Public Interest Authorship



Must valuable things be paid for? A response to Taylor Swift.

Taylor Swift recently published her first piece in the op-ed pages of the Wall Street Journal, in which the country/pop star provides her predictions for the future of the music industry.

The result is a little bit of a mixed bag. Swift is an “enthusiastic optimist” who believes that the future of music will be a profitable one, but she doesn’t deny that album sales have “shrunk . . . drastically.” All in all, it’s a worldview that makes sense coming from one of the winners in an increasingly winner-take-all creative economy.

Needless to say, the op-ed has generated a lot of buzz. A famous musician makes her first foray into a heated topic on the pages of the Wall Street Journal? Of course people are reacting. I can’t help myself either, because nestled among her predictions was this thought on the value of music and its price:

In recent years, you’ve probably read the articles about major recording artists who have decided to practically give their music away, for this promotion or that exclusive deal. My hope for the future, not just in the music industry, but in every young girl I meet . . . [so in original] is that they all realize their worth and ask for it.

Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is. I hope they don’t underestimate themselves or undervalue their art.

(emphasis added). This syllogism hits an important point (we should value art!), but its premises are deeply flawed. Read the rest of this entry »


PIA on holiday / characters and the public domain

This blog is taking a holiday for the next week and half (it actually began a couple of days ago), but I can’t help but put up a brief post about the Seventh Circuit’s recent decision clarifying how characters enter the public domain. My thoughts are brief (I’m meant to be on holiday!), but anyone looking for more would do well to read Molly Van Houweling’s recap on the Authors Alliance blog.

Most of Arthur Conan Doyle’s Sherlock Holmes stories are in the public domain. Their copyrights have expired, leaving those stories free for anyone to copy and enjoy. Some of the stories, however, are still under copyright. Does this mean that the characters—the iconic Sherlock Holmes and Watson, among others—are off limits for other authors who want to further explore them and to create new mysteries?

As a matter of law, the answer has continued to be quite muddled here in the U.S. Not any longer—or at least not in the Seventh Circuit, where Judge Posner set forth rather clearly that copyright holders cannot retain control of characters created in public domain works simply because later works remain copyrighted.

This is a victory for creators who use the public domain as inspiration, and for the principle that the public interest is best served when works are eventually allowed to become truly open to public use and enjoyment.


The pitfalls of scholarly publishing on scholarly publishing

Times Higher Education is reporting on a publisher’s attempt to alter and discredit a criticism of scholarly publishing ultimately published in one of its journals. Four authors from the University of Leicester School of Management came out swinging in their critical take on trends in scholarly publishing—particularly well-documented, extra-inflationary pricing trends—as part of a debate in the pages of the Taylor & Francis journal Prometheus. The authors’ complaint is one likely familiar to readers of this blog. They write:

“[E]xcluding access to current and state-of-the-art research prevents potential contributions to prevalent scientific problems. High journal prices are also detrimental to new knowledge creation within social science since these prices limit access by academics and students to potential knowledge commons, thus compromising their capacities to develop such commons.”

The authors’ perspective was not endearing to the their publisher, whose senior management delayed the article and apparently demanded that the senior editor of Prometheus remove half its contents. The article managed to make it to publication after Prometheus’ editorial staff threatened to resign en masse, but not without a disclaimer warning readers that “The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information.”

As censorship, the whole debacle was plainly ineffective. It’s almost as if Taylor & Francis hadn’t heard of the Streisand Effect.

But even if the authors still got to say their piece, and even though the publisher’s censorial position appears to have drawn attention to the article, the situation remains disheartening. One important function of academic publishers is to help ensure the integrity of the works they publish. Having demonstrated its willingness to compromise the integrity of its articles, and having deliberately undermined its own content through nonstandard disclaimers, Taylor & Francis deserves to lose the confidence of its authors and its readers. Academic publishers need to remain editorially disinterested, particularly where their business is anything but disinterested.


Source: Times Higher Education
See also: Publisher, be damned! From price gouging to the open road


Public Domain Handbook

Works enter the public domain when their copyrights expire or why they were never copyrighted in the first place. Once there, these works are available for other authors to freely draw from, adapt, and repurpose, and for archivists to copy and provide to the public.

Sounds simple enough, right? Unfortunately, the process is anything but simple for works made in 1923 or later. The changing landscape of copyright law has made public domain determinations a headache for many 20th century works, making the process, at its most simplified, like the flowchart below.

Thankfully, a stupendous effort by the Samuelson Law, Technology, and Public Policy Clinic here at Berkeley Law has released Is it in the Public Domain?, a CC-licensed handbook for evaluating the copyright status of works made after 1923 (the source of the above flowchart). The handbook brings a great deal of clarity to an unfortunately complex process. While it’s just not possible to simplify the process of making a determination, the handbook at least brings the process down to earth in a way that is understandable.


Source: Samuelson Clinic News


The PIA Blog is Looking for Publication Agreements

Publication, whether academic or otherwise, requires authors to give publishers some set of rights to the published work. Exactly how much is given up depends almost entirely on the publication agreement. It can range from a narrow nonexclusive license, to an an outright transfer of the copyright, with countless alternatives in between.

One roadblock in our understanding of the publishing ecosystem and what it means from a public policy standpoint is that there are an incredible number of these agreements and precisely what they say is not public knowledge.

For my research, I would like to gather, study, and report on what publication contracts actually contain. But in order to that, I’m going to need to track them down. You can help by emailing me your agreements. I’ll keep our communication private, and will anonymize my reporting on what I find.

Have some agreements for me? Send them to mikewolfe@law.berkeley.edu. Thank You!


Thoughts on the Amazon-Hachette war

Amazon, the e-commerce giant, is once again making headlines for manhandling a publisher. As it did in its 2010 spat with Macmillan, Amazon has pulled or delayed shipment on a number of big-five publisher Hachette’s titles as a negotiation tactic in its attempt to secure more favorable prices. Moreover, it also appears that Amazon is playing down Hachette titles in its search results and doing its all to redirect consumers to substitute titles.

There has been a lot of talk about Amazon’s tactics possibly being in violation of antitrust law. I think that’s an interesting and worthwhile conversation to have, but I’ll leave it for now with the note that I remain unconvinced about the antitrust allegations. But it’s not terribly relevant: whether or not Amazon is acting as an illegal monopsony (or attempting to do so), pulling titles as a negotiation tactic is bad for authors, bad for the public, and should be roundly condemned.

The larger Amazon gets, the more the public comes to rely on it as a source of information and culture. The information Amazon provides comes not just in the form of books themselves, but also in the form of information about books, extending Amazon’s shadow far beyond mere sales. Amazon’s search results, reviews, and lists of similar books are an increasingly important part of bookselling even where Amazon isn’t serving as the vendor. Amazon’s hiding of titles and restricting of books not only directly hurts authors’ ability to reach readers by hindering sales, it also compromises the integrity of the market for books.

Scarier still, rumors have swirled that Amazon has used something looking like editorial discretion in deciding which books to make scarce. Brad Stone’s “The Everything Store: Jeff Bezos and the Age of Amazon,” a book not known to be dear to the Bezos family or to Amazon.com, is among those titles that have seen their availability falter. It would be deeply troubling were this anything but an unfortunate coincidence, and it’s hard to believe that the choice wasn’t a conscious one.

Compare Amazon’s public role to that of ISPs in network neutrality debates. Part of what motivates net neutrality advocates is a commitment to seeing ideas and information travel without interference from biased third parties with overriding commercial interests. ISPs are more than simply private businesses pursuing their own bottom lines, they are also the public’s primary point of access to information, culture, and debate. Amazon’s function as an increasingly ubiquitous intermediary for works of authorship is not dissimilar, and the similarities only grow as it captures more market power.

I don’t raise this point to say that Amazon.com as a distributor of books should be treated like a common carrier under law, and the idea that a store could be forced by law to stock titles is itself a troubling proposition. Rather, the company should recognize that it plays an important public role in addition to its self-interested private one. At the very least, it should recognize that its negotiations with publishers have direct repercussions for authors and their readers who are not themselves party to the dispute. These repercussions are real, they are problematic, and they should not be a bargaining chip.

Admittedly, hoping for public-minded self-awareness from Amazon is probably far-fetched. A more proactive proposal, then, might be for authors themselves to take away a warning from the whole fiasco: when you assign all rights in your work to a commercial entity, you hitch your star to the vagaries of the market. As is the case now, your publisher might find itself embattled with Amazon, or it might find it most expedient not to market or print your work. Retaining some rights to make your own work available despite circumstances far outside your control, helps to ensure that, whatever happens, your work stays available. And so it is that though Amazon is delaying Lessig’s Republic, Lost—a Hachette title—you can still always get it right from the source under a CC license. This would be true even if Amazon did control the market such that the book didn’t remain available from other sellers.


Annie Proulx on why writers write

Why do writers write? The question might as well be the tagline of this blog, as it’s in the diversity of possible answers that we can find such a thing as public interest authorship.

Attendees at this year’s AWP conference had the good fortune to hear Annie Proulx deliver a keynote largely dedicated to unpacking this prompt. If you’re short on time, the video’s host, fora.tv, provides a table of contents that can help you skip through to the good bits. The whole thing is worth watching, as Proulx explores, with some insight, the various motivations that bring people to fiction. Some notable quotes are below:

At ~17:00—

Books had contained the knowledge, information, and beauty of the world for so many millennia, that they gave off an almost palpable aura of value, and entrepreneurs interpreted that value to mean that here was a resource that should, and could, be taken, like forest timber, . . . quails, codfish, passenger pigeon, bison, uranium, coal, water, and oil.

At ~30:00, quoting/paraphrasing New Zealand novelist Jenny Pattrick—

If it hadn’t been successful or was never published would I have continued writing? I don’t think so. I’m not one of those navel gazers who say they can write forever just for their own enjoyment. For me, part of the joy of making up stories is knowing that they will be shared with other people, that they will get to know, or love, or hate the characters that have started inside my head.”

The whole thing rejects the notion that writing can be tied to just one motivation or another, and it also puts in perspective many of the industry voices that tend toward doom and gloom.


Online instruction and instructors’ rights: finding a balance

The next major technological disruption in academia, after those in publishing, is certain to be in teaching. It is now both possible and practical for many educational institutions to put together online courses, whether massive and open (as in a MOOC), or small and proprietary. The thrust of these changes is positive for many educators and students: online courses expand learning possibilities beyond the ivory tower and allow academics to reach wider audiences without having to sacrifice the rigor and nuance than can be lost when leaving the classroom.

That’s the positive outlook that’s leading more instructors to explore creating online courses. But this rosy picture is complicated by questions involving mechanics and rights, and with them the looming fear that course creators might lose teaching opportunities to their own digital doppelgangers.

When creating an online course, instructors are asked to sign agreements allocating rights and responsibilities. Having had the chance to review some of these agreements, it is clear that many of them seek to alter the more traditional arrangement between instructors and universities, doing so in a way that is disadvantageous to instructors and that risks undermining the promise of digital courses.

To encourage educators to invest their time and attentions to creating widely distributable online courses, here are two principles every online course agreement should respect.

1. Instructors need attribution rights

When building online courses, universities are trying to create resources that they can reuse—courses that can be updated and adapted as times change. This becomes a problem when the original instructor disassociates from the project.

Recognition is perhaps the most important currency in the academic economy. Academics need to be assured, both in their writing and in their teaching, that their contributions to knowledge will be recognized. Conversely, and just as importantly, they need to know that they are safe from having work attributed to them that is not in fact theirs.

Because many online courses are designed to outlive their creators’ contributions, they necessarily walk a fine line with regard to the attributional interests of the instructors. It is essential that an instructor’s unmodified contributions are appropriately credited. Where they are supplemented or altered by a third party, it is equally essential that those changes are not presented as being the work of the original instructor. If the course strays too far from the original instructor’s vision, there should be a means for the instructor to disassociate entirely from the modified course.

Instead of doing the difficult work of establishing how to best protect a course creator’s need to receive full and proper credit, many contracts are instead asking contributors to waive their “moral rights” in the contributed materials. While moral rights are not typically granted by law in the United States, they are understood to encompass precisely the issues of attribution and recognition that need careful handling. Attribution is an essential part of all academic authorship and online course agreements must recognize it as such.

2. Instructors need rights to their course materials

Copyright policies differ from institution to institution, but traditionally academics have been allowed to retain ownership to the copyrights covering their output, whether in the form of research or in the form of course materials. In the context of building online courses, it makes sense that universities need rights to course materials (that is, lectures, syllabi, slides, etc.) because the university needs the legal ability to copy and distribute them. Because universities are often hoping to reuse these courses, they also want the legal right to keep them up to date regardless of whether the instructor remains available to do that work.

While giving the university these rights makes sense in online education, it cannot come at the expense of instructors’ ability to reuse and update their course materials—regardless of where any such reuse happens. Teaching is both a passion and a livelihood. The substantial effort it takes to create a quality course is not usually made not as a one-time effort, but rather as part of a continued commitment to elucidating a subject matter. Instructors need the legal rights necessary to continue teaching their courses, even if those courses were initially developed to be taught online. Even where the university insists on taking ownership of course materials used in online courses, contributors need to be given broad license to continue to make normal instructional and academic uses of those materials.

Summing up

These principles are just a baseline—the bare minimum of what we need from online course agreements. There are many ways agreements can go further to foster a sustainable educational ecosystem. One idea might be to limit how long these agreements last. Under this arrangement, if the course is still working the way it’s meant to, without compromising the creator’s attributional interests, then it can be renewed by mutual agreement rather than by university fiat. We will continue to watch this space and offer our contributions on best practices going forward.


Peter, Jane, and much-needed UK copyright reform

An excerpt from “We Go to the Gallery” by Miriam Elia and Ezra Elia.

Copyright is in many ways internationally “harmonized,” that is, treaty obligations require most countries to adhere to certain minimum standards. For better or for worse, the international community’s zeal for extending copyright’s protections is not matched in its treatment of exceptions to copyright, which remain largely voluntary and far from harmonized.

In the United Kingdom, for instance, there is no general flexible limitation on copyright like fair use in the United States. Instead, the nearest equivalent in the UK’s copyright law is a collection of more specific exceptions known as “fair dealing,” the key distinction being that these are narrowly cabined to certain kinds of uses, applying only to research and private study, criticism, review, and news reporting. Conspicuously absent are parody and quotation.

So when artist and comedian Miriam Elia published “We go to the Gallery,” a frankly hilarious parody of the Penguin/Ladybird’s “Peter and Jane” learn-to-read titles, she found little in the copyright law that could stave off Penguin’s ire.

Read the rest of this entry »


An Introduction to Authorship and Ownership in U.S. Copyright Law — Part 2 of 2

The first part in this series explained the basics of copyright ownership for authors. Although the U.S. Copyright Act grants initial copyrights to authors themselves, many authors transfer those copyrights to others—to publishers, for example, in exchange for payment or sometimes merely for reputational advantages of being published in a prestigious outlet. Authors who are no longer the owners of copyright in their own works may be frustrated when they want to revise and distribute their own works but find themselves without the rights they need to do so.

There are several ways for authors facing these dilemmas to try to resolve them (and to avoid them in the future). Some publishing agreements grant exclusive rights to publishers only for some media (hard copy but not digital, for example), and/or only for limited periods of time. Under these agreements authors retain the right to publish in other formats and/or after the period of publisher exclusivity has expired. Other publishing agreements assign ownership of the author’s copyright to a publisher but reserve to the author the right to reclaim the copyright if the work goes out of print (often referred to as a “reversion” or “out-of-print” clause). The circumstances under which this reclaiming is possible vary depending on the exact terms of the agreement. In particular, agreements differ in how they define “out of print” (whether, for example, a book that is available only as an e-book or via a print-on-demand service can be considered in print regardless of whether any copies are actually being sold). When the events that trigger the reversion of rights to the author do occur, the author typically has to take some action to exercise those rights (e.g., providing notice to the publisher of her intention to exercise her rights and then giving the publisher some time to respond).

Read the rest of this entry »