Category Archives: Issues

Q&A with Calvin Warren: Open Access and Democratizing the Accessibility of Knowledge

Posted October 21, 2019

Calvin L. Warren (*used with permission*)

Open Access Week 2019 takes place from October 21-27. To mark the occasion, we’re featuring a series of Open Access Success Stories that shine the spotlight on noteworthy OA books, authors, and publishing models. Today’s post features Calvin L. Warren, Assistant Professor in the Department of Women’s Gender, and Sexuality Studies at Emory University. His book Ontological Terror: Blackness, Nihilism, and Emancipation (Duke University Press, 2018) examines how all humanism is based on investing blackness with nonbeing—a logic which reproduces antiblack violence and precludes any realization of equality, justice, and recognition for blacks. Ontological Terror is available under a CC BY-NC-ND license, supported by Emory University as part of the TOME initiative. We recently sat down with Professor Warren to discuss his decision to make Ontological Terror openly available.

Authors Alliance: Given that many (if not most) humanities monographs are still published via traditional channels, why did you choose open access publishing for Ontological Terror?

Calvin Warren: Unfortunately, academic knowledge is becoming increasingly inaccessible, and this “epistemological exclusivity” is resulting in disturbing patterns of asymmetry. Journals require membership to read current scholarship, and this financial barrier prevents students and scholars from resource poor institutions from acquiring information. The cost of academic books is equally exorbitant, reinforcing the dynamic that knowledge acquisition requires money. I’ve grown uncomfortable with this dynamic and had been searching for a mechanism to make my work more accessible to high school students, lay readers, community colleges, and institutions with limited resources. Open access provided such a mechanism and addressed the inequity of knowledge acquisition. Accessing my book for free has increased my readership and made it possible for black nihilism, as an idea, to expand its horizon.

AuAll: Did the subject matter of your research and/or your audience influence your decision to publish openly? If so, how?

CW: I’ve developed a philosophical perspective “black nihilism” that presents contemporary problems of black existence, anti black violence, and black suffering as deep philosophical issues. Because my work is in constant dialogue with the unceasing, ubiquitous, and regenerating problem of anti blackness, I wanted my work to reach as many people as possible—especially young people who live under the press of anti black terror. My subject matter required a platform widely accessible because people within and outside the academy were searching for answers to difficult questions.

AuAll: Before this book project, what was your impression of open access publishing?

CW: Open access was unfamiliar to me when I began my academic career, and I wish I’d known about it in graduate school. I do hope the [TOME] program recruits early career scholars, who are often producing the most provocative and groundbreaking work. I’m very grateful that Emory University invested time and resources for me to publish with open access.

AuAll: What results have you seen from publishing your book openly?

CW: Open access has widened my readership, exposing my work to artists, scientists, ministers, politicians, people I hadn’t expected to read my work. When access is open, more democratic, ideas can travel without restriction. And this has been my experience.

AuAll: What advice do you have for scholarly authors who want to make their ideas widely available?

CW: My advice to any authors with important ideas, especially those that speak to contemporary concerns, is to consider open access. Make an appointment with open access staff and discuss the possibility of this platform. It will create unexpected opportunities. Also, publishers often consider the open access funds “book sales” so it reduces some pressure from young scholars who need book sales for career stability. In short, open access is a gift to the academy and will lead the way in democratizing knowledge accessibility.

Audible Captions: The Case For and Against Fair Use

Posted October 15, 2019

The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an update on recent developments in the Chronicle Books v. Audible case, currently in the Southern District of New York. We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the proposed Audible Captions feature.

Update (Jan. 2020): After the publication of this post, the parties announced that they have settled the dispute.

Earlier this summer, Audible announced plans to enable machine-generated text captions to scroll across screens as audiobooks are played, a development that prompted a group of seven publishers—including HarperCollins, Penguin Random House, Hachette Book Group, Simon & Schuster, and Macmillan—to initiate a lawsuit against Audible. As our previous discussion of the litigation explained, the publishers maintain that the Captions feature would infringe their copyrights because it creates unauthorized derivative works and reproduces, distributes, and publicly displays unauthorized copies of the books.

Preview of the proposed Audible captioning function

In its recent filing, Audible argues that the publisher’s case should be dismissed because the licenses granted to Audible bar such a claim, and that in any event, the Captions technology is a fair use of the copyrighted works. This post focuses on the fair use arguments; a detailed account of the license issue can be found here (and in the related court filing, here).

A refresher on fair use may be useful to readers: Fair use is a limitation on U.S. copyright law which allows authors to use portions of a copyrighted work without permission or payment, so long as that use is “fair.” Courts consider at least four factors when determining whether a use is fair: 1) the purpose and character of the challenged use (often asking if the use is “transformative”), 2) the nature of the copyrighted work, 3) the amount and substantiality of the copyrighted work used, and 4) the effect on the potential market for the copyrighted work. These four factors do not work in isolation and must be carefully weighed together to determine if a use is fair.

Audible’s Fair Use Argument

Audible argues that Captions is a quintessential fair use. Audible argues that under the first fair use factor, Captions is unequivocally “transformative” and is a “utility-expanding” use of the licensed audiobooks: After paying for the right to experience the audiobook, listeners can use Captions to verify and focus on what they are hearing and to access external resources such as dictionaries or translations. Instead of allowing a user to read a book in any meaningful sense, Audible maintains that the purpose of Captions is to improve a listener’s ability to understand the work she has purchased.

Under the third fair use factor, Audible argues that the amount of the copyrighted work used to generate Captions is reasonable in relation to the purpose of the copying. Under the fourth factor, Audible argues that the Captions feature is unlikely to dissuade a user from purchasing the full text of the books, since the captions are not a substitute and do not provide a replacement for a book or e-book. Audible claims that the brief display of words does not provide a meaningful substitute for the actual book because the text of the original work is transcribed in small portions, it is displayed only momentarily and in sync with the audio, and it does not provide the ability to refer back or flip through a full coherent text. (As for the second fair use factor, Audible argues that the fair use case hinges on the other three factors.)

Taking the four factors together, Audible argues that Captions is a fair use of the licensed audiobooks.

Publishers’ Reply to the Fair Use Argument

In reply to Audible’s fair use arguments, the publishers argue that the Captions feature is not transformative and gives access to the entirety of the text, which is not fair use. Under the first fair use factor, the publishers argue that Captions is not transformative as it does not serve another and different purpose than what would be accomplished by the underlying text: both serve the purpose of reading. The publishers argue that the Captions feature “does not shed any new light on the text of Publishers’ Works, it does not comment on or criticize them, and it is not used to find an authorized version of them; it merely provides the Works’ text in competition with authorized offerings.”

Under the second factor, the publishers argue that most of the copyrighted works at issue are creative and fictional, weighing against a finding of fair use. Under the third factor, the publishers argue that the Captions feature provides access to the entirety of the work, also weighing against fair use. Here, publishers distinguish Captions from the Google Books snippets fair use case. Where Google Books only provides snippets of books to allow a user to assess whether access to the entire book would be useful, at no point do these snippets display more than 1/8 of a page around a searched keywords and 10% of each book is permanently unavailable. In contrast, Captions has no such restrictions and the feature would allow access to 100% of the underlying text.

Finally, under the fourth factor, publishers argue that Captions would cannibalize market opportunities for publishers to distribute or license the eBooks of its texts, thus weighing against a finding of fair use. The publishers maintain that Captions is likely to discourage users to purchase the print and ebook versions of the underlying text, and that Captions directly competes with parallel markets for the texts, including cross-format services like Audible’s own Immersive Reading services.

In sum, the publishers argue that the balance of the factors weighs against Audible’s fair use claim.

Going Forward

The parties are currently waiting on a decision on whether a preliminary injunction will be granted, which would prevent Audible from launching Captions on all of the publishers catalog pending trial. Meanwhile, Audible is delaying the complete rollout of Audible Captions, making it available only for audiobooks in the public domain until the litigation is resolved. We will continue to monitor and provide updates on the litigation.

Academic Authors Find Larger Audience through Controlled Digital Lending

Posted October 8, 2019

We thank the Internet Archive for permission to cross-post this piece on how controlled digital lending (“CDL”) can benefit academic authors, originally published on the Internet Archive Blogs. CDL is a model in which libraries digitize works in their collections and circulate the digitized title in place of a physical one. For more about CDL, check out our earlier coverage on the topic, including statements from authors in support of the model.

For Robert Darnton, the benefit of Controlled Digital Lending to academic authors is obvious: More people can read their work.

As the Carl H. Pforzheimer University Professor and the University Librarian, Emeritus at Harvard University, Darnton has long been a champion of broadening access to information. He also sees the value of making materials more widely available when it comes to his own research outputs.

Darnton has made two of his books, which are both still in print, freely available online: Mesmerism and the End of the Enlightenment in France (Harvard University Press, 1968) and The Business of Enlightenment: A Publishing History of the Encyclopédie, 1775-1800 (Harvard University Press, 1979). Several other of his titles are available to borrow electronically through the Internet Archive’s Open Library.

Eventually, Darnton said he’d like all his titles to be digitized. “I feel it’s in my best interest to reach as large a public audience as I possibly can,” said Darnton. He believes the exposure online helps with the marketing of his books. Indeed, there was an increase in sales of Mesmerism once it was digitized.

Many academics don’t rely on books for income and it’s rare that royalties continue after a few years. “What authors want when that ceases is to reach readers. This is the best way to do it,” Darnton said. “CDL is a good system and a way to really improve people’s access to literature without harming anyone.”

In higher education, resources from one campus library to another can vary widely. Even at Harvard, Darnton said it’s not possible to make all books available—let alone small libraries with limited budgets. Libraries can benefit from interlibrary loans and digital lending can provide even greater relief from isolation for institutions without the means of expanding their collections.

“CDL can make an enormous difference, even for such privileged environments as Harvard,” Darnton said. “There is momentum behind CDL. It is not just the way to go, but the way things are going.”

Authors Alliance Voices Concerns About the CASE Act

Posted September 10, 2019

Today, the United States House Committee on the Judiciary is scheduled to review H. R. 2426, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”). The CASE Act would establish a small claims tribunal within the Copyright Office as an alternative to federal court for pursuing copyright claims.

As we’ve previously written, Authors Alliance supports reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. Today, the high cost of litigation keeps many independent authors and other creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the CASE Act as written invites abuse and poses a high likelihood of harm to authors as both claimants and respondents in the proposed tribunal.

To address problems with the current draft of the CASE Act, our letter urges the Committee to:

Limit statutory damages to cases where it is impossible or cost prohibitive to prove actual damages and develop principles to guide awards of statutory damages;
Remove restrictions on the grounds for judicial review of the tribunal’s decisions;
Include additional safeguards to deter copyright trolls and preserve the utility of the small claims tribunal for independent authors and creators;
Require potential respondents to affirmatively opt-in to the small claims process; and
Narrow the jurisdiction of the small claims tribunal.

Read more about these recommendations in our letter to the Committee.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works in lawful ways. We urge the Committee to modify the bill to better serve the creators it is intended to benefit.

Publishers Sue to Block Audible Captions

Posted August 26, 2019

Last Friday, a group of seven publishers—including HarperCollins, Penguin Random House, Hachette Book Group, Simon & Schuster, and Macmillan—filed suit in the U.S. District Court for the Southern District of New York against the audiobook platform Audible. Earlier this summer, Audible (which is owned by Amazon) announced plans to enable machine-generated text captions to scroll across screens as audiobooks are played, a development that the publishers view as copyright infringement. The lawsuit, Chronicle Books, LLC et al. v. Audible, Inc., seeks an injunction to prevent the September release of the captioning function.

According to the publishers’ complaint, the proposed caption feature infringes on their copyrights because it creates unauthorized derivative works and reproduces, distributes, and publicly displays unauthorized copies of books in the form of the text accompanying the audiobooks. They argue that the text could act as a direct substitute for a book’s text in a physical book or e-book form and therefore competes with the publisher’s existing markets. The publishers state that “Audible’s admitted goal is to give users a reading experience, despite Audible only having the right to distribute audiobooks.”

Audible issued a statement in response to the lawsuit, stating that “We disagree with the claims that [the caption feature] violates any rights and look forward to working with publishers and members of the professional creative community to help them better understand the educational and accessibility benefits of this innovation.” According to the statement, the caption function was developed “to help kids who are not reading engage more through listening” and to address “the risk of losing a significant portion of the next generation of book readers.”

We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the proposed Audible caption feature and this litigation.

Q&A With Jeanne Fromer and Christopher Sprigman on “Copyright Law: Cases and Materials”

Posted August 20, 2019

Jeanne Fromer and Christopher Sprigman of NYU Law School recently published their new casebook Copyright Law: Cases and Materials as an open access work. A PDF of the book is freely available to everyone to read and download under a Creative Commons license, and may also be purchased as a low-cost print-on-demand book. Instructors who register on the site can also access model syllabi and participate in a discussion forum.

In this Q&A, we asked them about publishing the casebook openly instead of as a traditional textbook, and the benefits of that decision.

Authors Alliance: Given the many incentives to publish textbooks via traditional channels, why did you choose open access for Copyright Law?

Jeanne Fromer and Christopher Sprigman: As law professors, we are concerned about the high price of law school textbooks. Many of our students are already taking on significant debt to fund their law school education. The high cost of commercially-published textbooks makes a tough situation worse. We wanted to see if we could provide a high-quality textbook, in both digital and print formats, that would provide professors and students with a free or low-cost option.

AuAll: How did you select which Creative Commons license to apply?

JF & CS: We chose a Creative Commons Attribution-NonCommercial-NoDerivatives (CC-BY-NC-ND) license. We selected a non-commercial license because we didn’t want people charging money for a book that we meant to be available for free (or, in printed form, at cost). And we selected a license that restricted derivatives because we did not want people altering our book to express views on copyright law that we would not endorse, while attributing those views (misleadingly) to us. Just to be clear, we are willing to approve most derivative works. For example, we are willing to approve derivatives that re-arrange our materials in ways that particular professors find helpful. All people have to do is email us, tell us what they want to do, and so long as we feel that it fairly represents our views, we’ll approve.

AuAll: What results do you see from publishing your books openly? What do you see as the pros and cons of embracing this model?

JF & CS: Since we released the book a few weeks ago, we’ve learned of adoptions by professors at Cardozo School of Law, Case Western Reserve University School of Law, Harvard Law School, National Law University Delhi, New York University School of Law, Northwestern Pritzker School of Law, Notre Dame Law School, Saint Louis University School of Law, University of California, Berkeley School of Law, University of New Hampshire Franklin Pierce School of Law, and William & Mary Law School. We are very grateful to the professors who have adopted it thus far.

The pros of publishing the book under a CC license are pretty obvious: we get the book out there at no cost for those who download it from our website and at very low cost for those who order a printed copy from Amazon. There another important benefit: we can update our book more frequently than is typical for commercially-published textbooks.

As for cons … it’s difficult to think of any. We don’t think that commercial textbook publishers do much editorial work to make their casebooks better. They are mostly marketing organizations … and, frankly, between us we know most of the people who teach copyright in the U.S. and many who teach it internationally, and we find it easy to reach them. For those reasons, a commercial publisher’s marketing capacity isn’t very useful to us, as it likely would not be to most legal academics.

AuAll: Could you share some lessons learned and/or other suggestions for authors on how they can make their works available in the ways that they want?

JF & CS: One lesson is that it’s fun to write a textbook with a friend! We both enjoyed working on this together. Another lesson is that writing a textbook isn’t quite the slog that people may think it is. We spent a lot of time structuring the book and selecting and editing cases, and doing so gave us a nice opportunity to think anew about which cases – and which parts of cases – were most important and most helpful to students. And then we spent a good bit of time writing the parts of the book that frame the important questions in copyright law. There is a good deal of creativity involved in how you do this … you have to be clear, and thought-provoking, and engaging, and fair. At the end of this process, we’ve produced a casebook that we feel proud of.

AuAll: We are pleased to count both of you among the members of Authors Alliance. Could you say a few words about the value you find as a member?

JF & CS: We both appreciate the work of Authors Alliance, an organization that works on behalf of authors who write to be read. We are both very much in that camp: we’ve written our textbook because we value our role as teachers and scholars, and we want to lower the barriers to students who are interested in learning about copyright law. There are a lot of authors whose motivations are similar to ours, and Authors Alliance speaks for them.

Jeanne Fromer is Professor of Law at NYU, specializing in intellectual property including copyright, patent, trademark, trade secret, and design protection laws. She is a faculty co-director of the Engelberg Center on Innovation Law & Policy.

Christopher Jon Sprigman is Professor of Law at NYU, where he teaches intellectual property law, antitrust law, torts, and comparative constitutional law. His research focuses on how legal rules affect innovation and the deployment of new technologies.

New Accessibility Resource: The Law and Accessible Texts: Reconciling Civil Rights and Copyrights

Posted July 30, 2019

black and white photo of a person's finger reading Braille — photo by Eddau | CC0

The Association of Research Libraries (ARL) and the University of Virginia Library recently released The Law and Accessible Texts: Reconciling Civil Rights and Copyrights, a white paper by Brandon Butler of the University of Virginia and Prue Adler and Krista Cox of ARL. The paper provides an overview of relevant caselaw, policy, and best practices.

As the Introduction states, “[t]he report begins with a brief description of the current state of civil rights laws favoring accessibility, including trends in enforcement in recent years. Section II provides an account of why and how copyright concerns have served as stumbling blocks for disability service offices (DSOs). Section III walks through each step in a remediation workflow and provides some key legal ramifications for how that step may proceed. Section IV explores more deeply the key provisions in copyright law favoring the creation and sharing of accessible texts; this section will be of most interest to university counsel’s offices and other legal experts. Finally, Section V surveys some legal and policy considerations beyond copyright and civil rights that may be worth bearing in mind as institutions design their collaborations in areas where law gives them flexibility.”

Authors Alliance’s recent coverage of accessibility issues includes a collection of resources and background about the Marrakesh Treaty. For a deeper dive into the topic of accessibility, see also our previous resource roundup, released in the fall of 2018 in connection with our report on Authorship and Accessibility in the Digital Age.

My Publisher Agreed to Revert Rights: Now What?

Posted July 23, 2019

Photo by Javier Allegue Barros on Unsplash

Since we first published our guide to Understanding Rights Reversion in 2015, our rights reversion resources page has been a one-stop shop for authors seeking the information they need to get back the rights in their works.

For those who are new to the concept of rights reversion, the guide is a good place to start. It explains what rights reversion is, how it benefits authors and readers, and how to go about reverting rights. For authors who already know that they wish to pursue reversion, the resource page features guidance and letter templates that authors can refer to when contacting their publishers to request a reversion of rights. The resource page also highlights the success stories of authors who have regained their rights in order to release their works under open licenses, make their works available as low-cost e-books, repackage a book series, or even place their works with a new publisher.

Over the years, our members have reached out to ask for more information about what happens at the point when a publisher agrees to revert rights. In this post, we’ll cover:

Getting the files and permission you need;
Understanding and tracking ongoing obligations related to your work;
Purchasing your publisher’s inventory of your work; and
Updating the Copyright Office’s records with new ownership information.

Getting the Files and Permission You Need

When reverting rights, it is helpful to ask your publisher for both the physical materials and any the intellectual property rights you may need for future printings. In fact, some publishers are required by the terms of the publishing contract to provide authors with these items. The items that you may need include not only the digital design files and rights for the text you created, but also the files for art and other materials created by third parties, as well as the permission to use these items if permission is required.

For example, authors who want to reuse the same cover art when they make their reverted books newly available may need to acquire both the source files and a copyright license to reuse cover art that was created or commissioned by their publisher. (Of course, when it applies, authors may also rely on fair use to incorporate third-party works in their works.)

Understanding and Tracking any Ongoing Obligations

Your publisher may have other obligations to fulfill after the reversion. It may, for instance, still need to make royalty payments for sales accrued before the reversion or from other sales or licenses that are still ongoing. As you finalize your reversion, it is important to understand your publisher’s accounting cycle and ask for clarification if you are unsure how and when your publisher plans to account for past or ongoing sales.

Importantly, authors who regain rights need to understand whether any outstanding licenses to their works are still in place and how these licenses will be treated. For example, if an author’s publisher has licensed the French translation rights to her book to another publisher, she will want to know whether the license is exclusive or nonexclusive, whether the license survives the reversion, and whether she can expect any ongoing royalties or other payments for the license. If the license is exclusive and survives the reversion, the author’s reversion is subject to that license. This means that she cannot make and sell French translations of her book without violating the other publisher’s exclusive rights. But she may have ongoing royalties for the sales of the French translation, which she should be sure to track.

Purchasing Your Publisher’s Inventory

If your publisher has any remaining copies of your book in stock, you may consider offering to purchase the remaining inventory. In fact, some contracts give authors the right to purchase stock at the time of reversion at cost. This gives authors the opportunity to purchase these copies at a discounted price in order to sell or otherwise share these copies.

If you are not interested in purchasing copies, or your publisher does not want to sell them to you, it is still a good idea to find out how many copies the publisher has left in its inventory. Often, publishers explicitly retain the right to sell their existing inventory in reversion agreements, subject to continued royalty payments to the author. If you know how many copies the publisher has in stock, you can better understand and track any royalties due from these sales.

Updating the Copyright Office Records with New Ownership Information

Last but not least, after reversion, authors should consider updating the U.S. Copyright Office’s records with their works’ new ownership information. The records held by the U.S. Copyright Office will likely list your publisher as the copyright owner (“claimant”) and/or the point of contact for permission to use the work. After reversion, it is up to you (as the new owner of the copyright) to update this information.

Fortunately, new copyright owners can record a transfer of copyright with the Copyright Office to update these records. Updating the Copyright Office’s records after you revert rights establishes a public record of your new ownership rights. This will make it easier for future users to find accurate information about the current ownership status of your work. When people know whom to contact for permission, it can help increase the dissemination of your work, and potentially your compensation if you license paid uses.

A transfer of copyright can be recorded by submitting a signed or certified, complete, and legible copy of the document being recorded (such as a rights reversion letter from your publisher) to the Copyright Office, together with the required fee (currently $105 for a single title) and Form DCS cover sheet. If accepted, the Register of Copyright will record the document and issue a certificate of recordation. As of July 2019, the processing time for recording transfers or other documents related to copyright is 9 months. For more information on recording transfers of copyright ownership, see Copyright Office Circular 12: Recordation of Transfers and Other Documents.

If you want to know more about how to get your rights back, check out the digital or print version of our guide to Understanding Rights Reversion. For guidance on self-publishing following a reversion of rights, see How Traditionally Published Authors Can Repackage and Self-Publish Their Backlist by author Jess Lourey.

If you have questions about rights reversion you’d like to see Authors Alliance address, send a message to reversions@authorsalliance.org.

Ruth Okediji on the Limits of International Copyright Exceptions for Developing Countries

Posted June 25, 2019

bridge with flags in Geneva — photo by hpgruesen on Pixabay

In a recent article in the Vanderbilt Journal of Entertainment & Technology Law (available on SSRN), Ruth Okediji of Harvard Law School offers a critical analysis of the design of the international copyright system as it relates to economic development in the Global South. In the article, Okediji proposes changes to the international copyright limitations and exceptions (“L&Es”) system based on those insights.

Okediji argues that while liberty-enhancing L&Es (such as those that facilitate civic and social engagement, or ensure freedom of expression) have enjoyed considerable acceptance in the international copyright system, new international L&Es are needed that strengthen the capacity of developing and least-developed countries to absorb and utilize knowledge inputs (what Okediji refers to as “development-inducing L&Es”). In particular, Okediji argues that efforts to formulate a coherent L&E standard for education, particularly for online educational activities, could be an important step in providing the legal framework necessary to facilitate access to knowledge. She also argues that mandatory L&Es for libraries, archives, and other educational and cultural institutions are essential to facilitate both liberty-enhancing and development-inducing goals.

As Okediji writes:

“The prospects for developing and least-developed countries to benefit from global research and development (R&D) spillovers, to participate in international scientific collaborations, and to reduce the innovation divide are brighter than at any other time in history. Turning these prospects into realizable gains, in part, requires addressing barriers to knowledge acquisition and facilitating the diffusion of knowledge across borders. International copyright law is not the only hurdle to these goals, but it is an important one. Efforts by various stakeholders to address the global knowledge and innovation gap would benefit from renewed attention to the international copyright framework and, especially, a redesign of international copyright L&Es.”

While Okediji considers the L&Es agenda at WIPO to be a crucial part of the longstanding attempts to align copyright law with broader welfare concerns, she emphasizes that the reform that is necessary for copyright to accomplish the encouragement of learning and development in developing countries must be also advanced at national and regional levels.

The full text of Professor Okediji’s article can be viewed and downloaded here.

Authors Alliance has recently participated in conversations about international limitations and exceptions to copyright. Last November, Authors Alliance presented a statement to the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights explaining how limitations and exceptions for education can benefit authors, without undermining fundamental purposes of copyright policy, and can encourage the diffusion of knowledge.

“A More Balanced Approach to Copyright Reform”: Michael Geist On the Statutory Review of the Canadian Copyright Act

Posted June 12, 2019

In December 2018, Authors Alliance submitted a brief to the Canadian Committee on Industry, Science and Technology in response to a request for public comment. The committee was tasked by Parliament with reviewing Canada’s copyright statutes and issuing a report with recommendations for action and further consideration. Our brief urged the retention of reversionary rights in Canada’s Copyright Act and recommended amendments to the provision to enhance the utility of reversionary rights.

Earlier this month, the Committee on Industry, Science and Technology released its Statutory Review of the Copyright Act. Our brief was cited in the report, and we were pleased to see that the report includes recommendations to expand fair dealing and reversionary rights, which benefit creators who wish to make fair use or to regain rights to their previously published works.

Professor Michael Geist of the University of Ottawa prepared an analysis of the report’s recommendation on fair dealing in a post on his blog (made available under a Creative Commons license), which we have re-posted below. For a deeper dive into the future of the Canadian Copyright Act, we recommend Geist’s summary of the full report.

Fixing Fair Dealing for the Digital Age: What Lies Behind the Copyright Review’s Most Important Recommendation

The long-awaited Canadian copyright review report features numerous good recommendations, many of which were rejections of industry lobbying: a rejection of new restrictions on fair dealing for education, rejection of Bell’s FairPlay site blocking initiative, and rejection of limits on safe harbours in response to the so-called “value gap.” Yet the most notable recommendation is the committee’s support for fair dealing for the digital age by expanding its scope and ensuring that it applies equally in the analog and digital worlds.

I wrote about the need to fix fair dealing for the digital age in May 2018:

there is a need to fix fair dealing by ensuring that it is not hamstrung in the digital environment. The Canadian test for fairness is consistent with those found in other countries, but there are barriers that exist for fair dealing in the digital world that are not found in the analog one. The most obvious example are Canada’s digital lock rules, which exceed the requirements at international law in the WIPO Internet treaties. As many warned five years ago, Canada has created a system that allows for unnecessarily restrictive limits on digital fair dealing. There is a need to fix this problem by establishing an exception within the anti-circumvention rules to allow for circumvention for any lawful purpose.Moreover, the fair dealing purposes should be expanded, ideally by adopting a “such as” approach to its list of enumerated purposes that would ensure the law remains relevant in the face of new innovation. Alternatively, given Canada’s prioritization of artificial intelligence, there is a need for a fair dealing exception for text and data mining similar to that found in many other countries.

The copyright review addresses all three issues. First, the committee recommended adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:

However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.

This change will help ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.