A year ago, we wrote about Rep. Mike Doyle introducing an important bill to provide public access to publicly funded research. As we’ve been discussing for years, the academic journal business is a huge boondoggle. Unlike just about any other publication, the journals don’t pay their writers (and in many subject areas, authors need to pay to submit), they don’t pay the peer reviewers — and then they charge positively insane amounts to university libraries, often knowing that those libraries feel obligated to pay. Oh yeah, and the journals keep the copyright on everything. I’ve heard of researchers having to redo basic experiments because they were worried they couldn’t even reuse data from earlier experiments due to the copyright assignment agreement they had to sign.
Thankfully, for years, there’s been a law on the books for any NIH-funded research to guarantee that 12-months after publication, those works also had to be published openly. While some publishers have tried to game this system (such as by demanding a mandatory fee to “deposit” the work in an open access database), on the whole this has been hugely important in making sure that taxpayer funded research is actually available and can be built upon. Over the years, there have been multiple bills introduced in both directions on this issue. There have been some bills that sought to take away this requirement under NIH funding and there have been bills that have tried to expand it to the rest of the federal government and any of the research they sponsor.
Last week, a new version of Doyle’s bill was introduced and it’s been improved. First off, it’s got some nice bipartisan backing in both parts of Congress. On the Senate side, it was co-sponsored by Senators Cornyn and Wyden, while on the House side we’ve got Doyle along with Reps. Yoder and Lofgren. Also, it reduces the time to open publishing from one year down to six months (like a NY bill that came out last year). It doesn’t spread the policy to all federal agencies, but the vast majority of federally funded resarch would qualify (all agencies that spend over $100 million on research are covered).
As the EFF notes in the link above, there are a few lingering concerns about the bill, including some broad language around exemptions for works that “generate revenue or royalties for authors.” Also, it could go further in not just requiring open access, but open licensing to make sure such works can more easily be built on to create next generation research. However, those are small quibbles.
But, of course, the publishers are really not happy about all of this, calling it “different name, same boondoggle.” This is quite incredible, really, since it’s really the publishers who have been getting away with a giant boondoggle for ages. If that gives you an idea about just how ridiculous the publishers’ claims are, read on. Nearly every claim they make in attacking the bill actually applies to the publishers themselves much more than to the bill:
It would add significant, unspecified, ongoing costs to those agencies’ budgets in the midst of ongoing federal deficit reduction efforts.
As opposed to keeping the works locked up, which adds significant, unspecified and ongoing costs to anyone trying to actually do research and be educated?
Finally, it would undermine publishers’ efforts to provide access to high-quality peer-review research publications in a sustainable way, while ignoring progress made by agencies collaborating with publishers to improve funding transparency.
No it wouldn’t. We already have the NIH example. Nothing in that “undermined” the publishers’ efforts. Again, all that “high quality peer review” stuff comes for free: both the content and the peer reviewing. Most other publications somehow, magically, get by paying their writers and editors and don’t have to charge tens of thousands of dollars for a subscription.
“This bill would waste so much taxpayers’ money at a time of budgetary crisis, squander federal employees’ time with busywork and require the creation and maintenance of otherwise-unneeded technology,”
This is the funniest of all. The real “waste” of taxpayer money is in funding all this research that then gets locked up and is nearly useless to those taxpayers.
Basically, the publishers know that their current position with these journals is such a sweet deal that they don’t want anything to mess with it at all. That’s ridiculous. While they’re fighting for ever bigger profits, we’re talking about access to research that was funded with our own dollars. It’s really sad that the publishers would fight such a thing, though it shows what they really think concerning education. To them, it’s not about how best to disseminate information, but how to lock it up and charge insanely high prices for it.
We’ve written a few times now about an important case involving fair use within university libraries and their “e-reserves.” It involves some academic publishers (Cambridge University Press, Oxford University Press and Sage Publications) suing the Georgia State University for daring to allow professors to designate content such that it can be checked out electronically, just like they would with physical content. The publishers demand to be paid extra for such things, because the key to things going digital, to them, is the ability to get paid multiple times for what used to be free. The court eventually came out with a detailed and complex ruling that found most of the e-reserves to be fair use. We had some concerns about some seemingly arbitrary “tests” that the judge came up with, but on the whole were encouraged by the strong fair use support.
We were dismayed, recently, to learn that the Justice Department, at the urging of the Copyright Office, was considering weighing in on the appeal, potentially siding with the publishers and against the University and its students. This is really quite incredible when you think about it. It would involve the President’s administration — which has claimed education is a priority — siding with mostly foreign publishers against a public university seeking to make access to information and learning more affordable (which, copyright law tells us, is a key thing copyright and fair use are supposed to enable).
But, copyright maximalism runs deep within the Copyright Office, which isn’t all that surprising given the revolving door between it and various maximalist lobbying operations.
So, it really shouldn’t come as a huge surprise that two former Copyright Office bosses have teamed up to file their own amicus brief that argues in favor of the publishers and against fair use. Between Ralph Oman and Marybeth Peters, they ran the Copyright Office from 1985 all the way up until 2010. Both are extreme copyright maximalists. We last wrote about Oman a few months ago when he made the stunning filing in the Aereo case claiming that all new technology that can be used for content should be presumed illegal until Congress has given an explicit okay. There are tons of crazy Marybeth Peters stories to choose from, but we’ll just point you to the time that, in supporting a ridiculous attempted expansion of copyright law (the INDUCE Act, which never passed) she suggested that anyone who thought copyright laws needed to be reformed in the other direction was actually assisting organized crime operations. So, these are not what one might consider folks used to presenting “balanced” arguments, or even arguments that care about the public. These two are copyright maximalists to the extreme.
Also, it’s worth noting that while a bunch of publishers who are not a party to the suit (Reed Elsevier, McGraw-Hill, Pearson Education, John Wiley & Sons, and Cengage) are disclosed as funding Peters and Oman (and two others) to prepare this brief, they seem to have left out a mighty big conflict of interest. The Copyright Clearance Center, which has funded 50% of the costs for the three academic publisher plaintiffs, has Marybeth Peters on its board of directors. You would think that this is a very direct conflict of interest that needs to be disclosed. Being on the board of the group that not only is funding the lawsuit, but which would stand to benefit massively in financial terms should the lower court ruling be overturned (the CCC would be the one to collect the fees, most likely) seems like an obvious conflict of interest… and is not named at all. Oman, for his part, used to be on the board there as well.
The brief is, well, pretty much what you’d expect. They’re not fans of fair use and they’re “concerned” about how actually allowing fair use would impact those who paid them for this brief and who are funding the lawsuit:
Amici are concerned that the flawed reasoning and incorrect holding of the district court will have implications far beyond the specific uses at issue here, and ask this Court to reverse the decision below.
The crux of their argument is that the district court made a horrifying mistake in actually thinking that Georgia State’s status as a nonprofit institution of public learning would weigh in favor of fair use. Apparently, according to these former Copyright Office bosses, the court really shouldn’t have paid so much attention to pesky facts like that, but rather should have focused on other issues… like the ones the publishers prefer.
In considering the application of the first fair use factor, and indeed throughout the Opinion, the district court gave disproportionate weight to the fact that the challenged uses were being made by a nonprofit educational institution. To say that the court’s “analysis” of the first fair use factor was cursory is an understatement. The court looked no further than the nonprofit status of GSU and the fact that teaching was involved to find that “the first fair use factor favors Defendants.”
Their argument hinges on other (troubling) rulings concerning coursepacks. As we noted in our initial analysis of the case, those rulings are both different (they involved for-profit companies) and not analogous (a coursepack has always been different than a library reserve item, which is what this is more like). Furthermore, since the coursepacks were ruled infringing, a strong argument can be made for just how damaging those rulings have been for education, massively increasing the cost of education. Coursepacks jumped in price, sometimes by a factor of 10.
Peters and Oman try to argue that since the use in e-reserves is not “transformative” the “nature of the use” should actually weigh in favor of the publishers. Of course, whether or not it is transformative is only one part of the analysis. The actual lawexplicitly says that use in “teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright” and, as for the “nature of the use” part of the test, again, the statute itself says that one of the key determining factors is “whether such use is of a commercial nature or is for nonprofit educational purposes.” Contrary to the claims of Peters and Oman, that would seem to overwhelmingly support a determination of fair use, no matter how hard they try to hide from that language.
The brief goes through a whole, wasted, analysis of what is considered transformative use, ignoring all of the language cited above. Whether or not it is transformative is only part of “the nature” of the use. Since that same prong explicitly calls out nonprofit educational purposes, whether or not it is transformative isn’t nearly as important.
And then… it gets even more ridiculous. You simply know that copyright maximalists are reaching deep for an argument when they pull out the old “but this would violate our international treaties!” argument. But, yes, that one makes an appearance here too:
Exceptions and limitations in U.S. copyright law, including Section 107, must also be viewed in the context of the relevant U.S. treaty obligations. In 1989, the United States became a member of the Berne Convention for the Protection of Literary and Artistic Works…, the principal international copyright treaty. Article 9(2) of the Berne Convention addresses the nature and scope of copyright exceptions that its member states may incorporate in their laws, establishing a “three-step test” that such exceptions must satisfy: (1) they must relate to “certain special cases,” (2) they may not conflict with a normal exploitation of the work, and (3) they may not unreasonably prejudice the author’s legitimate interests. The three-step test provides a useful yardstick by which to measure the application of copyright exceptions such as fair use. The district court’s refusal to see beyond the nonprofit educational nature of the challenged uses influenced its refusal to acknowledge the extent of the takings and the resulting interference with the Appellants’ normal exploitation of their works and their legitimate interests.
Of course, just a few months ago, we were talking about how maximalists keep falling back on this claim that we must follow the three step test as a way to stop real fair use. That test is actually significantly more restrictive than other international agreements, like TRIPS, that grant countries the ability to be much more flexible in determining things like fair use and user rights. The very nature of the three steps test goes against the principles of copyright, in that they focus on minimizing the burden on the copyright holder, rather than maximizing the benefit for the public, which (again) is what copyright is supposed to be about.
And, even if we went with the three step test, there’s a strong argument that the original ruling is perfectly within the confines of that test. It does involve a special case, it does not conflict with normal exploitation of the work (the books can still be sold) and it certainly doesn’t “prejudice” the legitimate interests of the rights holder.
There are a number of other, similar arguments made, in which Peters and Oman more or less try to argue that the fact that this is a non-profit, educational institution, and the use was for learning as a part of a class is of almost no concern whatsoever. In their minds the key element in determining whether or not something is fair use is… how much it impacts the copyright holder:
Rather than focus on the issue before it, the court instead viewed the issue entirely from the perspective of the user.
How dare the court focus on the “users” that copyright law is supposed to benefit!
Amusingly, in the conclusion, they then try to argue that if the lower court ruling stands it will be an insult to the important “balance” that “is at the heart of copyright law.” Really!
The inclusion in the decision of arbitrary and specific rules creates, in view of the broader implications of the decision, a risk that this decision will function as de facto legislation establishing new fair use standards for the type of uses at issue in this case that fail to incorporate balance between the interests of all stakeholders – a balance that has always been at the heart of copyright.
Yes, they spent nearly all of the preceding 33 pages arguing that the interests of the public, the students and nonprofit educational institutions are not important — and that the only stakeholders who matter are copyright holders — only to conclude by saying that “all stakeholders” aren’t properly balanced with the lower court decision. And, of course, if you know anything about the history of copyright law (and Oman and Peters know that history quite well, as they’ve been a major part of it) they know that it’s been one expansion after another, solely based on the interests of copyright holders and against the interests of the public.
Since the 1976 Copyright Act became law, there have been an astounding 52 amendments to the Copyright Act. They’re all at that link. Let’s see if you can point to how many of those actually were about benefiting the public vs. how many of them were about ratcheting up the law in favor of copyright holders. Let’s “balance” those numbers, shall we? Why do I get the feeling that Oman and Peters would rather not look at what that data actually shows?
The simple fact is that even if you do believe that copyright law is about “balancing” such interests (and we believe that’s a fundamental misunderstanding of copyright law, the purpose of which has always been to serve the best interests of the public), the scales have been so far tipped in favor of copyright holders for years. And, over the past 30 years, Oman and Peters themselves have been guilty of putting their fingers on one side of the scale almost exclusively. To now argue that this minor statement in support of fair use (which doesn’t change anything — since many universities had already acted this way, and it’s always how non-digital reserves had worked) somehow upsets a delicate “balance” isn’t just laughable, it’s an insult to those familiar with the history of copyright law.
Okay, this is really quite unfortunate. In 2011, we wrote about an important copyright case involving three publishers suing Georgia State University for daring to have “e-reserves” that allow professors to make certain works available to students electronically via the university library. Nancy Sims, copyright librarian for the University of Minnesota, wrote a guest post summarizing the case for us as follows:
The publisher-plaintiffs are suing over the way instructors (and possibly others on campus) share course readings like academic articles and excerpts from academic books. They are objecting both to readings posted on course websites (i.e., uploaded by instructors and accessible only to students registered for a course) and readings shared via “e-reserves” (i.e., shared online through university libraries, usually also with access restricted to students registered for the course). The publishers claim that sharing copies of readings with students is not usually a fair use, that faculty can’t really be trusted to make their own calls about what is or is not fair use, and that permissions fees should be paid for most of these uses.
Thankfully, last year, we wrote about how the district court issued an astounding 350-page ruling that basically said that most of these electronic reserves were clearly fair use. We had some issues with the way the judge went about the analysis — often coming up with random and arbitrary standards for the amount of a work that could be used while remaining fair use, but, on the whole, it was good to see the judge support fair use relatively strongly (and, in some cases, to not even get to a fair use analysis by saying that the use was allowed as “de minimis” copying).
Of course, no matter what happened, the other side was going to appeal. We’re getting closer to the appeals court hearing the case, but something interesting popped up last week. In a somewhat surprising move, the Justice Department jumped in and asked the court for some more time for the filing of amicus briefs from concerned third parties, because it was considering weighing in on the case. The Justice Department? Why should it be interested in a dispute concerning whether or not public university libraries are engaged in fair use by making works available to students?
In digging into this, we’ve heard from a few sources that it’s actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public univerisities and students. Yes, the same Copyright Office that just promoted a former RIAA VP to second in command. I’m sure that’s just a coincidence.
Let’s be clear: it is flat out ridiculous that the Obama Administration may be supporting the publishers here. Two out of the three publishers are foreign publishing giants, and it would be supporting them against a public university library tasked with helping to educate students. The entire purpose of copyright law is supposed to be to promote the progress of learning. The copyright clause in the Constitution used “science” but back in that era “learning” and “science” were effectively synonymous. The very first Copyright Act in the US was actually titled “An Act for the Encouragement of Learning.” Current copyright law is explicit that fair use covers this sort of situation:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
And yet… these publishers, along with the US Copyright Office and (perhaps) the DOJ, would like to ignore all of this, and reject fair use in such public learning centers? It is ridiculous. Oh, and did we mention that the lawsuit by these publishers is really being funded by the Copyright Clearance Center (who, shockingly, would be in charge of collecting fees for such uses…) and the American Publishers’ Association? If the Obama Administration wanted to appear any more in the pocket of “Big Copyright” and against the public interest when it comes to learning and education, I’m not sure of any better position to take.
This is just a year after the SOPA fight, and it appears that the Copyright Office, led by Maria Pallante, who was a massive supporter of SOPA, has not learned the lesson of that debacle. It would be a travesty if the Justice Department listened to such an out of touch position and argued that the court should reject fair use in such scenarios.
It would be a complete embarrassment for an Obama administration that has argued that improving our education system is a key policy issue to turn its back on education by having its Justice Department argue against a public university library and students, and in favor of a blatantly self-interested copyright collection agency, funding some foreign publishers, trying to shake down students for extra money to learn. Just the fact that the US Copyright Office is supporting this and asking the Justice Department to make this move is a sign of how screwed up the Copyright Office is today. And it remains unclear why this is even an issue that concerns the Justice Department at all. Since when is access of students at a public university to educational materials an issue that should be of any interest to the Justice Department?
For what it’s worth, we’ve heard that the people in the Justice Department who are considering its position are talking to various government agencies and officials over the next few days to determine what its final position should be. We would hope that the Justice Department, and the wider Obama administration (including the Copyright Office), take into account what happened last year when SOPA was put forth and the government sought to use copyright law to limit the public’s rights. It would seem unwise to then take a position that might stir up significant interest, specifically when it involves something as ridiculous as supporting foreign publishers over public university students seeking reasonable fair use access to educational materials, as is clearly supported by the Copyright Act.
The results are in for Australia’s request for comments on reforming copyright policy — and the submissions are, unfortunately, unsurprising. (The entire “Copyright and The Digital Economy” questionnaire is embedded below.) The legacy industries like things the way they are, (except for file sharing) and are only requesting changes that would lead to more licensing opportunities and greater fees.
As far as orphan works are concerned, nearly every entrenched publisher believes that they should get to control how these works are sold.
Our preference would be for the creation of a collective licensing scheme for such works, along the lines of the Canadian system. There the Copyright Board has the right to issue a non-exclusive licence for the use of orphan works after reasonable efforts have been made to find the rights holder. Fees are then distributed among members after a certain number of years. Whatever model is chosen, it should be based on authorisation by a formal collective licensing body rather than taking the form of an exception. Also, importantly, there should be no assumption or requirement that moral rights have been waived.
Basically, publishers would like to have “non-exclusive” licenses granted to publish orphan works, but only after a “reasonable effort” has been made to locate the rights holders. After an arbitrary amount of time, these fees will be redistributed to participating parties.
Non-participating parties would be guilty of copyright infringement if they released these works on their own or secured copies, presumably. Again, the public will not be allowed to benefit from these works, but instead, must go through the usual gatekeepers to acquire copies. Despite these being “non-exclusive” licenses, it appears that only participating publishers will be allowed to profit from these works. No clarification is given in terms of what happens to these works once the arbitrary waiting period is over and the monies redistributed. Public domain? Back to the “orphan works” pile to be re-exploited for another X number of years?
Additional exceptions for private, domestic or non-commercial use are off the table as well. The argument seems to be that even though people are sharing content in a non-commercial context, the sharing takes place on commercial services like Youtube or Facebook. This is viewed as another opportunity for licensing, hopefully paid for by the deep pockets of corporations rather than by individuals. What’s ignored is that when a person shares a song, photo or video with someone else, they’re doing it without any desire for personal financial gain or to harm the creators. But maximalists tend to find something innately wrong with these situations. Here’s Walker’s take on non-commercial sharing.
We are seeing a lot of examples of Books being taken and read/shown on YouTube – they are therefore being shown in a public and not a private forum and so being shared without consent…
Where does one begin and the other end? Someone’s “private” reading on YouTube for instance, although non-commercial, could undermine the legitimate marketing activity of the author or publisher – or certainly deminishes [sic] its impact.
First off, I find it hard to believe that someone would consider watching a video of someone reading an acceptable substitution for purchasing a book. Second, what are you doing about it other than complaining? Have you uploaded your own readings? Maybe one from the author? Have you claimed the video for monetization? Unless you’re making a few moves of your own, it’s a bit disingenuous to complain about someone doing your marketing for you.
Yes, Youtube is a commercial entity but as an aggregate. Individual users are generally not uploading their own readings as part of a business plan. It’s usually because they’re a fan of the book and they’re sharing stuff they like with others. This is a good thing.
The performance rights organizations have also sent in a response, one filled with misrepresentations and and the sort of entitlement that has served it well for so many years. It starts on the wrong foot and gets worse.
APRA|AMCOS are concerned that references to the “constant debate” about whether copyright law acts as an incentive to production of new material are a distraction from what should be the focus of this Inquiry…
Yes. Let’s not talk about how expanded copyright law that fails to meet the needs of the digital age might be stifling production of new material, BECAUSE THAT’S WHAT PROMPTED THIS ENTIRE PROCESS. Let’s just ignore the debate and keep things the way they’ve been since 1968 because nearly a half-century down the road nothing has changed except everything.
Copyright encourages creativity. Exceptions should only be enacted where there is an overriding social benefit that justifies a limitation on the property rights of the copyright owner. Anecdotes about how creators are not motivated by economic considerations have been used to suggest that creators are economically irrational and therefore should not participate in markets for their works. This is wrong. Copyright is a grant of property rights that enables authors to commercialise their products and maintain the integrity of their creative output.
This is a willful misrepresentation of the views of those who question the incentive value of copyright. No one has stated that just because some creators create without financial incentive that no creators should seek to make money, or even enjoy the protections of copyright. What is actually stated is that many artists were successful before the days of expanded copyright protection, and despite it, which would indicate that copyright protection isn’t nearly as crucial as the copyright industries paint it.
APRA|AMCOS on Mashups (Transformative Use)
Australia has a sophisticated licensing regime that permits a large number of new businesses to operate using copyright material. To the extent that not all such businesses survive, there is no evidence that this is related to anything other than the operation of normal competitive market forces.
Except when it’s your business that is threatened and may not survive. Then it’s time for legislators to step in and “save some jobs” or whatever angle gets the playing field “leveled” fastest.
APRA|AMCOS on adopting US-style “fair use” laws and statutory rights
[I]t is clear that copyright owners in Australia cannot act as potently to prevent online infringements as can copyright owners in the US, whether against the infringing customer or the infringing internet service provider.
Infringing service provider? There’s an unlikely term. If you’re thinking of getting your hands on US-style statutory rights, you might want to keep in mind that ISPs are not responsible for the actions of their customers, unlike in Australia. Infringing customer? The hell does that mean? What it sounds like is that even paying customers are shortchanging rights holders somehow, but in reality, it’s just APRA|AMCOS trying to tie the ISP to its infringing subscribers. In other words, APRA/AMCOS wants the power to litigate against both ISPs and individuals, but will cede nothing to fair use or any other US-style policies that benefit the public at large. Or in pirate parlance, “Take all ye can. Give nothing back.”
So far, so much of the same worn-out arguments for greater enforcement, more licensing and less of anything that favor the general public. The biggest backlash seems to be saved for any discussion of moving Australia’s fair dealing laws in the direction of America’s fair use laws.
If the aim is indeed to avoid or abolish barriers to innovation, then the introduction of “fair use” provisions would be a highly unusual path to take, a path that has been adopted by only four countries worldwide, but rejected by many. The introduction of a fair use doctrine would:
• create legal uncertainty and hence an atmosphere hostile to creative innovation and freedom of speech;
• violate Australia’s obligations under international copyright treaties, in particular the “three step test” of the Berne Convention, WCT and TRIPS;
• require the introduction or importation of an entire body of legal precedents, adjudications and case law into Australian jurisdiction, the introduction and interpretation of which would carry with it unpredictable legal risks.
A “fair use” doctrine works (more or less) well in a US context because of its roots in more than 150 years of case law, and significant – 35 years – experience with interpreting its codified version. It is exactly this long history that alleviates (but not silences) concerns regarding legal certainty, freedom of speech and violation of international treaty, but many commentators remain concerned also with regard to the US context.
This is one of the most ridiculous arguments against fair use I’ve ever read. (And I’ve read it twice: the MPAA used the same argument in its submission) Sure, fair use may create “legal uncertainty,” but that’s only because so many rights holders are convinced that there should be no unlicensed use of their creations… ever. It’s this hardline approach that creates “legal uncertainty” — not the fair use itself.
As for fair use being “hostile” to free speech and innovation — well, that’s just completely wrong. Copyright has been abused to stifle criticism multiple times, often as a “Plan B” when it appears that proving defamation or libel might be tricky (or impossible). Fair use increases free speech, not the other way around.
And I’d really like to see the International Publishers Association prove that fair use harms innovation. The MPAA’s own “respect our authority” response to the call for submissions states that it relies on fair use as part of its creative process. (Mere sentences later, though, it warns Australia that fair use isn’t for them, so don’t even think about adopting it.) Greater IP protection is what’s actually harming innovation as it exposes new entries into the market to increased legal action. One needs to look no further than the debacle d/b/a/ the patent system for evidence of stifled innovation.
The final argument dealing with the US fair use system and its “built in” history is a non-starter. While importing case law and precedent would bring “unpredictable risks,” expanding the current “fair dealing” to closer match fair use laws would be a good start. At some point, every country has to create its own precedent, something that’s impossible to do if everyone keeps worrying that a new law won’t appear fully formed with years of precedence behind it. This argument pops up in the MPAA’s paper as well. Apparently, Australia is just supposed to cede to the logical fallacy built into the ourobouros-esque reasoning that “fair use works in the US because of years of precedence but won’t work anywhere else because no precedent has been set.” You can’t set precedence if you’re unwilling to institute fair use and, you know, start setting some precedent of your own.
APRA|AMCOS on Fair Use
The uncertainty engendered by an open fair use exception is likely, as in the US, to give rise to considerable litigation that would defeat the purpose of adopting such an exception. It is likely that fair use would be raised as a defence to many allegations of copyright infringement, adding significantly to costs of legal advice and to the costs of litigation.
Once again, copyright apparently should only work as a deterrent, rather than an inspiration. The power to censor through copyright must remain intact. Because piracy. (Or something.)
It all seems to boil down to “We like what we have right now, but some more would be even better.” The protections granted during the analog era hardly match up with the digital reality, but somehow these copyright-reliant industries believe the future belongs to the past. No concessions are made to current reality. If any changes are made, they want to make damn sure they’re the only beneficiaries.
It’s not all bad news from the normal players, though. A few more reasonable responses made their way into the submission pile. A group of literary agents makes a couple of good points.
Currently only moral rights are an absolute rights. More rights must be made absolute, for example statutory rights. Some organizations demand these rights be taken away from the creator. Many organizations are bullish contractually with creators in regard to statutory rights. Accordingly a lot of money goes to international corporations instead of Australian creators.
Most people want to do the right thing and compensate the creators of copyright for the use of their work in other forms – give people the means to do this. Make it easy for them to pay the copyright owners, no matter how small the payment is.
I don’t think the digital environment really has changed anything. What has changed over time is that copyright law here has been following that of the USA which serves some big media company interests but acts against artists and smaller media companies…
If the taxpayer paid for the creation of the content then it should be free to use by all. The system of the public pays and pays and pays … does much to diminish respect for the law…
Brief quotes for purposes of comment, analysis, or parody should be allowed. The USA used to have something called “fair use doctrine”, it is time to revive it. Also, the length of copyright, especially for music and recordings, and perhaps even films, needs to be shortened to something like 10 or 15 years. History should not be copyrighted…
Libraries and universities should be able to copy everything that they bought a copy of. They should not have to keep on paying and paying and paying when the media wears out…
His whole response text is worth reading, but sadly, one of the few to go against the prevailing winds of maximalism. Australia’s attempt to update its copyright laws faces an uphill battle against those who like it the way it is, or even better, the way it was. Nearly fifty years down the road from the last update of its copyright laws and a majority of the respondents prefer stasis to moving ahead.
We’ve talked a few times about how the US seems to be leading the charge to block a treaty that would increase the ability of blind and other disabled people to get around copyright restrictions to access certain works. The treaty has been in negotiations for ages — and the US position has, at times, flip-flopped. However, now it seems firmly aligned with copyright maximalist lobbyists. The latest report from the negotiations is that publishers and the movie studios have convinced US negotiators to push back on this treaty:
The United State is playing a big major role, and led by David Kappos’ USPTO, generally is aligned with the publishers in efforts to narrow the agreement and limit its benefits to persons with disabilities, and is increasingly isolated in its opposition to a decision that the nature of the “instrument” will be a treaty rather than a softer non-blinding recommendation or model law. One major objective of the US delegation is to exclude persons who are deaf. Another is to limit the exceptions to text, and exclude any audiovisual content or related rights. Both of these negotiating objectives are designed to keep the U.S. movie and television industry happy. The U.S. has also been seeking ways to support other publisher friendly provisions, even when they run counter to the robust exceptions found in U.S. law.
Siding with big studios and publishers over the best interests of the blind and the deaf? How nice…
As we’ve been covering for years, there has been a series of legal issues going on around Google’s efforts to scan books and make them indexable/searchable. It appears that one of the earliest legal efforts against Google, from the Association of American Publishers (AAP), over the “Google Library” projects has now been settled:
The settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.
Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works.
This is not a repeat of the very different and problematic original Google Books settlement that was rejected — as that tried to create a much larger “deal” that went way beyond what the case covered. This time around, the settlement doesn’t require court approval, because it doesn’t go beyond the specific parties in the lawsuit. While this lawsuit went on for seven years, this settlement more or less seems to be a suggestion that (a) publishers have finally realized that having Google scan all their books and make them easier to find is actually good for them and (b) the few publishers who are still unable to grasp this are still allowed to shoot themselves in the foot and opt-out of the project. Of course, this isn’t any different than what Google was offering publishers all along. Basically, this settlement is AAP admitting that the entire lawsuit was a waste of time and money.
While it may have been interesting to have seen how the court would have ruled in this case, on the whole this settlement makes sense for both parties — just as Google’s original offer to publishers did. It lets the project move forward seriously, and the few clueless publishers who don’t get it can (still) take themselves out of one of the best tools for finding their books, proving why they’re bad at modern publishing. When your opponent in a lawsuit agrees to settle it in a way that lets you do basically everything you’ve wanted to do from the beginning, and the only condition is that clueless plaintiffs can hurt themselves… you pretty much have to agree to it. The only amazing thing is that it took the AAP seven years of litigation to effectively admit that they’re fine with what Google offered them from the start.
For a while now, we have written about how legacy gatekeepers need to adapt to modern culture and business models if they want to survive. The primary point of contention that keeps many of these companies from adapting is one of control. Many of them don't want to lose what remnants of control they have left in order to become enablers. This mindset is what will be the death of many companies as the world moves on without them.
Some companies are making at least a half-hearted, if not completely misguided, attempt at trying to be hip. However, it seems to have been about as successful as a 60 year-old trying to use modern slang in order to connect with kids. Take for instance this recent comment by Obsidian CEO Feargus Urquhart in which he describes an exchange he had with a publisher about Kickstarter.
We were actually contacted by some publishers over the last few months that wanted to use us to do a Kickstarter.
I said to them ‘So, you want us to do a Kickstarter for, using our name, we then get the Kickstarter money to make the game, you then publish the game, but we then don't get to keep the brand we make and we only get a portion of the profits’ They said, ‘Yes’.
If you can't see the huge glaring flaw in the unnamed publisher's approach, let me elaborate. This publisher wanted to use Kickstarter as the funding source for an as yet unidentified project, while still keeping every other aspect of the traditional publisher/developer relationship intact. This means that the publisher would pay no money upfront, limiting almost all risk for the success of the project, while reaping all the rewards. Seriously.
While it is great that this publisher had become aware of Kickstarter and its potential for success, the fact remains that those in charge do not understand it in the slightest. The draw of Kickstarter and other crowdfunding services is to help creators fund their works and bring them to market. Few potential backers will be willing to support a project in which the creator loses all rights and control of the work after creation. These services are about empowering creators. A deal, such as the one above, in no way empowers the creator.
Hopefully, this is just a simple misstep as the publisher learns to walk the unfamiliar path of a new business model. We can hope that this publisher learns from this mistake and will take the time to better understand the culture behind crowdfunding and can find success by adapting itself to this culture rather than trying to shoehorn crowdfunding into its current business strategy. Because if it isn't willing to adapt, it might as well give up now.
Uber-successful blogger Penelope Trunk took the long route to self-publishing, beginning as a blogger before being picked up by an unnamed major publisher before making the decision to self-publish (and cashing a large advance check along the way). As more and more authors have discovered, the advantages of self-publishing (control of their work; more profit) are increasingly outweighing the disadvantages (handling your own promotion; sourcing your own editing, etc.).
So I sold my book to a mainstream publisher and they sucked. I am going to go into extreme detail about how much they sucked, so I’m not going to tell you the name of the publisher because I got a lot of money from them. I’m just going to tell you that the mainstream publisher is huge, and if you have any respect left for print publishing, you respect this publisher. But you will not at the end of this post.
Now, we’ve all heard how major publishers can be annoying to deal with. Between pushing back release dates, locking up parts of writers’ catalogues, lacing e-books with DRM and other such dickery, major publishers have earned just about as much respect (around these parts, anyway) as the major labels and major studios. While many authors have become successful within the system, the evidence points to the sad fact that the “system” is sorely in need of drastic change. Sadder still is the fact that there seems to be no rush to meet that need.
Trunk’s experience with the major publisher didn’t take a turn for the worse until the discussion of promotion began. What follows are some of the most unintentionally hilarious “promotion” ideas I’ve ever heard bandied about by people specifically tasked with the job of promotion:
To be clear, I wrote my book, and they paid me my advance, in full. Three months before the publication date, the PR department called me up to “coordinate our efforts.” But really, their call was just about giving me a list of what I was going to do to publicize the book. I asked them what they were going to do. They had no idea. Seriously.
Well, that’s just terrible. A PR department, whose very existence is predicated on public relations, drawing a blank when asked directly what they, as employees of the power major publisher, were going to do. And then, they had “ideas” — the kind of ideas that are fully deserving of the quotation marks around the word:
They did not have a written plan, or any list, and when I pushed one of the people on this first call to give me examples of what the publishers would do to promote my book, she said “newsgroups.”
I assumed I was misunderstanding. I said, “You mean like newsgroups from the early 90s? Those newsgroups? USENET?”
“Yes.”
“Who is part of newsgroups anymore?”
“We actually have really good lists because we have been working with them for so long.”
“People in newsgroups buy books? You are marketing my book through newsgroups?”
There’s nothing like holding a conversation in 2012 with someone who still thinks it’s two decades earlier, especially if this is the first idea that comes to mind with all the other social media options available. Maybe if Trunk’s book was targeted towards the interests of newsgroups or had sprung from there, this might make sense. (And it might even give the PR team a bit of street cred, if they did still hold some sort of grassroots power in 20-year old newsgroups.) But this sounds more like a case of blowing the dust off the floppy and running a copy of “The List” off on the nearest dot matrix, rather than a savvy move based on years of carefully cultivating an online following.
There’s more:
At the next phone call, I asked again about how they were going to publicize my book. I told them that I’m happy to do it on my blog, but I already know I can sell tons of books by writing about my book on my blog. So they need to tell me how they are going to sell tons of books.
“LinkedIn.”
“What? Where are you selling books on LinkedIn?”
“One of the things we do is build buzz on our fan page.”
I went ballistic. There is no publishing industry fan page that is good enough to sell books. No one goes to fan pages for publishers because publishers are not household brand names. The authors are. That’s how publishing works.
Something that the major publishers seem to have in common with other artistic venues saddled with the word “major” is the fact that these entities tend to greatly overvalue their brand and undervalue the artists signed to it. Major studios still seem to believe that people give a single damn what studio produced their favorite movie, failing to realize that people are drawn to movies for the actors, directors, writers, stories, explosions, etc. — anything but the studio itself. No one not employed by the studios themselves walks around talking up the latest “Sony Pictures Studio” film. The same goes for the recording industry. While certain labels have gained (and sometimes lost) cachet over the years based on their stable of artists, it’s still about the artists. People may love Sub Pop, but if Sub Pop began cranking out albums by just anybody, it would swiftly lose its respectability. Obviously, the same goes for major publishers, who somehow believe that readers care whether it’s Random House or Harper-Collins that just put out a book by their favorite author.
Oh. Yeah. There’s more. Trunk was asked to meet one more time with the publicity team. This culminated in a long Powerpoint presentation where Trunk learned all she wanted to know about major publishers — none of it good. Here’s what she learned:
Print publishers have no idea who is buying their books.
Amazon knows their customers. Publishers don’t. Amazon won’t give them the information and what little the publishers can draw together demographically comes from brick-and-mortar sales. This is a handicap, to be sure, but the publisher Trunk dealt with compounded this problem by performing impossible mathematics:
When I pointed this out to my publisher, they told me that for my book, they expected to sell more than 50% of the books in independent bookstores. And then they showed me slides on how they market to people offline. They did not realize that I ran an independent bookstore while I was growing up. It was the family business. I ran numbers for them to show them that if they sold 50% of the sales they estimated for my book, they would single-handedly change the metrics of independent booksellers. That’s how preposterous their estimates were.
Print publishers have no idea how to market online.
Without access to online data or the interest in using what they do have, publishers fly blind, relying on what used to work to continue working, including such Pleistocene-era tactics as “TV spots and back-of-book blurbs.” They also seem blasé about actually connecting with their readers, something that is proven to leave you on the outside in a digital, connected world.
Print publishers have been too arrogant to learn how to run a grassroots, metrics-based publicity campaign online. They cannot tell which of their online efforts works and which doesn’t because they can’t track sales. They don’t know how many people they reach.
The profit margins in mainstream publishing are so low they are almost nonexistent.
This remains a problem when your flagship product is a physical item with limited distribution points and the associated costs of printing, distributing, warehousing, remainders, etc. Digital products carry none of these costs, allowing authors (and publishers) to make more per book even at a fraction of the price. How bad are the margins? Consider this factoid:
The most breathtaking example, I think, of how terrible margins are, is that if I sell my own book with a link to my publisher, I make a little less than $1 per book. If I sell Guy Kawasaki’s book on Amazon, I get a little more than $1 per book in their affiliate program. So it’s more profitable to me to use my blog to sell someone else’s book than to sell the book I published with a mainstream publisher.
No matter how much you might believe in the power of a major publisher, it’s got to knock a little wind out of your sails to realize that authors can make more selling other people’s books through the much-hated Amazon. Whatever power remains in old school publishing is swiftly being undercut by their inability to move forward at the pace of their market.
This whole debacle culminated with the PR peacemaker threatening to dump Trunk’s book if she didn’t play nice with the clueless promotional team. So much for calling her bluff.
I said, “Great. Because I think you are incompetent. And also, you have already paid me. It’s a great deal for me.”
Trunk went off, did six months of research on the ebook industry, and took her book to Hyperink, an independent publisher which specializes in helping bloggers convert their blogging into books. Click through for her whole post, which contains some more devastating insights into the publishing industry as well as a rundown on the “New Rules of Book Publishing.”
Last week, we wrote about how the US was holding up a treaty to help visually impaired people be able to access more works, in large part because publishers are somehow offended that the public might want to take back some of their fair use rights (which the publishers unfortunately claim is “taking away” something from them). As more and more details come out, it’s become clear that while most of the countries involved in the negotiations really want this treaty — which has been in discussion for nearly 20 years — to be put in place, there are two major stumbling blocks: the EU Commission and the US. Not surprisingly, these were the two biggest supporters of ACTA as well. As with ACTA, the EU Parliament is at odds with the EU Commission on this and is in support of a treaty, but the Commission is trying to put all sorts of “unreasonable restrictions” on the agreement, and the US is still fighting against the idea of calling this a “treaty.”
This is really kicking the can down the road — in this case, past Obama’s first term in office. After four years, Obama can’t overcome opposition from a handful of mostly foreign owned publishers to support a treaty for blind people. In many respects, this is a money in politics story. If blind people were financing his campaign, they would have had a treaty a year ago. The Obama administration wants the decision on the treaty delayed until the election so it will not interfere with its campaign fundraising from publishers, and so it will not suffer bad publicity for opposing the treaty, before the election.
The whole thing is pretty shameful, and yet another display of how money corrupts politics… and how copyright helps in that process.
We’ve talked in the past about just how ridiculous publishers are when it comes to doing something like quoting a song in a book. The publishers apparently have no appetite for standing up for the fair use rights of their authors, so they just refuse unless you get a license for absolutely everything, even when it’s clearly and obviously fair use. In the latest example of this kind of insanity, it appears that Wiley — a publisher who already has a reputation as a maximalist — is telling the author of a book about Android’s UI, Juhani Lehitmaki, that he can’t rely on fair use to post screenshots of any apps. Instead, it’s requiring that he get approval from each and every app developer. Lehitmaki has gone on Google+ seeking permission from a long list of developers:
I need a little bit help with my book stuff and thought to ask it from all of you awesome people here at G+. I’m in a bit difficult situation in the finishing it. I have been in belief that using screenshots of apps as examples of the platform functionality is covered under fair use but apparently I was wrong.
So now I need to acquire permission to use screenshot of different apps I’ve used so I can keep them in. So if you or someone you know are the copyright holder of any of the following brands / apps or know who to contact please let me know.
He then lists out 22 apps (down to 21 once he got permission from one):
He notes that all of the screenshots are used as examples of good UI design and are clearly credited. In other words, in each case, the app is portrayed positively.
Here’s the thing: he should be pissed off at Wiley for totally failing him as a publisher and being obnoxiously unwilling to stand up for their author. Using screenshots in this manner is fair use. No question. I can’t see how any intellectually honest person could go through the four factor test and not find that using screenshots in a book like this are fair use. Wiley should back up their author, but they don’t, because they’re too scared of a lawsuit and apparently don’t have the guts to stand up for fair use rights. It’s shameful, and should be a warning to any author not to sign on with Wiley. Why bother signing on with a publisher who makes you go through a silly wasteful exercise like this?
In fact, I’d imagine that many of the app developers are similarly inconvenienced by this process of now having to give Juhani permission. Of course they want their apps featured, but now they have to fill out some sort of release or license just to make Wiley’s lawyers happy. This process inconveniences absolutely everyone. Wiley should be ashamed.
