Category Archives: Issues

“Misleading on Fair Dealing”: Michael Geist on Educational Uses of Content in Canada

Posted November 29, 2018

The following post is part of a series entitled “Misleading on Fair Dealing,” by Professor Michael Geist of the University of Ottawa. Here, Geist shares his recent testimony before the House of Commons’ Standing Committee on Canadian Heritage. Canada is currently considering a comprehensive copyright review, and these comments shed light on the issues surrounding educational uses of copyrighted content. Authors Alliance has been actively following this and other discussions of fair use and educational limitations and exceptions to copyright, both in the U.S. and abroad. We thank Professor Geist for sharing his testimony with our readers; the original post can be viewed here.

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I appeared yesterday before the Standing Committee on Canadian Heritage via videoconference as part of its study on remuneration models for artists and the creative industry. The Heritage study is designed to provide additional context and information for the Industry committee’s copyright review. My opening statement is posted below. It focused on recent allegations regarding educational copying practices, reconciled the increased spending on licensing with claims of reduced revenues, and concluded by providing the committee with some recommendations for action. An audio version of the opening statement is posted here.

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. I appear in a personal capacity as an independent academic representing only my own views.

I am sorry that I am unable to appear in person but I am grateful for the opportunity to participate in your study on remuneration models via videoconference.

I have been closely following the committee’s work on this issue, which will undoubtedly provide valuable input to the INDU committee’s copyright review. Last week I was dismayed to hear witnesses claim that Canada’s teachers, students and educational institutions are engaged in illegal activity. This claim is wrong and should be called out as such.

I’d like to address several of the allegations regarding educational copying practices, reconcile the increased spending on licensing with claims of reduced revenues, and conclude by providing the committee with some recommendations for action.

First, notwithstanding the oft-heard claim that the 2012 reforms are to “blame” for current educational practices, the reality is the current situation has little to do with the inclusion of “education” as a fair dealing purpose. You need not take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the Board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court. While I think that the addition of education must have meant something more than what was already found in the law, its inclusion as a fair dealing purpose was better viewed evolutionary rather than revolutionary.

Second, the claim of 600 million uncompensated copies – which lies at the heart of the allegations of unfair copying – is the result of outdated guesswork using decades-old data and deeply suspect assumptions.

The majority of the 600 million – 380 million – involve K-12 copying data that dates back to 2005. The Copyright Board warned years ago that the survey data is so old that it may not be representative. Indeed, it is so old there are cabinet ministers who could have been the actual students in the K-12 schools at the time they were last surveyed on copying practices.

Of the outdated 380 million, 150 million involves copies that were over-compensated by tens of millions of dollars as determined by the Copyright Board and upheld by the Federal Court of Appeal. Education has had to file a lawsuit to get a refund of those public dollars. I can only imagine the public response if the federal government was found to have overpaid for services by tens of millions of dollars and it failed to take action to recoup that money.

The remaining 220 million comes from a York University study, much of which as old as the K-12 study. Regardless of its age, however, extrapolating some dated copying data from a single university to the entire country is not credible. It would be akin to sampling a few streets in Ms. Dabrusin or Mr. Blaney’s ridings and concluding that they are representative of the entire country.

Third, the committee has heard suggestions that the shift from print coursepacks to electronic course material systems (CMS) is irrelevant from a copying perspective. This is wrong. The data is unequivocal: printed coursepacks have largely disappeared in favour of digital access. For example, the University of Calgary reports that only 53 courses used printed coursepacks last year for a student population of 30,000.

Why does this matter? Three reasons:

First, as universities and colleges shift to CMS, the content used changes too. For example, an Access Copyright study at Canadian colleges found that books comprised only 35% of materials. The majority was journals and newspapers, much of which is available under open access licenses or licensed by other means.

Second, the amount of copying with CMS is far lower than with print. While Access Copyright argues there should be a one-to-one ratio – for every registered student the assumption should be that every page is accessed even for optional readings – the data (and common sense) tells us this is unlikely.

Third, CMS allows for the incorporation of licensed e-books. At the University of Ottawa, there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Tens of thousands of the e-books are from Canadian publishers and in many instances universities have licensed virtually everything offered by those Canadian publishers.

What this means is that the shift from an Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licenses that provide both access and reproduction. These licences get universities access to the content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for materials you already have.

With the increased spending, why do some report reduced revenues? There may be several reasons.

First, licensing is often perpetual, meaning that payment comes once, not as an annual royalty.

Second, many works aren’t being used or copied. UBC reports that 69% of their physical items have not been used since 2004.

Third, despite the shift to digital, Access Copyright’s Payback system excludes all digital works. In terms of eligibility, its rules exclude “blogs, websites, e‐books, online articles and other similar publications. Only print editions can be claimed.” Moreover, the Payback system also excludes all works that are more than 20 years old on the grounds that they are rarely copied.

Fourth, Access Copyright has refused to adopt transactional licences, thereby sending licensing money elsewhere. Education is spending millions each year on transactional licensing which permits copying for a specific course, yet Access Copyright has not entered that market.

Fifth, consistent with what this committee heard from Bryan Adams, it may be that part of the problem lies with the relationship between authors and publishers, with authors under-compensated for the digital revenues.

Let me conclude with a few thoughts on solutions on remuneration.

First, efforts to force the Access Copyright licence on educational institutions through statutory damages reforms should be rejected. Education should be free to pursue the best licences the market offers, an approach that is in the best interests of both education and authors. At the moment, that comes directly from publishers and other aggregators, not Access Copyright.

Second, the government should work with Canadian publishers to ensure their works are available for digital licensing either in bundles or through transactional licenses. Given that digital licenses are sometimes the only source of revenue – Access Copyright’s Payback doesn’t compensate for older works and print sales of old books is typically non-existent – embracing the digital opportunities with a forward looking approach may be the only revenue source for some authors.

Third, governments should continue to pursue alternative publishing approaches that improve both access and compensation. For example, last week’s Economic Update announcement of funding for creative commons licensed local news should be emulated with funding for open educational resources that pays creators up front and gives education flexibility in usage.

Fourth, non-copyright policies must be examined. For example, how is that Canadian content rules for film and television production still treat Canadian book authors as irrelevant for Cancon qualification?

Despite the criticism, the 2012 reforms were about establishing rules to foster a digital market for the benefit of all stakeholders. It is still early in the process, but we have already seen a huge shift to digital for both education and the publishing industry, with hundreds of millions spent on digital licensing. That’s a win for everyone except for an outdated licence that now offers little value when compared to other market and legal options.

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Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Centre for Law, Technology and Society. His website, michaelgeist.ca, provides coverage of intellectual property, technology, and copyright issues in Canada.

Authorship & Accessibility Resource Roundup

Posted November 13, 2018

Photo of a maze and Authorship and Accessibility title on a green background

As a supplement to our recently released report on authorship and accessibility, we have compiled this list of resources that explain how authors can make their works more accessible in a variety of media formats. It is our hope that these resources will amplify the message of the report and encourage authors to make accessibility a part of their workflow when creating digital content.

Books

Dave Gunn, Accessible Books Consortium: Accessible eBook Guidelines for Self-Publishing Authors

This explanation of how to create accessible e-books isn’t just for self-published authors; it is useful for anyone wishing to create a digital book with accessible features. These guidelines define key terms and explain how to make e-books accessible for a range of platforms, including Amazon’s Kindle, Apple’s iBooks, and Barnes & Noble’s Nook Press. A checklist at the end provides a handy summary of the material.

Apple: iBooks Authors: How to Make Your Books Accessible

This guidance describes how to include descriptions of images and objects in iBooks and provides other handy tips for creating accessible iBooks.

PDFs and Documents

Adobe: Create and Verify PDF Accessibility (Acrobat Pro)

Adobe’s detailed guide to PDF accessibility explains how to create accessible PDFs and check the accessibility of existing PDFs. Adobe guides you through setting a logical reading order, checking color contrast, tagging images, and everything in between.

National Center on Disability and Access to Education: Creating Accessible PDF Documents in Adobe Acrobat

This one-pager and accompanying video explain how to use Adobe’s accessibility wizard and address common issues.

Microsoft: Microsoft Accessibility Center

Microsoft has also created a suite of accessibility guides for their products, including Word, Excel, and PowerPoint, that explain common issues (such as handling images and links) and how to correct them.

National Center on Disability and Access to Education: Creating Accessible Microsoft Word Documents

This one-pager was last updated in 2018 and provides quick tips on using heading styles, alternative text, and other features in Microsoft Word to make documents more accessible.

Video

University of Washington: Creating Accessible Videos

This guidance provides an overview of video accessibility, including information about captions, transcripts, and audio descriptions. It also links to instructions on how to make accessible videos on a variety of platforms, including YouTube, Panopto, Canvas, and Facebook.

YouTube: Add Your Own Subtitles & Closed Captions and Use Automatic Captioning

YouTube’s tutorials explain how to create and upload closed captions to YouTube videos and how to review and make changes to YouTube’s machine-generated captions.

National Center on Disability and Access to Education: Captioning YouTube Videos

This one-pager and accompanying video were last updated in 2018 and explain how to add and edit captions on YouTube videos.

Images

Benetech: DIAGRAM Center Image Description

This guide from accessibility nonprofit Benetech explains how to correctly describe images to print-disabled users—very useful for providing helpful alt text and other descriptions that include necessary information while leaving out details that can confuse screen reading tools.

Mathematical Equations

DIAGRAM Center: Accessible Math

Another excellent resource from Benetech, this guide explains how to make printed mathematical equations and diagrams accessible to readers with limited or no vision.

Websites

W3C: Web Accessibility Tutorials

Last but not least, this collection of tutorials for website accessibility is presented by WC3, the international standards organization for the World Wide Web.

Spotlight on Book Publication Contracts: Shaping Your Grant of Rights

Posted October 30, 2018

In our Spotlight on Book Publication Contracts series, we are shining a 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 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.

The grant of rights is the heart and soul of your publication contract. It specifies what rights in your work you are giving to your publisher and what your publisher can do with these rights. These rights can be broad (e.g., the right to print and sell copies of your work anywhere in the world, forever) or they can be narrow (e.g., the right to sell a limited edition in a specific market for a set period of time).

Last week, we featured contract terms that authors can use to form a publication contract that accommodates open access options. This week, we are sharing more ways you can shape your publication contract to retain some control over your rights, either by limiting the grant of rights or by securing the right to approve or be consulted about how your rights are used.

Limiting the grant of rights

One way you can help ensure your work is available in the ways you want is to negotiate for changes to the grant of rights. This is especially important if holding onto certain rights is important to you for personal or professional reasons, if your publisher is unlikely to be able to exploit certain rights, or if you (or your agent) have another opportunity lined up to use certain rights.

In last week’s post, we shared how authors can use non-exclusive licenses or limited-term grants to limit their grant of rights clauses. Another way to soften the grant is through a “use it or lost it” clause, also called a “revert-back” clause. Under these types of clauses, if your publisher doesn’t use or license a specific right within a set period of time, the right reverts back to you. This is a powerful tool that gives you or your agent another opportunity to use or license rights in the event the publisher is not able to actively exploit them.

Success Story: Howard Zaharoff, a literary attorney interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts, worked with an author who wrote a book that had great potential to be turned into a movie. The author was therefore hesitant to sign over motion picture rights for fear the publisher would not exploit them. But the publisher also saw the potential for a Hollywood hit and was keen to try to sell movie rights. To resolve this tension, Zaharoff helped the author secure a “use-it-or-lose-it” provision that satisfied both parties: The publisher was given three years to place the movie rights, but if the publisher did not do so in this timeframe, the author could reclaim the rights.

For other ways to limit the grant of rights, including limiting the scope of the rights granted, asking for a license-back clause, and reserving rights not granted, see pages 63-74 of Understanding and Negotiating Book Publication Contracts.

Securing approval or consultation rights

Sometimes, it makes sense to license rights to your publisher, but you might still want to have some say in how your rights are used. “Approval” clauses give authors the opportunity to review and approve decisions before they are made by the publisher (often subject to the condition that your approval will not be unreasonably withheld).

Success Story: An author interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts wanted to maintain some control over the development of the audiobook version of her book and its adaptation into a screenplay. After explaining to her publisher that it was particularly important to ensure the integrity of the dialect and voices of her characters, her publisher agreed to give her the right of approval over the licensing of these subsidiary rights.

Another way to have a say in how your rights are used is through a “consultation” right, which gives you the opportunity to discuss decisions with your publisher before decisions are made about how your work is used. Consultation rights don’t give authors the same level of control as approval rights since the publisher still has the final say, but they provide an opportunity to discuss any concerns with the publisher before decisions are made.

Finally, don’t overlook “notice” provisions, which require your publisher provide timely notice of any uses of your work, including licensed uses by third parties.

For more on approval, consultation, and notice rights, see pages 91-94 of Understanding and Negotiating Book Publication Contracts.

Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)

Posted October 26, 2018

We thank Krista L. Cox, Director of Public Policy Initiatives at ARL, for the following analysis, which originally appeared on the ARL Policy Notes blog. Authors Alliance submitted an amicus brief in support of fair use in the second appeal to the Eleventh Circuit in 2017, and we continue to track the progress of the case.

The long saga of the Georgia State University (GSU) e-reserves case continues as the Court of Appeals for the Eleventh Circuit reversed the district court’s ruling which had found that the vast majority of GSU’s use of works in its e-reserves constituted a fair use. This is the second time the Eleventh Circuit has reviewed the case, and the second time it has reversed.

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

On October 19, 2018, the Eleventh Circuit released its 25 page opinion—more than a year after hearing oral arguments in the case—finding that the district court again erred in its evaluation of fair use. The Eleventh Circuit suggests that the district court was only mandated to re-evaluate its analysis on the second and third factors, but had instead also re-evaluated its analysis on factor four (in which the district court found in the first trial that in 31 cases, the fourth fair use factor weighed against fair use).

Additionally, the Eleventh Circuit points out that “The district court again applied a mathematical formula in its overall analysis of fair use,” which it had been instructed against. Although the district court couched the given weights as “initial” and “approximate,” the Eleventh Circuit found that the district court only adjusted these factors in four instances and di not adjust the other factors in the overall analysis. Thus, “We conclude that the district court’s quantitative rubric was an improper substitute for a qualitative consideration of each instance of copying in the light of its particular facts.” The Eleventh Circuit has remanded the case, directing the district court to use a holistic approach to fair use, and avoid any mathematical approach with respect to the four factors.

Another issue the Eleventh Circuit opinion addresses is whether the cost of purchasing licenses affects the third factor; the district court in the second trial considered the price of use on two ocassions. The Eleventh Circuit rules that price should not be taken into account when evaluating the amount and substantiality of the portion of the work used.

While the Eleventh Circuit reversed and remanded on the above issues, it affirmed the district court’s decision not to reopen the record. Publishers in 2015 filed a motion to reopen, asserting the need to introduce “Evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term)” as well as evidence of the availability of digital licenses. Here, the Eleventh Circuit notes that this decision is within the discretion of the trial court.

Kevin Smith posted about the GSU case on In the Open, with an excellent summary of what the Eleventh Circuit’s opinion (as well as its last opinion) does not do, and what, as a result, the publishers have lost on:

…But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.

Library of Congress Expands 1201 Exemptions to All Nonfiction Multimedia E-books

Posted October 25, 2018

photo by 422737 |CC0

Today, the Library of Congress adopted exemptions to section 1201 of the Digital Millennium Copyright Act (DMCA) that prohibits circumvention of technical protection measures. As a part of this rulemaking process, Authors Alliance petitioned to renew the existing exemption that allows authors to bypass encryption to make fair use of film clips in nonfiction multimedia e-books offering film analysis, and we additionally advocated to modify the exemption to allow for the use of film clips in e-books for purposes other than film analysis and in fictional works.

We are pleased to report that the Library of Congress renewed the existing multimedia e-book exemptions and expanded the exemption to all nonfiction multimedia e-books (that is, the exemption is no longer limited to multimedia e-books offering film analysis). The Acting Register of Copyrights found that examples presented in our comments showed a variety of uses of short excerpts in nonfiction multimedia e-books to provide criticism or commentary beyond film analysis and also found that the brevity and transformative nature of the proposed uses favor an exemption because these uses are unlikely to substitute for the original work. The Acting Register concluded that an expansion to all nonfiction multimedia e-books is unlikely to harm, and may increase, the availability of copyrighted works and that the proposed uses will facilitate criticism, comment, teaching and/or scholarship.

The Acting Register declined to recommend to expand the exemption to cover fictional e-books, finding that the record lacked sufficient evidence demonstrating a need to expand the current exemption. We are disappointed that the Copyright Office and the Library of Congress passed on the opportunity to extend the exemption to authors of fictional multimedia e-books, such as fanfiction authors, whose transformative expression fits within the fair use doctrine.

We are grateful to the student attorneys and their supervisors at the Intellectual Property, Arts, and Technology Clinic at UC Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law for their work supporting this exemption.

Stay tuned for additional analysis of the 1201 rulemaking for multimedia e-books from the student attorneys at UC Irvine and Colorado Law.

Spotlight on Book Publication Contracts: Open Access Success Stories

Posted October 22, 2018

Last week, we released a guide to Understanding and Negotiating Book Publication Contracts. Today, to celebrate Open Access Week, we’re featuring ways that authors can make their books open at different stages of the book’s life cycle and how to shape a publication contract to accommodate these options. As with our guide, we’re highlighting real success stories from authors who have successfully negotiated for terms in their publication contracts that enable them to meet their open access goals.

An initial consideration for authors is whether to publish with a dedicated open access publisher, such as Luminos (University of California Press’ open access publishing program for monographs), or to negotiate with a traditional publisher. Whether working with a dedicated open access publisher or negotiating with a traditional publisher, authors may be asked to contribute to the cost of publishing the book on open terms. However, funding is increasingly available for authors who want to make their books openly accessible. For example, TOME—Toward an Open Monograph Ecosystem—is an initiative in which participating universities provide funds to support the publication of open access monographs.

Negotiating to release a book on open terms with a traditional publisher may be difficult, but it’s not impossible. If you want to pitch your traditional publisher on open terms, it can help to make the case that your proposed non-exclusive arrangement is potentially just as lucrative for your publisher as an exclusive grant would be and to add sweeteners to the contract that make your proposal more enticing.

Success Story: Eric von Hippel, an economist at MIT and a member of the Authors Alliance advisory board, studies the economics of distributed and open innovation. Professor von Hippel wanted to “walk the walk” and make his previously published book, Sources of Innovation, freely available to the public online. So, he struck a deal with his publisher: If hard copy sales declined after he made his book freely available online, he would pay the publisher $1,000 as compensation for lost sales. If sales went up, the publisher would keep the profits and allow him to keep posting the free version. Happily, sales of printed copies went up, so he was able to keep the free version available online. Based on the success of this experiment, von Hippel was able to negotiate a non-exclusive license with his publisher for his next two books, Democratizing Innovation and Free Innovation.

Making a book openly accessible at the outset is not the only option. Publication contracts can be shaped in many ways to limit the scope of the grant of rights, including limits on the duration of the grant of rights to the publisher. By modifying the length of the grant, authors can get more control over how their works are used in the future because they regain their copyrights after the grant has expired. Some authors opt to limit the length of an exclusive grant of rights so that they can make their book openly available after that time passes.

Success Story: When she published her book The Eureka Myth: Creators, Innovators and Everyday Intellectual Property, Authors Alliance founding member Jessica Silbey negotiated for an innovative grant of rights to her publisher. Under the terms, her publisher obtained the exclusive right to publish the book for five years. After five years, Professor Silbey will automatically regain her copyrights and her publisher will keep a non-exclusive right to continue selling the book (under the same royalty terms). Although Silbey initially asked for the publisher’s exclusive rights to be limited to three years, she was persuaded by its legitimate business interest in having exclusive rights for the first five years. This arrangement enabled her publisher to fulfill its sales objectives, while also allowing Silbey to realize her goal of making The Eureka Myth widely available to readers in a Creative Commons-licensed online version after five years.

Another point in a book’s lifecycle at which open access may be a desirable option is after a book outlives its commercial life. A strong rights reversion clause that allows you to get your rights back when well-defined triggers are met can allow you to make your book openly accessible after its commercial life is over.

Success Story: Pamela Samuelson, a co-founder of Authors Alliance, wanted to make sure that she could get her rights back if her book was no longer selling well. The original version of her publication contract included a triggering condition that was based on the availability of English-language editions. Concerned that the mere availability of an ebook version of her book, regardless of sales, would mean that this triggering condition would never be met, Professor Samuelson negotiated for a change to the publisher’s standard triggering condition. After some initial resistance from the publisher and through persistent but respectful communication explaining her concerns, her reversion clause now is triggered if author earnings fall below a certain level. The clause now also directs the parties to discuss open access or similar distribution as an alternative to a full reversion of rights.

Finally, some authors who are determined to release their books under an open license may want to consider self-publishing.

Success Story: Authors Alliance founding members James Boyle and Jennifer Jenkins wanted their casebook, Intellectual Property: Law & The Information Society, to be available to as many law students as possible. For this reason, they decided to forgo traditional publishing and self-publish their book under a Creative Commons license, which allows students to download the book online for free. The decision has yielded unexpected benefits. For example, visually impaired students have told Professors Boyle and Jenkins that they appreciate using the open electronic text to produce a machine-generated audiobook in whatever format they choose.

For more information on open access, see Authors Alliance’s guide to Understanding Open Access: When, Why & How to Make Your Work Openly Accessible. For more information on understanding publication contracts and negotiating for author-friendly terms, see Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Announcing the Authors Alliance Guide to Understanding and Negotiating Book Publication Contracts!

Posted October 15, 2018

We are delighted to share our brand-new guide to Understanding and Negotiating Book Publication Contracts.

Now available to the public (following a special pre-release to our Kickstarter backers), this new guide is the latest addition to our growing library of resources for authors, which also includes educational handbooks on rights reversion, open access, and fair use.

Copyright law and contract language are complex, even for attorneys and experts. Authors may be tempted to sign the first version of a publication contract that they receive, especially if negotiating seems complicated, intimidating, or risky. But there is a lot at stake for authors in a book deal, and it is well worth the effort to read the contract, understand its contents, and negotiate for favorable terms.

To that end, Understanding and Negotiating Book Publication Contracts identifies clauses that frequently appear in publishing contracts, explains in plain language what these terms (and typical variations) mean, and presents strategies for negotiating “author-friendly” versions of these clauses. When authors have more information about copyright and publication options for their works, they are better able to make and keep their works available in the ways they want.

The guide is designed to help authors to:

Learn about the basics of copyright law, and how copyright shapes the author-publisher relationship;
Evaluate the pros and cons of assigning and/or licensing their copyrights;
Understand the responsibilities of authors and publishers in preparing, designing, and marketing a book;
Clarify financial matters such as advances, royalties, and accounting statements;
Consider options for making their books available to readers in the short and long term;
Advocate and negotiate for contract terms that help them meet their creative and pragmatic goals;
And much more!

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“Every author should have this at hand.”
– Sidonie Smith, University of Michigan

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The guide is based on language contained in actual book contracts, and is further supported by surveys and in-depth interviews with authors, publishers, and literary agents and attorneys. These real-world scenarios help authors understand how to approach negotiation, what kinds of clauses to look for (and which to avoid), and how to engage in productive conversations with agents and publishers to ensure author-friendly contracts that align with their creative and pragmatic goals. The guide is designed to empower authors to shape a publication contract that benefits them, their publishers, and readers, ultimately increasing the impact of their books.

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“This is a valuable guide that will help to demystify the contract
process for authors. It should encourage them to think through
and negotiate for the things that matter most to them,
and to trade off things that matter less. That will make the
negotiation process more satisfactory for the publisher as well.”
– Gita Manaktala, MIT Press

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We thank Rob Walker and the student attorneys at the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law for their help in researching and drafting the guide. These former clinic students include:

Katherine Bridge
Alfredo Diaz
Karen Graefin vom Hagen
Anna Kuksenkova
Henry Nikogosyan

We are also grateful to our Kickstarter backers for their support and to the publishers, literary agents and attorneys, authors, and expert reviewers who contributed to the guide.

You can download the guide and learn more about contracts and negotiation at our new Publication Contracts resource page. (And, for those who prefer to read Understanding and Negotiating Book Publication Contracts in print, we will release a softcover edition later this fall.)

Authors Alliance Applauds U.S. Implementation of the Marrakesh Treaty

Posted October 10, 2018

In March 2018, a bipartisan coalition in Congress introduced a bill to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. On September 26, Congress passed the Marrakesh Treaty Implementation Act, and today the Act has been signed into law by the President.

Adopted by the World Intellectual Property Organization (WIPO) in 2013, the goal of the Marrakesh Treaty is to create a set of mandatory limitations and exceptions for the benefit of blind, visually impaired, and otherwise print disabled readers. The treaty requires that contracting states enact copyright exceptions that allow books and other creative works to be made available in accessible formats, such as braille and audiobooks, and to allow for the import and export of such materials. It is a tremendous step toward ensuring equal access for readers in participating countries, including many in the developing world, where the need for resources and access is especially acute.

Authors Alliance has written previously about our support of proposed legislation to implement the Marrakesh Treaty. Earlier this year, the Senate Foreign Relations Committee held a hearing on the Implementation Act, and we joined with other organizations—including the National Federation of the Blind, the Authors Guild, and the American Library Association, among many others—in signing onto a letter urging Congress to pass the proposed legislation in order to improve access for print-disabled readers around the world.

The treaty is now in force in the U.S. and more than 40 countries around the world (and growing). The International Federation of Library Associations (IFLA) has created a multilingual guide for libraries to assist in making their works available under the terms of the treaty, and we recently published a report highlighting the role of creators in making digital works more widely accessible to people with disabilities. Authors Alliance will continue to support legal and policy efforts that improve the ability of authors to reach readers.

Authorship & Accessibility Guest Post: Blake Reid

Posted October 2, 2018

We would like to thank Blake Reid of the University of Colorado Law School for the following review of Reading Sounds: Closed-Captioned Media and Popular Culture by Sean Zdenek.

I’m delighted to join my colleagues at Authors Alliance with this contribution to their ongoing series on Authorship and Accessibility, an outgrowth of a collaboration between Authors Alliance, Silicon Flatirons (where I’m a faculty director), and the Berkeley Center for Law & Technology, which held a roundtable on the topic with technologists, authors, academics, lawyers, and disability advocates in Berkeley last year, summed up in this report co-authored by my students in the Colorado Law Samuelson-Glushko Technology Law & Policy Clinic.

By random chance, my first advocacy project as a lawyer was working for Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI) and a coalition of deaf and hard of hearing consumer groups and accessibility researchers on closed captions for online video as a part of the Federal Communications Commission’s implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). Ever since, I’ve been fortunate enough to spend a lot of my life as a clinical fellow and law professor working on the law and policy side of the wonderful world of closed captioning.

Consumer groups and advocates have long been concerned about the quality of the captions that convey the aural components of video programming to viewers who are deaf or hard of hearing with video programming. While inaccurate and incomplete captions are often the butt of jokes, they aren’t so funny for people who are deaf or hard of hearing and rely on captions to understand the aural component of a video. For example, a single wrong letter on news captions might mean the difference between a story about a war in Iraq and a war in Iran.

That’s why consumer groups have fought hard for caption quality. Those efforts culminated in the FCC’s 2014 adoption of wide-ranging caption quality standards for television, which require captions to be accurate, synchronous, complete, and properly placed on the screen.

The FCC’s rules aim primarily at establishing a baseline of compliance to ensure that captions deliver a transcription of a program’s soundtracks that is as close to verbatim as possible given the unique attributes of sound and text. There are lots of good reasons that advocates have focused on verbatim captions over the years; in addition to incomplete and incorrect captions, there is a lengthy and complicated history of simplifying and censoring the content of captions, which most recently entered the public eye in the context of Netflix’s censorship of captions on the rebooted Queer Eye for the Straight Guy. Verbatim is a principle that corresponds neatly to the goal of equal access: the captions should give viewers who are deaf or hard of hearing as near an equal experience in watching video programming as their hearing counterparts listening to the soundtrack.

However, advocates have also long urged their counterparts in the video industry to take captions seriously not just as a matter of accessibility, but as a matter of creativity. If filmmakers obsess over every aspect of a movie’s cinematography and sound design, why not the captions? In a production that spends millions of dollars to get all the details right, captions that are front and center for a film’s deaf and hard of hearing audience shouldn’t be an afterthought—they should be a core part of the creative process.

Sean Zdenek’s 2015 book Reading Sounds is one of the first efforts to rigorously explore the creative dimensions of captioning. Zdenek, a technical communication and rhetoric professor, endeavors to explore captioning as “a potent source of meaning in rhetorical analysis” and not simply a legal, technical, or transcription issue.

Zdenek’s exploration is an essential encyclopedia of scenarios, showing how captioning leaves creative choice, nuance, and subtlety to captioners and filmmakers. While captioning spoken dialogue seems on first blush to pose a relatively straightforward dialogue, Zdenek identifies nine (!) categories of non-speech information that are part of soundtracks, including:

Who is speaking;
In what language they are speaking;
How they are speaking, such as whispering or shouting;
Sound effects made by non-speakers;
Paralanguage—non-speech sounds made by speakers, such as grunts and laughs;
Music, including metadata about songs being played, lyrics, and descriptions of music; and
Medium of communications, such as voices being communicated over an on- or off-screen television or public address system.

Tricky scenarios abound. What if one speaker is aurally distinct from another, but his or her identity is unknown? (Imagine Darth Vader being identified as “Luke’s Father” in the early going of The Empire Strikes Back.) How should a captioner describe the unique buzzing sound made by Futurama’s Hypnotoad? How should the captioner describe an uncommon dialect that may not be familiar to a hearing viewer, or which may have been invented by the filmmaker? What are the lyrics to “Louie, Louie,” exactly?

Zdenek expands into a variety of other problematic scenarios such as undercaptioning (the omission of non-speech sounds), overcaptioning (making prominent the exact content of ancillary speech happening in the background that a hearing viewer may be unable to parse precisely), and transcending the context of a scene to convey information that the viewer shouldn’t know. Delayed captions are all too familiar to deaf and hard of hearing viewers, but Zdenek explores the subtle relationship between caption timing, punctuation, the spoilage of time-sensitive elements afforded by the ability to read ahead of the dialogue, such as reading the aural punchline to a visual setup, and the inadvertent creation of irony by captions that linger on the screen for too long. Zdenek even highlights the need to caption silence in dynamic contexts, such as a phone ceasing to ring or a person mouthing inaudible dialogue—scenarios that call to mind the controversial “silent” scene in The Last Jedi, which many hearing theater-goers were sure was a glitch but was an intentional choice by director Rian Johnson.

Zdenek also explores the role of captions in situating video in broader cultural contexts. For example, should a captioner identify a narrator who is a well-known actor with whom the audience will likely be familiar but who is uncredited in the film? How should music, such as the iconic NBC chimes, be described in text? And how can captioners be trained to capture cultural significance—especially if a captioner is a computer program converting text to speech automatically?

Zdenek does not offer complete solutions to all these questions and scenarios. But he extrapolates in unsparing detail (much of it presented in audiovisual context on the book’s companion website) how they arise and what considerations captioners and filmmakers might take into mind in thinking not just about how to comply with captioning law, but how to author captions.

In doing so, he has also created a compelling reference for lawmakers and policy advocates to develop a richer, more nuanced understanding of the role that captions can play in advancing the civil rights of Americans who are deaf or hard of hearing to access video programming on equal terms. Zdenek is identifying dimensions of captioning that the next generation of video accessibility policy needs to consider and address.

Blake E. Reid studies, teaches, and practices in the intersection of law, policy, and technology. He is an Associate Clinical Professor at Colorado Law, where he serves as the Director of the Samuelson-Glushko Technology Law & Policy Clinic (TLPC) and as the Faculty Director of the Tech Policy Initiative at the Silicon Flatirons Center.

Authors Alliance Supports Controlled Digital Lending By Libraries

Posted September 28, 2018

woman sitting in a chair holding an e-reader

photo by Pexels | CC0

Today, Authors Alliance joins a group of organizations, including the Digital Public Library of America, Internet Archive, and UC Berkeley Library, to endorse the Position Statement on Controlled Digital Lending by Libraries. The statement 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. Today’s release of the statement is accompanied by an in-depth white paper by David Hansen and Kyle K. Courtney analyzing the legal arguments for CDL.

For centuries, libraries have provided free access to books to their patrons. Ownership of books gives libraries the right to lend their copies and make them available on bookshelves without seeking copyright owner permissions. In the digital age, libraries have an interest in continuing this time-honored tradition by scanning physical copies of books in their collections and making digital copies available for lending on the same types of terms as they have done with conventional books.

Controlled Digital Lending (“CDL”) is an example of how new technologies can be harnessed to help authors share their creations with readers, promote the ongoing progress of knowledge, and advance the public good. Many authors face technical, legal, and financial barriers that prevent them from sharing their works more widely. When easily accessible online version of their books are not available, their books are effectively locked away, creating a chasm in the public availability of important works.

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.”

For these reasons, CDL is particularly beneficial for authors whose works are out of print or otherwise commercially unavailable: In the absence of digitizing and lending these books, many would simply be inaccessible to readers. In fact, some Authors Alliance members have taken the extra step to regain the copyrights to their books from their publishers and make them openly available online, including through HathiTrust, Google Books, and Internet Archive’s Open Library, without one-person-at-a-time lending restrictions. Others have negotiated with their publishers to make open copies of their works available from the moment of publication. These authors are often motivated by their desire to reach readers and promote the dissemination of knowledge and culture beyond the commercial life of their books, or to reach readers whose access to these works is otherwise limited.

Sidonie Smith, Professor of English and Women’s Studies at University of Michigan, regained rights to her 1987 book A Poetics of Women’s Autobiography: Marginality and the Fictions of Self-Representation several years ago. Smith now makes the book available to the public under an open access license, allowing her to reach readers and scholars around the world. According to Smith, this decision means that her book can “live more vibrantly in the public and academic spheres. Through that access I can share ideas more directly with emerging scholars in my fields of autobiography studies and feminist studies of women’s literature; support students and faculty around the globe in their engagement with life writing capaciously defined; and contribute in a small way to the project of educational justice that makes scholarly resources available across differently situated institutions of higher education.”

Robert Darnton, Professor at Harvard University, also opened up access to the first two books he published and made them freely available online after he successfully reverted rights. At the time, he described how distributing works in this way allows authors to “ensure[] that your work’s continuing impact and relevance are not limited by its commercial life.”

While reverting rights, terminating transfers, or negotiating for open terms may be an option for some authors to fully open up access to their works online, the fact remains that millions of books—especially those that have fallen out of print—are, for all intents and purposes, unavailable. The CDL model is a boon to the authors of these and other books, allowing them to find new audiences online.

For all of these reasons, and those outlined in the Position Statement on Controlled Digital Lending by Libraries, Authors Alliance endorses CDL as a beneficial tool for readers and authors alike.