In April, we published a post on two major fair use decisions from this year: Google v. Oracleand The Andy Warhol Foundation v. Goldsmith. In the post, we expressed our uncertainty about how the decision in Google, which concerned a specific question related to software,would impact fair use analysis for literary and artistic works. Earlier this month, the Second Circuit answered this question, at least with regards to fair use jurisprudence in that circuit.
The Andy Warhol Foundation v. Goldsmith concerned the question of whether Warhol’s screen prints of Prince, based in part on a photograph taken by Goldsmith, constituted fair use. The court found that the works were not fair use, in large part because it believed that Warhol’s screen prints were not transformative, but instead, the same works as Goldsmith’s photograph, but with a new aesthetic. The court signaled that the screen prints were closer to derivative works based on the original photograph than fair uses of the photograph. In contrast, the Supreme Court in Google v. Oracle did find that Google’s use of Oracle’s APIs in its Android platform was a fair one, in part because the Court found the use to be highly transformative.
After the Google decision was handed down, the Warhol Foundation requested a re-hearing in its case, asking the Second Circuit to consider whether the Google decision would change its fair use determination. The court then issued an amended decision, and for the most part affirmed its earlier ruling, reiterating that the screen prints did not constitute fair use. The court held that the ruling in Google v. Oracle did not have much bearing on determinations about fair use when it comes to literary and artistic works. The court also underscored the Supreme Court’s statement that copyright protection is weaker for functional works—like software—and stronger for literary or artistic works—like Warhol’s screen prints, further making the Google decision inapplicable to its case.
Another small revision in the Warhol court’s amended decision was notable for its bearing on fair use: the original decision stated that derivative works were “specifically excluded” from being considered fair use as a categorical matter, but in the amended decision, the court stated that derivative works may fail to qualify as fair use, walking back its earlier statement. By leaving open the possibility that a derivative work might still be a fair use, the court reinforced the idea that fair use is a context and fact-specific determination, a principle that also animated the decision in the Google case.
For an in-depth discussion of Google v. Oracle and the original decision in The Warhol Foundation v. Goldsmith, see our earlier post.
Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining (“TDM”) research on literary works that are distributed electronically and motion pictures. Recently, we met with representatives from the U.S. Copyright Office to discuss the proposed exemption, focusing on the circumstances in which access to corpus content is necessary for verifying algorithmic findings and ways to address security concerns without undermining the goal of the exemption.
Access to Corpora for Verification
In response to suggestions from opponents that the exemption, if granted, should ban researchers from accessing text in their corpora, David Bamman, associate professor at the School of Information at UC Berkeley, shared circumstances in which a researcher would need to access text in a corpus to verify research findings. Drawing from his co-authored article The Transformation of Gender in English-Language Fiction, Dr. Bamman used two examples to demonstrate why access to the research corpus is necessary to verify anomalous research findings. First, Dr. Bamman executed code that produced all lines of text in Nathaniel Hawthorne’s The Scarlet Letter that include both female gendered pronouns and capitalized words to investigate an algorithm’s failure to identify any female characters in the novel. Second, Dr. Bamman executed code that produced all lines of text that included the word “legs” to investigate why this was one of the objects most associated with male characters in the research corpus.
As we have previously explained, while researchers do not need this exemption for the purpose of viewing the full text or images of the works that they or their institutions have already obtained lawfully, researchers must be able to verify their research methods and research results. The scale of many research projects would make verification of anomalous research findings without access to the research corpus prohibitively time-consuming. An outright ban on accessing text in the corpus would make many TDM projects impossible because researchers would not be able to interrogate the conclusions reached by the code they had developed. Moreover, the ability to view corpus text or images is consistent with the research environments of both HathiTrust Data Capsules and Google Book Search, and it is consistent with fair use precedent.
Security Measures
As a threshold matter, we shared our view that the approach of existing § 1201 exemptions that require reasonable security measures keyed to particular, identified risks is consistent with the decisions in Google Books and HathiTrust. In both cases, the Second Circuit identified security measures that were reasonable responses to actual risks. This is consistent with past Copyright Office recommendations that identify the risk to be guarded against, but do not prescribe the security controls to guard against it. To this aim, we suggested language to add to the exemption to more specifically define the harms that exemption users must guard against when implementing security controls—dissemination, downloading, and unauthorized access. We also explained that we not object to the inclusion of the requirement that researchers wishing to avail themselves of the exemption consult with their institution’s information technology office. Institutions of higher education are well positioned to provide this kind of advice, and it would ameliorate some of opponents’ concerns.
In addition, we discussed the various specific security controls and standards opponents advocated for in their post-hearing letters. We explained that while we continue to believe that the Copyright Office’s reasonableness approach is the right one, the intended exemption beneficiaries would still be able to avail themselves of the exemption if certain controls are imposed. These include encryption on the server, limiting access to the collection to those with a legitimate and authorized need, deletion of the collection upon conclusion of the applicable research need, and mechanisms to detect and prevent downloading of stored materials. Other security controls proposed by opponents, however, would render the exemption unusable, and we explained our concerns with these proposals to the Office.
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We look forward to working with the Copyright Office to address opponents’ concerns without undermining the purpose of the proposed exemption. The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students and faculty from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.
In the debates around controlled digital lending (“CDL”), much has been said about whether and how CDL affects author incomes. Recently, the Internet Archive requested 10 years of sales data during the discovery phase of its ongoing lawsuit with several large publishers, seeking to support its argument that its digitization projects did not negatively impact book sales. As an authors’ group that represents the interests of authors who care deeply about their works reaching broad audiences, Authors Alliance is a unique voice in the conversation around the impact of different types of library lending on authors’ livelihoods. In today’s post, we will discuss the intersections between author income, traditional library lending, and CDL.
How Do Authors Make Money from Library Sales?
When an author signs a publication contract for her work, she is agreeing to be compensated by her publisher pursuant to the terms in the contract. The two main ways authors are paid are through an “advance against royalties”—an upfront payment or payments made when the contract is signed, the manuscript is delivered, and/or when the book is published—and through royalty payments. Once any advance paid to the author has “earned out” such that author royalties from sales exceed the advance paid to the author, the publisher pays the author a percentage of each sale. When a consumer purchases a book, the author then will receive a percentage of the sale based on the royalty rate set in her publication contract.
Like members of the public, libraries purchase books, and when they do so, authors are entitled to royalties on those sales. Importantly, libraries have purchased and lent books to patrons since time immemorial. In fact, in the mid-20th century, public libraries were the most reliable market for new books. But changes in the publishing ecosystem and widespread reductions in library budgets over time have led to a reversal of this pattern—in 2015, public libraries were responsible for just over 1% of book sales.
Once a library owns a physical book, the library is permitted to lend it out as many times as it likes, based both on public policy and what is known as the “first sale doctrine.” First sale doctrine is based on a provision within U.S. copyright law that allows the owner of a physical copy of a copyrighted work, like a book or DVD, to sell, lend, or otherwise dispose of that copy however she wishes, provided that it does not infringe any of the copyright holder’s exclusive rights. For example, the owner of a copy of a book can lend it out to her friend, lend it out to another friend after the first friend has returned it, and then give it away to a third friend. On the other hand, the owner of a copy of a book cannot make multiple copies to share with her friends simultaneously without infringing on the copyright holder’s exclusive rights of reproduction and distribution. Because of public policy favoring libraries’ roles in the knowledge ecosystem and the first sale doctrine, libraries can lend out copies of books they have purchased as many times as they are able.
How Does Traditional Library Lending Impact Author Income?
As discussed above, library lending results in author income when the libraries buy books in the first instance. But the effect of library lending on consumer book sales, has, perhaps surprisingly, not been the subject of extensive research—as of 2019, there had never been a major study on the impact of library lending on the publishing industry as a whole, but there has long been evidence that library patrons also purchase books, and may even do so more frequently than non-library patrons. In a 2020 survey, nearly a third of consumer respondents reported purchasing a book that they first found in a library, a number that was even higher for avid readers.
Library advocates have long championed the ability of libraries to bring attention to authors and their works, which often results in increased income for those authors. Many libraries host author events in which an author’s books are available for sale to attendees, and these events often result in more demand for that author’s books at the library, leading the library itself to purchase more copies, resulting in more author income. Libraries are also known to increase discoverability of books, both through author events and by exposing patrons to new books and new authors in other ways. In the 2020 survey mentioned above, 30% of respondents reported that, when a book they wanted to read was unavailable at their local library, they purchased the book, either online or at a local bookstore.
How Does Controlled Digital Lending Impact Author Income?
Controlled digital lending is a lending model many libraries across the country have implemented in recent years to increase access to works in their collections. CDL involves a library scanning a physical book it has purchased and is already in its collection, and then lending out this scanned copy in lieu of the physical book. Under the CDL model, libraries are not permitted to lend out more digital copies than they have physical copies at one time. This so-called “owned to loaned ratio” ensures that CDL stays within the bounds of what the first sale doctrine permits: each copy may be loaned out to only one patron at a time. Because libraries have already purchased the physical copies, authors have already received any royalty income they were entitled to from the sales.
Similar to interlibrary loans, CDL makes works available to readers who cannot access the physical spaces where the books are held. In this way, CDL operates as an analogue to traditional print lending: rather than a library patron having to physically travel to a library to check out the book they want to read, they can receive a digital copy loan instead, which comes with the same controls as print lending—limited check out times and a maximum number of loans at one time based on the number of copies the library has purchased. CDL seeks to replicate digitally what is difficult to achieve with physical books: sending a book to a reader who is interested in reading it, wherever she may be located, within the confines of limited library budgets. Many have also argued that CDL also constitutes a fair use, further bolstering the legal basis for the practice.
The role of CDL in the library ecosystem has taken on a new prominence during the COVID-19 pandemic, when libraries have reduced hours or shuttered physical spaces altogether. Over the past year and a half, CDL has served as one important way to bridge the gap and ensure readers can still access library books despite these limitations. And importantly, due to the requirement that a library purchase a print book in the first place and the limitations put in place to ensure that each loan is discrete and temporary, CDL does not hurt author incomes. In fact, due to libraries’ roles in increasing the discoverability of books, particularly when they are digitized, CDL may even result in more sales for authors whose books have been made available in this way.
Authors Alliance has long supported CDL as a way to help books reach readers. Many individual authors also support CDL, as it helps works reach readers who otherwise could not access them, bringing reputational benefits and the potential to increase book sales to consumers.
The new OER covers material taught at the Building Legal Literacies for Text Data Mining institute (funded by the National Endowment for the Humanities and led by Rachael Samberg and Tim Vollmer of UC Berkeley Library), and covers copyright, technological protection measures, privacy, and ethical considerations. It also helps other digital humanities professionals and researchers run their own similar institutes by describing in detail how the programming was developed and delivered, and includes ideas for hosting shorter literacy teaching sessions. Authors Alliance’s Executive Director, Brianna Schofield, co-authored a chapter on copyright in the OER.
Until now, humanities researchers conducting text data mining in the U.S. have had to maneuver through a thicket of legal issues without much guidance or assistance. The new OER empowers digital humanities researchers and professionals (such as librarians, consultants, and other institutional staff) to confidently navigate United States law, policy, ethics, and risk within digital humanities text data mining projects so that they can more easily engage in this type of research and contribute to the advancement of knowledge.
The resource is in the public domain under the CC0 Public Domain Dedication, meaning it can be accessed, reused, and repurposed without restriction.
Authors Alliance is thrilled to announce the open release of our Authors Alliance Partner Program (A2P2) resources. For the past two years, we have been collaborating with library partners to develop a suite of resources that scholarly communications and library professionals can deploy to help faculty, researchers, and students understand and manage their rights throughout their careers. Starting today, A2P2 materials—including workshops in a box, webinars, and issue briefs—are available for everyone to freely use, adapt, and share under Creative Commons licenses.
Workshops in a box (WIBs) are the centerpiece of our A2P2 resources. These all-in-one tool kits contain all the materials trainers need to host educational workshops at their institutions. In addition to an illustrated slide deck, all of our WIBs include presenter notes, audience FAQs and answers for presenters, overview handouts, presentation notes, hands-on exercises, and marketing materials. Current WIBs cover Rights Reversion, Understanding and Negotiating Book Publication Contracts, Fair Use for Nonfiction Authors, Open Access, and Copyright for Graduate Students. Corresponding on-demand webinars are available to supplement A2P2 in-person training.
Alongside the WIBs and webinars, we offer an ongoing series of issue briefs which provide timely and approachable introductions to emerging topics in copyright and publishing. These digestible summaries help scholarly communications and library professionals keep abreast of and navigate developments in the rapidly changing scholarly communications landscape.
By leveraging these materials and Authors Alliance’s expertise in copyright, open access, publication contracts, and getting rights back, organizations can expand their educational capacity to serve authors on their campuses, and ultimately improve the availability and discoverability of knowledge and culture.
We are grateful to Arcadia—a charitable fund of Lisbet Rausing and Peter Baldwin—for a 2018-20 grant to support this initiative, and to the pilot partners who helped us to shape these resources. We look forward to continuing to collaborate with existing partners and building new partnerships as we develop new resources and identify new ways to contribute to author education efforts on campuses. If your organization would like to learn more about how to support the success of this program, please see the Support A2P2 page or reach out to info@authorsalliance.org for more information.
This morning, the Supreme Court of Canada issued a unanimous opinion in Access Copyright v. York University, finding that approved tariffs for works in a collective copyright society’s collection were not enforceable against a user that chose not to be bound, and suggesting that the lower courts had applied an unduly narrow interpretation of fair dealing. Authors Alliance applauds this decision, the last to be authored by renowned Justice Rosalie Abella before her retirement from the bench.
The case involved a claim by Access Copyright, a Canadian copyright collective, which sought to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in Access Copyright’s collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raised the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.
Authors Alliance, together with Professor Ariel Katz, intervened in the case, submitting a factum to the Court and participating in oral arguments. On the issue of whether the approved tariffs are mandatory vis-à-vis users, we supported the Federal Court of Appeal’s finding that the approved tariffs bind copyright collectives but cannot be imposed on users as mandatory tariffs. On the issue of fair dealing, we argued that in the absence of specific allegations of copyright infringement from copyright owners, the lower courts should not have dealt with the issues of infringement and fair dealing. In addition, we urged the court to consider that Access Copyright does not represent the interests of all authors, and especially not the authors whose primary concern is their works having the greatest possible reach and impact.
In the decision, Justice Abella dismissed both York University’s and Access Copyright’s appeals. On the issue of mandatory tariffs, she found that the interim tariff set by Access Copyright was not enforceable upon users who chose not to be bound, as Authors Alliance argued in our factum. Justice Abella further stated that Access Copyright was not given authority by Parliament to make such licensing schemes mandatory on all users of the works in its collection. Emphasizing that the statutory scheme allowing collective administration of tariffs is intended to protect users from “unfair exertion of [] societies’ market power,” Justice Abella pointed out that allowing a society to “foist a license on an unwilling user” was inconsistent with “the protective purpose of the regime.” She emphasized the right of users to access texts in other ways than by obtaining a license from Access Copyright—which, as Authors Alliance pointed out in our factum, is a non-exclusive licensing agent that does not have a monopoly on the use of the works in its collection—and paying the interim tariffs.
The Court did not make a ruling on the issue of fair dealing because, in light of the finding that the tariff was not mandatory against York University, it found there was no live dispute between the parties and that it therefore need not reach the issue of fair dealing. Authors Alliance had urged such an approach in our factum, pointing out that without specific allegations of infringement from copyright owners, the lower courts should not have dealt with infringement and fair dealing.
Nonetheless, Justice Abella stated forcefully that the Supreme Court did not endorse the narrow vision of fair dealing set forth by the Federal Court and Federal Court of Appeal. This is because the lower courts inappropriately “approached the analysis from an institutional perspective only, leaving out the perspective of students that used these materials.” Under a view of fair dealing that did consider the students as the users of these materials, the educational purpose of the copying would weigh in favor of a finding of fair dealing. Instead, the fair dealing question before the lower courts should have been whether the copying “actualizes the students’ right to receive course materials for educational purposes in a fair manner.” Authors Alliance applauds the renewed focus on the educational purposes of the copying in this case and Justice Abella’s emphasis on these purposes as supporting a finding of fair dealing.
Authors Alliance is pleased with the Court’s ruling, which adopted many of the principles set forth in our factum. We pointed out that authors are not a monolith, and Access Copyright did not represent the interests of all authors. By emphasizing that Access Copyright had no standing to sue for copyright infringement, as it was not a copyright holder, the court signaled that the mandatory tariffs were not aligned with the interests of all authors. Indeed, many authors have as their highest goal seeing their works reach broad audiences and contribute to the progress of knowledge, such as being used in higher education, as the works in the case were. The robust interpretation of fair dealing offered in the decision was consistent with the thrust of our factum—that Authors Alliance’s members interests are best served by a robust application of fair dealing that does not interfere with these dissemination goals.
Authors Alliance is grateful to Lenczner Slaght attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan, as well as law clerk Anna Hucman, for pro bono assistance with this intervention.
It is no secret that Authors Alliance loves libraries, and we support policies that help libraries fulfill their essential role of making knowledge and culture available and accessible to all. In recent months, several states have proposed and in some cases passed legislation that requires publishers to license e-books to libraries under “reasonable terms.” Similarly, bookselling and publishing giant Amazon has taken steps to make its content available to libraries, following years of refusal to license e-books to libraries altogether. In today’s post, we will share some of the details of these exciting developments.
State Legislation
Over the course of the past year, three state legislatures have introduced legislation that would impose limits on a publisher’s ability to sell e-books to libraries at a high cost. Under the current licensing model, libraries can pay as much as $60 per title for an e-book license, which often have very restrictive terms, whereas consumers can purchase an e-book license for the same title at a fraction of the cost. The first of these bills was passed in Maryland, and the New York state legislature has also recently approved the New York bill. A bill in Rhode Island is currently pending. Additionally, groups in Connecticut, Texas, Virginia, and Washington have reportedly begun advocating for similar legislation.
Maryland’s Library E-Book Lending Law
Maryland was the first state to enact legislation requiring publishers to offer libraries e-book and digital audiobook licenses on reasonable terms. The Maryland state legislature unanimously passed the bill in March, but before it was approved by the governor, it faced last-minute opposition from the Association of American Publishers (“AAP”), who claimed the bill was unconstitutional. Despite these challenges, Governor Larry Hogan announced that the bill was enacted into law in late May. The law will go into effect in January 2022, and requires publishers who license “electronic literary products” (which may be broader in scope than “e-books”) to the general public to “offer to license the product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access[.]” It remains to be seen what will constitute “reasonable terms” under the new Maryland law, but the Maryland Library Association has recently issued a statement providing guidance on what might constitute reasonable terms and how these might be developed.
Despite the tough opposition it faced from publishers, the Maryland law has been described by its proponents as “fairly mild.” This is because it does not fundamentally change the e-book licensing scheme employed by publishers, whereby e-books are temporarily licensed to libraries, who remain unable to actually own these digital copies. Instead, the law simply requires publishers to offer e-book licenses to libraries on terms they can afford in order to allow libraries to perform their essential function of serving patrons: readers are not served when libraries cannot afford e-book licenses. This problem took on particular salience during the pandemic, when many readers were unable to access physical books at all. The new Maryland law takes aim at this issue without disrupting the traditional e-book licensing model that publishers are reluctant to abandon. Nonetheless, the AAP has since affirmed its opposition to these legislative efforts, maintaining that the Maryland law and other state legislation like it are inconsistent with federal copyright law.
New York’s Library E-Book Lending Bill
Last month, the New York state legislature passed a bill similar to the Maryland bill. Just as in Maryland, state legislators voted unanimously in favor of the bill’s passage. The New York bill also requires publishers to offer libraries e-book licenses on “reasonable terms” if those e-book licenses are also available for purchase by the public. The New York bill proceeds from the premise that “[p]ublic libraries provide equitable access to information for all.” Because many New Yorkers (like many readers writ large) prefer digital books over physical ones, whether due to print or mobility disabilities or for ease of access, the bill takes aim at “discriminatory practices” such as e-book embargos, whereby libraries must wait months to purchase licenses for new e-books.
The New York bill has not yet been sent to Governor Andrew Cuomo for his signature, but advocates are “cautiously optimistic” that he will sign once it has been sent. The bill must be sent to the governor by the end of the calendar year, and once signed, will take effect after just 19 days. This means that while the New York bill is not yet law, it may well take effect before Maryland’s new law if sent to and signed by Governor Cuomo.
Rhode Island’s Library E-Book Lending Bill
In Rhode Island, the analogue bill to the Maryland and New York bills was re-introduced in April of this year after a similar bill last legislative session failed to gain momentum. The 2021 bill, which, like the Maryland legislation, includes digital audiobooks, was then recommended for further study by the House Corporations Committee, with no further updates since late April. Former Rhode Island state senator, Mark McKenney, penned an op-ed voicing his support for the bill, pointing out that “libraries lending books to patrons hasn’t put publishers out of business,” and calling out Amazon specifically for its policy of refusing to sell or license e-books it publishes to libraries and schools altogether.
Amazon and the Digital Public Library of America
In December 2020, Amazon announced it was in talks with the Digital Public Library of America (“DPLA”) to make thousands of books it publishes available to public libraries via the DPLA exchange. The long-awaited deal between the organizations was signed in May, and is set to go into effect sometime this summer. The partnership contemplates several different licensing models, including flexible “bundles” of lends and more traditional models involving time limits and restrictions on how many patrons can check out an e-book at a time. Librarians have applauded Amazon for offering the less restrictive “bundle” models, which provide additional flexibility for libraries. Unlike the state library e-book lending legislation, the Amazon-DPLA partnership will offer an alternative to the traditional licensing scheme.
Library advocates are cautiously optimistic about the Amazon-DPLA partnership, but also note that how much it will help libraries will depend on how Amazon prices its e-books for libraries, which is at this point unknown. Unlike the state library e-book lending legislation discussed above, the Amazon deal makes no mention of how library e-book licenses will be priced. Moreover, not all Amazon-published titles will be made available through the partnership—self-published Kindle originals and Audible audiobooks are not included in the program, for example. Another limitation of the Amazon-DPLA partnership is that it requires libraries to participate in the DPLA marketplace, and will make the e-books readable with the SimplyE reading app, an open source e-reading platform developed by the New York Public Library. Many library patrons today access e-books via more popular marketplaces such as OverDrive, and both iBooks and Kindle are much more popular e-reading platforms with which patrons are likely to be more familiar. Yet the Amazon-DPLA partnership is undoubtedly a step in the right direction towards ensuring greater access to books published by Amazon. Moreover, the deal is not exclusive, meaning that Amazon could develop similar partnerships in the future in order to make its e-books even more accessible to library patrons.
Authors Alliance is grateful to Cory Doctorow for sharing this piece, originally published on Pluralistic.net under a CC BY license. Doctorow is a science fiction author, activist and journalist. He is the author of many books, most recently Radicalized and Walkaway, science fiction for adults; How To Destroy Surveillance Capitalism, nonfiction about monopoly and conspiracy; In Real Life, a graphic novel; and the picture book Poesy the Monster Slayer. His latest book is Attack Surface, a standalone adult sequel to Little Brother.
At its outset, American copyright provided for 14 years of exclusivity, renewable for another 14 years by the author, but – crucially – not by the publisher. This was a shrewd move by the US Framers, because it meant the publisher had to convince the author to file paperwork.
Most authors have very little bargaining leverage at the outset of their publishing deals, and even when the author’s prior accomplishments afford them some bargaining power, a new book is, by definition, an unknown quantity, and the fair price for it is debatable.
Then (as now), the majority of works are no longer commercially viable after 14 years. But for authors of the minority of works that thrive over long terms, renewal is an opportunity to reopen publisher negotiations from a position of strength.
The author could say, “When I sold you this book, neither of us could say how it would fare, so you paid me a modest sum. 14 years later, it is earning for you, and if you wish to continue to enjoy exclusive rights to it, I demand that you share that bounty with me.”
If the publisher demurred, the author could simply walk away from the negotiations. The book’s copyright would not renew, other printers could produce their own editions at or near the marginal cost. The publisher would lose all, the author would be no worse off.
Some form of renewal endured in US copyright for many years, and even after it was abolished, US copyright retained a measure intended to address creators’ unbalanced negotiating power with their investors (studios, labels, publishers, etc): Reversion.
Essentially, US copyright lets creators to claim back their rights after 35 years (depending on the work’s age), even if their contracts are for longer terms. This right can’t be contracted away, either: a clause that says “I won’t ever revert my rights” is not enforceable.
Reversion could allow creators to renegotiate their deals, but it has other benefits. For scholarly authors – who must sign away all rights, for free, to publish in journals that charge fortunes for access – it’s a chance to get those works into the public domain.
For authors, it’s a partial answer to the conundrum of ebooks and print-on-demand, which have made contractual reversion obsolete (publishers historically gave your rights back when the book was out of print, but ebooks and PoDs are never out of print).
And for creators who were tricked into signing away their rights, it’s a chance to get them back.
But for all that, reversion is woefully rare, because the process is so complex, uncertain and obscure.
For years, the Authors Alliance has provided tools for creators seeking to revert their works, but even with this assistance, the process is daunting.
Efforts to improve the system have been hampered by a huge data-void. The US Copyright Office’s databases are woefully and infamously clunky, incomplete, out-of-date and under-resourced.
This is a crisis for all creators – if we want to sell our works, then having clear records of our claims on them is essential, first, so buyers can find us, and second, so we can prove that we have the right to sell.
The rights reversion data void hampers international efforts to improve copyright for creators, as in South Africa, where US entertainment cartels exploited the gap to sow fear, uncertainty and doubt in a bid to prevent South African authors from winning reversion rights.
The authors – Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham, Genevieve Grant – scraped all Copyright Office data pertaining to reversion, painstakingly processed it, and published it. Here’s the data and here’s the codebooks.
The paper is up on SSRN, and has been accepted for publication in the prestigious Journal of Empirical Legal Studies. It’s an eye-popping read, and it reveals the truly dismal state – and vital necessity – of reversion.
Few creators have managed to revert but the ones that have are fascinating. Stephen King is a leading reverter, as are George RR Martin, Nora Roberts and David Eddings – successful authors who are able to claim back their works and seek new deals based on their track records.
A single YA author – Francine Pascal – accounts for nearly all the YA reversions, thanks to her reclaiming of all 305 of her Sweet Valley High novels (in kids’ books, Ann Martin attains another high-water mark for reverting the Baby-Sitters Club books).
But the most fascinating entry is funk titan George Clinton, who pursued his former manager Nene Montes for years, claiming he’d forged Clinton’s signature and defrauded him to steal the rights to most of Clinton’s prodigious and profitable catalog.
Thanks to reversion, Clinton was able to finally settle all question of title without expensive litigation – he simply reverted 1,413 works.
These are just the preliminary findings from this landmark, open-access dataset. Other researchers are encouraged to mine it further.
For policy-makers and creators’ advocates, this data finally puts a sound evidentially footing beneath the debate over reversion. US reversion does help creators, but it is badly hamstrung by needless complexity and poor record-keeping.
Improving reversion – simplifying it, or even making it automatic at 25 years – is a no-brainer if you want to improve creators’ share of the bounty of their most successful works.
Not coincidentally, Giblin (one of the authors) and I collaborated on THE SHAKEDOWN, a forthcoming book on how copyright, labor, contracting, and antitrust reforms could actually improve the creators’ share of the profits from their labor.
The Parliament of the Republic of South Africa is currently considering the Copyright Amendment Bill, an update of the country’s 1978 copyright legislation. In response to an invitation from the the Portfolio Committee on Trade and Industry, we submitted comments in support of the copyright exceptions included in the draft bill.
Our comments explained that authors can benefit from exceptions to copyright throughout the creative process and long thereafter. We shared how copying, quoting, and generally reusing existing cultural material is critically important to the production of new creative works and the advancement of knowledge. Nonfiction and fiction authors alike rely on exemptions to enable criticism, commentary, and illustration, among authors uses, to create new works and contribute to public discourse.
With respect to exceptions in the draft bill for educational and academic activities, we described the ways in which exceptions for these uses can also benefit authors, enabling them to reach wider audiences, helping them to build reputational capital, and amplifying their ability to contribute to the advancement of knowledge. And finally, regarding proposed exceptions for libraries, archives, museums, and galleries, we shared how these exceptions promote the long-term interests of authors, ensuring that their works are discoverable and preserved.
Including carefully crafted exceptions to copyright in South Africa’s copyright laws will promote a vibrant creative ecosystem and serve the public good. We commend the Parliament of the Republic of South Africa for the inclusion of these provisions in the draft Copyright Amendment Bill and look forward to tracking its progress. For the full text of our comment, click here.
In today’s post, we will be sharing some facts about copyright law and American Independence Day. While the two might not seem to be closely connected, both the history of the Fourth of July and the ways in which we celebrate today implicate copyright law in some unexpected ways.
Patriotic Public Domain Works: The Declaration of Independence
The Fourth of July celebrates the anniversary of the signing of the Declaration of Independence in 1776, whereupon the American colonies declared themselves to be independent from England. The Declaration of Independence is in the public domain for several reasons. Copyright buffs may recall that works published prior to 1926 are in the public domain, and this principle applies to this historic document. But in fact, the lack of a system of copyright protection in the American colonies at the time of the Declaration’s issuance means that it was probably never protected by U.S. copyright law. The first federal copyright law was not passed until 1790, and did not apply retrospectively, but only to new works of authorship. And today, literary works authored by the federal government are automatically in the public domain.
The Library of Congress makes scanned copies of early historic documents in the public domain, including the Declaration of Independence, available online. Because they are in the public domain, anyone is free to use these documents in whatever manner they wish—reading them aloud to crowds, translating them into other languages, or printing and distributing copies—without fear of copyright liability.
Patriotic Public Domain Works: “The Star Spangled Banner”
The American national anthem too is a part of the public domain. The lyrics to “The Star Spangled Banner” originate from a poem, “Defence of Fort M’Henry,” written by Francis Scott Key in 1814. The musical composition was taken from an earlier written song—“the Anacreontic Song,” official song of the British gentleman’s club, the Anacreontic Society—which was already in the public domain at the time, having been written in the late 1700s (you can hear a full recording of “The Anacreontic Song” on the Smithsonian’s website). Key’s poem set to this tune was subsequently re-titled “The Star Spangled Banner.” The patriot song remained popular for years, and was officially adopted as the American national anthem in 1931.
Interestingly, only Key’s lyrics were officially adopted as the national anthem. While “The Anacreontic Song” has remained the unofficial, traditional musical composition for “The Star Spangled Banner,” creators have been empowered to create their own adaptations, which could potentially rise in popularity and usurp the original tune (though this has not happened). These adaptations can also draw heavily from the original tune because it is in the public domain: such adaptations could have been considered derivative works that would infringe the copyright owner’s exclusive rights, were the song protected by copyright. Well-known adaptations of “The Star Spangled Banner,” like Igor Stravinsky’s four arrangements of the song and Jimi Hendrix’s instrumental rendition at Woodstock, may not have been possible without the freedom to adapt that the public domain enables.
Copyright in Revolutionary America
Prior to the issuance of the Declaration of Independence, when the American colonies remained under British rule, there was no copyright protection in the present-day United States. This is because the British copyright law, the Statute of Anne, did not apply to the American colonies. As a result, creators had little to no control over the dissemination of their works, and were not entitled to royalty payments. However, the largely agrarian nature of the present-day U.S. at the time made copyright protections less of a priority for the colonists and revolutionaries. Over the next 14 years, as the country evolved, the Continental Congress and later the Congress of the Confederation (the legislative body established under the Articles of Confederation) allowed for private copyright acts and state law copyright acts, resulting in inconsistencies across states and limited protection for creators. Finally, the first federal copyright bill was signed into law by George Washington in 1790. This law mirrored the Statute of Anne nearly word for word, though U.S. and U.K. copyright laws have evolved in different ways in the intervening century.
The Fourth of July Today: Copyright in Fireworks Displays
Across the U.S., many celebrate the Fourth of July with fireworks displays, which can be expressive and creative. But fireworks displays are an example of the kind of creative expression that copyright typically does not protect. This is because of the fixation requirement in American copyright law: for creative expression to receive copyright protection, the Copyright Act requires that it be fixed in a tangible medium of expression. The fixation requirement means an improvised speech which is not recorded or documented in any way cannot protected by copyright, for example. And similarly, fireworks displays are simply too ephemeral and intangible to satisfy the fixation requirement.
But the story does not end there: photographs or film recordings of fireworks displays are eligible for copyright protection, because those types of expression are fixed—recorded on film or saved on a digital camera. Images or recordings of fireworks displays further possess the “modicum of creativity” necessary for a work to be protected, since the person who captured the image or recording made at least some creative choices in how they captured the display. Additionally, a recent court case found that “command protocols” and the underlying computer codes for the actual launching of fireworks were copyrightable as software, which is a type of literary work eligible for copyright protection. So while the actual display of fireworks—what you may have witnessed this Independence Day—cannot be protected by copyright, fixed images of the fireworks and the computer program that made their display possible can be protected.
