Archives for category: Copyright

I find intellectual property a rather offensive term. Maybe because it always sounds a tiny bit boastful, but perhaps also because I’d prefer not to have to think of Mickey Mouse and Donald Duck as intellectuals! Of course under copyright, the IP law we principally deal with, it’s not the ideas that are protected, just the tangible expression of the ideas, the form of words in which they are expressed. Apparently I’m not alone in this unease about the term: the Wikipedia article outlines the arguments. Intellectual property is protected by three main legal maneuvers — copyright, patents and trademarks, though there are other less obvious methods including trade secrets law, industrial design rights, and trade dress.

The Scholarly Kitchen brings us a thoughtful review by Karin Wulf of Siva Vaidhyanathan’s Intellectual Property: A Very Short Introduction. VSIs live in bookshops in their own spinners, replenished on an ongoing basis. However the spinner in the New York store where I eventually got hold of the book a couple of weeks ago doesn’t seem to be being replenished by anyone. I went into one branch or other of Book Culture’s three outlets over a period of four months or so, only to be told thrice that the book was out of stock at the publisher. (Maybe they just said “out of stock”, and cynic that I am, I assumed this meant a screw up at the publisher. I knew that the books in this series are printed in England, so delays might be possible.) On my fourth visit the indiscrete assistant told me they’d actually never received their first order into the store, and that if I wanted to order it I could have it in a day or two as the books had been lying in their warehouse since March. I did, and 24 hours later, there it was. And Book Culture is one of New York’s more successful book chains! Of course this isn’t an expensive book, but what bookstore can afford to ignore a well-reviewed $11.95 book, one that is getting customer enquiries, and especially one where the spinner merchandising format is intended to make customers pick up more than the single volume they’d come looking for?

Oxford University Press’s Very Short Introductions is a successful series of brief authoritative introductions to a wide variety of (serious) topics. The VSI site suggests there are 533 of them, while the OUP site listed in the book yields  a count of 577. The book itself claims 508. Either way it’s a lot, and the number is growing rapidly. The series is clearly modeled on the Que sais-je series published by les presses universitaires de France. To me, it’s an obvious idea for a university press with good trade distribution. I floated the idea of just such a Que sais-je knockoff series when I was a junior editor in Cambridge 45 or so years ago — I clearly didn’t pursue it with sufficient energy! More fool me.

Professor Vaidhyanathan emphasizes that it was the development of search engines and the internet which turned the rather quiet world of intellectual property protection into the frenzied money business it is now. Suddenly it looked like everything was about to leak away, and suddenly we all realized how valuable it all might be. Copyright was quickly transformed from individual right into corporate asset. He uses the concept of paracopyright to describe the erosion of our rights under copyright. Of course we all tend now to copy and paste with gay abandon, working on the assumption that if someone put it up without any protective notice they must be willing to see it reused. It’s like a Creative Commons license without any acknowledgment thereof — at least I hope so!

The author writes in an easy style including lots of anecdotes. He reveals that the story of the loss of copyright in the song “Happy Birthday to You” has a kicker, in that Warner/Chappell were adjudged by a US court in 2015 never to have held copyright at all in the song on which they’d been cleaning up permissions fees for decades. They have already settled for $14 million to people wrongly charged for using the song.

We need to remember that IP laws tend to vary from nation to nation. Professor Vaidhyanathan tells us how Angelica Huston was able to prevent the colorization of her father’s film The Asphalt Jungle — but in France only, not USA. Under US copyright law John Huston was regarded as having made the work for hire, and thus to have owned no rights in the movie. His daughter thus didn’t inherit any rights, but in France the force of the “right of paternity”, a moral right under le droit d’auteur, enabled her to assert creative control on her father’s behalf.

Professor Vaidhyanathan’s book is a notable achievement of compression, and anyone involved in the media will benefit from reading it. Maybe you’ll even be able to find it on Book Culture’s spinner now.

 

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Reedsy (via Book Business Insight and Digital Book World) provides this infographic on how to register copyright.

Why to do it though is a different story. Under US copyright law your book is copyright by virtue of its existence. It will always be covered by copyright whatever you do, or don’t do, so some of the ten reasons for registering given here by FindLaw are actually benefits you hold whether you pay your registration fee or not. Registration has one basic benefit: “You can’t sue for copyright infringement or get an order from a judge to make somebody stop using your work unless your work is registered either within the three months after your work is first published, or before the infringement first occurs.” If you worry that such a thing might happen then you should pay your $35 and feel secure.

But note: timing is important.

See also my earlier Copyright registration post.

At TeleRead Chris Meadows gives an impassioned appeal for the idea that creativity can be unleashed by looser copyright rules, giving an account of the manga and movie origins of The Castle of Cagliostro.

It’s hard to disagree with him that the ability to riff on Sherlock Holmes can/did release some valuable works. The ability of a copyright owner to suppress even mildly derivative works approaches the scandalous. The original aim of copyright was “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The promotion of science and the useful arts is not possible when copyright owners, often corporate entities backed by vast funds, can stop progress by bringing a law suit (which many artists cannot afford to defend). Maybe that clause from the original law should now be revised to say that the purpose of copyright is “to promote the profitability of corporations and other individuals who own copyrights by securing for as long as these corporate individuals shall deem desirable, the exclusive right to these writings and discoveries.”

Publishing Perspectives reports that a judge has ruled that Moppet Books, a line of children’s books based on well-known copyrights infringe the copyright law. These books do appear to be straightforward simplified editions of the original works, and as such are more justifiably disallowed than new stories which just use the same characters as the original work. Surely a work about Atticus Finch where he gives up the law and fulfills a lifetime’s ambition to ride in the Tour de France ought to be allowed, while maybe a simplified retelling of To kill a mockingbird should legitimately be held to need a license from HarperCollins. The difference is in the transformative nature of the adaptation: but even such works often get into legal difficulties.

America’s on-going love affair with the corporate economy (masquerading as the free market) of course guarantees that in the next few years Congress will manage to get it together to extend the term of copyright even longer. Mickey Mouse is approaching the edge of the public domain precipice. He was “born” in 1928, but won’t fall into the public domain till 2023. Obviously any corporate body would consider 95 years is a totally inadequate term of protection for an asset that still makes money!

Interestingly, fanfiction.net shows 274 fan fictions based on Mickey. I guess none of them represents, in  Disney’s lawyers’ minds, a viable commercial threat, or they’d presumably have been forced down.

I still like my three-part proposal for copyright. It has of course a snowball in hell’s chance.

The question of whether the monkey who took a selfie can or cannot own the copyright, which I alluded to in a post a couple of years ago, incredibly rumbles on. It now seems that his “next friends” are still suing to claim the macaque’s ownership of the picture which he took on the camera of British photographer David Slater. Techdirt, via The Digital Reader, recounts the farce.

The idea that a monkey, even one with a real name now listed in court documents, can own copyright is surely nonsense and the fact that such a suit is being brought just goes to show the power of money (which significantly only differs by one one letter from monkey, a character well known in connection with business) to motivate apparently respectable lawyers to make apparently stupid arguments. I guess you can’t criticize the Ninth Circuit for giving it a Case Number — there it is. They have to judge what comes before them I guess.

That  infinite monkey we’ve all heard about who’s sitting around trying to type the complete works of Shakespeare by randomly pecking at a keyboard will no doubt be given a boost when he hears of this suit. Are copyright riches awaiting the completion of his random task? And if monkeys, why not robots?

(Via The Digital Reader)

If you find this infographic hard to read you can see it better at Fair Use Week.

Piracy is obviously “a bad thing”. Just because some heedless enthusiast once asserted “information wants to be free” doesn’t mean that information producers want the same thing. However nice it is to run around shouting liberal slogans, we do live in a world where the rule of law still hangs on. The invention of the e-book has made piracy rather easier, or certainly affordable.

As the AAP wrote in their monthly newsletter for August 2015:

Technology has changed the ways in which books, journals and other published copyrighted literary works are created, shared and purchased. Copyright law, however, is technology-neutral, meaning that copyright protections are meant to apply equally to eBooks and printed books. AAP’s recent amicus brief supporting the International Trade Commission’s (ITC) authority to address unfair trade practices involving infringing copies of such works, regardless of whether they are imported in hard copy or as eBooks, aims to defend this central principle of copyright.

Our support of the ITC’s trade authority with respect to infringing works in digital formats aligns with our top priorities for modernizing copyright, which include ensuring that publishers and other rights holders have effective tools to combat online infringements. Every year, the U.S. government publishes a Notorious Markets List [2015 is the most recent available reporthighlighting the online (and offline) markets outside the U.S. that post mass-quantities of infringing copies of books, movies, music and other creative works that undercut the royalties paid to authors, filmmakers and musicians.

Now here’s The Creative Penn on how we should embrace the pirate: better read free than unread. This is the same thought that Neil Gaiman was expressing in his 2011 video (which can be found in the link in the first line of this post). Maybe this is the spirit behind The Digital Reader‘s comment on Digimarc’s report on piracy of e-books, which they estimate at $315,000,000 in 2016. Maybe he’s being ironic in dismissing this number as “nothing to worry about”, though he does link to the Creative Penn piece, so I suspect that the remark is addressed to the narrow issue of piracy’s effects on the individual self-published author. Now it may well be that any individual’s share in the heap of pirate-pinched revenue is small, and that encouraging reading by giving away a few free downloads of a novel has the desired effect of increasing readership, but not all publishing is like that. It may well happen that a pirated copy of your novel will indeed lead to further sales as the pirate recommends the work all around. Now of course, not all books are e-books, whatever the enthusiasts might like to think. Print piracy is and remains a large problem. Given the nature of the technology it tends differentially to affect big books like textbooks and reference books. If an Oxford Chinese-English dictionary, say, is pirated in China that is purely and simply a lost sale. It’s not like the pirates go around telling their chums that there’s now this amazing thing called a Chinese-English dictionary, which suddenly releases demand for this hitherto unimaginable production. The best it’ll do is encourage more illegal downloads.

So while it may be just fine for most self publishers to blithely ignore piracy, it’s not something the whole industry can really afford to do. I don’t think 10% (if that’s what it is) is really something any company can afford to ignore. Any publisher would make fairly significant offerings to Gaiman’s gods if that would secure them an annual revenue increase of 10%.

The U. S. Copyright Office defines it thus:

“Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it. Only the author or those deriving rights from the author can rightfully claim copyright.

There is, however, an exception to this principle: “works made for hire.”
If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.

The concept of “work made for hire” can be complicated. This circular refers to its definition in copyright law and draws on the Supreme Court’s interpretation of it in Community for Creative Non-Violence v. Reid, decided in 1989.”

Their circular provides more detail.

Probably the most obvious example of “work made for hire” is work written by an employee as part of the scope of their employment. Think journalists. Other categories depend on an agreement between the parties. Thus, perhaps if you were employed by a publisher as a Production Director and wrote a few last-minute entries for an Encyclopedia, fleshing out its coverage of baseball, your work would only be work made for hire if you had a piece of paper in which your publisher asked you to do the work under these terms. The fact that I didn’t have such a piece of paper doesn’t really matter, as I had/have no intention of suing for what is an utterly worthless right. Of course the law courts might decide that this was in fact part of the scope of my employment even though my job didn’t involve writing stuff, and although I wrote in the evenings while not in the office. One of the constant problems about copyright law is that you can rarely be certain about things: you can only really know as a result of a law suit — and law suits cost more than the bone of contention is usually worth.

Publishers contracting out jacket design to freelance designers should no-doubt note somewhere in their communications with the designer that the result will be considered work made for hire. No way you want to be delaying a reprint gettting permission for a copyright holder.

Should scientific research be available free?

I find it difficult to give a clear Yes or No answer. It rather depends on the authors and their intentions and preferences. It just is the fact that a paper will automatically be protected by copyright, and copyright exists to provide encouragement to authors (by giving them some income ideally) to continue to make discoveries. As with any kind of property the author can assign the copyright, and this usually happens with journal articles, so that the copyright becomes the property of a publisher. I regard the ownership of a copyright by a learned society or a university press as a pretty unthreatening situation: after all the university press has a mission to extend learning, so might be trusted not to exploit this ownership. Of course not all publishers are idealistic university presses, and perhaps some university presses are less idealistic than others! I think we can assume that while academics’ motivation in writing journal articles is probably not to make money*, they definitely don’t do it to make money for large corporations.

Many authors of papers in scientific journals are employed by universities or research institutions, and are paid, via salary, to do the research that they write up in journal articles. Whether or not this salary comes from public funds, one could argue that the work has already been paid for by the public in one way or another. Journal publishers tend not to pay for the creation of the papers they publish: everyone, editors, referees, authors, being engaged in a sort of general-welfare effort. Now this is fine as far as it goes, but add that inevitable element — profit-seeking publishing companies — and the waters become turbid. Elsevier is everyone’s favorite villain in this scenario, and their profitability, in the 30% band, does nothing to blunt the attacks.

Sci-Hub to the rescue! (It even has a Wikipedia page.) A Russian organization, it has downloaded thousands of academic papers onto the web where they are available free of charge. Unsurprisingly Elsevier is suing.

At The American Council on Science and Health Chuck Dinerstein blogs about Sci-Hub, and the problems of the unaffiliated scholar. Being forced to go underground and get your stuff free can’t help stimulating feelings of guilt. But still, if it’s there, it’s pretty easy to us the “knowledge wants to be free” kind of argument to justify getting it. There appear to be more mundane problems with Sci-Hub: Scholarly Kitchen has an article on Sci-Hub and identity theft.

The price of academic journals is a real problem. It costs so much to subscribe to important journals that libraries find their book budgets squeezed more and more. Of course there are costs involved, but one cannot avoid the reflection that many journal subscription prices are ludicrously high: can 24 issues really “be worth” more than $15,000 a year? Presumably it can, or people wouldn’t be paying up. Publishers and their subscription agents seek to alleviate this price problem by bundling, but of course getting a discount on a couple of journals by subscribing to half-a-dozen more doesn’t really save you money. Justin Peters’ article at Slate on why academic journals cost so much is pretty sensible, but for me it goes off the rails when it claims “after World War II, heavy government and industrial funding of university science laboratories led to unprecedented specialization of the sciences. This outcome in turn led to a new crop of specialized scientific journals with similarly narrow foci so that these specialist scientists could have outlets in which to publish their research results. As the number of publications increased, academic libraries felt obliged to subscribe to them all or to as many as possible.” Isn’t it more likely that specialization in the sciences results from the nature of knowledge? We no longer talk about “natural philosophy” because to do so would obscure the differences between philosophy and logic at one end and, let’s say, interpreting the Hadron Collider’s results for particle physics at the other. The more we find out about our world the more complicated the structure of scientific (and all other) knowledge becomes. This isn’t a result of government funding: the ramification of government funding is a result of it.

Here’s an article from BloombergView, (linked via The Digital Reader). I’m always surprised at these people who go on about how iniquitous it is that publishers (especially these days Elsevier) charge for material which is available for less elsewhere. “If you want to read an article from the Journal of Financial Economics, and you don’t have a subscription or access to a library that does, publisher Elsevier will charge you $39.95. For one article!” shouts Justin Fox. You rarely see complaints at The Folio Society’s “unscrupulous” attempts to get you to pay $75.95 for Jules Verne’s Twenty Thousand Leagues under the Sea, when everybody knows it is available for free as a Kindle book! Hey; we publishers are in business! Our job is to get money from readers. If there are folks out there who find it simplifies their life to buy that article from Elsevier at $39.95, who are we to tell them they can’t do that? Naturally it doesn’t sound good, and is surely bad PR, but as long as there are buyers we’ll offer the service. The real problem arises when there’s not a free version out there of course.

Now we turn over another stone: is it OK for a publisher to republish a free, open access article, and charge money for it? At Scholarly Kitchen, Joe Esposito, using his early experience at New American Library as evidence, says yes, as long as the rights are taken care of. The ability of publishers to sell public domain stuff, Shakespeare, Dickens etc. for good money despite free versions being available continues to impress, and why shouldn’t this be true in the world of scientific journals? David Crotty, also at Scholarly Kitchen explains the legality of all this which involves Creative Commons licensing, not just ©.

We are, I suspect, stumbling towards a solution to all this. Now that we have the internet, Open Access together with an Article Processing Charge provided by the authors or their funding institutions, does show a way forward. In the old days when the only avenue to publication was through the printing press we had no alternative: in the modern on-line world we can’t allow gear-changing from that old world to obscure the purpose behind the entire system of research and publication. Barbara Fister seems to think so in this piece form Library Babel Fish. Naturally publishers are going to dodge and weave in an attempt to preserve their valuable properties — and as Rick Anderson recounts at Scholarly Kitchen they are doing so quite well. The very definitional difficulties addressed in yesterday’s post provide publishers with opportunities to appear to be doing good while at the same time maintaining the status quo. We need to straighten out our thinking. Is this another of those tragedy of the commons problems — worth nobody’s financial investment to cure? Publishers have an asset to protect and scholars and libraries cannot force change. If it’s not all available via Open Access the libraries still have to subscribe to the journal.

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* The situation with books and the reproduction of chapters or sections from books is rather different. It is much more likely that an academic book is written with the hope of earning a bit of money for the author. Of course there may be no financial motivation, but only the author can know this, and thus publishers as agents for their authors, have an obligation to be vigilant in the protection of the copyright.

 

 

Some of the things I write about are pretty straightforward. There’s not too much more you can say about the Applegath vertical printing machine. Topics like Open Access and Copyright are so onion-form that as soon as you start writing you have to peel off another layer as the topic ramifies before you. I have three different draft essays on Open Access on the go, each with various fascinating links attached to them. If I amalgamate them into a massive unit it’d take hours to read — so of course just wouldn’t get read.

So, at least in part to clear my own mind, I thought I’d get rid of the basic definition problem here. Rick Anderson, an admirable clarifier writing at Scholarly Kitchen attempts to explicate overlapping definitions that tend to bedevil discussions of this subject. Those devilish details! In the course of that piece he links to an earlier attempt at the same thing. The second part of his discussion, focussing more on goals, can be found here. All these papers, and the links he provides, are worth reading if you have any interest in Open Access.

The Scholarly Kitchen has an interesting essay by Robert Harington of the American Mathematical Association under the title The Value of Copyright: A Publisher’s Perspective. This provides a sober overview of where we stand today. Harington reminds us that different authors have different “copyright” motivations.

Are there not now three types of copyright? If I’m right, that’s surely a problem, and they ought probably to be covered by three different legal arrangements.

  1. Copyright protects big, expensive projects, like movies, where a financial return is fundamental to the whole undertaking. Recouping the investment might take years. It represents part of the company’s capital base.
  2. Copyright also covers books, (and other works such as photos, drawings etc.) where a modest financial return is more often than not all that is needed. Because of lower investment costs this will probably be delivered more quickly.
  3. Copyright also covers on-line materials. These materials may often be the same ones as covered under 1. and 2., but are more easily shared, and are often published on-line with the intention that they should be more easily shared.

Copyright in things like software, typeface designs, industrial design in general, even maybe electronic games might form a fourth category, but might perhaps flip over to the Patent system.

Part of the reason, I think, that copyright has become overstretched is our habit of using the term “intellectual property”. Copyright wan’t designed to protect intellectual property, it was designed to encourage innovation by allowing protection to the physical expression of “intellectual property”, so that people would be encouraged to make more of it. Talking about just intellectual property allows the protectionists to expand the discussion without having to make any arguments (c.f. death taxes).

What strikes me is that the things you wouldn’t want people doing to your intellectual property are rather different in each of these three cases. In the third category, you don’t want someone citing, quoting from or reproducing your work without giving credit, or without indicating if they make any changes to what you wrote. And that’s it. This seems perfectly acceptable to almost everyone, and might, without damage, be made a perpetual requirement, having no direct reference to the rest of copyright law. It’s analogous to the Creative Commons license. One could see a system which imported along with the image, or link the appropriate notices. Something like RefME could possibly be tweaked to achieve this. We might call this kind of copyright Access Right.

If you are a corporation and invest millions of dollars in creating a movie series you want/need to recoup your investment, and then to continue making profits off the product. That is after all why you are in business. Because a corporation can live for ever, such a right might justifiably also live for ever. Let’s call this Investment Protection Right. We might reasonably charge a good-sized fee for granting this protection.

Then that would leave Copyright to cover the rest: in my world, books. Nobody has a problem with protecting the author from the theft of his/her work; it’s the number of years of that protection that we often find problematic. I think there’s a consensus out there that “life of the author plus 70 years” is just too long (based as it is on the “life” of Mickey Mouse). Allied to the automatic vesting of copyright in a work immediately it is recorded in tangible form, this lengthy term has created a huge category of orphan works — works protected by copyright, but by a copyright held by a person who has vanished, thus preventing anyone getting permission to use the work in protected ways. Reducing the term to a number of years without regard to the author’s survival would surely be sufficient. Maybe 25 years would be OK?  Is it really essential to keep copyright protection going on John Grisham’s The Pelican Brief, published in 1992? A film was made of it in 1993, so Mr Grisham needn’t worry about Hollywood ripping him off. Warner Bros. no doubt have an interest in protecting the movie under my Investment Protection Right, but surely copyright in the book isn’t hugely valuable any more. Mr Grisham may still be happily receiving royalties but his publishing contract could allow for Random House to pay royalties whatever the copyright situation.

It might be right to point out that I selected Mr Grisham not as any kind of copyright protectionist — I have no idea what he thinks about all this. I chose the book as an example of a literary copyright which would have been very valuable in 1992 and for a few years thereafter, which still earns, yet which doesn’t on the face of it carry any inherent need to be sedulously protected for another 70+ years. In other words, a trade book.

See also Term of copyright.