Catherine Fisk’s Working Knowledge:Employee Knowledge and the Rise of Corporate Intellectual Property, 1800 – 1930 (University of North Carolina Press, 2009) has been around for a few years, but I only became aware of it recently, after a colleague mentioned it in conversation. So my recommendation — it is a fascinating read — is belated, but I hope these reflections based on the book are still useful.
In theory, the idea of a small claims board that could adjudicate copyrights claims where the monetary value is not too high seems sensible. Federal litigation is very expensive and intimidating, so a small claims mechanism could make it easier for independent artists and small businesses to defend their rights.
Nevertheless, I have never been very enthusiastic about the idea, in large part because the devil is definitely in the details of any proposed scheme. The fear is that a small claims board could become, in the words of this 2012 article about the topic from Techdirt, just “a new venue for porn companies to coerce settlements out of internet subscribers.” If such a board appeared to be nothing other than a mechanism to make it easier not just for trolls but for Big Content in general to bully individual users and avoid the high costs of litigation, it would ultimately be harmful to the copyright balance that is already so out of whack in the U.S.
I recently went out on a limb to help a group of scholars who were trying to do a good thing but going about it in a not-so-good manner.
They wanted to curate a list of articles on a topic relating to current events and social justice. Unfortunately, they were determined to post the materials to the open web using full-text PDFs from licensed, published content.
Yes, cue the collective copyright librarian shudder.
When the Copyright Office issued its Notice of Inquiry (NOI) about a “Draft Revision of the Libraries and Archives Exception in U.S. Copyright Law,” I happened to be at a large meeting of librarians. The conversation turned quickly to this new NOI, in regard to which librarians are, of course, a major stakeholder, and I learned two things.
First, the group confirmed my previous intuition that section 108 — the exception in question — still works pretty well for the limited activities it enables – copying for library preservation and for users doing private research and study (which includes interlibrary loans). Second, there is considerable mistrust of the Copyright Office in the library community.
In the last couple of weeks, there have been several developments in the scholarly communication world that all point in the same direction – the move by the major commercial publishers to tighten their grip on access to and share of academic work, as well as a concern to capture data about how scholarship is shared. Call this last part the commodification of the professoriate.
My attention was first drawn to these developments by a tweet that pointed to Wiley’s “Article Sharing Policy” site — with its handy-dandy sharing guidelines chart — and asked if Wiley really was asserting control over the pre-peer review copy of scholarly manuscripts. Before I proceed, I think it is important to explain why the answer to that question is yes.
In a recent discussion about Sci-Hub, I took some heat for bringing up the history of copyright and the shifting attitudes over time about what it is good for. So I should probably know better than to appeal to history again as I begin some thoughts about the unique place of translations in copyright law. Nevertheless, I think it is important to note that translations were not explicitly protected by U.S. law until 1870, and that 17 years earlier, an author of no less stature than Harriett Beecher Stowe lost a lawsuit in which she tried to prevent the publication of an unauthorized translation into German of Uncle Tom’s Cabin. As this article about the case tells us, the judge asserted that once it was published, Stowe’s expression was as available to translators — as much “public property” — as were the works of Homer or Cervantes.
There have been developments, of the sort that don’t make headlines, in two major copyright cases that folks in higher education need to know about.
First, today the Supreme Court announced that it would not review the opinion issued by the Second Circuit in the Authors Guild v. Google, the case about the Google Books project that offered a strong reaffirmation of fair use. So the Authors Guild finally and definitively loses another in its string of anti-fair use cases. This was what I and many others expected, but it is nice to be able to say that this case is done. And the broad, flexible approach to fair use that is outlined in the Second Circuit’s decision stands, which is great news.
If the library is the heart of a university, then exercising fair use is the lifeblood. Teachers, researchers, students, librarians and publishers exercise fair use in countless ways every day. It is fair use that facilitates re-using and re-mixing, if you will, the knowledge preserved and made available by libraries into new discoveries and interpretations. This process of research and scholarship has been referred to as ‘standing on the shoulders of giants’ because we all rely on that which has gone before to provide insight, context and meaning for today.
[Note that this posting is also found on the Scholarly Communications @ Duke site. I decided to post it on both the venue I am leaving and this new, group undertaking, because the issue is so important. But I apologize for the repetition that many readers of both sites will experience]
My first thought when I read the new ruling in the Georgia State copyright lawsuit brought by publishers over e-reserves was of one of those informal rules that all law students learn — don’t tick off your judge. From the first days of the original trial, the arrogant antics of the attorneys representing the publisher plaintiffs — Oxford University Press, Cambridge University Press, and Sage Publishing — clearly put them in a bad light in the Judge Evans’ eyes. Those chickens came home to roost in this latest opinion, especially where the plaintiffs are chided for having filed a declaration about what licenses were available for excerpts back in 2009, even after the Judge told them not to, since that information had not been introduced as evidence in the original trial. All of that evidence was stricken, and the Judge based her new opinion on the evidence that was before her in that first trial. I can imagine that the publishers might use that ruling as a basis for yet another appeal, but if they do so, they had better be able to prove that the evidence is genuine and reliable, and to explain why, if it is, they did not produce it at trial back in 2011.