May 2008 Archives

The New York Times, May 27, 2008, is reporting a fascinating example of the government of Mexico barring the use of images of ancient artwork in a tourist advertising campaign. OK, the images are emblazoned on the body of a well-known actress. I think we can all agree that some people will be drawn to plan their vacation in Mexico, and someone else will be offended. Moving on to my main point...The government of Mexico is effectively asserting control over the use of the ancient images in an ad campaign. It is not quite copyright, and it is not quite censorship (maybe). But it is, under whatever label, a determination by the government of acceptable uses of imagery of importance in the culture and history of the country.

Many countries have some form of law protecting the use of images, sounds, words, that are part of the cultural heritage of the country. That seems to be the situation in this example. According to the article, the National Institute for Anthropology has the authority to reject "anything seen as exploiting a historical artifact's dignity." Here in the US, we ordinarily do not have such laws, although we get to the point indirectly. For example, controlling the location gives a right to control some uses of images. If I own the land where historic structures are located, I can review your project and deny you access to the location if I do not like your plans. We also have examples of the use of trademark law to protect visual images of buildings and trees that are outside the reach of copyright control.

Therein lies my point. Copyright has limits. Georgia Harper and I often express concerns about the scope and duration of copyright law, but even so, it has its limits. It does expire. It does not protect everything. It does not give all rights to all works. If you have an interest in asserting control over ancient pyramids, and copyright does not do the trick, what are your choices? Sometimes look to other law, and sometimes create new law. Speaking of pyramids, I did read an item this month about a quest by the government of Egypt to gain new legal rights to control images of the Pyramids.

Why would anyone want such control? Many reasons. In the Mexico example, it was to control the dignity of a great heritage. Maybe in the next case it will be simply money. Rights of control mean an opportunity to permit uses. Maybe that permission will come with a fee. Regardless, the Mexico example reminds us that "rights" come in layers, and the layers are of different thickness around the world. You might find a great picture of the Maya pyramids, but to use that picture in the U.S., you have to clear the copyright. To use the picture in Mexico, you might have to clear the copyright and get approval from the government. If the picture happens to include an actress, you might also be clearing the rights of publicity. And then we can talk about trademark, contractual restrictions, and more. Just when you thought you figured out copyright, you found another layer of the law.

One of the widgets I have on my Netvibes homepage is a box that allows me to keep certain searches running in multiple search engines, or of different kinds of content (blogs, websites, news sites, technorati -- whatever) and I keep it set to run a search for 'economics public domain copyright.' It always shows me a feed with half a dozen things in it from whatever site or search engine I have selected. I have to remember to change the search engine/type of content from time to time to cast a broader net. Today, the widget turned up this gem: Rightscom Projects: Public Domain in Europe.

I have been obsessing a bit lately about 2017 and what's going to happen when Disney pushes for another 20 year extension to the term of copyright. And most folks I talk to don't try to dissuade me from worrying about it, but 9 years is a long time. It seems quite likely that access to and use of public domain materials is going to be much easier over the next 10 years. Google Book Search, for example, makes public domain materials much more accessible. So do libraries acting on their own and in collaboration with other non-profits. And there's the Internet Archive (and used to be MS Live Search Books) and Project Gutenberg. So maybe all this data *is* going to start rolling in that shows how much value all that access and use really has, so that next time maybe those who want an extension will have to justify their economic benefits against the public benefit, instead of everyone assuming that there isn't much public benefit other than the benefit an individual/massive corporate copyright owner gets from a longer term.

In the US we should have our own data stores that we could tap to develop this kind of evidence. It really sort of surprises me that Europe is ahead of us here. What with the author's rights/natural rights frame of reference there, I would have thought they might not see any downside to eternal copyrights (forever minus a day -- see below).

Rufus Pollock is one of the investigators on the project. I just recently learned about him because an article of his came to my attention (probably in the same way that this EC project did):

Pollock, R. (2008, February 16). Forever minus a day? Some theory and empirics of optimal copyright.

I've written about this subject a bit on my research blog,

Further, the same technical and market factors that will likely enable identification of and payments to authors and publishers for uses of their older works will also likely yield data that could demonstrate the relative values to them and to the public for access to and use of both their works and public domain works. These data may show that the public benefit from use of public domain works outweighs the monetary benefit to any particular author or even all authors combined. It will be a challenge to quantify the benefit to the public, but that's precisely the reason to get started now, because these same data may make it easier to support economic theories of copyright that suggest that the longer terms are, the better (Yoo, 2007, p. 85-86).

Maybe I should just move to France for a couple of years, join their project and do research over there. I actually thought about Europe in the abstract, but had pretty much dismissed it (like I know a lot about European copyright -- no I don't). What a way to learn how to do research though.

Wake up!!

Are you a little bit curious about Second Life or maybe you're there more than you're here (or somewhere in between) and not coming to DC this year for the CIP Annual Copyright Symposium? How about we meet in Second Life for the Symposium? Check it out!

This is a first for the CIP, so, even though I am coming to DC, I decided to take advantage of the opportunity to learn a little bit about SL in an environment that is geared towards education. The New Media Consortium is CIP's partner in this event, and the CIP's Symposium will take place at NMC's Conference Center in SL.

So, I'm going to plan to visit the Conference Center sometime during the Symposium, probably on Wednesday after my talk. I am not a frequent visitor to SL. I have an avatar, for example, but I don't spend money in SL (gasp). So, no island, no fancy house by the beach, no spiffy clothes. Well, that sort of suits me anyway. I'm not a clothes horse even in first life. But I do like the occasional trip to the beach. And gardens. I love gardens.

I found this gem just this morning.

I need to digress. Is anyone else sharing my concern about the rhetoric surrounding the Orphan Works bills? No secret, I think the bills have serious defects and will do little or no good for the librarians and academics. That is a long story. I want to point out a calm and insightful discussion of the issue by Lawrence Lessig, published in the New York Times, May 20, 2008.
Lessig hits on one of his recurring wishes: A system of making a recorded claim to the copyright after a period of years. That is a longer discussion, too. His discussion of the bill, however, is spot on. I have many other concerns to add to his list.

I am troubled, though, by the rhetoric of some copyright owners who oppose the bill. Take a look at this "down the toilet" cartoon.

Scroll down the list of horribles that are claimed to ensue if the bills become law. Evidently, the list was prepared by a photographer actively licensing his work to clients. I will paste the list here and add a few thoughts in response to each item:

• It would let anyone who can't find me (or who removes my name from my work and says he can't) to infringe my work.
[KC says: How is that different from the current law? And removal of your name for purposes of infringement is likely a violation of the "copyright management information" statute of the DMCA.]
• Since infringements can occur anytime, anywhere in the world,
[KC: And that might not be happening already?]
• My work could be stolen countless times, but I might never find out about it.
[KC: Do you know right now how your work is being infringed???]
• That means that under this bill, I would never again be able to assure a client that my work hasn't been - or won't be - infringed.
[KC: Surely you are not making that assurance today, are you?]
• Therefore I would never again be able to guarantee a client an exclusive right to license any of my work.
[KC: Wow. A guarantee! Would that be reasonable even today? You can give a guarantee that you will not allow uses, but will you guarantee that someone is not taking your work? That is a risk we all assume, and I assumed it when I put my books and more out for readers to find.]
• This means my entire inventory - my life's work - would be devalued by at least 2/3 its potential worth from the moment this bill takes effect.
[KC: Wait. This seems out of the blue. Someone could be stealing my books right now, but am I lowering the price?]

OK, I just ticked off a bunch of people. Honestly, I hope that the angriest out there will be successful. I think the orphan works bills should not become law, so full speed ahead with the opposition! However, I think the arguments from many of the opponents are not at all realistic. And the conclusions that copyrights are down the toilet and will now require registration are simply misinterpretations of the bill.

PS: Under today's law registration of the copyright is not required, but it is a good idea for many reasons. With or without the orphan work bills, registration is not required. With or without the bills, a photographer depending on his work for a livelihood, should probably be registering anyway. Instead of being concerned about registration, I say register, and enjoy the enormous economic benefits.

Last week brought reports of the death of Robert Rauschenberg, an important modern artist. You can find his obituary in the New York Times, along with a slide show of some of his paintings.

I find his work esthetically delightful, and I just see copyright all over the place. There is the usual: He is creating new and original works that are fixed on the canvas or whatever medium (including, apparently, dead birds and tires). For the newspaper to include examples of his work, a photographer needs to snap a nice clean shot of the painting. That raises the turmoil of Bridgeman Art v. Corel and the question of copyright for photographic images of paintings. Then there is the question of whether the newspaper is within fair use for running images in the print version and posting a wonderful set of slides on the NY Times website. Those are all the usual questions that arise in almost any copyright conversation about art and copies.

I want to raise another important issue. Rauschenberg's success as an artist depends on his creative uses of existing materials. Yes, sometimes he uses old tires, and I don't think that Goodyear has much to say about it. But in many of his works he uses existing (evidently) copyrighted works: photos of JFK, sports images, political posters, newspapers, and more. Surely, he did not get permission to use these works, and Rauschenberg scholars out there can tell me if he has ever had a copyright challenge over these creative uses.

His use of, say, a newspaper page stumbles over a host of copyright issues. It may be a reproduction, and when it hangs in a museum it is a public display. It certainly looks like a derivative to me as he transforms and recasts the original work into art. Rauschenberg is a great example of two important copyright concerns. First, his creativity depends heavily on fair use. Fair use is essential for allowing artists and other creative folk to make good, exciting, and innovative uses of existing works. If you do not like Rauschenberg's art, I will even say that fair use is essential for permitting bad uses of existing works. Like his art or not (I like it), the world is a better place because he challenges us to see it differently.

Second, his work is an example of the importance of copyright owners *not* imposing restrictions on the uses of the images. Many owners and licensors supply photographic images of various works, and sometimes the service of making and delivering the copy comes with a license agreement that attempts to set conditions and restrictions on cutting, cropping, altering, etc. the original image. If those rules applied to his raw materials, Rauschenberg could not make his art from photos of Kennedy and Warhol could not produce his visions of Elvis, Marilyn, and Queen Elizabeth. We would not have a mustache on the Mona Lisa.

The world is a better place for having art. Almost always, the art gets instant copyright protection. Sometimes the successful creation of the art depends on freeing materials from the constraints of copyright and contract. I have no idea of their position on these things, but I hope that when the next artist wants to crop and clip a piece of a Rauschenberg painting, his estate will remember the virtue of sharing.

In my entry about Orphan Works, I used the example of the stranger who takes a picture of the family at the Grand Canyon. One reader asked: "Couldn't you just consider the photograph a 'work for hire,' as you 'employed' the stranger to take it on your behalf?" (First, I hope and trust that my copying of that sentence is within fair use, I hope and trust.... Moving on...) the law of WMFH is highly counter-intuitive. The U.S. Supreme Court ruled back in 1989 that the determination of an "employee" is based on traditional state law concepts of employment, which usually involve questions of supervision, regular hours, tax withholding, etc. The kind stranger is clearly not an employee. Ah, but WMFH also applies to works by "independent contractors." The good volunteer tourist may well be my independent contractor for that moment, but even so, I am out of luck. For such a work to be treated as a WMFH, we have to have a written instrument signed by both of us, and meet more requirements of the law.

I am repeatedly cautioning anyone who will listen about the importance of having a written agreement with photographers, web-designers, programmers, and others who are hired on a project basis. The person you paid to develop the new work may easily receive your money and continue to hold the copyright. If you want to make a new version of the work or use it in a different way, you may have to go back to the contractor and secure permission and perhaps pay more money. That person may hold the rights to make various uses of the work or new versions of it. Frankly, when I give advice to photographers and others, I usually conclude that a clear agreement is in their best interest, too.

What should that contract provide? You have many choices. It could be an agreement that the work is WMFH. It could be a simple transfer of copyright. It could be a license allowing you to have various rights of use and allowing other rights to the contractor. The options are many and the law is quirky. Proceed with caution, whatever your role in the deal!

If I am so full of advice, how did I manage to let that stranger get away without my whipping out a handy agreement for him to sign on the spot? Life is not perfect. The cliffs around us were steep and jagged. Maybe vertigo is the answer to all copyright dilemmas. You know, Alfred Hitchcock messed up his copyright agreements, too.

PS: The case I mention is Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

Anthony Falzone posts at Stanford's Center for Internet and Society that the Center will represent the producers of the controversial film, Expelled: No Intelligence Allowed: Fair Use Project to Represent Premise Media Against Yoko Ono Lennon and EMI Records. The plaintiffs in this case want an injunction and they want the 15 second clip of John Lennon's "Imagine" removed from the film. No mention of damages.

Falzone says the song is criticized in the documentary for its anti-religion message. Here are some of the lyrics as reported on OldieLyrics.com

Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today...

Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace...

It is really hard for me to understand the film producer's use as something other than a fair use/First amendment claim and the two plaintiffs as other than very unhappy that people whose views they don't like are using Lennon's lyrics to make their point (that is, criticizing Lennon's lyrics as exemplifying the social phenomenon they allege -- the suppression of religious views in academe). Could this be any more classically, heart of fair use? What am I missing here?

I went to the Grand Canyon and found a copyright dilemma. I will explain. Much has has been written about the Orphan Works bills that were introduced into Congress in recent weeks. A simple Internet search will connect you to the bills themselves and a host of opinions about them. Some copyright owners are writing that the bills will effectively mean the end of their copyrights, or at least require registration of their works with the Copyright Office. (These fears are way overstated.) Some user groups are asserting that the bills do not give adequate safeguards from infringement claims. I have another concern: The bills won't work. I predict that they will become another provision of the US Copyright Act that will languish as wasted print. In rough sum, in order for a user (you) to gain the benefit of the bill, you would have three large stages of compliance:

(1) Conduct a qualified search, which various parties are trying to push as a standardized set of "best practices" and maybe even guidelines from the Copyright Office.
(2) Use the work, but include some form or symbol or declaratory statement on the published use. Depending the final bill, you would also have to register the use with the Copyright Office.
(3) Be prepared to respond with all legal technical procedures when a "notice of infringement" or a real live lawsuit arrives at the door.

These few sentences summarize about a dozen pages of legal jargon in the bills. The payoff: Reduced monetary remedies and maybe no injunction. This is a bill for lawyers, not real people. If I were a major book publisher, I might be able to hire staff to monitor compliance and maintain active records of uses indefinitely, waiting for the knock at the door from the long lost copyright claimant. But if I am a researcher, scholar, or blogger, I am simply in no position to comply with the requirements. I am also probably not going to be very motivated by that payoff, but that is another story.

Back to the Grand Canyon. I visited the Grand Canyon with the family not too long ago. After cajoling family members into several snapshots, I kindly handed the camera to a total stranger, requesting a photo of the whole gang. The stranger complied, took a picture, and handed that camera back to me. I might own the camera and stored image, but the tourist who just drifted back to Iowa composed the picture and evidently under the law owns the copyright. Now I am nervous! If I post the picture to my website or blog, or even include it in my holiday newsletter, will it eventually fall into the hands of the stranger, who still owns the copyright? Will I get a stiff lawyer letter? I do not know the name of the photographer. I have an orphan work problem! How do I begin the search? My best start might be to peruse the hotel records at the Grand Canyon Lodge from April 2004 (fat chance). If I happen to see that the tourist had Iowa plates on his car, that might help narrow the quest. Will Copyright Office "best practices" anticipate my search needs? Not likely. I have the same problem when I find a snapshot in an archival collection and want to include it in my history of the national parks. Will I do a "qualified search"? Will I place a notice on the photo alerting everyone to my risky reproduction? Am I well positioned to comply with the detailed legal procedures?

My point, of course, is that the bills are hardly capturing the reality of diverse orphan works and the needs of researchers and readers who are seeking to learn from them. The bills are suited only to a small class of users and even then only to a rarefied group of works that are likely to generate true legal challenges. What to do instead? That is another story....

My rant. Kenny Crews

I am back in the USA this weekend, after an exciting week in Bayreuth, Germany. In addition to the adventures of European travel, and enjoying a few too many sausages and beers, I had a great copyright expedition. Some of you might know that I have strong ties to Munich, the Max Planck Institute, and the LL.M. degree program offered by the Munich Intellectual Property Law Center (www.miplc.de). One of my Munich colleagues, Prof. Ansgar Ohly, is now on the faculty at the University of Bayreuth. Coincidentally, he also supervised the doctoral studies of one of my former students from Indiana University, Achim Foerster. So with those multiple contacts at one university came the opportunity to be a guest for the week.

I had the privilege of teaching a short course and giving a public presentation. My course was a quick overview of US copyright law, but in the context of international developments (such as the Berne Convention). My presentation had this busy title: "Exceptions, Limitations, Open Access: The Creation of a Copyright Public Domain." My main point: At a time of expanding copyright protection--as a result of automatic protection of nearly all works for a extensive period of years--the law is responding with gestures that attempt to create a "public domain" or at least a multi-facted zone of public protection. I focused on three developments from just the last few months:

(1) The Section 108 Study Group Report. Through the possible creation and reform of exceptions, Congress has the possibililty of securing space for public uses of copyrighted works. I was not too kind about the report, but my point was more general about the importance of exceptions.

(2) Orphan Works bills just introduced into Congress. Through the crafting of limitations on remedies that may be recovered in some litigation, Congress can again give some protection for certain favored uses. I had nothing good to say about these particular bills. But they are another example of Congress giving relief from certain penalties for infringement.

(3) The NIH Public Access Policy. While the open access movement is a phenomenon that is less law and mostly copyright management, this particular policy is law. Peer-reviewed publications funded by NIH are now required to be submitted to PubMed Central for public access. This is a very good development. But again my point: Congress is creating a "public domain" be carving out space for public uses.

The contours of the "public domain" are complex. Congress continues to experiment. Some proposals are seriously problematic (e.g., the orphan works bill), but these three developments in just the last few months demonstrate that the regime of copyright has become too aggressive in its scope and reach. In reaction, Congress is struggling with innovative was to give some benefit back to the public. Sadly, these are only tiny adjustments, and worse, only one (the NIH policy) probably has any chance of really producing the intended benefits.

My audience in Germany found these issues intriguing. They were familiar with many of the issues in general, and even the details of some. They especially wanted to know why the US copyright exceptions are so lengthy and complex. One colleague mentioned that the text of just the US exceptions is approximately the length of the entire German copyright law. On the other hand, they found it curious that we would then have the brief and flexible law of fair use. Why not something in the middle?

Great question. I think the answer is a blur of history. Fair use does more than allow uses of copyrighted works. It is the place for experimenting with technology, exercising free speech, and adapting to new creativity. Any attempt to be more specific would squelch those important pursuits. In the original 1976 Act, most of the other exceptions were comparatively brief. The leadership in Congress understood the importance of making the exceptions workable. True, some were complicated, but they were usually for the benefit of industries that would likely have laywers up to the challenge. In more recent years, however, the drafting of exceptions has been heavily influced by multiple interested parties with divergent views. The result is a statute that attempts to assuage diverse concerns and satisfy am amalgamation of lobbying pressures. "Workable" may not be the purpose of some statutes.

Did I say "assuage"? That sounds too much like "sausage." I was indeed deep in Germany, near the Czech border, within sight of Richard Wagner's estate, and perhaps giving him a little tweak about copyrights. Most of all, I had a splendid time with great colleagues and students. I also came home with a few more new insights about German copyright.

Thanks for your interest!

We are very lucky to have as our guest blogger this month, a colleague and friend of mine from way back, Kenny Crews. Kenny has newly joined Columbia University's Library as Director of its Copyright Advisory Office. Long before that, however, he was one of the first lawyer-librarians to establish an active Web presence with the introduction of the Copyright Management Center at IUPUI. That virtual Center was a real inspiration to me.

Today Kenny is in Germany and perhaps he can tell us something about what he is up to there. Thankfully that won't keep him from blogging with us through May. Welcome, Kenny!