The Broadcast Treaty and Open Access

Copyright. Michael Geist has a nice column today once again reminding us about why the WIPO negotiations over a Broadcast Treaty are trouble. See also the CPTech blog. A number of technology companies and public interest organizations oppose the treaty for these reasons.

One quick point about the Treaty and then a point for Open Access advocates. In my view, representatives of copyright-owning organizations have made the wrong bet in either supporting or staying neutral on this issue. They have bet that broadcasters will, on balance, help them enforce their rights against those who transmit copyrighted works that have been broadcast. As technology evolves, and broadcasters use the rights created by the Treaty to protect their business model, these copyright owners will regret the choice they make today.

Some Open Access advocates, librarians in particular, have been active in opposing the treaty. For those who have not tuned in, the important thing to watch is how the policy debate is conducted. Who has the burden of persuasion? Ben Ivins of the National Association of Broadcasters argues that because other countries give broadcasters a distinct right in their signal, it is opponents of the treaty who must show that the treaty would be harmful. This argument is exactly backward. In the United States, a proponent of a law that restricts speech has the burden to show that the restriction will advance an important governmental interest. The NAB has failed to meet this burden. Even though the executive branch has signed on, Congress and the courts should demand to see evidence that the treaty would address a real harm without interfering with legitimate communication. So far the evidence does not even come close.

Allocating the buren of persuasion is just as important with respect to the Federal Research Public Access Act (FRPAA). The AAP is doing its best to argue that proponents of the legislation must prove that the benefits of open access outweigh the costs. That, I am afraid, is not the way it works in any society that embraces a principle of freedom of expression. Thus, the first response from the open access community should be that the burden is on those who would restrict public distribution of publicly-funded research to show that such restrictions advance an important public interest. Then, we can take up the question of how to measure benefits and costs.

Future of Music?

Music. Copyright. There's little doubt that the music industry is in a period of transformation. Today's news is that Universal Music is willing to "compete with free" by letting a site called Spiral Frog experiment with an ad-supported distribution model, permitting "free" downloads that are tethered to the site with technological protection measures (a.k.a. DRM).

Meanwhile, the debate about business models has gone audiovisual. For the defense of the traditional model, watch the RIAA's latest, Campus Downloading, at http://www.campusdownloading.com/dvd.htm

For the opposing case, watch MC Lars', "Download This Song," at http://www.mclars.com/v2/media.html#VIDWIN or at http://www.myspace.com/mclars (points for those who can identify the song this is built on or the guest vocalist).

And for parody's sake, there's always Weird Al, at http://www.dontdownloadthissong.com/

Online Communities and Their Discontents

Surely I was not the only reader struck by the coincidence of stories in yesterday's New York Times about two very different kinds of online communities deemed to be dangerous? In one story, we learn about the structure and depth of the online pedophile community or communities. Although not surprising that the Net would be put to this use, the story is still a deeply disturbing reminder of the many sicknesses that plague the human condition.

We Internet enthusiasts have to be candid about the network's potential to facilitate the formation or growth of criminal and morally reprehensible communities such as these. The proper response in my view is not to change the architecture of the network but to invest more law enforcement resources in disbanding these harmful social networks.

On the other hand, we have a story about a different kind of community that's become a scourge of the Net - guitar players. That's right. Seems the National Music Publisher's Association has launched an offensive against sites that host tablature versions of popular songs. (Tab is a graphic representation of how to play a piece of music.) These tabs generally are written by amateur guitarists who seek to teach each other songs of interest. According to the NMPA, these sites are cutting into publishing revenues. (Disclosure: I'm a guitarist, but I don't use tab to learn songs. I play by ear.)

I'm all in favor of seeing songwriters getting paid, but this approach once again represents an attempt to force the digital into an analog model. Rather than work with this online community that has formed around the music, by perhaps adopting an adverstising-based and value-added approach, the publishers want to disband it and preserve a sales model that would force guitarists into a passive consumption role. To quote a certain songwriter from New Jersey, "One day we'll look back on this and it will all seem funny."

The Publishers' "Private Market" Canard

Open Access. In response to the Provosts' Open Letter supporting a legislative requirement for open access to federally-funded research articles, Alan Adler, vice president for legal and government affairs of the Association of American Publishers, said “what the university community is excited about is the prospect of being able to get access to all this published material free online, which is not terribly surprising. But why should universities be excited about the government inserting itself into the process of providing access to research?

Congress must not be fooled by this rhetorical sleight of hand. This move by scholarly publishers to assert scholarly publishing as private domain into which the federal government is intruding is, frankly, silly. We have seen this move with the American Chemical Society's attempt to stop NIH from harvesting and publishing public domain information in its PubChem database. If there are any interlopers in scholarly communication in the sciences, it is for-profit commercial publishers rather than the federal government. (See John Willinsky, The Access Prinicple, for details).

The articles that would be made publicly accessible under the FRPAA are those reporting on research conducted with federal support. Why isn't this support also a form of "interference"? But we do not hear Mr. Adler complaining about the federal government subsidizing the critical input for his members' businesses do we? Moreover, the publishing activities of scholarly societies have been indirectly underwritten with government funding, which supplies funds that end up paying membership fees and/or journal subscriptions. Unless and until Mr. Adler's members are willing to pay full value to support the research and writing of research articles, they have no standing to complain about government "interference."

Provosts Support Open Access Bill

Open Access. A recent story reports that the provosts (chief academic officers) of 25 leading research universities in the United States have released an open letter supporting the pending Federal Research Public Access Act, which would mandate public access to the peer-reviewed scholarly literature that reports results from federally-funded research. This is an important development. Kudos to these leaders for their courage in making open access a front-burner issue for higher education's legislative efforts.

Got (good) Coffee?

Trademark. Food, clothing, shelter. How do we obtain these basic necessities? For this post, please excuse a moment of self-indulgence, and let’s set aside the real problem of supplying these to world’s poor so that I can address a middle class issue.

If you go most places in the industrialized world, you will be able to eat, shop, and sleep in an establishment that sports a familiar global brand. If you find the ever-present sameness that this model of retailing brings about deadening, is there any way to limit the quality of sameness to only the features for which consistency matters to consumers while leaving business owners free to offer greater individuality in the retail experience?

Here’s an idea. In the franchise model, a trademark is really acting as a certification mark rather than a source identifier. If small business owners were able to establish effective certification marks, they would be able to reap many of the benefits of being a franchisee while enjoying greater freedom to control their operations and to keep a larger share of their profits.

Take coffee as a test case. Like many coffee drinkers I have an ambiguous relationship with Starbucks. On some occasions, I have never been so grateful to get a big cup of strong coffee in a place where it would otherwise have been unavailable. On other occasions, the success of Starbucks’ strategy to crowd out competitors leaves me frustrated that local javantrepreneurs stand little chance to supply good coffee in an ambience that reflects local culture. But I’ll admit to having been burned in some tourist destinations by local coffee shops that dress themselves up as if they care about what they brew only to find that I’m drinking a $3.00 cup of dishwater.

Assume for the moment that there is a sizeable set of coffee drinkers who would prefer to patronize a local coffee shop over Starbucks if they could be assured that the coffee at the local shop meets certain minimum taste standards. If enough of that group lives in a single locale, a small business owner can compete effectively against Starbucks.

But in destinations where travelers would have to be part of the customer base, a small business is likely to fail when competing against the promise of consistency that the Starbucks logo holds out. However, if a local business could display a reliable certification mark, the business would stand a chance. Then, the traveling coffee drinker could enjoy a locally distinctive ambience along with a cup of good coffee.

So for those who decry the Charbucks hegemony, it’s time to think about what an effective certification mark would have to convey and how such a mark could be made reasonably reliable.

Microsoft Enables Creative Commons Licensing

Copyright. As further evidence that networked computing is now the norm, users of Microsoft's Office suite now have an embedded option to attach a Creative Commons license to their PowerPoint, Word, or Excel files. A downloadable plug-in is available here. This is a welcome development.

Broadcast Treaty

James Boyle has written a dead-on analysis of the deeply flawed WIPO broadcast treaty that would create a pseud0 intellectual property right in a signal, as distinct from the content encoded in the signal.

The case simply has not been made that this treaty responds to a real problem nor that the alleged cure is better than the disease. CPTech along with Public Knowledge and the Electronic Frontier Foundation have represented the public's demand for better process and a better product on this score. These organizations deserve support for their efforts in this regard. For more info, see

Consumer Project on Technology: http://www.cptech.org/ip/wipo/bt/index.html
Electronic Frontier Foundation: http://www.eff.org/IP/WIPO/broadcasting_treaty/
Public Knowledge: http://www.publicknowledge.org/issues/wipobroadcasters

Harris Poll Shows Support for Open Access

Open Access. The Wall Street Journal reports today on a Harris Interactive poll that asked 2,501 Americans whether they thought the public should have online access to publicly funded research. Here's what they found:

• 83% of adults say they strongly (61%) or somewhat (22%) agree that since this research is paid for by tax dollars, the results should be easily available (free and online) to doctors.
• 82% of adults say they strongly (57%) or somewhat (25%) agree that if tax dollars pay for scientific research, people should have free access to the results of the research on the Internet.
• 81% of adults say they strongly (49%) or somewhat (32%) agree that having this information easily available (for free and online) will help those living with a chronic illness or disability get the latest information which will assist people coping with that chronic illness or disability.

Methodology
This Harris Poll was conducted online within the United States between April 11 and 17, 2006 among 2,501 adults (aged 18 and over). Figures for age, sex, race/ethnicity, education, region and household income were weighted where necessary to bring them into line with their actual proportions in the population. Propensity score weighting was also used to adjust for respondents’ propensity to be online.

All surveys are subject to several sources of error. These include: sampling error (because only a sample of a population is interviewed); measurement error due to question wording and/or question order, deliberately or unintentionally inaccurate responses, nonresponse (including refusals), interviewer effects (when live interviewers are used) and weighting.

Put Articles by Government Researchers Online Now

Open Access. This is the first in a series of posts I plan about copyright law and access to publicly funded research. In this post, I highlight the public domain status of research articles by federal employees under U.S. law and issue a call for action by open access advocates.

The proposed Federal Public Research Access Act of 2006 has an important provision that would require covered agencies to mark peer-reviewed articles by agency employees as being in the public domain and to post such articles online immediately. This is an incontestibly sensible requirement, but federal agencies and members of the public need not await the outcome of this pending legislation to make this provision effective.

Why? Because under Section 105 of the Copyright Act, any "work of the United States Government" is not subject to copyright. That means any journal article written solely by federal employee researchers (think NASA, NIH, etc.) is in the public domain. If an article is co-authored by one or more non-federal employees, then the copyright status is more complicated.

For the moment, let's focus on articles written solely by federal employees. These articles, as part of the public domain, belong to you. If you find one, you are free to post it online and to mark it as part of the public domain.

The trick is to find these articles. If you are in an office of intramural research and have access to bibliographies of articles written by federal employees, can you send me a copy or post it online? If you otherwise have access to such bibliographies, please post it or send me a copy.

Going forward, agencies should start requiring that articles written solely by federal employees be marked as such so that we can get these online now.

Muzak and Music Retailing

Music. David Owen wrote a very nice piece in the April 10, 2006 issue of the New Yorker about Muzak, the company that specializes in background music for retail establishments, office elevators, and on-hold entertainment. The company has reinvented itself with some success.

To my ear, however, the trend is away from a Muzak-type service and toward what Starbucks has done with Hear music. Traditionally, companies have spent far more time and effort developing a visual identity than an aural identity. That's beginning to change, as automobile manufacturers have discovered that rock n' roll sells cars, and retailers increasingly begin to develop and package "their" sound.

Brick-and-mortar record stores continue to experience the pain of disintermediation, while lifestyle retailers (coffee, clothing, etc.), begin to add CDs as a new line of merchandise. Interesting times.

The Technological Case for Open Access

Open Access. Clifford Lynch makes another important contribution by illuminating the potential of open access in a networked age. We're trying to realize this potential with the Science Commons neurocommons project.

"As the scholarly literature moves to digital form, what is
actually needed to move beyond a system that just replicates all
of our assumptions that this literature is only read, and read
only by human beings, one article at a time? What is needed to
permit the creation of digital libraries hosting these materials
that moves beyond the "incunabular" view of the literature, to
use Greg Crane's very provocative recent characterization. What
is needed to allow the application of computational technologies
to extract new knowledge, correlations and hypotheses from
collections of scholarly literature?"

Here is the link to the piece (a chapter from a forthcoming book):
http://www.cni.org/staff/cliffpubs/OpenComputation.htm.

The Insider's Argument against Open Access

Open Access. Here comes the public attack against the bi-partisan Federal Research Public Access Act of 2006, which would require 11 government agencies to publish online any articles that contained research financed with federal grants. See Sara Ivry, Some Publishers of Scholarly Journals Dislike Bill to Require Online Access to Articles, New York Times, 5/8/06.

What is particularly galling is one of the two publisher responses to the taxpayer access argument for open access. The taxpayer argument is simple: we paid for it, we should get to read it without paying again. Publishers have two responses: (1) the economic argument and (2) the elitist argument.

The economic argument holds that taxpayers do not pay for all of the valuable inputs into a publicly-funded journal article, and open access will destroy publisher motivation to add value.

The elitist argument holds that taxpayers cannot be trusted with open access because they might harm themselves by misreading or misunderstanding an article written by specialists for specialists. In the case of biomedical research, the argument goes, open access could lead non-specialist members of the public to self-treat, to fail to seek medical attention, and/or to disobey doctor's orders.

Let's just focus on the elitist argument for a moment. How would that argument fly with respect to other kinds of government expenditure? Voters should not have access to information about how the war in Iraq is going because they're likely to misunderstand how complex modern warfare is? Voters should not have access to hurricaine readiness preparations in New Orleans because meteorology is a complex business? These arguments are laughable on their face. Why doesn't the elitist argument against open government get the same response when it comes to science? The different treatment arises out of fundamental differences between the respective cultures of law and science, differences nicely analyzed in Steven Goldberg's 1994 book, Culture Clash: Law and Science in America (NYU Press). The culture of science has been buffered in some respects from our more general information policy in the U.S.

But the Internet is forcing science to confront that policy now, and that policy is rooted in the First Amendment. In the United States, we begin with a premise of democratic access to information. Arguments by elites that the American voter "can't handle the truth" run afoul of our deepest commitments. While it is important to recognize that transmission of information does not equate with transmission of knowledge, to presume that open access to scholarly information never amounts to transmission of knowledge to members of the general public is offensive to our core beliefs.

Members of Congress and their respective staffs should treat the elitist argument as constitutionally suspect and not waste any time on it as the debate on this important initiative moves forward.

One for the Law Students

I love a good comic strip. Long, long ago (in the early 1980s) I lived in Austin. Sam Hurt drew a great strip called Eyebeam for the UT newspaper. These have been compiled in books that, sadly, are out of print.

I was there during the time the title character, Eyebeam, made the transition from college to law school. For a taste of the early days, here's the second installment: http://eyebeam.com/toons/index.php?num=2

For the law students feeling the weight of exams, cheer up: http://www.eyebeam.com/1983/index.php?num=39

Music Sampling - Overdue Venting about Bridgeport

Copyright. Music. Like many others who worry about achieving the proper balance between public and private interests in copyright law, I was very disturbed when the Sixth Circuit announced its novel interpretation of the Copyright Act in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 398 (6th Cir. 2004), aff'd on reh’g, 410 F.3d 792 (6th Cir. 2005). The court concluded that hip hop artists and others who create digital samples must live by a simple rule: "Get a license or do not sample."

The court justified its holding on a number of policy grounds, the most important being that it would reduce transaction costs. (It was hard not to notice that some of those transaction costs would be the court's own in handling the hundreds of similar cases pending below.) Not surprisingly, most of the blog/mainstream press commentary that I read focused energy and criticism on the court's policy rationale.

My reaction was a little different, and I have been holding it in for too long. While I also am wholly unpersuaded by the court's rationale, I found more disturbing the court's method of interpreting the Copyright Act. With all due respect, even if you think the court's rule is a good one, if you value consistency in statutory interpretation, you will have to admit that the case was wrongly decided. Here's why:

First, a little backgound. Copyright law distinguishes between a "musical work"- the music and lyrics - and a "sound recording" - the recorded rendition of the musical work. There is a separate copyright in the sound recording based on the creative decisions that went into how the musical work should sound when recorded. (The authors of the sound recording may be performer(s), the record producer(s), the sound engineer(s), and/or others involved in the recording session or post-production process.).

Analysis of the Copyright Act in an infringement action takes two steps. First, the court asks whether one of the exclusive rights granted to the copyright owner in Section 106 has been exercised without authorization. If the answer is yes, the court then asks whether one of the limitations on those rights in Sections 107-122 renders the use non-infringing.

Section 114 is one such limitation. In Section 114, Congress limited the scope of sound recording copyrights to make them narrower than copyright in most other forms of expression, including musical works. Contrary to the text and legislative history of the Act, the Sixth Circuit decision broadens the scope of sound recording copyrights beyond that for any other kind of creative work.

In Bridgeport, the question presented was whether the de minimis use limitation applies to digital sampling of a sound recording. The de minimis doctrine is a general limitation of law that applies to all of the Section 106 rights regardless of the type of copyright involved. The district court properly understood this and started and ended its analysis with Section 106, finding that a small snippet of a guitar lick that had been transformed and looped was a de minimis use.

The court of appeals, by contrast, started with Section 114 - the special limitation on the Section 106 rights that applies only to sound recording copyrights. The court then read a portion of Section 114 designed to limit the reproduction right to only exact duplication (instead of the normal rule, which encompasses substantially similar duplication) to eliminate the de minimis doctrine only for sound recordings.

In my view, neither the text of the Copyright Act nor its legislative history supports this unique departure from standard copyright infringement analysis. Therefore, as interesting as the policy analysis is concerning the value of certainty in copyright law, I do not think there is a statutory basis for the rule announced by the court in this case.

Copyright in "Pre-Prints" and "Post-Prints"

Open Access. In some quarters of the Open Access movement, some confusion has arisen with respect to copyright law and the many iterations through which an article goes. The comments that follow describe how U.S. law looks at "pre-prints" - the version of an article first submitted to a publisher, and "post-prints" - the author's final manuscript incorporating changes made after peer review. I wrote these comments in response to the question whether an author could grant a Creative Commons license to use a pre-print after having signed away all rights under copyright to a publisher. These comments are for your information and are not legal advice.

The short answer is no, an author cannot grant a Creative Commons license in a pre-print after having signed away all rights in the article in a publication agreement.

Although technically distinct, the copyrights in the pre-print and the post-print overlap. The important point to understand is that copyright grants the owner the right to control exact duplicates and versions that are "substantiallysimilar" to the copyrighted work. (This is under U.S. law, but most other jurisdictions similarly define the scope of copyright).

A pre-print will normally be substantially similar to the post-print. Therefore, when an author transfers the exclusive rights in the work to a publisher, the author precludes herself from making copies or distributing copies of any substantially similar versions of the work as well.

[For example, the singer John Fogerty of Credence Clearwater Revival famewas sued by a record company, which had acquired the copyright in his song"Run Through the Jungle". The company claimed that Fogerty's later song"The Old Man Down the Road" was substantially similar to the former song and that Fogerty had therefore infringed the copyright that Fogerty had signed away.]

Consequently, whether an author may grant the public a Creative Commons license depends upon the rights the author has at the time of the grant. If the author grants a Creative Commons license in the article prior to transferring copyright to the publisher, the publisher takes the copyright subject to that license. But before doing this, authors should read the terms of the publication agreement they are signing. Some of these agreements call upon the author to assign all rights under copyright,which the author cannot do if he or she has previously granted a license.

Even when the copyright transfer agreement has such a provision, however,publishers will sometimes agree to take the copyright subject to a previously-granted license. For example, every researcher who accepts money from NIH or any other U.S. government agency grants to the U.S.government a non-exclusive license to publish and reproduce the work. This license is granted prior to any agreement that the author enters into with a publisher and therefore published papers funded by NIH research are subject to the USG's license.

Publishers are fully aware of the government's license and therefore the terms of any copyright agreement signed by a USG-funded researcher that purports to give all rights to the publisher has to be interpreted accordingly.With that background, let's return to the original question. Once an author signs a publication agreement, can that author grant a CreativeCommons license in the pre-print?

It depends upon the terms of the agreement, as modified by any addenda. Currently, under most publication agreements, the author does not retain sufficient rights to grant a Creative Commons license in either the post-print or the pre-print after transferring copyright to the publisher.Of course, the author retains the right that all members of the public have to make a fair use of the article or exercise a fair dealing privilege, but it is unclear whether this privilege would permit posting of the pre-print without authorization from a publisher that owns thecopyright in the post-print.

The Federal Research Public Access Act of 2006

Open Access. Senators Cornyn and Lieberman have introduced an important bill that would improve access for researchers and members of the public to federally-funded research. The Washington Post has a story here: http://www.washingtonpost.com/wp-dyn/content/article/2006/05/02/AR2006050201506.html.

Greetings

Welcome to my blog. This blog will feature a mix of analysis and advocacy.

My analysis will focus on recent developments in intellectual property law, particularly copyright law. I have an ongoing project related to copyright in music, so some posts will be more generally about music or the music business as well.

As an advocate, I will write periodically about the Open Access Movement, which argues for open online access to the world's scholarly literature.

Thanks for stopping by.
MC