court of Appeals, which has long been the most influential court on copyright issues. Oral argument will likely occur in the fall. A decision on the merits should be rendered in the first half of 2015.
The Authors Alliance has today filed a brief in support of the lower court’s fair use ruling. The Alliance has an interest in this litigation because a substantial proportion of our members have books in the Book Search database. Several dozens of books written by Alliance Advisory Board members can, for instance, be found through Book Search. They includes nine by Harvard historian Robert Darnton, seven by Lawrence Lessig, five by Michigan economist Paul Courant, four by former Poet Laureate Robert Pinsky, three by former President of the Modern Language Association Sidonie Smith, and one by Nobel Laureate Harold Varmus. Because Authors Alliance members want their books to be found, the organization supports Google’s fair use defense in this case.
Authors Alliance joins in letter against copyright term extensions in TPP
Posted July 9, 2014Authors Alliance is joining 34 other organizations in telling the negotiators of the Trans-Pacific Partnership (TPP) not to extend copyright terms beyond the current international minimums. The international group signing the letter includes representatives of libraries, archives, educators, and authors; leaders such as the Association of Research Libraries, Creative Commons, Public Knowledge, the Canadian Library Association, and the Australian Library and Information Association.
The prevailing international standard already provides a copyright terms that last fifty years after an author’s death, a term that is more than adequate by any metric. Among the Authors Alliance proposals for copyright reform is “no more copyright term extensions.” As we explained there, further lengthening the copyright would not help most authors:
Term extensions do not promote the progress of science, as the Constitution directs, and often actively constrain it. Copyright terms are already very long . . . Only a very few works continue to provide economic benefit to authors for the full duration of our current terms. For the vast majority of new works, a longer term would provide no new reward at all, while it would instead starve the public domain and orphan our cultural and intellectual heritage. Without a demonstrated need or definite public benefit, we oppose any attempt to lengthen the copyright terms yet again.
Here in the United States, the copyright term has already been extended twenty years past the international standard. Our experience of longer terms has not been increased creativity or increased author wealth. The change has proven to benefit only the smallest handful of rights holders, while preventing works from entering the public domain. Documented experience as well as economic prediction weigh heavily against efforts to further lengthen the copyright term in other countries.
We encourage other organizations to join us and many others in telling the negotiators that current copyright terms are more than enough to protect authors like us by signing the letter here.
Why Does the Authors Alliance Care About Orphan Works?
Posted July 2, 2014By Authors Alliance co-founder Pamela Samuelson.
During the Authors Alliance launch at the Internet Archive, I talked about why the problem of orphan works is one of the pressing concerns the Authors Alliance seeks to address with its Principles and Proposals for Copyright Reform. Many of us, including academics, biographers, writers of historical fiction, and documentary filmmakers, come across many documents relevant to our research projects that we want to include in our works.
Sometimes we can tell that the documents are in the public domain, and sometimes we can easily track down the owners of in-copyright works and ask for permission. But many times, especially with older documents, it is unclear who the author is, how to track him or her down, or who else might have rights in the work.
Confusion about who is the author or owner of the rights is, of course, not an excuse to ignore copyright interests. There is general consensus that a prospective reuser should have to conduct a reasonably diligent search for the copyright owner, but copyright should not unreasonably impede reuse of the work if no owner can be found.
It’s Elementary My Dear Watson*: The Public Domain Can Benefit Authors
Posted June 17, 2014
Illustration of Holmes and Watson by Sidney Paget (1860-1908) in Strand Magazine
By Authors Alliance co-founder Molly Van Houweling.
Yesterday Judge Richard Posner, writing for the U.S. Court of Appeals for the Seventh Circuit, ruled that the copyrights in stories written by Arthur Conan Doyle and published before 1923 have expired, clearing the way for the publication of an anthology of new stories featuring Doyle’s famous detective Sherlock Holmes. Leslie S. Klinger v. Conan Doyle Estate, Ltd. (June 16, 2014). The expiration of copyright might sound like bad news for authors. But it can be very good news, indeed, and this case illustrates some of the reasons why.
The lawsuit was brought by an author–not Arthur Conan Doyle of course (who, as Judge Posner noted in his opinion, died 84 years ago), but rather a living author and editor named Leslie Klinger. In 2011, Klinger co-edited A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon, an anthology of stories written by contemporary authors but featuring Sherlock Holmes and other characters from Doyle’s classic stories. Doyle’s estate demanded a $5000 copyright licensing fee, which Klinger’s publisher paid. But when the estate again demanded a licensing fee for the publication of Klinger’s planned sequel, In the Company of Sherlock Holmes, Klinger resisted. He asked a federal court to back him up by ruling (in what’s known as a “declaratory judgment”) that the copyright protection attached to the characters who would appear in the stories had expired and that In the Company of Sherlock Holmes could therefore be published without copyright permission or fee.
HathiTrust Wins Big Victory for Authors in Authors Guild Case
Posted June 10, 2014By Authors Alliance co-founder Pamela Samuelson.
The Authors Guild may have suffered a major loss today when the Second Circuit Court of Appeals ruled against its copyright infringement lawsuit against HathiTrust. But the HathiTrust win is an important victory for authors who write to be read and want readers to know their works exist.
The Second Circuit ruled that digitizing books for the purpose of enabling researchers to find information contained in books in the HathiTrust digital library is a fair use. With the aid of HathiTrust’s technology, researchers can make a query, for example, to find out how many of the 10 million books in the HathiTrust corpus contain references to anaphylactic shock. HathiTrust does not display the contents of in-copyright books responsive to such a query, but it does inform the researcher of the page numbers of books in physical library collections that are responsive to the query.
To put the point more simply, the court ruled that it is not copyright infringement for libraries to digitize works for the purpose of helping researchers find pertinent books. Authors of research library books often spent years writing them with the goal of sharing the knowledge and insights they contain with interested researchers. That knowledge can now be found using HathiTrust instead of moldering away unread in the physical stacks of research libraries.
Why Does the Authors Alliance Care About Copyright Reform?
Posted June 2, 2014By Authors Alliance co-founder Pamela Samuelson.
The time is ripe for considering how copyright policy should respond to the opportunities and challenges of the digital age. Indeed, the top U.S. copyright official, Maria Pallante, has urged Congress to get to work on “The Next Great Copyright Act.”
As we prepared for the launch of the Authors Alliance, this call for a comprehensive rethinking of copyright law inspired our co-founders (Berkeley colleagues Carla Hesse, Tom Leonard, Molly Van Houweling and me) to articulate some principles and proposals for copyright reform that would make the law operate better for authors. In our view, reforms should simultaneously advance the constitutional purpose of copyright law—to promote the “progress of science” (that is, knowledge)—and the interests of authors whose principal motivations in creating works of authorship is to promote the public good by creating works that will be widely read, viewed, and heard. When the law is working as the Founders intended, the interests of authors and of the public at large are well aligned.