Thursday, June 28, 2007

Public Domain: What Is It?

Public domain. The term makes me think of a sprawling public space, like Boston Common, except instead of being covered in grass, dog poo, and panhandlers, it’s covered in ideas. Piles of books, stacks of DVDs, painted canvases spreading as far as the eye can see, all for the taking. And in essence, this image is a somewhat accurate manifestation of what public domain actually is.

So what is it? I like to think of it as the happy hunting ground where intellectual property goes after its copyright has expired. But instead of the intellectual properties going there to die, they are instead experiencing a sort of rebirth—a second life. Because intellectual property that’s in the public domain is available for anyone to use, in any capacity, with no infringement repercussions. And works that have entered the public domain can’t be copyrighted again, either. So it’s all there for the taking.

As a lover of all things literary, I find the concept of public domain fascinating. I just wish there were a better term for it. For some reason, the word “public” conjures images of dilapidated facilities that have grown shabby after years of use by the masses, something that has been devalued due to overuse. Really public domain is a hugely important thing. If the copyright on intellectual property never expired, the copyright owners and their estates would basically have a monopoly of control on that piece of work, which could potentially limit or eliminate the public’s access to it. Imagine if Shakespeare’s plays were under copyright, and his descendants charged exorbitant sums for anyone to publish or perform his plays. How many less people would know and appreciate his works? Think of all the different editions of Shakespeare’s plays currently available, and all the times his plays are performed around the world. How would this be possible if his work were protected by a copyright that never expired?

The duration of copyright has changed throughout the years, progressively becoming a longer and longer term. Currently in the U.S., the terms of copyright protection are life of the author plus 70 years (for most works, but exceptions include work-for-hire, anonymous/pseudonymous works, and works by corporate entities*), and this is the same for Berne Convention countries. Those plus-70 years alone are a pretty long time, let alone the addition of however many years the author is alive. The current terms of copyright also mean that a person needs to know a little basic arithmetic in order to determine when a work’s copyright has expired and it has become public domain. It all comes back to Sonny Bono (yes, that Sonny Bono) and Mickey Mouse.

The Sonny Bono Copyright Extension Act of 1998 warrants its own entry exploring the pros and cons of its passage, as it has raised a great deal of debate about the nature of copyright and the constitutionality of extending copyright. For now, I’ll just say that it’s the act responsible for extending copyright to life plus 70 years for post-1978 works. Works published before 1978 also received a second renewal term of 67 years, up from the previous 28 years, and the renewal became automatic. It’s all pretty confusing to figure out when what expires and how long something is protected, so here’s a breakdown for works published in the U.S. (This confusion, of course, is somewhat of a given since as we’ve already learned, nothing involving copyright is ever simple.)

Works are in the public domain if they were:
• published before 1923
• published between 1923 and 1978 without a copyright notice
• published between 1978 and March 1, 1989 without a notice and without subsequent registration
• published between 1923 and 1963 with notice but the copyright was not renewed

Works are protected for 95 years after the publication date if they were:
• published between 1923 without notice but the copyright was renewed

Works are protected for life of the author plus 70 years if they were:
• published between 1978 and March 1, 1989 without notice but with subsequent registration
• published between 1964 and 1978 with notice
• published between 1978 and March 1, 1989 with notice
• published after March 1, 1989 with no conditions necessary

So that’s a basic rundown of what public domain is and how to figure out when a work’s copyright expires. In my next entry, I’ll talk about the proponents and opponents and pros and cons of the Copyright Term Extension Act (CTEA).

Works for hire, works held by corporate entities, works under a pseudonym or published anonymously: term of copyright is 95 years from date of first publication or 120 years from date of creation, whichever comes first.


Complete Copyright: An Everyday Guide for Librarians by Carrie Russell. This book is awesome; it explains everything in plain language, has lots of sidebars of information, and it also includes all these anecdotes about a group of librarians and their copyright woes.
The Sonny Bono Copyright Term Extension Act:

Tuesday, June 26, 2007

Five to Ten and 100K: Copyright Infringement

My friend Chris asked in an earlier entry’s comments section what sorts of punishments are doled out for copyright infringers. Like all other things copyright-related, charges of infringement are tinged with gray.

In the easiest cases, it’s nearly black and white: a creator who holds a copyright can point to another person who has clearly stolen his work, line for line, and who has passed it off as his own or used it for personal or financial gain. When copyright was in its infancy, this was the only way that a case for infringement could be brought to court: if an exact replica had been made. This overly simplified take was soon outgrown by the burgeoning creative marketplace, and rulings in infringement suits began to lean more heavily on intuition and subjectivity rather than only the letter of the law (which was already somewhat clouded with gray). These cases fall under the term “substantial similarity”—legalese for copying that is not verbatim. Herein begins the mass of swirling gray, because “substantial similarity” is highly subjective.

The majority of copyright infringement cases today regard substantial similarity rather than literal word-for-word copying. Whereas previously Plaintiff Polly could only have a case against Defendant Danny if he reproduced her short story verbatim (or very close to verbatim), Polly may now have a case if she thinks Danny has stolen the plot line or characters from her story.

Wait a minute, you’re saying. I remember that you explained to us from the start that only the expression of ideas is copyrightable, not the ideas themselves. So how can Danny get sued for using the same plot as Polly? Isn’t the plot just an idea? And come to think of it, aren’t there supposed to be only a few dozen plot lines existent in literature anyway? (Meaning that pretty much every writer everywhere ever has infringed.) To all this I say—a perfect example of the glorious ambiguity that is copyright!

Determining someone’s guilt or innocence in an infringement case takes into consideration several factors.

1. KNOWLEDGE. If a defendant had no prior knowledge of the work he infringed (so if Danny never read any of Polly’s stories), then he’s off the hook. Sort of. Of course there’s a loophole: If the plaintiff (Polly) can prove that the defendant (Danny) was exposed to her work, even if he has forgotten it—so, in essence, subconscious knowledge—then she may be able to win her case. So let’s say that one day in the waiting room of his doctor’s office, Danny skimmed through an old issue of the New Yorker looking at snippets of stories without paying much attention to the fact that they were written by Polly. This means that he has subconscious knowledge of Polly’s writing. This loophole strikes me as particularly ridiculous, because how much of what we do, say, and create comes from our subconscious? A hell of a lot, I tend to think. How can someone even prove something like this, I wonder? I’m imagining mind probes or something similarly sinister. Moving on.

2. ORIGINALITY. In other words, is the plaintiff’s work itself validly copyrighted, or did the plaintiff herself infringe on another’s work, knowingly or not? Is Polly a conscious or unconscious/subconscious infringer herself? If the plaintiff herself is found to have infringed in any way, her claim to the copyright of those elements becomes invalid, which means the defendant could possibly be off the hook.

3. PROTECTABILITY. The court must also examine whether the material can be copyrighted or if it cannot—like an idea, a historical fact, and so on. This can often prove to be no easy task. For instance, in Polly’s case, the court would have to determine just how closely Danny’s alleged infringement encroaches on Polly’s work. Are both story plots something commonly found in literature, like a love triangle, or does Polly’s contain a unique twist (say, one of the members of said love triangle is a cockatiel) that Danny’s also contains? Are both main characters the typically tragically flawed hero, or does something unique set them apart? (For instance, both Polly’s and Danny’s protagonists have a speech impediment and a fondness for Gouda, both are orphans, and both solve crimes with the aid of a Pekinese.) If the similarities seem to be more than mere coincidences, then a case for infringement can be made. But if the similarities seem more general and coincidental (both protagonists are named Charles and wear glasses, for instance), then there tends to be less of a case for infringement.

4. SUBJECT. This piggybacks on number 3. The subject matter affects how similar the two works in question are, so courts must examine the intent of each work. When looked at individually, Polly and Danny may have characters or plot lines that are similar when looked at in isolation, but when looked at in the context of the whole piece, differences may be found. (Polly’s story is a serious literary work whereas Danny’s story is a very funny piece poking fun at society.) Courts examine these cases not in an analytical, dissect-every-detail fashion but rather as observers—as consumers of the product. Of course this method works better for creative works than for more technical works such as computer software. But just because only one element of another’s work appear in an otherwise original work doesn’t mean that infringement hasn’t occurred. Danny’s story may only have copied Polly’s bizarre love triangle and nothing else, but the court may still rule it as an infringement. As with everything copyright related, nothing is set in stone.

So let’s say defendant Danny is finally found guilty of copyright infringement. What are the damages? Let’s back up one step first. In order for someone in the U.S. to even sue for copyright infringement, the copyright must be registered, and that registration must be done within three months of first publication or prior to the infringement if the work is unpublished if the person wants to collect statutory damages and legal fees. Even though registration of copyright is no longer required in the U.S., it’s still a good way to cover your bum legally.

The conditions for suing a copyright infringer are:
• the case must be brought in federal court within three years of the infringement;
• the copyright must be registered;
• only the copyright owner(s) can sue.

What does the plaintiff get if the infringer loses the case?
• The actual damages (such as compensation for lost profits, tarnished reputation, and lost business opportunities)
• Any profits the infringer made from the infringed work, if these profits exceed the plaintiff’s lost profits
• Possible reimbursement of court costs and attorney’s fees

If a plaintiff can’t prove the actual damages inflicted by the infringer, statutory damages may be in order. These can be no lower than $200 and no higher than $20,000 for unwillful infringement; willful infringement can fetch as much as $100,000 or higher. Willful infringers can be sent to jail and/or fined in the six-figure range if they are criminally prosecuted, but these tend to occur primarily in cases against pirates, smugglers, and software “Robin Hoods” (arrrgh, walk the plank, ye scurvy knave!). Plaintiffs, whether they receive damages or not, may be able to get injunctive relief that forbids the infringer from infringing further.

I’m sure that some of the infringement cases brought to court are really ludicrous, and I’m actually pretty rattled by the subconscious stipulation. I’m sure that if someone were willing to take things far enough if could be argued that just about everything we create stems from some prior subconscious exposure to it. It seems difficult or even impossible to prove that another person who unknowingly infringed on your work had subconscious prior knowledge of it.

Consider a situation from my own life: my freshman year of college, I wrote a one-act play for a class about a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work. And a few months after my play was written and graded (I got an A, thankyouverymuch), the movie Office Space was released, a movie where the main character is a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work.

I’ve pointed out the similarity between the two to my friends, and I was actually quite proud that I’d managed to beat the curve and write something trendy. But whereas Office Space went on to become a huge cult classic, my play has been seen by perhaps a grand total of twenty-three people (I’m being generous here). So does this mean that if one day my play does happen to become a huge off-Broadway hit that Mike Judge can sue me for infringement, even though I wrote my play and staged it before I was even consciously aware of the existence of Office Space and before it had been released in theaters? Am I an infringer? Did I subconsciously feed off of Mike Judge’s creative vibe and channel it into my own play?

So there you have it. The muddled messes of fair use and copyright infringement. Seems like you’re damned if you do and you’re damned if you don’t. It almost makes me wonder how anyone is brave enough to pick up a pen at all anymore to create anything new. I’ve had similar feelings of apprehension; I had started plotting out a novel and adding in elements when I realized that some of the elements were similar to another novel that I had read about a year prior. I hadn’t been thinking about that particular novel at the time I was writing my own plot line, but as I wrote the plot I was shocked to realize the similarities. Was it my subconscious dredging up the memory of the novel I’d read the previous year? Or was it just such a common plot element that a lot of novelists like to throw it into their plot lines? I was so stunned that I’d seemingly recreated another novelist’s book without even thinking about it that I stopped working on the novel, putting it aside to work on some other time. I haven’t touched it since.


I’ll be examining some famous infringement cases and offering my insights in a future entry. And I’ll be talking about the tangled web of public domain.

The Copyright Book: A Practical Guide (Fifth Edition) by William S. Strong
This book provides excellent advice to all creative types out there in easy-to-understand, legalese-free language.

Thursday, June 21, 2007

Another Quick Commercial Interruption...

So, I've finally joined the twenty-first century. I just bought an iPod.

Don't get too excited! It's just a little iPod shuffle. But I needed something to make the gym more bearable, and I figured a tiny, cute, lightweight music player in metallic pink hit the spot.

As I continue with my studies this summer, it's amazing to me just how often I now seem to encounter copyright issues in everyday life. I think I was just never aware of the prevalence of intellectual property. Take for instance my new purchase. In order to use my iPod, I needed to use iTunes and also install some iPod software on my Mac Book. As I prepared to install the software, the following popped up:

"IMPORTANT NOTE: This software may be used to reproduce
materials. It is licensed to you only for reproduction
of non-copyrighted materials, materials in which you
own the copyright, or materials you are authorized or
legally permitted to reproduce. This software may also
be used for remote access to music files for listening
between computers. Remote access of copyrighted music
is only provided for lawful personal use or as
otherwise legally permitted. If you are uncertain
about your right to copy or permit access to any
material you should contact your legal advisor." (from Apple iTunes software legal disclaimer)

First off, that was just the very beginning of a very long document that I actually took the time to scan (okay, I took the time to scan it really quickly, but I did scan it!) Secondly, I thought it was charming that Apple encouraged me to speak with my legal advisor. Let me just dial Raul, Apple, I've got him on speed dial.

Does anyone ever actually read those legal disclaimers? I know that we should, but who has the time? Who actually understands most of what they say? I know that their purpose is to protect Apple should any sort of legal action come to light, and I have to admit that this blurb at the beginning of their long statement is written in plain enough English that most people should be able to understand it. I can also understand the importance of such a statement in a post-Napster world. In essence, Apple is shifting the responsibility for your actions onto you entirely. They acknowledge that they created a product that's used for copying, but they're not going to dictate how you use, they're just going to say how you should use it. It's like they're selling you a car, and they're saying, we know you will drive this car, but it's not up to us to determine how well you will drive the car. Here are the keys. Peace out, homeslice.

This reverts back to the personal copying that I discussed in the previous entry. It's not really legal, but it's not technically illegal either. Apple is acknowledging this. They're sure that most people aren't going to cause any problems, but in case any do, they've covered their bums.

But this also leads me to think about all the times I've installed software or otherwise quickly clicked through a licensing agreement without really paying attention to it. Was I wrong in doing so? Should I be more personally responsible and take the time to fully understand what I'm doing? Does anyone actually read those long-ass licensing agreements? Do companies intentionally make these things long-winded and vague, or do their lawyers just not know any better? At least Apple made an effort. Should other companies follow their lead and perhaps try writing a summary of the most important information in easy-to-understand language before the long-winded disclaimer?

While my project tends to focus more on copyright issues pertaining to publishing, I do find it useful to bring up examples from time to time of copyright in the real world. In what other places do you find copyright notices? What do they really seem to say? Do any of you read them? What do you think of them? Can you think of a better system for informing users?

Photocopies: Are You Breaking the Law?

I’ve talked about photocopies made by libraries and schools that are protected (somewhat) by the garbled guidelines of fair use. But what about copies made by copy shops? Should the copy shop employees be responsible for making sure that permissions have been obtained for the materials they’re copying?

Due to the fact that copy shops (such as Kinko’s) had gotten into trouble for copyright infringements in the past, the Copyright Clearance Center was established. Founded in 1978, it’s a nonprofit organization that makes the process of using copyrighted materials easier by offering consumers permissions to use the materials for a fee. So consumers can pay to use copyrighted materials that were submitted to the center, and the creators of the copyrighted works get compensated (this is a simplified summary of how it works). I’m sure it’s not flawless but it seems like a fair enough system that allows both parties to get what they want. (Or at least to get some of what they want.)

And what, dear reader, about copies that you yourself make? On your VCR at home or by surreptitiously using the copier at work while you should be filing, or even at the library? Are you a copyright infringer when you make copies of things without first getting permission?

Yes and no. No one’s really sure. Some people claim that if you’re making the copies for personal use—say, taping a show to watch when you get home from work or photocopying a favorite poem to hang up for inspiration in your cubicle—that this use is fair. You’re not trying to benefit from the copy you’ve made; you’re just trying to enhance your life.

But Congress and the courts have been wary to label these personal uses of copyrighted materials as fair uses—in essence they’ve avoided saying anything at all. This means that there are no fair use guidelines for personal copying, which further means that every time you make a copy of copyrighted materials for personal use, you are infringing upon that copyright.

[points and calls you INFRINGER!]

But of course, no one really gets in trouble for making personal copies. Even though it’s technically an infringement, copyright holders don’t rise up en masse and come after these people because it’s generally not doing them much harm. And they generally don’t even know it’s going on in the first place. Since we’re thankfully not yet living in the era of Big Brother, citizens can pretty much do/copy as they wish in the privacy of their homes. Copyright law tends to emphasize the fact that copies made for public consumption without permission are illegal and an infringement, but Congress has stayed basically mum on creating guidelines governing fair use for personal copying. So what does that mean? Is in fact then legal? Should we abide by a don’t ask, don’t tell policy as we do with many other things?

My belief is that personal copying really isn’t hurting anyone if it’s kept strictly personal—that is, putting the new album you bought on iTunes on your iPod, not making 20 copies of it for all your friends. I read an interesting viewpoint on copyright by Paul Goldstein, the author of “Copyright’s Highway,” that really helped me come to this conclusion. In it he talked about how intellectual property differs from regular property in its very sort of “metaphysical” state. Physical property is often diminished in some way when it is used: crayons wear down as we color with them, playground equipment breaks down when we play on it, a box of cookies disappears (sadly) as we eat them. The value of these things thus diminishes. But the value of an intellectual property item does not diminish as it’s used. In contrast, its value often increases the more it’s used. The pages of a book might come loose or a record might get scratched, but the contents—the story, the songs—retain their value. So each time a piece of intellectual property is used by a new consumer, the value of its content remains the same, or, one could even argue, increases as it is shared with others.

This segues nicely into the concept of public domain and the sharing of information in an increasingly smaller world, so that’s where we’ll pick up next time. Brace yourself: It's a doozy!

For information on the Copyright Clearinghouse Center:

Tuesday, June 19, 2007

A Quick Commercial Interruption...

I realize that I never explained the difference between infringement and plagiarism. Until more recently, I sort of used to get the two confused myself. Both of them involve not asking permission to use another person's work (in essence, "stealing") but one of them has an even higher level of dishonesty attached to it.

Infringement is when a person reproduces another's copyrighted works without asking permission. The person using the copyrighted work, however, does not purport to own or have created the work.

Plagiarism, a problem that seems to plague academic communities, is when a person reproduces another's works (copyrighted or not) without asking permission, but the person then passes the work off as his or her own. So all those kids who copy-paste passages directly from books into their term papers without properly citing them are plagiarizing. It's like a glorified term for cheating or copying.

Okay, back to your regularly scheduled CopyRighteous.

Monday, June 18, 2007

Fair Use, or, How Xerox Changed Everything

So. Up until this point, what I've been learning has pretty much emphasized the fact that material protected by copyright is just that--protected from unauthorized copying. But what happens as technologies evolve and make the copying of protected materials increasingly easier?

Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?

Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.

Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.

What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).

An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up

The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)

I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?

In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?

In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.

Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?

Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.

So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.

All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use:
Association of Research Libraries' copyright timeline, with lots of interesting links throughout:

NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.

COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?

Wednesday, June 13, 2007

The Stuff I'm Studying, In the Flesh!

Last night I was having dinner with one of my new roommates, who is completing her fifth year in the chemistry PhD program at MIT (!). We talked for a while about what she does each day in the lab, and then she started asking me questions about the Emerson publishing program. Of course I got excited, because I love talking about publishing, and I told her how much of a crazy hit-or-miss kind of industry publishing is. Then she asked me a question that actually relates to some of the things I'll be studying more in-depth later this semester.

Her parents live in Switzerland and she asked, "Why is it that some books seem to come out sooner in other countries, or that the paperbacks come out sooner in other countries?"

I was then able to explain to her a little bit about subsidiary (sub) rights and how the sale of these rights impacts when books are published in what country. For instance, My Great Novel may be published by Pidal Press in the U.S. in hardback, but the rights have also been sold for it to be published in English and in paperback in France. (Of course there's more to this subject but I'd like to delve into it more deeply as I learn more about it later this summer.)

She had no idea that the whole sale of rights in publishing was such a huge thing, and she seemed genuinely interested. It served to further validate what I'm studying and it also made me think that yes, people who aren't involved in publishing are interested in this stuff too, because they genuinely have no idea what goes on behind the closed doors of the publishing industry. (Not that I know a ton more than they do, having not yet worked in the "pub biz" [as my old coworker used to call it] myself, but I'm just going by what my professors are telling me.)

So there you have it. Relevance! Interest in my studies by someone who is not studying anything remotely related to it! Validation! Fun anecdote! Call it what you will, but it was really cool to talk about the stuff I'm studying outside of the classroom. I just wanted to share/brag about that in here. Longer post on fair use coming soon.

Tuesday, June 12, 2007

It's History: The Last Segment on International Copyright History

It seems like the story of international copyright never ends, but I swear that it does, and I swear that this will be my last entry devoted to the topic. (Really!)

Fast-forward (or rewind, depends on what point of view you're looking at it from) to America in 1976. Not only were we celebrating 200 years of existence, but the U.S. Copyright Act was also being revised, for two main reasons. One, the development of new technologies impacted copyrighted materials because of the fact that duplication of copyrighted materials was becoming easier than ever, and this led to confusion over what could be copyrighted and what constituted infringement. And two, the act needed to be revised in anticipation of the U.S. joining the Berne Convention.

That's right, folks. Pick those jaws up off the floor. The U.S. finally decided to join Berne (or, in 1976, at least to think about joining Berne in the near-ish future--good enough). So we revised away. The terms of protection were extended to life of the author plus 50 years and copyright protection was extended to unpublished works. Fair use guidelines were also established for copies made for educational purposes (there'll be more on fair use coming up in a near-future entry). After the '76 revision, the U.S. wanted other countries to be more stringent in protecting their copyrighted exports (especially technological exports, since it was the time when computers and software were starting to boom). Other countries gave us the "As if!" After all, we still weren't members of Berne, so even though we complained that other countries were too lax, we ourselves didn't even meet Berne's stricter standards.

So in 1988, over 100 years after its inception, the U.S. finally joined the Berne Convention through Congress's passing of the Berne Implementation Act. As part of this, the U.S. did away with the formalities involving copyright, such as notice and registration. These were no longer required in order for a work to be protected by copyright. But even though there was much fanfare when the U.S. revised the Copyright Act in '76, when it finally joined Berne the press was relatively quiet. Perhaps the U.S. was trying to keep things mum in order to NOT dissuade people from still registering for copyright (though now it was voluntary)? But even though it was now not required for people to register for copyright, there were still advantages, such as the ability to recover attorney's fees and statutory damages in the case of infringement.

So that, in a nutshell, is the story of the history of copyright here and in our interaction with other countries. Of course, more stuff has happened since then, but a lot of it I feel will fit better in other sections of discussion on this blog, so I'll hold off for now. I never really knew just how convoluted the history of copyright in America was, especially in this country's dealings with other countries. While the U.S. may have seemed like a sour grape by not wanting to join Berne earlier and being stingy with protection for foreign authors, it hasn't all been negative. The U.S. did emphasize the importance of protecting works and new technologies (and protecting works from new technologies) early on, before other countries saw the importance of this. And while I wish that the U.S. and other countries in the world could have happily gotten along in a hold-hands-and-sing-Kumbaya kind of way from the get-go, there's something to be said for the U.S. sticking to its guns and not allowing other countries to influence it and its decisions. While I don't 100% agree with everything the U.S. did during the course of copyright history, I do admire the fact that from the start, this nation recognized the importance of protecting the intellectual property of its citizens.

Juicier topics will soon follow, like fair use and public domain. This is going to start getting really interesting... I promise!

Sunday, June 10, 2007

International Copyright: The Saga Continues

Picking up in 1891: 101 years after first adopting federal copyright protection, the United States finally passed an ammendment protecting foreign authors. But, as history (and the previous entry) proves, the U.S. wasn't going to give up without a fight. Or without being somewhat sneaky about things. The protection afforded to foreign authors by this U.S. ammendment involved some smoke and mirrors. For instance, foreign authors could keep their rights but foreign publishers had none. And foreign authors had to follow all sorts of strict conventions, such as registering and depositing copies of their works in the U.S. on or before their date of publication anywhere else in the world. Also, foreign authors' works had to be printed from type that was set in the U.S. The firm restrictions were eventually relaxed somewhat, though they were still far more strict than anything followed by Berne countries.

Meanwhile, Americans discoverd a "back door" into Berne that allowed them to reap the benefits of publishing in foreign countries without having to actually comply by what was set forth by Berne: if a work was first published in a Berne country simultaneously, it would be protected in all Berne countries even if the author wasn't a Berne author. This meant that many American authors were simultaneously publishing their books in Berne countries like Canada or England. This pissed off the Berne countries so they created a protocol that allowed its members to decide if they would deny protection to authors whose native countries didn't provide adequate protection to foreign authors.

At this point, the term "cat fight" is coming to prominence in my mind...

All this back and forth does indeed seem catty, especially when we can see that the majority of the rest of the world was cheerily humming along under the happy umbrella of Berne. Why was the United States so resistant to foreign protection? Because American publishers were reaping huge benefits from the sale of foreign books--books that they weren't paying foreign authors to use.

But by midway through the twentieth century, things absolutely needed to change. The tumultuous first half of the century (war, depression, more war) meant that the tussle over copyright was shelved in favor of other things. But after the United States emerged victorious from World War II not only as a world superpower but also as a huge exporter of entertainment, the need for a less isolated (perhaps even sobbish?) stance on foreign copyright was necessary. The United States still wasn't interested in Berne, whose countries by this point had added "moral rights" that allowed authors to prevent mutilation of their works and whose authors were protected for life plus 50 years (U.S. term was a max of 56 years), so it decided, "If you can't beat 'em, create something that'll placate 'em." Here the Universal Copyright Convention (UCC) was born.

Despite being negotiated under the brand new United Nations Educational, Scientific, and Cultural Organization (UNESCO), the UCC was really created for the U.S. It was the only country that really needed to get itself straightened out in terms of foreign copyright because the rest of the world happily held hands under Berne. By 1955, the UCC went into effect, protecting the United States through a lower level of protection. A minimal protection time period of 25 years was established, so the U.S. was covered with its twenty-eight-year first term of protection. The UCC also got rid of the manufacturing stipulations and the need for a formal registration of copyright. Now all that was needed was for the author to indicate his or her name and the year of publication next to the copyright symbol of a "c" enclosed in a circle.

The fact that the United States had finally caved in, in its own unique way, was enough for the other Berne countries, and authors from other countries started using the UCC copyright notice on their works. This went on for 33 years, until even more changes. (Stay tuned for more on that in the next entry.)

I think one of the things that amazes me so much about the United States' unwillingness to play nice with basically the rest of the world on the copyright issue up until this point is the fact that freedom of speech was purportedly of such great value in the U.S. Free expression and freedom of the press were encouraged and in fact protected since the very infancy of the country. So why then did the same country make it so difficult for authors from other countries (who were freely expressing themselves) to have some level of protection from being taken advantage of? Was it an "our way or the highway" mentality? Did the U.S. feel threatened? Was the U.S. just being greedy and allowing publishers to swindle foreign authors for as long as possible?

Thursday, June 7, 2007

International Copyright, Part 1: America versus England, or, Mo' Money, Mo' Problems

So the brand-new United States took the time to protect its authors by creating copyright laws right from the get-go, using laws that were based on those being used in other countries such as England. But even though the U.S. was eager to borrow heavily from England's laws, it wasn't in any hurry to share content fairly. In fact, the United States has often been a rather does-not-play-well-with-others player in the game of international copyright.

For the first 101 years of American copyright law's existence (1790-1891), the act only protected American authors. There was no thought given to foreign authors, but this wasn't a rarity as many other countries also hadn't bothered with protection for foreign authors. In the 18th century, there were very few American authors who could produce books, so the majority of books in America came from other countries. This situation didn't last for long though; by mid-nineteenth century, the list of notable American authors was growing (think: all the "dead white men" with three names you had to read in your literature survey courses), and America was now a contender in the international literary marketplace.

"Hmmm," thought the British, "those rapscallions across the ocean who thumbed their noses at us and were cocky enough to think they could start a country all on their own... the writers over there aren't half-bad."

And while the British were noticing the American authors, they were also noticing the impunity with which American publishers printed books. Sure, they were printing the books of all their Thoreaus and Emersons. But they were also printing works by foreign authors, mostly those of British authors, without securing copyrights and without really caring what the end product was like. This pissed the British off and led them, in 1837, to submit to Congress a petition demanding that foreign authors be protected in the U.S., citing the fact that the "reputation and property" of British authors were being harmed by the uncopyrighted publication of their works in the U.S. The American publication of foreign works was also hurting American authors, the British petition went on to say, because the uncopyrighted foreign works were much cheaper for American publishers to produce than copyrighted domestic works. This meant that an American browsing for a new book to read would be more inclined to pick up a cheap novel by a British author rather than shelling out more for a pricier American novel. Couldn't America see that granting copyright protection to foreign authors would benefit everyone?

It couldn't. So the following year, England took matters into its own hands and began the process of protecting foreign authors by passing the International Copyright Acts. These acts only worked in a reciprocal fashion, however, so while other countries were happily playing along with England, America was still giving it the cold shoulder. It was also keeping its copyright laws basically the same as they had been since their inception.

During these times, authors who were particularly clever were attempting to simultaneously publish their works in both America and England, though this could prove to be tricky because the authors needed to be able to travel from England to America, or vice versa, and reside there at the time that the book was published. Not a particularly easy or effective means of securing international copyright, especially when one considers that in those days travel was, to put it quite frankly, a bitch.

In 1878 a group of authors, artists, academics, and publishers formed the Association Litteraire et Artistique Internationale, an organization that drafted what would would later (1886) become the Berne Union for the Protection of Literary and Artistic Works. This was an international copyright treaty where participating countries would follow the golden rule: treating others (foreign authors) as they (domestic authors) would like to be treated. England signed on. Many countries in Europe signed on. Other countries signed on. The United States did not. Oh, they sent someone along to the proceedings to scope out the scene, but then Congress decided that they had to first think about how America would protect foreign works (if at all). Way to play nice with others, U.S.

The story of international copyright doesn't end there, and I'll pick up on what happened after 1891 in the next entry. But I just have to pause and briefly reflect on things up to this point. The fact that many countries came together and unanimously decided that they should protect the work of authors regardless of their country of origin gives me a warm, fuzzy-ish feeling. The fact that the United States decided to peace out of the Berne Union initially gives me a headache. Why wouldn't this young country willingly join in this mutually beneficial agreement with other countries? Was it trying to prove itself as being independent? Was it unsure of itself? Was it just an example of Congress being its usual ridiculous self? Or was the American publishing industry just to happy raking in the profits? This is something I'd like to explore further, but it certainly bears thinking about.

Friday, June 1, 2007

How did we get here? The birth of copyright

After a horrendous weekend of moving (let's face it, no matter how excited you are to live in a new place, the lugging of boxes and furniture from one place to another is never fun), I'm finally back in gear and back into the swing of all things academic.

I've been reading about the evolution of copyright, and following is a brief summary and my thoughts.

So when and where did copyright come from? It began over 500 years ago with Gutenberg's invention in 1440 of a moveable type press. Before this invention, copying printed works was a royal pain in the behind-or arm. Books were copied one at a time by hand by monks or other scribes. Not exactly an efficient system, and perhaps the cuase of the first cases of carpal tunnel syndrome? But after the printing press was invented, copies could be made much more quickly and efficiently than before, and so copies of Ye Olde Manuscripte were suddenly available to a much wider audience.

But with this glorious invention came a whole new slew of problems for authors. Previous to the printing press, it was very difficult for copies of a book to be made, so authors had no real need for protection against unauthorized copies. Hell, considering how hard it was to produce even one copy of the book, I would have jumped for joy if a monk somewhere had actually wanted to copy my book, so that then I might have a few more readers and two copies in existence instead of just one. After the printing press made multiple copies of any given work the norm, however, the need to protect an author's right to duplicate his or her work came into play.

Authors weren't immediately protected though. Initially, the rights to publish a book went to the printer who first printed the work and not to the author, meaning that if Ye Olde Manuscripte Printer was the first to publish Ye Olde Manuscripte, Ye Olde Manuscripte Printer had the right to publish Ye Olde Manuscripte for as long as they wished and the author had no say. Pretty lousy deal for authors. In the 1550s in England, the Stationers Company was chartered by royal decree to control book printing and distribution. This arrangement benefitted the Crown because they had given publishers the power to control content and act as censors or what would and would not be published. Publishing soon turned into a huge monopoly (and you thought corporatization was a modern-day problem); the original press to publish a book was protected against piracy and authors had no say. To make it even worse for would-be authors, the poor schmucks had to petition to even have their books printed for a set period of time.

Naturally this led to discontent amongst authors, and in 1694 Parliament allowed the Stationers' Licensing Act to expire. After this came the Statute of Anne in 1710, which offered authors 28 years of copyright protection. As a part of registration for copyright protection, authors had to donate 9 copies of each of their published books to major libraries in England and the UK. Clever way to build a library.


The newly formed United States was tinkering around with its Constitution and established copyright as a way to protect the authors whose works would in turn help contribute knowledge to society. A subsequent law, passed in 1790 by George Washington, allowed authors to hold copyright for 28 years and required 1 copy of the published work to be deposited with the local district court clerk and 1 copy delivered to the secretary of state-who at the time was Thomas Jefferson. The American law borrowed from the British one, so despite the fact that the Americans no longer considered the British good enough to rule over them, they still considered their laws good enough to copy off of. (An interesting aside to ponder at a later date: could the Brits have copyrighted their law, thereby rendering the Americans unable to copy it? Don't know the answer but it is interesting to think that laws on copyright were being copied.)

It's interesting to note that even though the First Amendment protected free speech and freedom of the press, copyright was still seen as worthy of protection. The coexistence of the First Amendment and copyright law proved that even though lawmakers believed publishers should be able to print whatever they wanted, the authors who created the words still had a right to be protected from unauthorized copies that would prevent them from profiting from their work.

So, in essence, copyright law evolved from the publishing monopoly that censored and exploited authors in England. Lawmakers realized that authors would have no incentive to create new works that would enhance society unless they were protected from exploitation, and thus copyright laws were established. Copyright protection became an incentive for authors to write; for the most part, authors could not be paid to create, so copyright protection became like the currency authors were given in place of money. Sounds suspiciously a lot like the "psychic currency" we publishing students are told we'll be getting paid in rather than dollars once we get jobs in the biz.