Authors Alliance, together with Professor Ariel Katz, has requested leave to intervene in Access Copyright v. York University, currently on appeal before the Supreme Court of Canada.
The case involves a claim by Access Copyright, a Canadian copyright collective, which seeks to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in its 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 raises 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.
As our motion for leave to intervene explains, Authors Alliance’s interest in the case stems from our members’ desire to see their works reach the largest possible audience and have the greatest possible impact and use, especially by users at educational institutions like York University. Overbroad restrictions on the use of scholarly works frustrate these objectives. In particular, the enforcement of tariffs against educational institutions that choose to comply with their copyright obligations without obtaining a license from a copyright collective would affect Authors Alliance’s members. Mandatory tariffs for academic institutions do not help all authors and may, in fact, harm many of them by making it more difficult for their works to reach readers. In addition, if copyright collectives can impose themselves and their business model on readers as a matter of law, this could imperil the development of alternative business models that would be more amenable to the interests of many of Authors Alliance’s members.
The issue that the appeal raises regarding fair dealing will also affect many of Authors Alliance’s academic author members, including Professor Katz, who are primarily motivated to produce scholarly work in an effort to share and advance knowledge. Academic authorial goals of sharing knowledge and insights, as well as of enhancing their reputations, will be affected by the Supreme Court of Canada’s decision on fair dealing.
If we are granted leave intervene in this appeal, we anticipate participating in written and oral arguments in May. We will keep our readers updated on our intervention and the case.
Authors Alliance is grateful to attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan of Lenczner Slaght for pro bono assistance with this intervention.
The DCA proposes many amendments to key provisions of copyright law. The bill would replace the current “notice-and-takedown” system with a “notice-and-staydown” system whereby, once a copyright holder notifies a service provider that they believe a particular use is infringing, the service provider must remove all subsequent infringing uses unless the user notifies it that the use is licensed or otherwise authorized by law (such as being a fair use). The draft bill would also limit liability for users who use orphan works after a diligent but unsuccessful search for the copyright holder, establish the Copyright Office as a division of the Department of Commerce, and make changes to the Copyright Office’s triennial rule-making process for creating exemptions to the DMCA’s prohibition on bypassing technical protection measures, among other changes.
Our comment responded to the sections of the draft bill that would have the most impact on how our members create, use, and share copyrighted works.
Limitations on Liability Relating to Material Online
Authors Alliance opposes proposed changes in the draft bill that would shift the notice-and-takedown system under section 512 to a notice-and-staydown system. Whether a particular use is infringing depends on context and facts that the relevant online service provider (“OSP”) is unlikely to have. The notice-and-staydown procedure does not account for these fact-sensitive determinations, and a notice-and-staydown requirement would harm authors relying on fair use, a license, or another lawful reason for sharing a work on the platform.
Moreover, a notice-and-staydown requirement will likely jeopardize the vibrant array of platforms for online speech that have been allowed to grow and thrive under the notice-and-takedown system. Authors Alliance supports copyright policies that lead to widespread dissemination of knowledge, from a diversity of viewpoints and using a diversity of platforms. Policies that privilege the most well-resourced OSPs work against these values.
The summary of the draft bill states that it makes reforms which would make it easier for content creators to see their content restored after being improperly removed in response to a “staydown” notice. While Authors Alliance supports making it easier for creators who have had their content removed to see their content restored sooner than under the current system, it is unclear how the language in the draft bill would enable content to be restored sooner than under the current system. Instead, statutory reform should incorporate changes that would allow for the immediate put back of targeted content in response to a valid counter-notice. We suggest that one of the most impactful ways that Congress could reduce the burden on authors who have their content improperly removed would be to amend section 512 to incentivize accurate notice sending and to make it more feasible for authors to recover for harms caused by inaccurate notices.
Limitation on Remedies in Cases Involving Orphan Works
Authors Alliance supports reforms that limit liability for good faith users who are unable to identify or locate the copyright owner of a work after a diligent search and decide to use the work in question. Our members care about the dissemination of knowledge and, more specifically, seeing their own works disseminated broadly, and the threat of liability for the use of orphans is contrary to these priorities. That said, we are concerned with language in the draft bill that would that users file a “notice of use” with the Copyright Office in order to take advantage of the limitation on liability. This procedural hurdle makes the limitation less accessible for individual authors and creators, who are less likely to be familiar with Copyright Office procedure than sophisticated commercial entities.
Copyright Office Relocation
Authors Alliance opposes language in the draft bill which would reclassify the Copyright Office—a division of the Library of Congress and part of the legislative branch of the federal government for over 150 years—as an executive agency with a politically appointed register housed within the Department of Commerce. This is contrary to our members’ interests for three distinct reasons. First, the relocation would politicize the Copyright Office, intended to be impartial and removed from partisanship. Second, the relocation would shift the focus of copyright policy towards commercial interests and away from creativity and individual authorship. Finally, relocation would disrupt the mutually beneficial relationship between the Library of Congress and the Copyright Office, which furthers our members’ interests in preservation of knowledge and broad dissemination of creative works.
Modernizing Circumvention Exemptions
First and foremost, the revisions and new provisions in the draft bill are only a partial remedy to the fundamental problem that section 1201 stifles speech, access, and onward creation—even where those activities are clearly non-infringing—and in doing so creates heavy burdens for authors. To update section 1201 in a way that would truly benefit authors, Congress should make clear in reforming legislation that there must be a nexus between the relevant circumvention and infringement for there to be a violation of section 1201 and a claim for copyright infringement. Failing this change, we offer support for several proposals that would streamline the triennial rulemaking process, provide suggestions for improving proposals intended to ensure that the intended beneficiaries of exemptions are actually able to utilize exemptions, and propose ways to improve the proposed permanent exemption for assistive technologies.
Authority to Reduce Fees for Individual Authors and Small Businesses
We support the language in the draft bill which would make it clear that the Copyright Office has the authority to implement tiered fees for individual authors and small businesses. The current fees for registration and recording documents with the Copyright Office can be a barrier for individual authors or other copyright owners whose works have low or unproven commercial value but are nonetheless culturally or historically valuable. Because of the benefits associated with registration and recordation and the deterrent effect when fees are too high, Authors Alliance believes that it is important that the Copyright Office have the flexibility to adopt a fee schedule that accommodates all authors, particularly individual authors.
We look forward to working with Senator Tillis and other members of Congress and they consider reforms to the Copyright Act. Senator Tillis has indicated that he will release a second discussion draft of the DCA in April, and we will keep our members and readers updated as the process unfolds.
At Authors Alliance, we speak out in favor of policies that make knowledge more discoverable and accessible for authors and the public. While our work is often within the realm of copyright, there are other, less obvious ways that the law helps make knowledge discoverable. In the United States, the custom of preserving presidential papers in so-called presidential libraries has led to the archiving of millions of valuable documents. Presidential libraries are veritable treasure troves, containing archives of presidents’ correspondence, documents, gifts, and more, and are by custom located in former presidents’ home states. Presidential papers can be excellent sources of research for authors, and, as we round the corner on Presidents’ Day, recent moves to make presidential papers more accessible to the public are worth celebrating.
History of Presidential Libraries
For the first 150 years of U.S. history, presidential papers and effects were considered to be the private property of the president, and remained so after he had left office. But in 1938, Franklin Delano Roosevelt proposed the concept of the presidential library after deciding he wanted to give his presidential papers to the public to create an archive of his time in office and beyond. The result was a privately constructed, publicly maintained institution where the public could freely or cheaply access records from FDR’s presidency and his time in the public eye before taking office. A similar path was followed to establish Herbert Hoover’s presidential library. To codify this practice, Congress established the presidential library arrangement through legislation in 1955. The first Presidential Libraries Act gave the Administrator of the General Services Administration the authority to accept presidential documents for preservation as well as receiving land, buildings, and equipment necessary to maintain and run the library. These arrangements allowed for the libraries to be substantially privately funded yet run by the government.
A variety of subsequent laws strengthened the Presidential Library system. Beginning with the Reagan administration, two important laws related to government transparency—the Freedom of Information Act and the Presidential Records Act—worked together to make presidential papers the property of the public and make the records available to anyone who requested access after the president has left office (with certain limited exceptions for national security and similar issues). Presidential papers are presumptively open to the public after the administration has left office, and bound hardcover volumes of unclassified presidential papers are even available for purchase from the government.
Today, the nation’s presidential libraries are operated by the National Archives and Records Administration’s Office of Presidential Libraries, in partnership with a variety of public and private institutions like universities and foundations. While the Presidential Records Act requires only that textual records from presidential administrations be made public, by custom presidents often donate works of art, gifts, and other artifacts to presidential libraries, as well as correspondence from their lives before taking office. For this reason, many presidential libraries contain or double as museums of that president’s life.
Early Presidential Papers
Efforts to preserve presidential papers from administrations pre-dating the Presidential Libraries Act have also bore fruit. For U.S. presidents from George Washington to Calvin Coolidge, innumerable presidential papers have been donated or sold to the Library of Congress, which is then responsible for their preservation. Separately, presidential museums and libraries for former presidents before Hoover exist across the country, though these are not organized pursuant to the Presidential Libraries Act or run by the federal government.
Because no law required these early presidential papers to be given to the government, some collections are housed in universities or museums, typically in those presidents’ home states: the historical papers of John Adams and John Quincy Adams are housed in the Massachusetts Historical Society, the historical papers of Millard Fillmore are held by the State University of New York at Oswego, the historical papers of James Buchanan are held by Penn State University, the historical papers of Rutherford B. Hayes are held by the Rutherford B. Hayes Presidential Library and Museum, and the historical papers of Warren G. Harding are held by the Ohio History Connection. The lack of a uniform procedure for presidential papers has unfortunately made some of these early documents less accessible or unavailable altogether—the majority of Zachary Taylor’s presidential papers were lost when his son’s home was destroyed during the Civil War, and Chester A. Arthur burned an unknown quantity of personal documents from his presidency the day before his death. The Presidential Records Act effectively prevents this loss of knowledge and culture from happening again by guaranteeing that presidential textual records are preserved and available to the public in the future.
Digitization and New Challenges
A next step in making presidential papers more accessible is digitizing the collections. It is not always feasible for researchers and authors to travel to presidential libraries to examine the papers in person, and the closure of most if not all of the presidential libraries due to the COVID-19 pandemic has only underscored the need for greater access to historical records. The Library of Congress finished a decades-long initiative to digitize the collections of the papers of early presidents held by the Library of Congress just last year, and the full collection is freely available online. With respect to the post-Coolidge government-sanctioned presidential libraries and the early presidents whose papers are housed elsewhere, efforts to digitize the collections have been mixed. But in recognition of the importance of making presidential papers freely available online, last year, the National Archives launched a presidential library “explorer” allowing the public to view and search through the digitized portions of the presidential library collections (though as of February 2021, only about 0.25% of the collection has been digitized).
While digitization efforts for presidential papers have been uneven, navigating the presidential library explorer and browsing through the collections of the Library of Congress reveal fascinating historical information for authors and curious Internet users alike. Browsing through the collections is not always straightforward, with records being disorganized even in digitized form and containing many dry and often poorly scanned letters and speeches. But when one digs a bit deeper, it is not hard to uncover records which reveal an intimate behind-the-scenes glimpse of these presidents’ times in office: a love letter from Woodrow Wilson to his wife, Ladybird Johnson’s favorite recipes to serve on the Johnsons’ Texas ranch, a letter from Disney to Richard Nixon asking him to appear on the the Mickey Mouse Club television show, and a photograph of Bill Clinton jogging in D.C. during the early days of his presidency, to name just a few.
Changes to the Presidential Library System
President Obama’s “presidential center” will be the first contemporary presidential library not established under the Presidential Libraries Act. The Obama Presidential Center, set to open in Chicago with construction to begin this year, will be entirely private, run by the Barack Obama Foundation, and will not house textual records from the Obama presidency at all. Instead, the Foundation, in partnership with the National Archives, will work to digitize the collection of textual presidential records that are the property of the public under the Presidential Records Act. The Obama Presidential Center will display “works of fine art, cultural artifacts, books, clothing, domestic furnishings, sporting equipment, and other materials that represent the era and accomplishments of the Obama Administration,” such as gifts from heads of state, rather than donating these to the public to be maintained by the National Archives, as presidents from Herbert Hoover to George W. Bush have done. The plan has been controversial, but financial changes to the arrangement between the National Archives and the private foundations that pay to build these libraries have made operating presidential libraries less financially viable for the private institutions. Regardless, the Obama presidential papers remain the property of the public, and his presidential center has framed the end product of digitization as “the first fully digital presidential library.”
It is unknown whether President Trump will have a traditional presidential library, or even a private presidential center as Obama plans to build. The National Archives launched a placeholder website for President Trump’s presidential library or center, but has noted only that it will maintain his collected presidential papers (as required by the Presidential Records Act). And a recently-launched sophisticated parody website for the Trump presidential library, designed by a New York based architect who purchased the domain name the very week President Trump was elected, has garnered attention in the meantime.
Presidential Records and Authorship
The presidential papers are intended to be a source of information for historical researchers, and are invaluable source material for a variety of books, films, and other research projects. In proposing the first modern presidential library (prior to the passage of the Presidential Records Act), FDR said that he sought to take the advice of historians which advised him not to break up his collection of papers, but dedicate it in whole to the public, “because, so often in the past, Presidential papers and other public papers have been culled over during the lifetime of the owner, and the owner has thrown out a great deal of material which he personally did not consider of any importance which, however, from the point of view of future history, may have been of the utmost importance.” Presidential libraries “preserve the raw materials that constitute our nation’s history,” creating invaluable information for authors desiring a unique perspective American history, including matters of diplomacy and conflict.
Historian Robert Caro described his experience conducting research in the “forty thousand boxes” of documents in the Lyndon B. Johnson archives as interminable but incredibly illuminating. Caro was able to trace LBJ’s ascension from a junior member of the House of Representatives to a massive fundraiser and later a successful presidential candidate by paging through numerous memos, letters, and speeches, producing an acclaimed and groundbreaking biography of the former president.
Today, with the digitization of presidential archives, the possibilities for scholarship are tremendous. Authors desiring an intimate and unique portrait of former presidents who are willing to browse through stacks—both physical and virtual—would be wise to peruse presidential libraries and archives, which, as the Caro example above shows, can yield new insights decades or centuries later.
In December 2020, Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a comment with the Copyright Office in support of a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on literary works that are published electronically and motion pictures. This week, commenters who oppose the petition for this exemption were given an opportunity to respond to our proposed exemption.
Text and data mining (TDM) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use.
But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize. What’s more, Section 1201’s prohibitions force some TDM scholars to focus on works first published before 1925, which are in the public domain. Because authorship was far less diverse in 1925 than it is today, focusing TDM on pre-1925 texts privileges white male voices rather than being representative of authors contributing to the commons of knowledge today. For these reasons, our petition and supporting comments ask the Librarian of Congress to grant a new exemption to Section 1201’s anti-circumvention prohibitions that would allow researchers to bypass TPMs on e-books and films for the purpose of conducting TDM research.
Our response comment is due on March 10, 2021, and we look forward to working with the commenters to address their concerns and with the Copyright Office as it evaluates our petition for this new exemption to facilitate TDM research. TDM researchers who have information they would like to share with us to support our response are invited to contact us today.
The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.
Authors Alliance is pleased to announce our partnership with Library Futures, a brand new organization which seeks to “empower libraries to fulfill their mission and provide non-discriminatory, open access to culture for the public good.” Last week, Library Futures officially launched with the stated goal of addressing the “deleterious impacts of an inequitable knowledge ecosystem.” The organization will engage in advocacy work, grant making, educational campaigns, and community building to effectuate its mission and work towards a technology-positive future for libraries.
We are excited to be a partner organization of Library Futures as it fights for equitable access to knowledge—an important issue for our members and authors writ large. Authors have an interest in a technology-forward future for libraries that ensures that readers, learners, and the general public can continue to discover and access their books in the digital age. We believe that the initiatives of Library Futures will help authors reach the audiences for which they write, advancing our own mission of supporting writers who write to be read.
Jennie Rose Halperin, the organization’s executive director, has said she is “honored to be leading this organization, which will take on major issues in libraries and help usher in a more inclusive digital future for teachers, learners, and researchers from every walk of life.” Library Futures board member Kyle Courtney has said he is hopeful that the organization can make real change on the issues of access and equity that are challenging libraries today: “Digital library books—when loaned correctly—can be a pivotal tool libraries use to preserve great works, provide patrons with access to books, and defend patron privacy. I hope the community will join us in standing up for the future of libraries.”
The Library Futures coalition, of which Authors Alliance is delighted to be a part, is a public interest alliance that “seeks to enable collective action while building power through an innovative advocacy organization.” Other coalition partners include the Internet Archive, Public Knowledge, Creative Commons, SPARC, and the Boston Public Library. We are excited to collaborate with Library Futures and our coalition partners to work towards a better, more equitable future for our libraries!
Last month was a busy one for copyright law (although we cannot fault you if you were distracted by other things going on in the world!). Now that the dust has settled on 2020, we are pleased to share this roundup of copyright developments that happened during the final weeks of last year. First, we saw a new draft bill seeking to reform the Digital Millennium Copyright Act (“DMCA”), and second, we saw two new copyright provisions included within the year-end stimulus package.
The Digital Copyright Act of 2021
In late December 2020, Senator Thom Tillis released a draft bill which aimed to make several reforms to the DMCA. Senator Tillis released this bill after posing a series of questions for stakeholders regarding how the DMCA could be reformed to reflect the needs of copyright holders and the state of the world 22 years after the DMCA was passed. Authors Alliance submitted a response to these questions, as did a multitude of other organizations and individuals. Our response cautioned against a notice-and-staydown system, and instead advised Senator Tillis that copyright law should seek to align the interests of individual creators with the interests of the public for whom they create. We also suggested several existing and new temporary exemptions to DMCA section 1201’s prohibition on bypassing technical protection measures that could be made permanent, and supported a proposal to streamline the section 1201 rule-making process. Finally, we argued that any reforming legislation should require a nexus between the relevant use and copyright infringement for there to be a violation of section 1201.
Senator Tillis’s bill proposes many reforms to copyright law, and unfortunately incorporates few of our suggestions. Most concerningly, the bill replaces the current “notice-and-takedown” system with a “notice-and-staydown” system whereby, once a copyright holder notifies a service provider that they believe a particular use is infringing, the service provider must remove all subsequent infringing uses unless the user makes a statement that the use is licensed or otherwise authorized by law (such as being a fair use). The draft bill also lowers the specificity required in takedown notices, establishes the Copyright Office as a division of the Department of Commerce, limits liability for users who use orphan works after a diligent but unsuccessful search for the copyright holder, and makes changes to the Copyright Office’s triennial rule-making process and exemptions on the DMCA’s prohibition on bypassing technical protection measures with the aim of streamlining the process. Senator Tillis has invited stakeholders to submit reply comments to the draft bill by March 5th.
Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act)
The year-end stimulus package included a provision Authors Alliance has spoken out againstbefore: The CASE Act, co-sponsored by several members of Congress. In short, the CASE Act creates a small claims tribunal—known as the Copyright Claims Board (“CCB”)—within the Copyright Office for copyright disputes as an alternative to pursuing copyright claims in federal court. Proponents of the CASE Act argue that it will help individual creators, who often cannot afford the expense of bringing litigation in federal court, but are more likely to be able to afford the lesser costs associated with pursuing the dispute in the CCB. A more accessible forum for resolving copyright disputes is an admirable goal, but the CASE Act seeks to achieve it in a way that is, in our view, extremely flawed. The CASE Act allows for excessive damages, does not provide for review by a court in most cases, and the overall scheme is one we fear will invite litigation by copyright trolls.
In September 2019, we wrote to Congress voicing our concerns about the CASE Act, but unfortunately it was signed into law last month as part of the year-end stimulus package, leading critics to note that it had little to nothing to do with the “must-pass spending bill.” The CCB is set to begin operations by the end of December 2021, unless the Copyright Office makes the determination to delay implementation.
Protecting Lawful Streaming Act of 2020
Also included in the year-end stimulus package was a provision known as the Protecting Lawful Streaming Act. The Act—sponsored and led by Senator Thom Tillis and Senator Patrick Leahy—targets and punishes “commercial, for profit” services that stream large amounts of copyrighted content without proper authorization. Senator Tillis has said that these services cost the U.S. economy billions of dollars annually. The provision drew attention in part because of its harsh penalties—violators can be sentenced to up to 10 years in prison.
The Protect Lawful Streaming Act is not intended to apply to individual Internet users who access such unauthorized streams, and co-sponsor Senator Leahy has characterized the law as a “narrow” one which only “target[s] only commercial, for-profit criminal privacy.” Critics have noted that there is no glaring need for harsher criminal penalties for copyright infringement, which can already be incredibly costly for alleged infringers, but also acknowledged that the Act is narrow enough that it is unlikely to create liability for individual users or institutional actors acting in good faith. This law is also unlikely to directly negatively affect authors, though we are always wary of expanding copyright liability where there may not be a particular need.
We thank Authors Alliance board member Thomas Leonard for this guest post. Leonard is a University Librarian Emeritus and a Professor of Journalism Emeritus at the University of California, Berkeley. He has served as the president of the Association of Research Libraries and as an Associate Editor of American National Biography. Leonard is also the author of three books on the development of American media.
This blog space has featured the most provocative books, briefs, and cases that our well-informed members discovered in 2020. With the benefit of hindsight, we probably made the wisest decision in illustrating a post, just before Thanksgiving, with the picture of an intense reader and Dr. Seuss’s Hop on Pop. No work we cited, after all, has gained more attention in the English-speaking world.
Hop on Pop is the only volume mentioned last year that has its own Wikipedia page and, word-for-word (the volume we pictured has fewer than 150) it may be the shortest literary work to earn Wikipedia page honor. The lessons for IP grown-ups are many.
Theodor Seuss Geisel (1904-1991) has a place in the origin story of how open access publishing and an enormous corpus of digitized works open to readers took shape in the early years of this century. The Geisel Library at the University of California San Diego provided leadership. All the hard work of UC librarians across the state now rests safely in a full-text home for 8.5 million book titles. This repository has a name that Dr. Seuss would have loved: The HathiTrust, so spelled and punctuated, with a quizzical elephant the first thing you will see.
Hop on Pop draws on an honored tradition in children’s literature: Unaccountable but engaging violence. Authors Alliance pictured an edition of Hop on Pop that dialed this down. The volume that the girl is reading has been abridged so that it will easily fit into her small hands. “Night Fight” is one of the adventures that was cut, though plenty of mayhem remains. For those looking for bright ideas about how to adjust content to age level, here is one. (Older kids who use the longer Hop on Pop to build reading skills get the full story on all the ways to gouge and bash at home.)
If you have encountered Dr. Seuss scholarship (conveniently available on a post from the BBC’s culture desk), you may believe that Hop on Pop was Hop on Politics in Geisel’s mind. Famously, Dr. Seuss did this with the environmental movement in The Lorax. We need not take an excursion back to the eddies of World War II propaganda and Cold War defiance that marked Geisel’s career, as enlightening as this may be. It is the Seussville website where we should go, where the publisher of Hop on Pop for the past six decades has now done some surprising things.
Random House, owned by Bertelsmann, often does in court what we expect large media companies to do in protecting IP. Not long ago, the publisher challenged a mash up of Dr. Seuss and Star Trek. (The Ninth Circuit recently ruled that this was not fair use).
Seussville is obviously a marketing scheme to sell books and merchandise. But there is more to it than that. Random House offers lots of space for followers of Dr. Seuss to be creative with his work; the publisher preaches civic engagement. These are welcome, but unexpected outcomes for guardians of intellectual property.
Scores of Seuss characters, games and other activities are “Printable” on this site, surely a godsend to COVID-confined Americans with young families or their online teachers. The spirit of Seussville is that Seuss creations should be used and shared; no one pokes you in the ribs to watch out for copyright. The content is free.
Dr. Seuss’s lessons go deeper than you’d expect, and not only in The Lorax tradition. One of the many elephants who is excited about the 2020 U.S. Census alerts kids that April 1, 2020 was the cut-off date for counting newborns. “Learn About Government with Dr. Seuss!” the site thundered during the 2020 campaign. Under the gaze of characters who were having bad hair days, school kids were instructed on how to cast ballots and, presciently, how to count them. This was a drive to get kids moving, “with a focus on the American Presidency!”
Much of IP talk is the talk of a zero-sum game, in which only a rights holder or a consumer can win. In 2021, and especially for kids, allowing for a liberal use of Dr. Seuss shows that this need not be true.
Earlier this month, we celebrated the new batch of literary works entering the public domain, and shared with you some common ways that works enter the public domain. Once a work is in the public domain, authors and the public at large can make any use of it in any way they wish, including uses that were formerly the exclusive right of the copyright holder. One such right is the right to prepare derivative works based on the public domain work. Derivative works are new works which build off of pre-existing works, such as translations or theatrical adaptations. Today, we will discuss new uses that can be made of works that have fallen into the public domain using examples from popular films and literature.
The Great Gatsby in 2021
One of the most well-known literary works to enter the public domain this year is F. Scott Fitzgerald’s The Great Gatsby. Now, authors are free to create new works drawing on the characters, plot, and expression from Fitzgerald’s original without fear of copyright liability. Since it is no longer subject to copyright protection or restrictions on its use, the text can also be read or downloaded for free online.
One new derivative work based on The Great Gatsby and published just this month is Michael Farris Smith’s Nick, a new prequel. Nick imagines Nick Carroway’s life prior to his time at West Egg, explores Nick’s trauma, and describes a stay in New Orleans after World War I. While the Fitzgerald Trust, which controls the rights to Fitzgerald’s works under copyright, has been selective in granting licenses to prepare derivative works based on Gatsby in the past, it can no longer “try and safeguard the text, to guide certain projects and try to avoid unfortunate ones.” For instance, one recently licensed derivative work of Gatsby was a graphic novel published in June 2020. Fitzgerald Trustee Blake Hazard “was closely involved with the graphic novel” and selected the illustrator herself. Now, anyone is free to use Gatsby as a building block for add-on creation like graphic novels without permission from the Fitzgerald Trust. And we are sure to see new derivative works emerge in the coming months and years: trade publishers are planning new hardcover editions, and fans have recently called for a Muppet version of the novel (though we note that this is complicated by the fact that Disney controls the copyright in the Muppets).
Derivative Works in Popular Culture
Derivative works based on works that have entered the public domain are nothing new. Shakespeare’s plays—which have always existed in the public domain, since their publication predated the first copyright law—have inspired a multitude of beloved derivative works, from filmsTen Things I Hate About You (The Taming of the Shrew) and She’s the Man (Twelfth Night) to Ray Bradbury’s Something Wicked this Way Comes (Macbeth), and has inspired numerous loose retellings such as Brave New World (The Tempest) and even Disney’s The Lion King (Hamlet).
In fact, derivative works based on public domain works will themselves eventually enter the public domain once their copyrights expire, enabling the creation of new derivative works based on now-public domain derivative works. For example, the musical and film, West Side Story, is a derivative work based on Shakespeare’s Romeo and Juliet, a play which itself drew heavily on Ovid’s Pyramus and Thisbe, such that Romeo and Juliet too could be considered a derivative work. Both Romeo and Juliet and Pyramus and Thisbe were published prior to the passage of the first copyright law, but this example illustrates how derivative works based on public domain works can lead to the evolution of popular stories over time. In this way, creating derivative works based on works in the public domain fosters the development of culture and knowledge—a core purpose of copyright law.
Reaching New Audiences with Derivative Works
Derivative works can also enable the original work to reach new audiences. Shakespeare’s plays can be daunting for contemporary readers, using unfamiliar language and conventions. But the multitude of derivative works based on Shakespeare plays brings the stories to audiences who may not be interested in reading the original works, enhancing access to the stories in the process.
It may surprise you to learn that Disney—colossal and vocal defender of copyright protection—has for decades taken advantage of the public domain to produce some of its most popular and successful films. In the 90s, Disney co-produced with Jim Hensen studios two Muppets movies based on public domain books: A Muppet Treasure Island and A Muppet Christmas Carol, based on out-of-copyright works by Robert Louis Stevenson and Charles Dickens respectively. The list goes on—Snow White, Cinderella, and Sleeping Beauty are all based on Grimms’ Fairy Tales; The Little Mermaid is based on a Hans Christian Andersen story, as is the more recent Frozen—a retelling of Andersen’s The Snow Queen. In general, the Disney adaptations made these stories more palatable for children, such as changing the ending of The Little Mermaid from one in which “[Ariel’s] heart is broken when her prince marries someone else” and ultimately sacrifices herself rather than killing the prince, as Ursula demands, to the happily-ever-after ending we know today.
In this way, new derivative works based on public domain works can enable the original work to reach new audiences. Public domain texts can be made freely available online for anyone to read, enhancing access to those texts for those without access to the print editions. Translations are derivative works which allow public domain texts to reach audiences who lack fluency in the work’s original language, and a wide variety of adaptations—from abridged versions for less advanced readers to so-called critical editions for college students—can help the work reach readers of different demographics.
The possibilities for add-on creation to works that have entered the public domain are endless. We encourage our members and readers to explore the public domain and discover new sources of inspiration!
Last week, we celebrated a new batch of works from 1925 entering the public domain. In copyright, the public domain is the commons of material that is not protected by copyright. When a work enters the public domain, anyone may do anything they want with the work, including activities that were formerly the “exclusive right” of the copyright holder like making copies of, sharing, and adapting the work.
Some people mistakenly think that the “public domain” means anything that is publicly available. This is wrong: The public domain has nothing to do with what is readily available for public consumption. Just because a work is freely available on the internet, for example, doesn’t mean the work is in the public domain. Under today’s copyright laws, copyright protection is automatic. This means, for example, that a photographer could take and upload a photograph to a publicly accessible website, and—despite its public availability online—unauthorized uses of the photograph may be infringing, unless the use is otherwise allowed under an exception to copyright.
Just how do works become a part of the public domain? In this post, we’ll share some of the ways in which works enter the public domain or simply exist as a part of the public domain because of the limits of copyright.
Copyright Expiration
One way that works become a part of the public domain is the expiration of their copyright protection. Copyright protects works for a limited time and after that, the copyright expires and works fall into the public domain. Under U.S. copyright law, as of 2021, all works first published in the United States in 1925 or earlier are now in the public domain due to copyright expiration. Copyright law has changed over time and the term of copyright is now calculated based on the life of the author. Under today’s copyright laws, works created by an individual author today won’t enter the public domain until 70 years after the author’s death.
It can be devilishly difficult to determine whether a work’s copyright has expired. For example, while works first published in the United States in 1925 or earlier are in the public domain, unpublished works created prior to 1925 may not be. We recommend Peter Hirtle’s Copyright Term and the Public Domain in the United States and Berkeley Law’s “Is it in the Public Domain?” Handbook to help you evaluate a work’s copyright status.
Failure to Comply With Formalities
While 2021 brings certainty that works first published in the United States in 1925 are in the public domain, changes in copyright duration and renewal requirements during the 20th century mean that works first published in the United States between 1926 and March 1, 1989 could also be in the public domain because their copyrights were not renewed or because the copyright owner failed to comply with other “formalities” that used to be required for copyright protection. These formalities included requirements that the copyright owner register her work with the Copyright Office and mark the work with a copyright notice upon publication. Analysis from the New York Public Library revealed that approximately 75% of copyrights for books were not renewed between 1923-1964, meaning roughly 480,000 books from this period are most likely in the public domain.
Under today’s copyright laws, authors of new published works are no longer required to comply with any formalities to be eligible for copyright protection, though there are significant benefits to doing so.
Uncopyrightable Subject Matter
Copyright law is not unlimited. There are certain things that are seen as fundamental building blocks of creativity and authorship and are therefore simply not protected by copyright, entering the public domain automatically.
An important category of things that are not copyrightable are facts—even if those facts are obscure or were difficult to collect. For instance, suppose that a historian spent several years reviewing field reports and compiling an exact, day-by-day chronology of military actions during the Vietnam War. Even though the historian expended significant time and resources to create this chronology, the facts themselves would be free for anyone to use. That said, the way that the facts are expressed—such as how they are articulated in an article or a book—is copyrightable. The lack of copyright protection for facts is central to copyright law: Even “asserted truths,” or information presented as factual which later turns out to be untrue, are part of the public domain.
Ideas, themes, and scènes à faire are categories of expression that are also outside of copyright protection. These concepts are closely related, and the overarching justification for excluding them from copyright protection is that they are simply too general and standard to a particular genre or convention for an individual creator to be granted a temporary monopoly on them. Here again, though copying the words used to express the idea or theme could constitute infringement, the similarity of general ideas, themes, or other elements of a work which are standard in the treatment of a given topic cannot form the basis of an infringement claim. For more on ideas, themes, and scènes à faire, check out our post on uncopyrightable subject matter for fiction writers.
Other Exclusions
The U.S. Copyright Office provides information about additional types of works and subject matter that do not qualify for copyright protection, including names, titles, and short phrases; typeface, fonts, and lettering; blank forms; and familiar symbols and designs. It is worth noting that other areas of intellectual property, such as patent or trademark law, could provide protection for categories that are not eligible for copyright protection.
The Copyright Act provides that works created by the United States federal government are never eligible for copyright protection, though this rule does not apply to works created by U.S. state governments or foreign governments. And under the government edicts doctrine, judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy.
The U.S. Copyright Office also reminds potential registrants that works that “lack human authorship” are uncopyrightable, using as an example “a photograph taken by a monkey.” Sound familiar?
Abandonment / No Rights Reserved
In theory, a copyright owner can voluntarily abandon her copyright prior to the expiration of the work’s copyright term by engaging in an overt act reflecting the intent to relinquish her rights. Abandoned works then become part of the public domain, free from copyright and available for anyone to use.
Creative Commons offers a “No Rights Reserved” tool for copyright owners who wish to waive copyright interests in their works and thereby place them as completely as possible in the public domain. And recently, satirist Tom Lehrer added a statement to his website granting permission to the public to download and reuse his lyrics, noting that they “should be treated as though they were in the public domain.” That said, a scholarly article by Dave Fagundes and Aaron Perzanowski criticizes the current state of the law surrounding copyright abandonment. The authors assert that the lack of a clear, reliable way to abandon copyright frustrates authors who wish to abandon their copyrights, and the practical effectiveness of abandonment is undermined by the lack of a broadly accessible record of abandoned works.
Literary aficionados and copyright buffs alike have something to celebrate as we welcome 2021: A new batch of works published in 1925 is entering the public domain on January 1. In copyright, the public domain is the commons of material that is not protected by copyright. When a work enters the public domain, anyone may do anything they want with the work, including activities that were formerly the “exclusive right” of the copyright holder like copying, sharing, and adapting the work.
If you agree with BBC Culture’s assessment that the year 1925 was a “golden moment in literary history,” and maybe even “literature’s greatest year,” there is reason to be excited about the latest collection of books to enter the public domain in the United States. Some of the more recognizable titles include:
F. Scott Fitzgerald’s The Great Gatsby (published in 1925, renewed in 1953)
Virginia Woolf’s Mrs. Dalloway (published in 1925, renewed in 1953)
Sinclair Lewis’s Arrowsmith (published in 1925, renewed in 1952)
Ernest Hemingway’s In Our Time (published in 1925, renewed in 1953)
John Dos Passos’s Manhattan Transfer (published in 1925, renewed in 1953)
Theodore Dreiser’s An American Tragedy (published in 1925, renewed in 1953)
Copyright owners of works first published in the United States in 1925 needed to renew the work’s copyright in order to extend the original 28-year copyright term. Initially, the renewal term also lasted for 28 years, but over time the renewal term was extended to give the copyright holder an additional 67 years, for a total term of 95 years. This means that works that were first published in the United States in 1925—provided they were published with a copyright notice, were properly registered, and had their copyright renewed—are protected through the end of 2020.
Once in the public domain, works can be made freely available. Organizations that have digitized text of these books, like Internet Archive, Google Books, and HathiTrust, can now open up unrestricted access to the full text of these works. HathiTrust alone will open up full access to more than 35,000 titles originally published in 1925. This increased access provides richer historical context for scholarly research and opportunities for students to supplement and deepen their understanding of assigned texts. And authors who care about the long-term availability of their works may also have reason to look forward to their works eventually entering the public domain: A 2013 study found that in most cases, public domain works are actually more available to readers than all but the most recently published works.
So what new creativity might we have to look forward to with the current collection of 1925 works entering the public domain? Blake Hazard, F. Scott Fitzgerald’s great-granddaughter and a trustee of his literary estate offers one possibility. Hazard told the Associated Press that, as The Great Gatsby’s95 years of copyright protection was coming to a close, “We’re now looking to a new period and trying to view it with enthusiasm, knowing some exciting things may come. […] I would love to see an inclusive adaptation of Gatsby with a diverse cast. Though the story is set in a very specific time and place, it seems to me that a retelling of this great American story could and should reflect a more diverse America.”
