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Authors speak out: an update on the Wiley ebook situation

Last week we wrote about publisher John Wiley & Sons abruptly removing some 1,300 ebooks from library collections, and then (in the face of significant public outcry from librarians, authors, and instructors) temporarily restoring access for the academic year.

Authors Alliance has heard from a number of authors expressing their strong disapproval of Wiley’s actions. To help them express their concerns, we co-wrote a letter with #ebookSOS that authors of the Wiley books can sign on to, calling on Wiley to change their practices. The text of the letter can be read here. We’re still working on reaching out to all of the individual authors of these books (if you are inclined to help find contact info, you can contribute it here), but already we’re hearing back from authors with comments of their own. For example, authors wrote us to express their frustration over lack of respect for their interests in seeing their books put into the hands of readers:

“I find the removal of eBooks arbitrary and infringing on the rights of the authors and the prospective readers/users of these book.”

“I strongly agree with your approach concerning the e-books. Wiley is evidently the only beneficiary of this system, which works against the authors and readers.”

“I would like my book to be available to as many students as possible.”

Unsurprisingly, the question of royalties paid out to the authors of top-selling titles is a frequent topic of discontent, highlighting the mismatch between the high prices that Wiley charges for access and the funds that actually make their way to authors. For example, authors wrote us to say:

“Recently I wrote Wiley if I can get a yearly list of royalty payments corresponding to hard cover, e-book and, if appropriate, solution manual. Because for a book in the forefront of the technology, I received only $8 as the last royalty payment. The result was no answer. All these make me question if they calculate the royalty payments honestly. I was not intending to get rich when I decided to write this book, but the return of time and effort I put for writing such a book is not fair. I wonder whether the return for Wiley is also that low.”

“Wiley created a lot of problems in royalty payments. I had to write a letter of complaint to the CEO of Wiley in order to get my first royalty payment after approximately three years after the publication of the book. The payment department was uncooperative.”

As we note above, in response to mounting pressure, Wiley did recently announced it will reinstate the withdrawn books, but only until June 2023. After hearing from the authors we’ve reached out to, Authors Alliance and #ebookSOS agree that the problem is in no way solved and are continuing their efforts to raise awareness with authors.

For more information please contact us at ebooksoscampaign@gmail.com or at info@authorsalliance.org.

Note: this initiative is part of a wider joint project, to educate and empower authors, who rarely know how their work is managed post-publication, to hold publishers to account. If you want to help on this project please get in touch.

Biden’s Open Access to Research Policy and How it Affects Authors

Several weeks ago, the White House Office of Science and Technology Policy (OSTP) issued a memo titled Ensuring Free, Immediate, and Equitable Access to Federally Funded Research. The memo, which builds upon earlier policies including this 2013 Obama administration open access memo and this 2008 National Institutes of Health policy, directs all federal agencies with research and development spending to take steps to ensure that federally sponsored research in the form of scholarship and research data will be available free of charge from the day of publication.

The initial release of the Biden OSTP memo generated a rush of news speculating about its impact on scholarly publishing—how major publishers would react, how academic institutions would respond (and specifically whether it would result in a shift towards more “Gold Open Access” publishing in which authors pay publishers an article processing charge to publishing their article openly), and how many articles this change would affect. SPARC, a nonprofit dedicated to supporting open research, has a great summary of the policy and related news.

We recently caught up with Peter Suber, Senior Advisor on Open Access at Harvard University Library, to talk about the implications of the OSTP policy for authors. Peter is a founding member of Authors Alliance who has been deeply involved in advocating for open access for several decades.

Q: Give us a brief overview of the new OSTP policy – what is this and why is it important?

The key background is that back in 2013, the Obama White House OSTP issued a memo asking the 20 largest federal funding agencies to adopt OA policies. The memo applied to agencies spending over $100 million per year on extramural research funding. The new memo from the Biden White House extends and strengthens the Obama memo in three important ways:

It covers all federal funders, not just the largest ones. I’ve seen estimates that the new memo covers more than 400 agencies, but the OSTP has not yet released a precise number. Among other agencies, the new memo covers the National Endowment for the Humanities. So for the first time federal OA policies will cover the humanities and not just the sciences.
The Obama memo permitted embargoes of up to 12 months, and publishers routinely demanded maximum embargoes. The Biden memo eliminates embargoes and requires federally funded research to be open on the date of publication. Like the Gates Foundation —which I believe was the first funder to require unembargoed OA to the research it funded—the White House announced its no-embargo policy several years before it will take effect, giving publishers plenty of time to adapt.
The Obama memo covers data, not just articles. This is an important step to cover more research outputs and more of the practices that make up open science and open scholarship.

How will publishers react to this new policy? Of course they have the right to refuse to publish federally funded research. When the NIH policy was new in 2008, we didn’t know whether any publishers would refuse. Because many publishers lobbied bitterly against it and we thought some might do just that. But it turns out that none refused. It’s hard to prove a negative, but the Open Access Directory keeps a crowd-sourced list of publisher policies on NIH-funded authors, and has so far turned up no publishers who refuse to publish NIH-funded authors just because they are covered by a mandatory OA policy.

Of course one reason is that the NIH is so large. It’s by far the world’s largest funder of non-classified research. Any publishers who refuse to publish NIH-funded authors would abandon a huge vein of high-quality research to their rivals. But when federal OA policy covers smaller agencies as well, some publishers might well refuse to publish, say, NEH-funded research, because they don’t receive many submissions from NEH-funded authors. This is something to watch.

Q: The Biden memo does not address ownership of rights or licensing for either scholarship or data. How do you think agencies will address rights issues in their implementation?

Good point. Neither the Obama nor the Bidem memo explicitly requires open licenses. But both require that agency policies permit “reuse”, which will require open licenses in practice. Unfortunately the Obama White House approved agency policies that did not live up to this requirement. We can hope the Biden White House will do better on that point. Of course Plan S requires a CC-BY license and the Biden memo conspicuously stops short of that. As a result, we can expect lots of lobbying, either at the agency level or the OSTP level — for and against explicit open licensing requirements, and for and against specific licenses like CC-BY.

Q: Some people have written about how open access policies and Plan S Rights Retention Strategy in particular undermine authors rights. E.g., this post on Scholarly Kitchen. Our point of view is that those policies address a negotiating imbalance that has traditionally favored publishers, and allows academic authors –who on the whole prefer broad reach and access to their work– to switch the “default” to open for their articles even when their publishers wish otherwise. Do you have a response to that argument that OA policies for funded research undermine authors rights?

I’ve never seen a good argument that rights retention policies harm authors or limit their rights. On the contrary, these policies help authors and enlarge their rights. I’ve made this case in response to criticisms of the rights-retention OA policies at Harvard, and I’ve enumerated the benefits of rights-retention policies for authors. (For background on the Harvard rights-retention policies, I can recommend a handout I wrote for a talk last year.)

One criticism is that rights-retention OA policies will reduce author choice by causing some publishers to refuse to publish covered authors. But in practice there is no evidence that this actually happens. I’m not aware of a single instance of this happening In the 14 years that Harvard has had its rights-retention policies. The same goes for the more than 80 Harvard-style policies now in effect in North America, Europe, Africa, Asia, and Australasia.

In fairness, Harvard-style policies give authors the right to waive the open license. By default the university has non-exclusive rights, but authors can waive that license if they wish, and publishers can demand that authors get the waiver. But that too is rare. In our case, very few publishers – just two or three – systematically make that demand, and I haven’t heard that it’s common anywhere else. Our waiver rate is below 5%. Even with waiver options, these policies definitely shift the default to open.

Under the Plan S rights retention strategy, authors add a paragraph to their submission letter saying that any accepted manuscript arising from the submission is already under a CC-BY license. Publishers have the right to desk-reject those articles upon submission. But we don’t know whether any will actually do so. Plan S has a tool to track journal compliance with the Plan S terms, and it will alert authors to steer clear of those publishers.

Q: There has been speculation that the Biden memo will accelerate the rate at which publishers adopt a “article processing charge” Gold OA model that will require all authors (or their funders or universities) to pay for their articles to be published. What do you think?

First we should note that the White House guidelines are 100% repository-based or “green”. They require deposit in OA repositories, not publication in OA journals. As far as I can tell, publishing in an OA journal would not even count toward compliance, since those authors would still have to deposit their texts and data in suitable repositories.

Publishers could say to federally-funded authors, “You can publish with us only if you pay an APC [article processing charge] for our gold option.” Authors could take them up on that or they could withdraw their submissions and look elsewhere. The new OSTP memo lets authors use some of their grant funds to pay “reasonable publication costs”. Some authors may be fooled and think that paying the fee is the only way to comply with the funder policy. But that would be untrue. As more and more authors realize that they can comply with the funder policy by depositing in a repository, at no charge, I predict that they will divide. Some will take the costless path to compliance and refuse to pay what I’ve called a prestige tax just to publish in a certain journal. Others will pay the prestige tax for a journal’s brand and reputation, if only because journal prestige still carries a lot of weight with academic authors. This obstacle to frictionless sharing is a cultural obstacle that new policies cannot directly dismantle. But we should remember that when publishers demand a publication fee and authors pay it, the authors are paying for the journal brand. They are not paying to comply with the funder policy, which they could do at no charge.

The Biden memo is equivocal about this possibility. On the one hand, it lets federal grantees use grant money to pay reasonable publication costs. On the other hand, it requires that agency policies “ensure equitable delivery” of federally funded research. The memo uses “equity” language in similar contexts half a dozen times. On one natural interpretation, this language rules out APC barriers to compliance, because APCs exclude some authors on economic grounds. This is another front on which there will be lots of lobbying as the agencies put their policies into writing. In fact, the lobbying has already begun.

Some publishers will undoubtedly demand fees or try to demand fees to publish federally-funded authors. But we already know that some will not. Science, for example, has already said that it will publish federally-funded authors without requiring them to buy its “gold” OA option. AAAS said that “it is already our policy that authors who publish with one of our journals can make the accepted version of their manuscript publicly available in institutional repositories immediately upon publication, without delay.” In a related editorial, Science explained that its authors may already deposit in the OA repositories of their choice “without delay or incurring additional fees.” It opposes a full shift toward “author pays” gold OA because it discriminates against many kinds of researchers, such as early-career researchers, researchers from smaller schools, and those in underfunded disciplines. It agrees that the APC model “can be inequitable for many scientists and institutions.” Some journals will follow Science, because it’s Science. Some will do so to avoid the equity barrier. And some will do so to signal that they will only evaluate submissions on their merits.

Q: As agencies go about developing their own plans for implementing this policy, will authors or others have an opportunity to give input, or will this be a closed-door process?

We don’t know yet. The White House didn’t solicit public comments for the 2022 memo, which angers some publishers. The Obama white house memo did solicit public comments, twice, and both times the comments overwhelmingly favored the policy.

It seems that agencies could still call for public comments before they finalize their policies. The actual development of the policies will be coordinated by three agencies: the OSTP, the Office of Management and Budget, and the National Science and Technology Council Subcommittee on Open Science. We don’t know what guidelines, if any, they will lay down for that coordination.

The background on coordination goes back to the Obama White House. When it told the large agencies that they must adopt OA policies, it allowed the policies to differ but asked agencies to work together to ensure that the policies aligned. In the end, I believe the policies differed too much. Universities really feel this because they have to comply with all of the policies, since they receive grants from each agency. Like the Obama memo, the Biden memo allows the policies to differ and calls for coordination. We can hope for less divergence than in the past.

Authors Alliance Supports Model Ebook Legislation

Posted July 7, 2022

Authors Alliance is pleased to add its support to an effort that would restore balance to the ebook market. Last week, Library Futures released a policy statement and model legislation that would help state legislatures resolve a host of challenges that make it difficult for libraries to lend ebooks and ensure their long-term availability.

Why we care: For authors who want to have an enduring impact on the world, having their writings fall into obscurity is a major concern. For print books, libraries have historically played an important role in making sure books did not drop out of circulation. No matter the current state of the market or what is going to make the biggest splash on a publisher’s bottom line (or even whether a book has long gone out of print), libraries make authors’ books available to readers in both the short and long term. Copyright law plays an important role in balancing the level of control that publishers have over copies they sell and the rights that libraries and their readers have to access and use those copies. Current law gives libraries fundamental rights, including the ability to buy copies on the open market, lend copies to users one at a time, and preserve books for the long-term.

For ebooks, publishers have been able to write their own rules for how libraries can use those books. That’s because every ebook that you buy–or that a library acquires –is not actually owned by the purchaser, but licensed by the publisher or ebook distributor. The terms of these licenses are largely dictated by publishers. In recent history, libraries have contended with contracts that severely limit how they can fulfill their mission – contracts that charge libraries multiple times more than what consumers pay, place strict limits on how many times a ebook may be lent out before the library has to pay for it again, place limits on how long the library can have access, limits on how long a user can check out a book, and limits on how researchers can use that book (e.g., limiting text and data mining), among many other limitations that don’t apply in the print world.

These kinds of contractual restrictions make an end run around the traditional market balance that existed in the print world. The end result is that for ebooks, authors are less likely to reach the readers they hope to, especially cutting out readers who rely on libraries for access and don’t have the financial means to purchase ebooks themselves. Restrictions on library preservation activities can also jeopardize long-term availability. While libraries are committed to continuing to pay for the care needed to maintain books long into the future, commercial publishers have no such incentive beyond the window in which a work is commercially viable. That window for commercial viability is short – on average, only 5 years. While some publishers (mostly academic publishers) have been willing to agree to license terms with libraries that provide for long-term availability for ebooks, most others have not, and instead actively frustrate library efforts to ensure long-term access. All of this means that as time goes on, these types of restrictions could make authors’ books harder—if not impossible—to find online.

What the proposed ebooks law does: We wrote last year about a Maryland law passed in 2021 that aimed to force publishers that sold ebooks in the state to also license to libraries on “reasonable terms,” addressing many of licensing problems we note above.

While the bill passed the legislature and became law,it ran into trouble almost immediately. The Association of American Publishers brought a lawsuit to enjoin its enforcement, arguing that because copyright law is the domain of federal law, state legislation governing ebooks is preempted by federal law and therefore unenforceable. Earlier this year, the Federal District Court of Maryland agreed, holding that because the Maryland law required that publishers “shall offer” a license to libraries whenever they offer an ebook to the public, it effectively forced publishers to grant these licenses, conflicting with the copyright holder’s federally granted exclusive right to control public distribution. The court explained, “[f]orcing publishers to forgo offering their copyrighted works to the public in order to avoid the ambit of the Act interferes with their ability to exercise their exclusive right to distribute. Alternatively, forcing publishers to offer to license their works to public libraries also interferes with their exclusive right to distribute.” The decision tracks closely with an opinion that Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, released in 2021. The Copyright Office drew a sharp distinction between those state laws that purport to regulate the terms of a contract (which she concluded are unlikely to be preempted since they do not interfere with the right to distribute) with state laws that require publishers to grant a license (likely to be preempted). Perlmutter explained that “[b]oth the Third Circuit and the District of Utah have explicitly excluded from permissible state regulations those that “appropriate[] a product protected by the copyright law for commercial exploitation against the copyright owner’s wishes.”

Since Maryland passed its legislation, numerous other states have taken up the same issue, with slight variations on their approach. Given the failure of the Maryland law, how states craft such legislation is clearly important.

Authors Alliance supports the Library Futures policy paper and model legislation because it offers a reasonable, productive, and viable alternative pathway for states to address inequities and unequal bargaining power in the ebook marketplace. Specifically, it proposes an approach that does not demand that publishers license to libraries on certain terms, but instead focuses on the state’s traditional and well accepted role in regulating how its own state contract law will apply, particularly in cases of unequal bargaining power. We encourage states to utilize the framework set out by Library Futures rather than repeating the same framework as the Maryland law.

Update: Fair Use in the Courts in 2021

Posted August 31, 2021

“Prince Mural” by red.wolf is licensed under CC BY-NC-SA 2.0

In April, we published a post on two major fair use decisions from this year: Google v. Oracle and 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.

Update: Library E-Book Lending Legislation and Partnerships

Posted July 27, 2021

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.

Copyright and American Independence Day

Posted July 6, 2021

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.

Libraries, COVID-19, and E-Book Lending: One Year Later

Posted March 30, 2021

This is the second in a two post series on how libraries have responded to the COVID-19 pandemic, one year after the American Library Association recommended that libraries across the country close. Last week, we discussed the ways in which libraries have supported communities and readers through expansion of traditional services and new initiatives aimed at preservation.

On March 17, 2020, the American Library Association (“ALA”) recommended that public libraries across the country close in response to the challenges posed by the COVID-19 pandemic. That same day, publishing conglomerate Macmillan (one of the so-called “Big Five” publishers that dominate much of the trade book market) announced it would end a controversial embargo on sales of e-books to libraries, also stating its intention to temporarily lower prices on some library e-book licenses “to help expand libraries collections in these difficult times.”

One year later, many libraries remain shuttered or have scaled back their hours, services, and capabilities. Yet e-book lending has skyrocketed, as e-books can be checked out by patrons from the safety of their homes. Libraries have adapted to this increased demand in a variety of ways despite limited resources and budgets. By increasing digital offerings with a special emphasis on making e-book lending available to patrons, libraries have pivoted to serve the needs of a community forced by external circumstances to turn to the internet for information, culture, and human connection.

Library E-Book Lending in the “Before Time”

Prior to the start of the pandemic, a dispute between publishers and libraries on the subjects of e-book pricing and availability to patrons had been quietly simmering. Between 2018 and 2019, four of the Big Five publishers changed licensing terms and raised prices of e-books for libraries. And the bookselling giant Amazon, which has launched its own publishing operations under the name “Amazon Publishing,” has taken an even harsher approach to e-book library lending: it refuses to sell its titles to libraries altogether. In a statement to the Washington Post, a representative from Amazon Publishing stated that it was “not clear to us that current digital library lending models fairly balance the interests of authors and library patrons[.]”

In general, libraries are able to loan out e-books because they acquire licenses to do so. Typically, a copy cannot be checked out by more than one patron at a time and only for a set number of times (with 26 and 52 checkouts being most common), and the licenses may also be limited duration, typically one to two years. Moreover, libraries pay up to five times more for e-books than consumers do. This custom reflects the fact that a library lends each e-book out multiple times, with multiple end readers rather than the single user who buys an e-book from Amazon or the iBook store. But libraries are typically charged the same price for physical books as are consumers, creating an imbalance in access across the two formats. This imbalance has become all the more salient during the pandemic due to the limitations on access to physical books and the budgetary constraints that are felt around the country.

By 2018, 90% of American libraries offered digital loans. As e-book library lending increased in popularity, publishers argued that the popularity of library e-book lending led to reduced profits. In 2019, Macmillan revealed that its revenue per library e-book read was down to “two dollars and dropping,” apparently “a small fraction” of what it makes on consumer purchases. Macmillan and other large publishers complained that the “frictionless” nature of e-book lending means that readers can acquire e-books with the same relative ease as purchasing those e-books. But there is reason to believe the fear that library e-book lending hurts e-book sales is ill-founded—in the first 10 months of 2020, when library e-book checkouts began to increase dramatically, the American Association of Publishers reported that e-book sales had increased by over 16% rather than dropping as more readers turned to library e-books.

Library E-Book Lending During the Pandemic

During the pandemic, library e-book lending increased manifold across the country. In April 2020, the Congressional Research Service reported that demand for e-books (both from libraries and readers who purchased e-books) had increased significantly, and that libraries and organizations were searching for lending models to address this increased demand. OverDrive, the nation’s leading e-book lending platform and maker of the “Libby” library lending app, saw checkouts increase by over 50% during the early months of the pandemic, and many individual library systems similarly saw large increases in e-book checkouts. New library partnerships with hoopla, another leading lending platform, have resulted in a 20% increase in membership for the platform. At the most basic level, this uptick in demand is not difficult to understand: without access to physical library spaces, e-book lending became for many patrons the best option to continue to access works at their local libraries.

To keep up with the increasing demand for e-book loans and better meet patrons where they are, libraries have adapted their programs and procedures to make e-book checkouts more accessible. Libraries began by investing in more e-book licenses and increasing spending on “digital resources.” As the pandemic progressed, libraries around the country began allowing patrons to apply for and obtain library cards online so that new patrons could access e-book offerings. Library systems have also increased investments in new e-book licensing models, such as the “concurrent use model,” which allow libraries to license a “bundle” of loans to meet high demand that do not expire. This model is particularly attractive for public school students, and it has been used to facilitate access to texts during remote learning. Another lending model that has increased in popularity during the pandemic is the deployment of “skip-the-line” or “lucky” copies of new and popular titles. This system allows patrons to choose to check out an e-book for a shorter checkout window, but to avoid long waitlists that can plague popular titles available for regular check out. And this summer, libraries worked to support patrons grappling with racial injustice following the killing of George Floyd and protests across the country by working with OverDrive to offer extended checkouts for books on anti-racism.

Publishers have also adapted their e-book license terms to be more library- and reader-friendly, recognizing the importance of library lending for the American public. By the end of March 2020, all of the Big Five publishers had announced relaxations of their e-book license terms, reducing prices on e-books for libraries by up to 50% and developing “cost per circulation” catalogues that allowed libraries to pay fees per e-book loan for certain titles rather than requiring an upfront payment for a license of limited duration. But these measures were largely intended to be temporary to help libraries struggling to meet their patrons’ needs during the pandemic, and where library e-book lending will go from here is uncertain.

An Uncertain Future for Library E-Book Lending

While progress has been made towards making knowledge and culture more accessible through relaxing barriers to entry for e-book library lending, it is unclear whether publishers and other intermediaries will return to the state of play prior to the pandemic.

Recognizing the need for fair and balanced license terms for library e-books, several states have introduced legislation mandating that publishers must offer libraries e-books that are available to retail consumers, and must do so on “reasonable terms.” And, in Maryland, such a bill was recently approved unanimously by the state legislature, and is currently awaiting final approval by the governor. Amazon Publishing, which until recently refused to budge on its ban on selling e-books to libraries, is reportedly in talks with the Digital Public Library of America to make Amazon Publishing titles available to libraries across the country through DPLA’s lending platform. ReadersFirst, a library organization that advocates for library users’ ability to use loaned e-books in the way they use print books, is optimistic that other publishers may follow suit and work to make their e-books more accessible to libraries and their patrons.

Creation is Not a Closed Book Exam: Developing the Best Practices in Fair Use for Open Educational Resources

Posted March 16, 2021

by Will Cross and Meredith Jacob, originally posted on the Copyright at Harvard Library blog

You can learn a lot from which questions people ask you, and which they don’t. As educators and advocates for building openly-licensed textbooks and other open educational resources (OER), we spend a lot of our time at conferences and workshops talking about how to understand and use Creative Commons licenses. As we’ve done presentations over the past few years, however, we noticed that attendees generally listened politely to our presentation and then spent the entire question and discussion period asking pointed questions about how fair use fits in.

As fair use advocates, we love these questions – what’s more fun than digging into a juicy fair use discussion! But bringing discussions about fair use into the open education community raised a second set of questions from creators and especially gatekeepers, and we needed to give people a way forward that went beyond a quick conference Q&A but still didn’t promise individualized legal advice. Some open educators felt unprepared to analyze fair use in particular contexts. Many felt apprehensive about fair use as a whole, often based on anxieties grounded in copyright folklore left over from the era of Napster and LimeWire. Strikingly, many institutional gatekeepers felt unable to make broad, uniform decisions about whether and how to acknowledge fair use at all. While they recognized that some authors were in fact relying on fair use sub rosa, without any tool for systematically understanding and applying fair use they felt that their options were either “allow anything” or “(pretend to) allow nothing.”

Of course, the reality is that every textbook relies to some extent on fair use. It would be practically impossible to build a textbook – certainly a good textbook – without quoting anyone, critiquing anything, or illustrating ideas with text, images, music, or other materials from the real world. Creating anything, including OER, is not a closed book exam. Good pedagogy explicitly builds on the work that has come before and great pedagogy connects to the real world and the lived experiences of the learners it is meant to engage.

Our job, then, was to understand what type of guidance the community needed in order to find a happy medium between “no fair use allowed” and “anything goes.” Fortunately, we had a great tool for exactly this type of work: the Codes of Best Practice in Fair Use. For two decades, the Codes of Best Practice have proved to be an effective tool for many communities to document the repeated professional situations in which they can and must rely on fair use. The Codes are built on a framework that aligns fair use decision making with both the professional mission of the creators and the predictable legal principles of fair use law. These Codes have worked for such disparate communities as documentary filmmakers, librarians, poets, and dance archivists, just to name a few.

As when creating past Codes, we began with a series of interviews with stakeholders across the community. These interviews helped us understand where questions about fair use were creating friction for OER creators, where authors were regularly relying on fair use, what parallel concerns such as accessibility and equity demanded attention, and finally where OER creators were getting information, advice, or even hard rules about the copyright decisions they were making. By early 2020 we felt ready to begin the focus groups that are the signature work of creating Best Practice documents. We felt inspired, connected, and ready to go. Nothing could stop us now . . .

Obviously 2020 didn’t go the way anyone expected, and we paused the process to support educators making the rapid move to fully online instruction with a series of webinars on building resilient materials for teaching and learning. This series also began with a question: “can I read aloud to my students in an online classroom?” The answer, of course, is “reading is most definitely allowed!”

Significantly, what we thought would be a brief detour turned out to be a critical reminder for all of our work, especially the Best Practices: “it’s always an emergency for someone.” While the pandemic brought into focus acute questions about rapid shifts in pedagogy and making do with substandard wifi, for many learners those challenges are chronic and exist beside and in the context of systematic injustice, inaccessible design, and deep digital divides. Relying on fair use as a tool to enable access seemed urgently necessary in that moment of crisis. But those needs are no less urgent and fair use is no less essential for students who face perennial challenges based on inequity and inaccessibility.

As we returned to developing the Code, this core principle continued to animate our work and to resonate deeply in focus group discussions, particularly when we discussed the inadequacy of linking out rather than relying on fair use to reliably incorporate materials. By the late fall we had completed eighteen focus groups and were pleased that our outstanding team of legal reviewers enthusiastically supported the document we facilitated in partnership with the open education community.

As we celebrate Fair Use Week 2021 we’re excited to share the Code of Best Practices in Fair Use for Open Educational Resources. As with all of the Codes, this resource describes an approach to reasoning about the application of fair use to issues both familiar and emergent but does not provide rules of thumb, bright-line rules, or other decision-making shortcuts. Using the Code to develop OER is also not a closed book exam. Instead, it is designed to empower you to bring together a team of educators, librarians, publishing experts, and others to develop resilient, inclusive OER that engages with and reflects the work that has come before and the world that learners are preparing to enter.

You can learn more about what the Code says, how it works, and how it fits into a global body of educational exceptions in this recorded webinar. We’re also developing a series of community-specific events for open educators, librarians, and legal gatekeepers such as offices of general counsel over the coming weeks. We invite you to work with us to develop guidance and models for applying the Code in specific disciplines and communities through workshops and project development. We’re just getting started with the really fun stuff and we know your questions and real world examples will help make this resource even more meaningful and exciting.

Meredith Jacob serves as the Assistant Director for Academic Programs at the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law. Her work includes student outreach and advising, curriculum coordination, and academic research and advocacy. Currently her work also includes research and advocacy focused on open access to federally funded research, flexible limitations and exceptions to copyright, and public interest in international intellectual property. Previously, Meredith worked with state legislators on a variety of intellectual property and regulatory issues affecting pharmaceuticals and the privacy of prescription records.

Will Cross is the Director of the Copyright & Digital Scholarship Center in the NC State University Libraries, an instructor in the UNC SILS, and an OER Research Fellow. Trained as a lawyer and librarian, he guides policy, speaks, and writes on open culture and navigating legal uncertainty. As a course designer and presenter for ACRL, SPARC, and the Open Textbook Network, Will has developed training materials and run workshops across the US and for international audiences from Ontario to Abu Dhabi. Will’s current research focuses on the relationship between copyright and open education. In addition to this project he serves as co-PI and co-developer of the IMLS-funded Library Copyright Institute.

Posted January 26, 2021

Last month was a busy one for copyright law (although we cannot fault you if you were distracted by other things going on in the world!). Now that the dust has settled on 2020, we are pleased to share this roundup of copyright developments that happened during the final weeks of last year. First, we saw a new draft bill seeking to reform the Digital Millennium Copyright Act (“DMCA”), and second, we saw two new copyright provisions included within the year-end stimulus package.

In late December 2020, Senator Thom Tillis released a draft bill which aimed to make several reforms to the DMCA. Senator Tillis released this bill after posing a series of questions for stakeholders regarding how the DMCA could be reformed to reflect the needs of copyright holders and the state of the world 22 years after the DMCA was passed. Authors Alliance submitted a response to these questions, as did a multitude of other organizations and individuals. Our response cautioned against a notice-and-staydown system, and instead advised Senator Tillis that copyright law should seek to align the interests of individual creators with the interests of the public for whom they create. We also suggested several existing and new temporary exemptions to DMCA section 1201’s prohibition on bypassing technical protection measures that could be made permanent, and supported a proposal to streamline the section 1201 rule-making process. Finally, we argued that any reforming legislation should require a nexus between the relevant use and copyright infringement for there to be a violation of section 1201.

Senator Tillis’s bill proposes many reforms to copyright law, and unfortunately incorporates few of our suggestions. Most concerningly, the bill replaces the current “notice-and-takedown” system with a “notice-and-staydown ” system whereby, once a copyright holder notifies a service provider that they believe a particular use is infringing, the service provider must remove all subsequent infringing uses unless the user makes a statement that the use is licensed or otherwise authorized by law (such as being a fair use). The draft bill also lowers the specificity required in takedown notices, establishes the Copyright Office as a division of the Department of Commerce, limits liability for users who use orphan works after a diligent but unsuccessful search for the copyright holder, and makes changes to the Copyright Office’s triennial rule-making process and exemptions on the DMCA’s prohibition on bypassing technical protection measures with the aim of streamlining the process. Senator Tillis has invited stakeholders to submit reply comments to the draft bill by March 5th.

Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act)

The year-end stimulus package included a provision Authors Alliance has spoken out against before: The CASE Act, co-sponsored by several members of Congress. In short, the CASE Act creates a small claims tribunal—known as the Copyright Claims Board (“CCB”)—within the Copyright Office for copyright disputes as an alternative to pursuing copyright claims in federal court. Proponents of the CASE Act argue that it will help individual creators, who often cannot afford the expense of bringing litigation in federal court, but are more likely to be able to afford the lesser costs associated with pursuing the dispute in the CCB. A more accessible forum for resolving copyright disputes is an admirable goal, but the CASE Act seeks to achieve it in a way that is, in our view, extremely flawed. The CASE Act allows for excessive damages, does not provide for review by a court in most cases, and the overall scheme is one we fear will invite litigation by copyright trolls.

In September 2019, we wrote to Congress voicing our concerns about the CASE Act, but unfortunately it was signed into law last month as part of the year-end stimulus package, leading critics to note that it had little to nothing to do with the “must-pass spending bill.” The CCB is set to begin operations by the end of December 2021, unless the Copyright Office makes the determination to delay implementation.

Protecting Lawful Streaming Act of 2020

Also included in the year-end stimulus package was a provision known as the Protecting Lawful Streaming Act. The Act—sponsored and led by Senator Thom Tillis and Senator Patrick Leahy—targets and punishes “commercial, for profit” services that stream large amounts of copyrighted content without proper authorization. Senator Tillis has said that these services cost the U.S. economy billions of dollars annually. The provision drew attention in part because of its harsh penalties—violators can be sentenced to up to 10 years in prison.

The Protect Lawful Streaming Act is not intended to apply to individual Internet users who access such unauthorized streams, and co-sponsor Senator Leahy has characterized the law as a “narrow” one which only “target[s] only commercial, for-profit criminal privacy.” Critics have noted that there is no glaring need for harsher criminal penalties for copyright infringement, which can already be incredibly costly for alleged infringers, but also acknowledged that the Act is narrow enough that it is unlikely to create liability for individual users or institutional actors acting in good faith. This law is also unlikely to directly negatively affect authors, though we are always wary of expanding copyright liability where there may not be a particular need.

Fair Use and Parody in Fiction

Posted November 24, 2020

In celebration of National Novel Writing month, Authors Alliance is pleased to bring you resources and information about copyright issues of note for fiction authors. In this post, we will go over fair use as it applies to fiction writing. Last week, we discussed copyright protection for literary characters, and the preceding week, explored exceptions to copyright that are relevant to fiction authors.

One of the exceptions to copyright we talk about most often at Authors Alliance is fair use. Fair use is a doctrine that allows the use of copyrighted works without permission in certain circumstances, and is included in the Copyright Act. Authors Alliance offers a full-length guide to fair use for nonfiction authors, as well as a dedicated resource page designed to help authors navigate fair use issues. Within fiction, fair use comes up in different contexts than we normally see in nonfiction, as many of the core purposes of fair use—news reporting, research, and nonprofit educational uses—do not fit neatly within the ambit of commercial fiction. For this reason, fair use in fiction is often discussed in terms of parody. Parody— first discussed as a fair use by the Supreme Court in Campbell v. Acuff-Rose Music—works as a form of comment and criticism, core purposes of fair use. In the aforementioned case, the Court stated that parody had to “mimic an original to make its point.” While mimicking an original work is typically indicative of the kind of copying that can be infringement, in the context of parody, this similarity is essential for the parody to be successful. The Campbell Court defined a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” a definition which courts have more or less applied since.

Suntrust Bank v. Houghton Mifflin

The seminal court case for parody fair use in fiction is Suntrust Bank v. Houghton Mifflin, in which the estate of Margaret Mitchell, author of the perennial bestseller, Gone With the Wind, sued an author who had borrowed elements of the story for copyright infringement. The case concerned a book written by author Alice Randall entitled The Wind Done Gone, which Randall stated was “a critique of [Gone With the Wind]’s depiction of slavery and the Civil–War era American South.” The Wind Done Gone subverted many of the racial stereotypes in Mitchell’s novel, turning a story of a wealthy white family living on a plantation in Georgia into one which “flips [Mitchell’s] traditional race roles” and criticizes the racist tones in Mitchell’s prose by foregrounding complex and well-developed Black characters.

The Wind Done Gone incorporates fifteen separate characters from Gone With the Wind into its story, as well as several distinct elements of the plot, “such as the scenes in which Scarlett kills a Union soldier and the scene in which Rhett stays in the room with his dead daughter Bonnie, burning candles.” Yet the court relied on the Campbell decision to find that Randall’s use of Mitchell’s work was a fair one—it was necessary to directly evoke the work in order to comment critically on it in a way that would be clear to readers.

Dr. Seuss v. Penguin Books

Two other cases involving alleged parodies of works by Dr. Seuss illustrate the nuances of parody fair use a bit further. In Dr. Seuss v. Penguin Books, the estate of Theodor Geisel (the author of the Dr. Seuss Books) sued Penguin Books for its publication of an allegedly infringing work. The Cat NOT in the Hat! A Parody by Dr. Juice was “a rhyming summary of highlights from the O.J. Simpson double murder trial” which evoked the style of Seuss’s work. Penguin argued that the work was a parody of The Cat in the Hat and thus a fair use. The Cat NOT in the Hat! included language telling the O.J. Simpson trial story in the style of Seuss, such as “One Knife? / Two Knife? / Red Knife / Dead Wife” and “[I]f the Cat didn’t do it / Then Who? Then Who?” Yet evoking Seuss’s style was not enough to make the work a parody—the court emphasized that “[a]lthough The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule.” Unlike The Wind Done Gone, The Cat NOT in the Hat! did not comment on the original work, but merely borrowed its style to achieve different aims. For this reason, the court found that the work was not a parody, and that the author’s use of Seuss’s characters and style was not a fair one.

Lombardo v. Dr. Seuss

In Lombardo v. Dr. Seuss, the Geisel estate once again sued an author that had borrowed from Dr. Seuss’s work to create her own. In this case (which we have written about before in the context of fair use analysis), the allegedly infringing work was a play called Who’s Holiday, which “makes use of the characters, plot, and setting of the Dr. Seuss book, How the Grinch Stole Christmas! . . . to make fun of it and to criticize its qualities.” Who’s Holiday features the main character in How the Grinch Stole Christmas, Cindy-Lou, as a 45-year old woman who has fallen on hard times. Throughout the play, Cindy Lou “drinks hard alcohol, abuses prescription pills, and smokes a substance she identifies as ‘Who Hash,’” while speaking in rhyming couplets which evoke Seuss’s style. Unlike the Penguin Books case, Who’s Holiday did in fact criticize How the Grinch Stole Christmas!. Like The Wind Done Gone, it commented on the wholesome tone of the original work by juxtaposing it with crass, adult language and themes. Who’s Holiday “subverts the expectations of the Seussian genre” and making it appear “ridiculous,” functioning as an effective parody well within the bounds of fair use.