Category Archives: Issues

Using Fair Use to Improve Access to Orphan Works in Libraries and Archives

Posted December 4, 2014

Guest post by Founding Member David Hansen

Today we celebrate a new tool that will make it easier for libraries and archives to apply the important copyright doctrine of fair use to their collections containing orphan works, especially as they put those works online. I, along with research teams at American University and UC Berkeley, am pleased to announce the release of the Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions.

The orphan works problem is one of the best examples of why the United States needs comprehensive copyright reform. Since the enactment of the Copyright Act of 1976, the U.S. has extended copyright protection, shrunken the public domain, increased the range of statutory damages, and, through the elimination of copyright formalities, made it easier than ever for copyrighted works to become irretrievably separated from their owners.

Because of those policies, orphan works—i.e., copyrighted works whose owners cannot be located—have become increasingly common, especially in collections of older works such as those held by libraries and archives and used by authors to do research and create new works.

Libraries, authors, and readers are unsure of what they can do with orphan works because they face a risk of liability should they use them only to have an unfindable owner reappear to file a lawsuit. Earlier this year Pamela Samuelson wrote on this blog about why orphan works are so important for authors, and why the Authors Alliance has made these issues a priority in its Principles and Proposals for Copyright Reform.

Although bad U.S. copyright policy has created this problem, many now recognize that one shining example of good U.S. copyright policy—the commitment to a strong and flexible fair use doctrine—can limit its effect. Fair use, as the U.S. Supreme Court has explained, “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Among other things, fair use is what lets authors quote, excerpt, and even copy works for purposes of criticism, comment, parody, and other new “transformative” uses.

The Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions helps put fair use to work by giving members of the library and archive community guidance about how to apply fair use to the digital preservation of, and provision of access to, special collections containing orphan works.

The Statement helps libraries and archives make uses that are supported by key fair use considerations: making uses that are transformative, using the work for a different purpose from the original, and making uses that minimize the likelihood of harm to the potential market for the work. The statement also focuses on making uses that are ethically grounded and in good faith, aspects of the fair use doctrine that librarians and archivists emphasized were important considerations for their community.

Libraries and archives have for long asserted fair use in making collections containing orphan works more available. Since the late 1990’s the Library of Congress has asserted fair use when providing digital access to orphan works in its American Memory collections. More recently, librarians and archivists have explained similar uses in their submissions to Copyright Office requests for information about orphan works. Scholars (notably, UC Berkeley’s Jennifer Urban) have also made the case for how fair use can help solve the orphan works problem.

The value in this Statement is that it documents and shares community thinking about best practices—emphasizing not just that fair use is an option, but how it can be applied most effectively within community norms. Best Practices like this have a good history of helping user communities make collective progress in asserting fair use. Communities of documentary film makers, research libraries, journalists, and so on have created similar highly-successful fair use best practices of their own.

This orphan works best practices Statement will benefit authors as well, in at least three ways.

For one, the principles that it articulates are can be used by authors in their own orphan works uses. To be sure, this Statement was created by and for librarians and archivists, but authors who have access to orphan works in their personal collections can draw from these guidelines as well to make orphans more available.

Second, the improved access to orphans works that libraries and archives will provide will facilitate research by authors who can then draw upon them in creating new works.

Third, improved access to these collections will help reconnect works formerly thought to be orphans to their owners. By putting works in a format that the public can use online, long-neglected works are more likely to be rediscovered, researched, and hopefully reunited with their authors. For “authors who write to be read” this is the best possible outcome.

Of course, the application of fair use to orphan works in libraries and archives, and the release of this Statement in particular, does not solve every aspect of the orphan works problem. Those who create commercial derivative works, for example—a translation or a documentary film—might need more assurance than fair use can provide regarding long-term use of orphan works even after an owner emerges.

Small tweaks to copyright law, such as limiting the types of remedies (including injunctive relief) that are available after an individual conducts a reasonably diligent search, and new recording requirements designed to prevent works from becoming orphans in the first place, might be appropriate. Members of the UC Berkeley Digital Copyright Project Team, of which I am a member, have proposed just such reforms in comments to the Copyright Office and in a recent article published in the Columbia Journal of Law & the Arts titled Solving the Orphan Works Problem for the United States.

Still, this Statement represents a positive development in enhancing access to library and archive collections that authors rely upon to create new works and to preserve and disseminate their own works to new readers.

Educational Fair Use Update: Congressional Hearings and Cambridge University Press v. Patton

Posted November 18, 2014

Pam Samuelson & Mike Wolfe

At Authors Alliance we keep a close eye on what’s going on in fair use litigations that could have lasting effects on authors whose primary goal is create and disseminate their works with the purpose of advancing knowledge. We are not the only ones, of course, who are monitoring developments on the fair use front. In fact, tomorrow the House Judiciary Committee is holding a hearing on fair use in educational settings.

One case we’ve been following closely is the lawsuit between a group of academic publishers—Cambridge University Press, Oxford University Press, and Sage Publications—and officials of Georgia State University. The lawsuit arose because GSU policies have allowed professors to post excerpts from books for use by their students. This has included course websites where professors could upload such materials and an “E-Reserves” system run by the university library whereby professors could arrange for excerpts from works in the library’s collection to be posted online for student access.

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Lydia Loren on Semaphore Press

Posted

Authors Alliance Founding Member Lydia Loren from Lewis and Clark Law School explains how her publishing company, Semaphore Press, is working to produce affordable, high-quality casebooks for use in law school classrooms. She discusses how the Semaphore Press business model is designed to both adequately remunerate casebook authors and ensure that students have access to the educational materials they need.

Learn more about Semaphore Press.

Making copyright work for authors

Posted November 3, 2014
Image adapted from a CC-BY licensed photo by David Kindler.

Image adapted from a CC-BY licensed photo by David Kindler.

Authors Alliance Co-Founder Molly Van Houweling

On Oct. 10 I traveled to Columbia Law School to attend and speak at a symposium hosted by the Kernochan Center for Law, Media, and the Arts entitled “Creation is Not Its Own Reward: Making Copyright Work for Authors and Performers.” It was a fascinating day featuring perspectives from creators in a variety of fields—including drama, non-fiction authorship, photography, song-writing, graphic art, and even video game design. Video from the event has now been posted and the proceedings will be published in an upcoming issue of the Columbia Journal of Law & the Arts.

I spoke on a panel entitled “Academic Perspectives.” This topic had multiple meanings for me. I am a legal academic with a scholarly interest in the relationship between copyright law and creativity. So I have an “academic perspective” on the creative environment in general. But I also have an individual creator’s perspective as the author of academic articles on my scholarly topic (and of course as a founder of Authors Alliance). In my remarks I emphasized the legal and practical obstacles that academic authors often face when they want to ensure that their books and articles are accessible to readers even after those works have outlived what in many cases is a fleeting commercial life.

I explained that academic authors sometimes transfer their copyrights or grant exclusive licenses to publishers without much forethought. Years later they may find that they want to revive out-of-print books, write new editions, anthologize their own works, or simply post them on the Internet so they can be accessible to readers around the world. But these authors no longer have the right to do what they want with their own works without permission from their publishers. Renegotiation may be theoretically possible but practically difficult–especially for absent-minded professors who may have trouble even finding their original contracts (to say nothing of the sometimes difficult task of figuring out who owns rights that may have been transferred from the original publisher to someone else).

Academic authors are not alone in facing this type of dilemma. Over the course of the day, other creators described a wide variety of individual and industry practices regarding copyright, including many that contribute to problems for authors who want to reuse their own work. Most interesting of all, Pulitzer Prize winning playwright Douglas Wright described retaining and managing the copyrights in his stage plays but not in his movie screenplays. In one case he worked on a screenplay adaptation of a stage play he had written. When he later revived the play he did not include new-and-improved material he had developed for the screenplay, because that revision of his own work was a work-for-hire that he did not own. Wright expressed a strong preference for retaining his copyrights when possible and thus serving as “the CEO of my own imagination.”

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Announcing our Open Access FAQ

Posted October 20, 2014

It’s now Open Access Week, an annual event that celebrates and promotes open access to scholarship and research. Open access is consonant with the Authors Alliance mission of representing and enabling authors who write to be read, and we are pleased to join in this year’s festivities.

To begin the week, we’ve prepared an FAQ on Open Access that explains a few of the ins and outs of open access and the options available to authors who would like to make their work openly available. We’ll continue to update the FAQ as time goes on, and we’re happy to consider member questions on open access emailed to info@authorsalliance.org.

Read the FAQ here.