Copyright Conundrums

Copyright Conundrums:Yesterday, Today and Tomorrow : 

Copyright Conundrums:Yesterday, Today and Tomorrow Tracy Mitrano Cornell University

Yesterday : 

Yesterday In Anglo-American law, copyright emerged as a byproduct of the printing press Stationer’s Act, 1557 For the Crown, to avoid counterfeit Implied scope narrow Established “exclusive rights” Statue of Anne 1710 Recognized author’s rights Reflected development of literacy, popular culture and interest in the novel Established “limited rights” period, 14 +14

U.S. Constitution : 

U.S. Constitution Jefferson Hated monopolies, wanted no exclusive rights Remember: free markets were a revolution cry and all the economic political sway of the day; as a radical, he would take the extreme, but there were others who wanted only reform of the navigation laws and government control over market Washington Embodied the republican idea and recognized that a democracy depends at its core on an informed citizenry Advocated for a robust public domain as a matter of policy, which would have an impact on “limited terms”

Article I, section 8 : 

Article I, section 8 To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Three Points : 

Three Points “Exclusive rights” and “limited times” Borrowed from English law Constitution filled with compromises Including this clause, which includes exclusive rights notwithstanding Jefferson’s objection That is all there is, and its speaks volumes “Intellectual property” is in the Constitution?

Why? : 

Why? Engine of capitalism … Emblematic of a role that government can play to enhance and encourage economic development and cultural progress … To balance incentive and innovation.

Copyright Act of 1790 : 

Copyright Act of 1790 Scope relative to its day Limited to certain maps and published materials Terms borrowed from English law 14 + 14 Process for registration arduous and inherently set limits on protection

Copyright Act Since : 

Copyright Act Since Term limits expanded incrementally, often in keeping with technological developments, discoverer/corporate influence on Congress and pressure from Great Britain. Piano rolls were the principal incentive of the 1909 law, together with Active lobbying of Mark Twain. Progress from undeveloped to developed country follows a pattern today internationally.

Copyright Law of 1976 : 

Copyright Law of 1976 Broadened scope Original work in a tangible medium Lengthy terms Life + 50 years for an individual 75 years for a corporation Limited exceptions Fair use Face-to-face classroom settings

Wait, Wait, There’s More! : 

Wait, Wait, There’s More! Copyright Extension Act of 1998 Added 20 years onto the original term Eldred floundered on separation of powers Digital Millennium Copyright Act of 1998 Section 512, notification process for I.S.P. Section 1200, anti-circumvention TEACH Act Attempt to make distance learning exception match face to face exceptions.

Today : 

Today Fair Use Emerged in the case law of copyright as far back as mid-19th century Codified in the 1976 law, with four factors: Nature of the work (book, video, recording, etc.) Amount of the work (no kernels no matter how small) Nature of the use (classroom, for profit, etc.) Market effect (detract from copyright holder’s profit?) Case law subsequently has added a new factor: Transformative (Thumbnail sketches) Boundaries of this factor yet uncertain

Contemporary Challenges : 

Contemporary Challenges Peer-to-Peer Napster 2001, fair use found not to apply RIAA has numerous cases in their favor with astronomical judgments to their name Influenced the passage of the “file-sharing” provisions of the Higher Education Opportunity Act of 2008 (and that go into effect July 1, 2020) “Three strikes rule” with ISP in France, UK and Ireland And yet the practice flourishes globally

Course Management Systems and E-Reserves : 

Course Management Systems and E-Reserves American Association of Publishers Approached numerous institutions including UC San Diego, Cornell, Syracuse, Duke and Georgia System. Cornell’s approach: Messages from both Provost and University Librarian to faculty Fair use restatement from University Counsel to academic community Clearer rules for E-Reserves No more than a chapter of a book, no articles repeated annually Fair use check list for CMS and good faith assertion With a real person to consult if all else fails to satisfy

Video Streaming : 

Video Streaming University of Southern California, Los Angeles Association for Information and Media Equipment threatened litigation for its video streaming services on course management systems, institutional servers, alleged to be in violation of copyright holders. UCLA puts a moratorium on use of video in teaching missions. Restart relying on TEACH, fair use and licensing.

E-Reader Contest : 

E-Reader Contest Will it be the Kindle? Which has the momentary market lead and no backlit screen, relationships with (some) publishers but has engineering flaws in accessibility and clunky navigation, as well as market confusions with too many versions. Or the Nook? Color touchpad screen, good resolution, connection with established book store, cute alternative between the giants. Or the iPad? Cool, backlit and better screen resolution and navigation of pages, ill-named, buggy but has the buzz … publishers?

The Answer is … : 

The Answer is … The one that has the best relationship with publishers, and for the higher education world that means textbooks, and ultimately, it is all about negotiation over the remuneration for copyright protection … Or not.

Scholarly Publishing : 

Scholarly Publishing Gerbil’s wheel for higher education expenditures and academic libraries. Academic libraries support faculty research, who give away their work product for the purpose of promotion, tenure and status, which gets “owned” via copyright by for-profit publishers who then control access to it and sell it back to institutions at an exorbitant rate. Especially with new technologies for the preservation, curation and distribution of materials we can do better by and for ourselves!

Wait, Wait, There’s More! : 

Wait, Wait, There’s More! Guess who owns what would appear to be a start up site for students to post class notes, materials and exams, much to the surprise, anger and disapproval of faculty member teaching the course a la CourseHero?

Slide 19: 

A major textbook publisher!

Google Books : 

Google Books Legal Issues Do fair and transformative uses act as an exception to the rule prohibiting the act of copying a work protected under the law without the permission of the owner, even if the entire work is not disclosed to the public? What is the appropriate degree of remuneration for content owners and how to manage this process as an appropriate business model?

Google Settlement Issues : 

Google Settlement Issues What should the law be regarding orphan works? Those works whose authors cannot be identified and/or found. How do moral rights granted in EU countries figure into U.S. law? Thorny issue because U.S. copyright law does not recognize “moral rights” within the copyright regime.

Implications for Higher Education : 

Implications for Higher Education We offered our repositories of books for nothing more than a copy and access to their subscription service… but not access to its business model, its opportunities for revenue, or a clear stake in the most progressive, transformative uses of repositories.

On the one hand … : 

On the one hand … Participating institutions may have avoided implication in litigation for contributory copyright infringement. On the other hand, we may have done it again, give away the store.

Slide 24: 

We live in an information age. Information is the commodity, and that commodity is the driver of our global economy. Not coincidentally, information is the essence of our business model.

Prescient Founding Fathers … : 

Prescient Founding Fathers … Copyright is the legal regime that controls ownership, rights, access and availability of information.

Unique Role : 

Unique Role As both producers and consumers of intellectual property, and because of our unique not-for-profit status, higher education is in a position to play a leadership role in righting the balance of incentive and innovation for its own benefit as well as for global society.

Copyright Plays a Key Role : 

Copyright Plays a Key Role It is the civil rights issue of the international youth today. It speaks to free speech, civil engagement and economic vitality. It connects the dots between technology, global culture, higher education, law and society.

Marry the Missions : 

Marry the Missions Of copyright legal reform to the underlying values of higher education. Free speech Innovation Citizenship

Unique Challenges : 

Unique Challenges Reduced federal and state funding for both private and state institutions Instrumental approach to learning on the part of both faculty, overburdened by multiple demands, and students who have come inured to teaching to tests, assessment and passive learning For profit education in the lower level class learning and professional education Public confusion over the role that higher education plays in American society

Slide 30: 

Higher education sits in the vortex of the information global economy.

Slide 31: 

The future of higher education relies on the courageous use of copyright law as a foundation for legal reform that allows for the use of protected materials in teaching, research and outreach without undue restriction, burdensome remuneration schemes or fear of costly litigation in terms of both institutional finances and public relations.

Tomorrow : 

Tomorrow What our world in higher education looks like tomorrow depends on what we do today.

Intellectual Property : 

Intellectual Property Higher education can deploy information technologies for a new distribution model, together with its own expertise in curation and peer review, to retain intellectual property produced by its faculty within its domain.

Slide 34: 

Let’s work as an equal partner with open and community source software not-for-profit entities, given the complementary nature of each other’s missions. And with for-profit Internet companies only insofar as those relationships are not at the expense of our valued autonomy.

Tomorrow is Today! : 

Tomorrow is Today! Higher education can act as model for the management of intellectual property, educator of its significance to political society, facilitator of a debate as to how we can achieve our founding father’s intent of innovation and incentive in the copyright regime.