©ollectanea

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!

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!

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

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?

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).