©ollectanea

About a year and a half ago, several folks involved in trying to create more breathing room for fair use in the documentary film business worked together to come up with a set of principles that they believed should represented the scope of fair use within that industry. They published these principles as Best Practices in Fair Use. At the time this signaled, along with the development of some divergent court holdings with respect to the scope of fair use in different creative contexts, that maybe a "genre by genre" understanding of fair use would evolve, or should evolve.

Now two additional developments reported at Info/Law � Even Better News on Fair Use and Insurers confirm the value of this approach. The Best Practices are being adopted as standards for insuring productions. Insurers are one of the conservative "gatekeepers" whose demands for reduced risk drive development of the permission culture.

Responsible statements of fair use best practices for different segments of the entertainment, artistic and musical businesses offer real hope that we can back away from the precipice of the permission culture, where every single little piece of anyone else's work included in a new work must be cleared. Of course, clearing everything is more often than not impossible, which results in a reduction in the creation of new works or their scope, precisely the opposite result from what we expect from copyright. But this result is not surprising when the rights of owners are interpreted so broadly as to exclude any use of others' materials whatsoever without permission.

A big hand to those who have worked to create the first set of Best Practices and encourage their adoption more widely within the documentary film industry. Now we need to see similar efforts among other segments of our creative industries. Closely related to this is the magnificent effort to encourage artists, musicians and all creators to "tag" their online works with Creative Commons licenses that make explicit the range of rights the creator gives the public, affirmatively enabling sharing reuse and remixing.

If you are unfamiliar with the idea of the Long Tail, I urge you to visit the Website where this story is posted for more information generally, and of course to read this little note about lost opportunities, lost expression, lost creativity: The Long Tail: Long Tail enemy #1. It's about the failed effort to clear rights in music that was such an integral part of the 70's television show, WKRP in Cincinnati. The creative possibilities today involving new uses of existing materials just do not mesh with yesterday's processes, procedures and the law that backs them up. There are many other even more compelling stories than this one, many of which Lessig and others have chronicled. Though the subject matter is not in the same league with real war, it reminds me nonetheless of the lines from Blowin in the Wind, "How many times must ... before..."

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

I am very proud to announce the launch of the Texas Digital Library's (TDL) blog, The Scholar’s Space , featuring a team of four contributors, including me, two of my colleagues at the University of Texas at Austin, and a colleague at University of North Texas, with more to come over the next few months. The Scholar’s Space joins scholarly communications blogs sponsored by friends at other colleges and universities, and national and international organizations. We’ll be providing commentary on newsworthy items related to TDL participants’ local and global interests.

If you have an interest in scholarly communications issues, I encourage you to visit and subscribe to our RSS feed to keep up to date on the news and become active participants yourselves, either by commenting or contributing. If you’d like to be a regular or a guest contributor, please contact Georgia Harper. If you visit, let us know what you think!

I've just finished reading Pam Samuelson's initial thoughts on overhauling copyright law, linked from Boing Boing, Boing Boing: Proposal to reboot and de-cruft US Copyright Law. This is a very good framework document, easy to read (sort of like the law she's suggesting we need), and very thoughtful. If anyone could pull together the kind of massive project she's talking about, Pam could.

Still, she is very realistic about the likelihood that actual legislative reform would result from the effort. She knows it's highly unlikely at least for 10 years out and that, once started, it would take another couple of decades to complete. She sees a lot of other advantages to her effort though, even if we still are stuck with our bloated 1976 Act, but I'm not so sure how realistic they are.

What she doesn't give voice to is the pessimism I sometimes feel about the likelihood of the law's becoming so irrelevant that perhaps sooner than the next 2 decades, neither copyright owners nor users will be paying much attention to it. We will all have opted out of it to a large degree -- users by ignoring it; owners by licensing and or drm'ing around it. Those directions don't sound so good, but even a best case scenario could see people having opted out by turning to other ways to make a living off creative works (sort of what John Perry Barlow predicted almost 14 years ago). The signs that this strategy is increasingly employed are popping up here and there. Still, it's like the "innovator's dilemma." Only small potatoes at first, then gradually, the alternative business models begin to improve, pick up steam, and one day, they overtake the old ways of doing things, those industry giants who couldn't see the magic in the new ideas because there wasn't enough money in them, or their current best customers weren't interested. But for the existence of the state-granted monopoly that is copyright, in fact, the tide for the creative industries would have turned long ago. Copyright has worked to make creative industries innovation-proof to a much larger degree than other industries. Perhaps to their detriment ultimately. More certainly to the detriment of the public generally.

A personal injury lawyer has named Creative Commons in a lawsuit, charging that its license that permits commercial uses fails to adequately specify that the license does not entitle uses that might violate other laws, such as those protecting privacy (in other words, that one might not acquire all the rights one needs for commercial exploitation through the CC license that permits it): Creative Commons on the Firing Line at madisonian.net: a weblog about law, technology, and society. It will be interesting to see how this unfolds. CC licenses are extremely important to the usability of materials on the Web.

A consortium of publishers announced this week that it had agreed upon a safe harbor for users of orphan works. The press release was reported widely (see, for example, the Law Librarian's Blog). Although the press release did not include a link to the actual safe harbor rules, they were easy to find on the Websites of the participating publishers. I read them and thought to myself as I did, that they were similar in some ways to the legislation that failed to pass last year here in the U.S. They were much simpler overall, leaving out many of the refinements that the bill had, such as rules for nonprofits that allowed take-down in lieu of payment of a royalty and continued use. After all, these publishers are not proposing law, so they don't have to consider the needs of all stakeholders. What is it exactly that they are proposing, or in fact, is this a proposal at all, or a done deal with users of their works?

These publishers are pursuing a strategy that is becoming more common these days. Rather than attempt to amend copyright law to address the horrible situation we have gotten ourselves into with our century-long terms, broad and deep rights, narrowly tailored (in some cases to the point of uselessness) exemptions, no easy way to opt out of it all, or to find owners, they advocate "letting the market take care of it," one publisher at a time. It might sound daunting, especially to someone who wants to use orphan works (think of all the questions you have to ask yourself about all the different publishers' different standards, and which publishers have no agreements with "the public" at all, etc.), but this is more or less the strategy Lessig pursued when he created the Creative Commons after he recognized that there would never be a legislative or court-imposed resolution to the problems created by repeated lengthening of the copyright term. Both of these actions (Lessig's and the publishers') evidence a recognition that relying on lawmakers and courts to "fix" the problems with copyright is not going to work in some cases. So we turn to contract instead. Lessig might have thought that fixing outrageously long terms and the over-protective scope of copyright, one creator at a time, would be a daunting task, but it was the only thing that showed any promise at all of ever working. And it has worked -- quite well. To be fair, I don't think he's given up entirely on law, but, then again, perhaps he has.

Anyway, for these publishers, it's a plan. Their deal goes something like this: "If you use a work that you think is an orphan, but it turns out the work belongs to one of us and we figure that out, we promise not to take your first born child; rather, we'll just charge you what we would have charged you if you'd come to us in the first place. In return for this forbearance on our parts, we expect that you'll diligently search for us, and here's what we think a diligent search includes:

*** in virtually all cases searches and reviews must be conducted of these kinds of resources identified generically as:

• Published indexes of published material relevant for the publication type and subject matter; • Indexes and catalogs from library holdings and collections; • Sources that identify changes in ownership of publishing houses and publications (see below comment on imprints) including from local reprographic rights organizations; • Biographical resources for authors; • Searches of recent relevant literature to determine if the citation to the underlying work has been updated by other users or authors; • Relevant business or personal directories or search engine searches of businesses or persons; and • Sources on the history of relevant publishing houses or scientific, technical or medical disciplines.

Additionally, where the user can identify a prior publisher that appears to be out of business, the list of imprints available from this [link] should be consulted immediately prior to each use.

The [link] referenced above is not a live link, but it is reported to be "a list of journal publisher imprints that the associations have compiled."

So what are we to make of this deal we're being offered (and the strategy in general)? I must assume that the publishers know what they are talking about in their bulleted list of things we have to do, so arguably publishers will not have a difficult time figuring out what a reasonable search involves. But me? I am clueless. The only thing I recognize in the long list is the library catalog (but which catalog?). I'm sure the publishers all sat around together and agreed that they could handle this. I wonder if they had someone like me at their table? Or librarians. I asked my friend, Lexie (a librarian) if she knew what the bullets were about. She hasn't gotten back to me yet, but she will.

In the meantime, I invite you to think about what these requirements mean. Examples would be helpful. I'll try to suspend judgment until I've gotten a better idea of what's involved here, but I'm pretty sure this "reasonably diligent" search requirement is not going to light a fire under very many potential users of orphan works. Because, it's not just the "what we have to do" part of the bargain that looks like it might not be such a good deal, but the other side, the "and here's what we'll give you in return" part isn't looking so hot either.

For commercial uses, the reasonable royalty is probably fine. But for nonprofit libraries, archives, museums, etc., no. If we did our reasonable search and couldn't find you, and you surface at some point, we need to be able to oblige your desire to send your work back into the dark for you, but not to pay you.

The other problem I mentioned earlier is that we now know what a reasonable search looks like to these guys:

American Chemical Society
American Institute of Physics
BMJ Publishing Group Ltd
Börsenverein des Deutschen Buchhandels e.V.
Elsevier
Institute of Physics
John Wiley & Sons (including Blackwell)
Oxford University Press journals
Portland Press Limited
Royal Society of Chemistry
SAGE Publications
Springer Science+Business Media
Taylor & Francis

I wonder which other publishers are going to sign on; which ones will say nothing; which ones will come up with different standards. And how that landscape will or *will not* encourage the responsible use of orphan works.

Well, that's it for now. We all need to think about this. Orphan works are one of the biggest challenges we face today. These are works that are destined never to see the light of digital day unless we find a way to get them online while making reasonable efforts to protect the interests of their owners. The time when obscurity was the only option for non-economically viable works is over. We need to find ways to get on with it. Are these publishers on to something, or are they living in a dream world where all potential users have the kinds of knowledge and resources they do to dig deeply into the history of everyone who ever wrote something that's orphaned today? My really cynical side thinks that maybe that's the idea -- only other publishers will be able to take advantage of this deal, which would make it amount to no more than professional courtesy.

Lessig' gave a talk about remix culture back in March at TED: How Creativity is Being Strangled by the Law. His talk was just posted this month. For anyone who has seen him give a talk in the last 1 - 2 years, this won't be new, but it's very streamlined and very succinct. The video only runs about 18 minutes and it's excellent -- watch this!

Lessig emphasizes the importance of competition, that "more free" can compete with "less free," that artists' choice (to distribute differently, for example, to make their own works more freely available) is the key to defeating monopoly, and that laws that criminalize our children's creativity are corrosive -- and we can do better.

I have been developing an argument that touches on these same themes at Mass digitization ~ changing copyright law and policy, and in fact I had just posted this new segment last weekend that talks about how the sheer availability of so much good free content online inevitably puts pressure on even Hollywood and the music industries to stop making it hard for people to get to their content (DRM and subscription barriers, among others). Check it out.

Lessig announced today that Carl Malamud had accomplished a coup: Building the Legal Commons (Lessig Blog). He purchased a huge collection of federal case reports and is making them completely pd -- not just CC licensed for some but not all purposes, but CC licensed for *all* purposes through a new CC license that commits the licensed work to the public domain. I feel like I'm watching one of those amazing movie final scenes where people who have been stunned into submission over the course of the entire movie, one-by-one stand up and finally refuse to go along with atrocity anymore. They just say no. Or, rather, they just say yes -- yes to the protection and promotion of the public domain, not just for some, but for all.

Tears and cheers (the audience is reacting).

Last year I was not able to attend the CIP's annual conference, but I've caught quite a few of them over the years. This one is special for me, however, because as the Center's Virtual Scholar, I have had the honor of participating in the planning. Kim Bonner, the Center's Executive Director, is at the helm of the planning process and has put together a great lineup of events and speakers. At the top of the list is Jamie Boyle, Duke law professor and advocate of the public domain. I am looking forward to meeting him and hearing what he has to say.

I, too, am speaking at the conference. I plan to discuss an idea I am working on as a possible dissertation topic that fits well with this year's CIP theme: Copyright Monopoly.

The lineup is widely diverse, including speakers representing content industries (Copyright Alliance, CCC), law professors and practicing lawyers, librarians and lawyer librarians, and intermediaries like OCLC and Google, among others.

The conference also features a new format for day three -- a series of roundtable discussion groups focused on what you can take back home with you to put what you have learned into practice.

Hope to see you there!

CIP's Intellectual Property Handbook, which you can peruse at, Research Initiatives and Publications - Center for Intellectual Property - UMUC, includes as Chapter 9 a talk that Cliff Lynch gave as keynote at one of the CIP annual symposia a few years back. CIP recently posted Lynch's chapter online so that anyone can read it. It's a very easy read -- if you've heard Lynch speak, you know what a melodious voice he has, and as I read the talk, I could hear his voice in my head! It was almost like I was there at the keynote.

The talk is well worth your time and I heartily recommend reading it. His overall point is that the university must clarify its values regarding our role in the dissemination and preservation of scholarly communication, not just its production and providing access to it. As he does so well, Lynch weaves together discussion of fair use, orphan works, scholarly publishing and museum and library digitization projects (among other topics) and the choices we have in the digital environment to play more consistently on the same team. Take this passage, for example, where he reminds us that we theoretically have the ability to control every aspect from beginning to end (and repeat) of the scholarly communication cycle:

With regard to building upon the scholarly record, let me simply state at this point that, to a first approximation, the academy controls the scholarly record: it creates it, it represents the primary market for this record, and despite concerns about the current behaviors of scholarly publishers, at a very fundamental and long-term level, the rules surrounding the disposition and use of the scholarly record can, must, and will be under the control of the academy--though it must exercise the will to reassert this control in some very critical areas--and, ultimately, I believe that the values and practices surrounding the use of this scholarly record will be congruent with academic missions and values. This is a problem of values, of policy, and of will. It is not in essence a legal problem (other than to the extent that overcoming some past policy mistakes is made much more difficult by the legal impediments to undoing these choices).

He also speaks about the need to communicate with university counsel and university presses about being less risk-averse, to be more conscious of the need for congruence between our missions and the actions we take day-to-day. Of course, he acknowledges that there are stellar examples of campuses, presses, museums and libraries that are all pulling in the same direction, but he also notes there are some glaring examples of downright values conflict. Go have a look!

Last month, Victoria A. Espinel, the new U.S. Intellectual Property Enforcement Coordinator, transmitted to President Obama and Congress the 2010 "Joint Strategic Plan on Intellectual Property Enforcement Coordination" -- the first report of its kind. Much of what is to be found in the 65-age document is fairly predictable -- a collection of data points on the damage piracy does to the U.S. economy, a list of high level strategic goals (an intergovernmental working group to combat counterfeits in U.S. procurement, more information sharing with rightsholders, better tracking and reporting of enforcement activities, for example). And a significant chunk of pages is devoted to detailing enforcement activities undertaken by various U.S. agencies in the last year. But scattered throughout are some more unexpected references. Thus, for example, "Improved Transparency in Intellectual Property Policy-Making and International Negotiations" (!) is listed (at p. 8) as an major strategic objective. This comes, of course, at precisely the moment at which the U.S. government (and others) are being challenged by civil society organizations for keeping their cards in the current negotiations toward ACTA (the proposed "Anti-Counterfeiting Trade Agreement") too close to the vest.

Especially notable -- and certainly unexpected -- is the attention that the report devotes to fair use (and other limitations and exceptions to copyright." Thus, for example, the Introduction, which lists reasons to support enhanced IP enforcement (beginning with "Growth of the U.S. economy, creation of jobs for American workers and support for
U.S. exports" and "Promotion of innovation and security of America's comparative advantage in the global economy") concludes with an item that seems worth quoting at length: "Validation of rights as protected under our Constitution. Article I, Section 8 of the U.S. Constitution vests in the Congress the discretion to establish laws to promote science and artistic creativity 'by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' Over the last two centuries, our Founding Fathers have been proven right. One of the reasons that the U.S. is a global leader in innovation and creativity is our early establishment of strong legal mechanisms to provide necessary economic incentives required to innovate. By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it."

This ungrudging acknowledgment of the importance of fair use and cognate doctrines is unprecedented, to the best of my knowledge, in official U.S. pronouncements on the subject. Thus, for example, the 1995 "White Paper" on "Intellectual Property and the National Information Infrastructure" discussed included an extended (if somewhat inaccurate) account of fair use that never got around to suggesting why limits on copyright were of positive importance in innovation policy. Indeed (in a discussion at fn. 266) the White Paper goes so far as to characterize fair use as a "tax" on copyright owners? Not only does the new report acknowledge the doctrine's importance, but it backs up the point with citations to the Computer and Communications Industry Associates recent publication, "Fair Use in the U.S. Economy" (about which I blogged sometime ago) -- including that document's claim that "Exports of goods and services related to fair use industries increased by 41 percent from $179 billion in 2002 to $281 billion in 2007."

So the coordinator deserves respect for having given fair use the attention it deserves as a structurally important, innovation-promoting feature of U.S. copyright. Which, in turn, raises a question: If the fair use (and other copyright exceptions) work so well for the U.S., why aren't we promoting them in negotiations with trading partners. As we all know, the intellectual property provisions of various Free Trade Agreements into which the U.S. has entered with trading partners in recent years (for example, the U.S.-South Korea pact of 2007) speak to minimum standards for both substantive copyright protection and enforcement. And everything we know about the current drafts of ACTA suggest that its copyright provisions are similar, stressing enhanced protection for rightsholders but not mentioning public interest-orientation doctrines like fair use. Indeed, it is this characteristic of the ACTA draft that prompted a group of international experts who convened on June 23, 2010 to declare that (among other things), "ACTA would distort fundamental balances between the rights and interests of proprietors and users, including by introducing highly specific rights and remedies for rights holders without detailing correlative exceptions, limitations, and procedural safeguards for users."

What's up, then, with U.S. copyright diplomacy? Are we simply being hypocritical by pushing unbalanced copyright regimes on other states, while knowing that part of the secret of our global dominance in information commerce is our own dedication to offsetting owner's rights with pro-access doctrines like fair use? Or do we claim that international agreements should only address proprietary rights, not exceptions and limitations? The goal of transparency articulated in the Enforcement Coordinator's report calls would be well served by an explanation of the apparent anomaly.