Category Archives: Issues

Spotlight on Book Publication Contracts: Providing Input on Cover Design and Pricing

Posted February 19, 2019

In our Spotlight on Book Publication Contracts series, we are shining the light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Book Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

We’ve highlighted contract terms that help authors meet open access goals and featured ways authors can shape their publication contracts to retain some control over their rights. In this installment of our Spotlight on Publication Contracts, we’re sharing ways you can shape your contract to give you a say in how your work will be presented to the world.

Contracts typically include clauses that allocate the decision-making authority for important parts of the publishing process—from the timing of publication to the title of the work. Your publisher will likely approach these decisions with an eye towards maximizing profit, which may well align with your interests. But you may also have a stake in these decisions because they can influence how you and your work are perceived by potential readers. In this post, we cover ways you can have a say in your book’s cover design and the price of your book.

Cover Design

While a publisher’s choices about the cover design for your book will likely reflect its best judgment on what will help the book sell. But sometimes, you may have strong preferences and want to include in your contract a right of approval over any cover design decisions.

Success Story: When Authors Alliance member Janice Rhoshalle Littlejohn negotiated the contract for her book Swirling: How to Date, Mate, and Relate; Mixing Race, Culture, and Creed, she encountered a provision that would allow her to pick a book cover out of three options. Because she knew that her book’s theme would be challenging to portray artistically, she crossed out this provision and added in language giving her final say over the book’s cover. Her publisher accepted this change. Later, when her publisher sent Janice three unappealing book covers to choose from, Janice proposed that a graphic designer she knew should design the cover instead. Her publisher initially balked, but when she pointed out that she had final approval rights her publisher relented and gave Janice the cover she wanted.

As an alternative, you could consider including a contract term giving you the right to be consulted as the cover design is contemplated. The publisher will still have the final say, but it will at least be obligated to consider your ideas in the process.

Pricing

Pricing is usually central to your publisher’s marketing strategy. Your publisher will likely select a price for your book based on historical sales figures, prices of comparable books, cost of production, and other factors. But pricing is an important consideration for some authors. For example, some authors of academic books want to make their works available at a price that is affordable to students.

If it is important to you that your book is sold at a specific price, you can ask your publisher to share its anticipated production expenses and sales projections for your book so you can better understand its pricing strategy. If you understand what factors are driving your publisher’s pricing decision, you could negotiate for specific changes—such as agreeing to a lesser page count or using fewer illustrations—that will help keep the price low.

Success Story: When Pamela Samuelson negotiated the contract for her forthcoming book, making it available at an affordable price in both hardcover and paperback editions was one of her key concerns. Therefore, before negotiating she looked at the price of other books on similar subject matter issued by the publisher. Professor Samuelson singled out those books that had a price within her acceptable range and whose page count and format were comparable to hers, and then told her publisher she wanted her work to be priced like those books. To sweeten the deal, she offered to forgo an advance on royalties, which would reduce her publisher’s upfront costs. As a result, Samuelson was successful in getting her publisher to agree to price the book in the range that she wanted.

Even if you can’t get your publisher to agree to sell your book at a specific price, there are still some indirect strategies you could pursue to make your book more affordable. For example, you can ask your publisher to release your book only in paperback, make it available as an e-book, or simultaneously release your book in hardcover and paperback.

For more on how to ensure you can provide input on the finishing touches of your book, including the timing for publication, the formats which it will be made available, its title, and design and production decisions, see pages 144-158 of Understanding and Negotiating Book Publication Contracts.

Giving the Authors a Voice in Litigation? An ACS v. ResearchGate Update

Posted February 15, 2019

We’re grateful to David Hansen, Director of Copyright & Scholarly Communications at Duke, for granting permission for us to repost the following update on the ACS v. ResearchGate lawsuit. This article originally appeared on the Scholarly Communications @ Duke blog.

You might recall me writing about ACS v. ResearchGate, a lawsuit filed last fall in the United States by ACS and Elsevier against ResearchGate. It followed a similar lawsuit filed a year earlier in Germany. In both the German and U.S. versions of this lawsuit, the basic complaint is that ResearchGate infringed the publishers’ copyrights by hosting and publicly distributing scholarly articles for which the publishers claim to own exclusive rights.

Nothing had happened in the U.S. case for months, but yesterday ResearchGate made several filings. ResearchGate has apparently retained Durie Tangri (the same law firm that represented Google in the Google Books lawsuit) and has invested in making some opening arguments that I think are pretty smart.

Authors’ rights: the argument I’ve been waiting for

The most interesting ResearchGate filing isn’t its factual answer to the complaint, but rather the motion that ResearchGate made accompanying its answer. That motion, with the inconspicuous title of “Motion for Notice Under 17 U.S.C. § 501(b)” asks the court to open the door for something big: communicating about the litigation with the actual authors of the articles posted to ResearchGate. Imagine that!

ResearchGate begins its argument by pointing out the unusual nature of the case, and why it is so important to clearly sort out who owns rights (authors versus publishers) in the articles underlying the lawsuit:

A typical copyright infringement lawsuit about copyrighted material appearing online involves a content creator suing a website owner when an unauthorized third party has posted the creator’s work to the website without the creator’s permission. But here, [the publishers] are suing . . . ResearchGate for allowing scientists to share their own work. . . . Under Plaintiffs’ infringement theories, if ResearchGate is infringing Plaintiffs’ copyrights in the articles at issue here, so are those articles’ authors. Accordingly, a finding that the appearance of those articles on the ResearchGate site was infringing would necessarily mean that the people who conducted the research and wrote the articles did not have the right to share them.

The motion goes on to argue that many authors of these articles (almost all of which were co-authored) still hold a valid copyright interest in them that would allow those authors to legally post the articles to ResearchGate. Even assuming that the publishers obtained valid transfers of exclusive rights from the corresponding authors, ResearchGate argues that there is no evidence that the publishers also obtained a valid transfer of exclusive rights from co-authors of the papers. Thus, those co-authors are free to make what uses they want with their papers, including posting to ResearchGate.

Given that these authors may hold rights, ResearchGate argues that § 501(b) of the Copyright Act allows (and may even require) the court to order notification of those authors as third parties who have a “claim or interest” in the copyrighted works at issue. Section 501(b) provides that the court:

may require written notice of the action with a copy of the complaint provided to “any person shown . . . to have or claim an interest in the copyright,” and
shall require that such notice be served upon any person whose “interest is likely to be affected by a decision in the case,”

In addition to notification, the statute also provides for a way to actually bring third-parties into the lawsuit. It says that the court “may require the joinder, and shall permit the intervention of any person having or claiming an interest in the copyright” (emphasis mine).

ResearchGate is, for now, just asking the court to order the plaintiffs to notify other potential copyright owners about the lawsuit. Specifically, ResearchGate is asking the court to “order Plaintiff’s “to serve ‘written notice of the action with a copy of the complaint upon’ each co-author of each journal article at issue in the lawsuit who is not a corresponding author. . . .” I don’t know exactly how many authors that is (as I’ve said previously, there are over 3,000 articles), but it’s probably a lot.

Procedure, procedure, procedure

You may think I’m getting all worked up over a little bit of civil procedure. Maybe. But I think it is important because over and over again we’ve seen large-scale copyright infringement suits fought between the large organizations (e.g., Authors Guild v. Google, Authors Guild v. HathiTrust, Elsevier v. SciHub, Cambridge University Press v. Becker (Ga. State)) without much input at all from the actual authors of the works that form the basis of those lawsuits. When those authors have been allowed to have a say, such as in the Google Books class action certification process, their input has meaningfully altered the outcome.

For the ResearchGate litigation, it seems like a good start to at least require the Plaintiffs to notify authors that their work is being used as the basis for a copyright infringement lawsuit. I would hope, once authors are notified, that the court would also allow those same authors to intervene, as the statute allows, to have their own say in how their works are shared with the world.

Rights Reversion Success Story: James O’Donnell

Posted February 12, 2019

Head shot of James O'Donnell

James J. O’Donnell is the University Librarian at Arizona State University Libraries and has published widely on the history and culture of the late antique Mediterranean world. He successfully reverted rights to his 1992 edition of Augustine’s Confessions and made the book available in an open access digital version. Continued interest in the online book led to a subsequent reprint and later an additional paperback print run. Professor O’Donnell shared his rights reversion experience with us in the following Q&A.

Authors Alliance: How did you first learn of rights reversion?

James O’Donnell: In the course of becoming involved in digital publishing in 1990 and after (and founding the oldest open access online journal in the humanities, Bryn Mawr Classical Review), I had been around conversations about rights and about signing away as little as you need to [in a contract]. The book in question, Augustine: Confessions (Oxford University Press 1992, 3 volumes) was in my mind at the time, so I familiarized myself [with rights reversion].

My book was expensive and specialized, with a first print run of 1,000 copies and a provision that I would get royalties if it sold more than 600 copies. The book sold for $300, or about $550 in 2018 dollars. I figured this meant that OUP expected to sell 600 copies, or a few more. In fact it had a reprinting of 250 copies and sold out all of those. In 1995, my editor at Oxford told me with regret that she had been unsuccessful in getting a paperback edition, so the book was going out of print. I was remarkably cheerful about this prospect [because it made the book eligible for reversion].

AuAll: What motivated you to request your rights back?

JJO: I had been speaking of digital “postprints” for some time and had in fact posted an earlier book of mine from 1979 (long out of print) in that way. The Oxford volumes of Augustine’s Confessions were meant to be of high value for scholarly users, from student to researcher, and I was well aware that use was naturally limited to library copies, often non-circulating. I wanted better.

AuAll: Were you eligible to exercise a clause in your contract granting reversion rights?

JJO: Yes, I wrote a simple letter to Oxford University Press. There was a clear clause in the contract.

AuAll: How has the reversion helped you? What have you been able to do with your book since reversion?

JJO: First, I worked with a consortium of scholars doing Internet publishing in classics to create a digital online version of my edition of Augustine’s Confessions, now hosted at the Stoa Consortium and at Georgetown University (my former institution) on mirror sites. This resource has been available for about twenty years and is regularly praised as a teaching and research tool of considerable value.

Then, in about 2000, OUP decided to have another publisher, Sandpiper Books, do limited run reprints (not yet print-on-demand) of some of their “greatest hits” of scholarly publishing in classics, and chose to include Confessions in the series. When they told me they intended to do this, I reminded them that the rights were now mine, and we proceeded to agree on terms for licensing this specific use for a modest stipend.

Around 2012, OUP decided that the book indeed had legs and made it available in paperback. It has been in print in that format since 2013 for $179, or about one-third the original hardcover price. It was surely the case that the digital presence with open access on the web kept my book in mind and created the market for those who decided they needed a print copy. It is highly unlikely that the book would have had better sales without the e-version (and quite likely that it would not have done as well).

AuAll: What advice do you have for other authors who might want to pursue a reversion of rights?

JJO: Authors should know what they want out of their books, other than the traditional thin stream of royalties that academic books receive. They should inform themselves about their rights, sign rights away carefully at the outset, and then keep an eye on just what outcome they are looking for. My sense is that with the ease of print-on-demand technology, many books may effectively never go “out of print,” requiring a different kind of strategy and vigilance for authors.

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We couldn’t agree more! Authors should be informed about their rights, and have strategies in mind for using them wisely—not only at the time a book deal is signed, but in future years, as well. To that end, we recommend two of our educational resources to help authors understand what exactly rights reversion is, how reversion fits into a book publication contract, and how to successfully secure a reversion of rights.

If, like Professor O’Donnell, you have previously published books and wish to learn more about regaining your rights, visit our Rights Reversion resource page, where you’ll find our complete guide to Understanding Rights Reversion, letter templates for use in contacting your publisher, and a collection of reversion success stories from other authors who successfully regained their rights and made their works more widely available.

If you currently have a book in progress and have not yet placed it with a publisher, we also recommend visiting our Publication Contracts resource page, which features our new guide to Understanding and Negotiating Book Publication Contracts. Knowing about rights reversion and reversion clauses before you sign your publication contract can help to clarify the conditions for reversion and pave the way for a successful reversion of rights in the future.

Authors Speak Out in Favor of Controlled Digital Lending

Posted February 4, 2019

In September 2018, Authors Alliance joined with other organizations including the Digital Public Library of America, Internet Archive, and UC Berkeley Library to sign on to a statement in support of Controlled Digital Lending (CDL). CDL offers a good-faith interpretation of copyright law for libraries considering digitizing works in their collections and circulating the digitized title in place of a physical one. The statement is accompanied by an in-depth white paper by David Hansen and Kyle K. Courtney analyzing the legal arguments for CDL.

Under the CDL’s digitize-and-lend model, libraries make digital copies of scanned books from their collections available to patrons (the hard copy is not available for lending while the digital copy is checked out, and vice versa). A library can only circulate the same number of copies that it owned before digitization. Like physical books, the scanned copies are loaned to one person at a time and are subject to limited check-out periods.

System design choices and collection decisions, like selecting books that are orphaned (works for which the copyright owner cannot be identified or located), books that are out of print, or books that are non-fiction or primarily factual enhance the fair use arguments that underpin CDL. As Hansen and Courtney explain, CDL is “not meant to be a competitor to Overdrive, nor a replacement for licensing e-books of best-sellers or other currently licensable e-book content,” but CDL is particularly helpful to “address access to the large number of books published in the ’20^th Century black hole’ that have little hope of otherwise bring made available to readers online.”

Libraries are now using CDL to lend books, so we asked our members to share their views on their books being made available through CDL. Here’s what they had to say:

CDL benefits authors, readers, and researchers

I was thrilled to see one of my books available through Controlled Digital Lending at the Internet Archive. It’s an older book that’s relatively hard to find, and I’m so pleased that people can get access to it today. CDL is an excellent way for authors like me to reach readers. But it’s also a way for authors to do research without having to visit remote archives or libraries. I’ve done a great deal of historical research on out-of-print books and periodicals through CDL programs, and I’m incredibly grateful for it.
– Annalee Newitz
Author and Journalist

CDL helps to increase access to
out-of-print and otherwise unavailable works

Controlled Digital Lending provides authors with an opportunity to reach a broad public, especially if their books have gone out of print. It does not cut down on their royalties any more than sales to libraries do, and by making works widely available, it can give them new life. Several of my books are accessible through CDL, and I am delighted with the result.
– Robert Darnton
Professor of History and University Librarian Emeritus, Harvard University

CDL is a reasonable interpretation of fair use

CDL is beneficial for all authors whose readerships are not served by the narrow interpretation of the fair use doctrine that is the foundation of various objections to CDL. Library lending must move forward into the digital future, and part of that future is getting more authors’ works into the hands of more readers, which CDL helps to make possible. Only a few authors’ needs are served by restrictive models of access: most of us need all the help we can get connecting readers to our works! In addition, libraries are among the most important institutions in contemporary society, representing freedom of access to information. How many other ideals-driven public institutions are as alive as the library world? The CDL is an important 21st century expansion of that mandate. Let objecting authors remove their works, and let the rest of us share our books with the reading public through library systems.
– Megan Prelinger
Author
Inside the Machine: Art and Invention in the Electronic Age (W.W. Norton, 2015)
Another Science Fiction Advertising the Space Race (Blast Books, 2010)

CDL can alleviate the gaps in availability
brought about by overly long copyright terms

In the treacherous, fearful underworld of Rights and Permissions I am often confused: I know that the Evil Mouse, manipulating the late Rep. Sonny Bono and others, extended copyright beyond reason. My feeling is that if my books bring royalty money to my children after I am gone, that is good. But as to my grandchildren—I love them beyond measure, but let them write their own books.
I don’t want to deprive any fellow-writers of income from their creations. Those property rights sometimes conflict with the author’s desire—strong in us poets—to be read. Those conflicting values: to be valued, and to be read—are part of what makes the terrain so scary.
May Controlled Digital Lending, as a protective guide there, be wisely Controlled.

– Robert Pinsky
former U.S. Poet Laureate

CDL helps authors reach audiences

I write so that people will read my books. That’s reason enough for me to support CDL.
– Paul Brest
Former Dean and Professor Emeritus (active) at Stanford Law School

The Public Domain and Scholarly Research: Alexandra Stern on Increased Access to the History of American Eugenics

Posted January 31, 2019

We are grateful to Alexandra Minna Stern for this contribution to our series of posts on the public domain. Stern is Professor and Chair of the Department of American Culture at the University of Michigan. She also holds appointments in the Departments of History, Women’s Studies, and Obstetrics and Gynecology. She directs the Sterilization and Social Justice Lab housed in the Department of American Culture. Her research focuses on the history of eugenics, genetics, society, and justice in the United States and Latin America.

The convergence of open digital access and large-scale text scanning projects makes 2019 Public Domain day a major event for scholars of American history and culture. Thanks to HathiTrust, more than 50,000 materials from 1923 including books, films, and musical scores are available for unrestricted use and distribution.

This is a boon for historians of science and society, particularly those of us interested in the history of that misguided science of genetic selection—eugenics—that played a role in justifying racial immigration quotas and the sterilization of the “unfit” in the early twentieth-century. The eugenics era is disturbing and fascinating on its own historical terms and deserves further scrutiny. It also can serve as an ideological antecedent for key facets of the rhetoric of white nationalism that has surfaced in recent years and was on display at the Unite the Right rally in Charlottesville, Virginia in August 2017.

Kevin Smith on “Lessons from the ReDigi Decision”

Posted January 18, 2019

The following analysis by Kevin Smith, Dean of Libraries at the University of Kansas, originally appeared on In the Open on January 17 under a CC-BY license. We’re featuring it here to provide some context for the issues surrounding Controlled Digital Lending (CDL) in the wake of the recent decision in Capitol Records v. ReDigi. Authors Alliance’s statement in support of CDL can be read here.

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The decision announced last month in the ReDigi case, more properly known as Capitol Records v. ReDigi, Inc. was, in one sense, at least, not a big surprise. It was never very likely, given the trajectory of recent copyright jurisprudence, that the Second Circuit would uphold a digital first sale right, which is fundamentally what the case is about. The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made. His reasoning pretty much closes the door on any form of digital first sale right, even of the “send and delete” variety that tries to protect against multiple copies of the work being transferred.

What is perhaps more surprising is that the 2nd Circuit also rejected a fair use defense for ReDigi’s system. Some were particularly surprised that fair use was treated so dismissively by Judge Pierre Leval, who is one of the most respected jurists in regard to fair use, and the author of Toward a Fair Use Standard, the article upon which the Supreme Court relied when it transformed fair use thinking in the Campbell v. Acuff-Rose case. For my part, however, I am inclined to be a little less surprised, and to still think that we can learn several things from this decision.

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

Posted January 17, 2019

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

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

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

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

20190115_RegistrationModernization

Authors Alliance Submits Brief Supporting Reversionary Rights in Canada

Posted December 10, 2018

photo by RonnyK | CC0

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

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

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

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

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

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

20181210_AuAll_CA_Review_Termination

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

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

Posted December 5, 2018

photo by 422737 |CC0

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

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

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

Posted December 3, 2018

photo by hpgruesen | CC0

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

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

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

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

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

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

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

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

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

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