Copyright in Databases

I'm going to have more to say about data, databases, and intellectual property rights in the coming months. This longish post provides a basic primer on how U.S. copyright law applies to databases.

A. Copyright

Copyright attaches to an original work of authorship that has been embodied in a fixed form. The “work” to which copyright attaches can be the structure of the database or a relatively small part of a database, including an individual data element, such as a photograph. It is therefore possible for a database to contain multiple overlapping copyrighted works or elements. To the extent that a database owner has a copyright, or multiple copyrights, in elements of a database, the rights apply only to those copyrighted elements. The rights are to reproduce, publicly distribute or communicate, publicly display, publicly perform, and prepare adaptations or derivative works.

1. Standards for obtaining copyright

a. Originality

Copyright protects only an author’s “original” expression, which means expression independently created by the author that reflects a minimal spark of creativity. A database owner may have a copyright in the database structure or in the user interface with the database, whether that be a report form or an electronic display of field names associated with data. The key is whether the judgments made by the person(s) selecting and arranging the data require the exercise of sufficient discretion to make the selection or arrangement “original.” In Feist Publications, Inc. v. Rural Telephone Service Company, the United States Supreme Court held that a white pages telephone directory could not be copyrighted. The data—the telephone numbers and addresses—were “facts” which were not original because they had no “author.” Also, the selection and arrangement of the facts did not meet the originality requirement because the decision to order the entries alphabetically by name did not reflect the “minimal spark” of creativity needed.

As a practical matter, this originality standard prevents copyright from applying to complete databases – i.e. those that list all instances of a particular phenomenon – that are arranged in an unoriginal manner, such as alphabetically or by numeric value. However, courts have held that incomplete databases that reflect original selection and arrangement of data, such as a guide to the “best” restaurants in a city, are copyrightable in their selection and arrangement. Such a copyright would prohibit another from copying and posting such a guide on the Internet without permission. However, because the copyright would be limited to that particular selection and arrangement of restaurants, a user could use such a database as a reference for creating a different selection and arrangement of restaurants without violating the copyright owner’s copyright.

Copyright is also limited by the merger doctrine, which appears in many database disputes. If there are only a small set of practical choices for expressing an idea, the law holds that the idea and expression merge and the result is that there is no legal liability for using the expression.

Under these principles, metadata is copyrightable only if it reflects an author’s original expression. For example, a collection of simple bibliographic metadata with fields named “author,” “title,” “date of publication,” would not be sufficiently original to be copyrightable. More complex selections and arrangements may cross the line of originality. Finally, to the extent that software is used in a databases, software is protectable as a “literary work.” A discussion of copyright in executable code is beyond the scope of this entry.

b. Fixation

A work must also be “fixed” in any medium permitting the work to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration. The structure and arrangement of a database may be fixed any time that it is written down or implemented. For works created after January 1, 1978 in the United States, exclusive rights under copyright shower down upon the creator at the moment of fixation.

2. The Duration of Copyright

Under international treaties, copyright must last for at least the life of the author plus 50 years. Some countries, including the United States, have extended the length to the life of the author plus 70 years. Under U.S. law, if a work was made as a “work made for hire,” such as a work created by an employee within the scope of employment, the copyright lasts for 120 years from creation if the work is unpublished or 95 years from the date of publication.

3. Ownership and Transfer of Copyright

Copyright is owned initially by the author of the work. If the work is jointly produced by two or more authors, such as a copyrightable database compiled by two or more scholars, each has a legal interest in the copyright. When a work is produced by an employee, ownership differs by country. In the United States, the employer is treated as the author under the “work made for hire” doctrine and the employee has no rights in the resulting work. Elsewhere, the employee is treated as the author and retains certain moral rights in the work while the employer receives the economic rights in the work. Copyrights may be licensed or transferred. A non-exclusive license, or permission, may be granted orally or even by implication. A transfer or an exclusive license must be done in writing and signed by the copyright owner. Outside of the United States, some or all of the author’s moral rights cannot be transferred or terminated by agreement. The law on this issue varies by jurisdiction.

4. The Copyright Owner’s Rights

The rights of a copyright owner are similar throughout the world although the terminology differs as do the limitations and exceptions to these rights.

a. Reproduction

As the word “copyright” implies, the owner controls the right to reproduce the work in copies. The reproduction right covers both exact duplicates of a work and works that are “substantially similar” to the copyrighted work when it can be shown that the alleged copyist had access to the copyrighted work. In the United States, some courts have extended this right to cover even a temporary copy of a copyrighted work stored in a computer’s random access memory (“RAM”).

b. Public Distribution, Performance, Display or Communication

The United States divides the rights to express the work to the public into rights to distribute copies, display a copy, or publicly perform the work. In other parts of the world, these are subsumed within a right to communicate the work to the public.

Within the United States, courts have given the distribution right a broad reading. Some courts, including the appeals court in the Napster case, have held that a download of a file from a server connected to the internet is both a reproduction by the person requesting the file and a distribution by the owner of the machine that sends the file. The right of public performance applies whenever the copyrighted work can be listened to or watched by members of the public at large or a subset of the public larger than a family unit or circle of friends. Similarly, the display right covers works that can be viewed at home over a computer network as long as the work is accessible to the public at large or a subset of the public.

c. Right of Adaptation, Modification or Right to Prepare Derivative Works

A separate copyright arises with respect to modifications or adaptations of a copyrighted work so long as these modifications or adaptations are themselves original. This separate copyright applies only to these changes. The copyright owner has the right to control such adaptations unless a statutory provision, such as fair use, applies.

5. Theories of Secondary Liability

Those who build or operate databases also have to be aware that copyright law holds liable certain parties that enable or assist others in infringing copyright. In the United States, these theories are known as contributory infringement or vicarious infringement.

a. Contributory Infringement

Contributory copyright infringement requires proof that a third party intended to assist a copyright infringer in that activity. This intent can be shown when one supplies a means of infringement with the intent to induce another to infringe or with knowledge that the recipient will infringe. This principle is limited by the so-called Sony doctrine, by which one who supplies a service or technology that enables infringement, such as a VCR or photocopier, will be deemed not to have knowledge of infringement or intent to induce infringement so long as the service or technology is capable of substantial non-infringing uses.

Two examples illustrate the operation of this rule. In A&M Records, Inc. v. Napster, Inc., the court of appeals held that peer-to-peer file sharing is infringing but that Napster’s database system for connecting users for peer-to-peer file transfers was capable of substantial non-infringing uses and so it was entitled to rely on the Sony doctrine. (Napster was held liable on other grounds.) In contrast, in MGM Studios, Inc. v. Grokster, Ltd., the Supreme Court held that Grokster was liable for inducing users to infringe by specifically advertising its database service as a substitute for Napster’s.

b. Vicarious Liability for Copyright Infringement

Vicarious liability in the United States will apply whenever (1) one has control or supervisory power over the direct infringer’s infringing conduct and (2) one receives a direct financial benefit from the infringing conduct. In the Napster case, the court held that Napster had control over its users because it could refuse them access to the Napster server and, pursuant to the Terms of Service Agreements entered into with users, could terminate access if infringing conduct was discovered. Other courts have required a greater showing of actual control over the infringing conduct.

Similarly, a direct financial benefit is not limited to a share of the infringer’s profits. The Napster court held that Napster received a direct financial benefit from infringing file trading because users’ ability to obtain infringing audio files drew them to use Napster’s database. Additionally, Napster could potentially receive a financial benefit from having attracted a larger user base to the service.

6. Limitations and Exceptions

Copyrights’ limitations and exceptions vary by jurisdiction. In the United States, the broad “fair use” provision is a fact-specific balancing test that permits certain uses of copyrighted works without permission. Fair use is accompanied by some specific statutory limitations that cover, for example, certain uses in the classroom use and certain uses by libraries. The factors to consider for fair use are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Countries whose copyright law follows that of the United Kingdom, a more limited “fair dealing” provision enumerates specific exceptions to copyright. In Europe, Japan, and elsewhere, the limitations and exceptions are specified legislatively and cover some private copying and some research or educational uses.

7. Remedies and Penalties

In general, a copyright owner can seek an injunction against one who is either a direct or secondary infringer of copyright. The monetary consequences of infringement differ by jurisdiction. In the United States, the copyright owner may choose between actual or statutory damages. Actual damages cover the copyright owner’s lost profits as well as a right to the infringer’s profits derived from infringement. The range for statutory damages is $750 to $30,000 per copyrighted work infringed. If infringement is found to have been willful, the range increases to $150,000. The amount of statutory damages in a specific case is determined by the jury. There is a safe harbor from statutory damages for non-profit educational institutions if an employee reproduces a copyrighted work with a good faith belief that such reproduction is a fair use.

A separate safe harbor scheme applies to online service providers when their database is comprised of information stored at the direction of their users. An example of such a database would be YouTube’s video sharing database. The service provider is immune from monetary liability unless the provider has knowledge of infringement or has control over the infringer and receives a direct financial benefit from infringement. The safe harbor is contingent on a number of requirements, including that the provider have a copyright policy that terminates repeat infringers, that the provider comply with a notice-and-takedown procedure, and that the provider have an agent designated to receive notices of copyright infringement.

Case Examples

In cases arising after the Feist decision, the courts have faithfully applied the core holding that facts are in the public domain and free from copyright even when substantial investments are made to gather such facts. There has been more variation in the characterization of some kinds of data as facts and in application of the modicum-of-creativity standard to the selections and arrangements in database structures.

On the question of when data is copyrightable, a court of appeals found copyrightable expression in the “Red Book” listing of used car valuations. The defendant had copied these valuations into its database, asserting that it was merely copying unprotected factual information. The court disagreed, likening the valuations to expressive opinions and finding a modicum of originality in these. In addition, the selection and arrangement of the data, which included a division of the market into geographic regions, mileage adjustments in 5,000-mile increments, a selection of optional features for inclusion, entitled the plaintiff to a thin copyright in the database structure.

Subsequently, the same court found that the prices for futures contracts traded on the New York Mercantile Exchange (NYMEX) probably were not expressive data even though a committee makes some judgments in the setting of these prices. The court concluded that even if such price data were expressive, the merger doctrine applied because there was no other practicable way of expressing the idea other than through a numerical value and a rival was free to copy price data from NYMEX’s database without copyright liability.

Finally, where data are comprised of arbitrary numbers used as codes, the courts have split. One court of appeals has held that an automobile parts manufacturer owns no copyright in its parts numbers, which are generated by application of a numbering system that the company created. In contrast, another court of appeals has held that the American Dental Association owns a copyright in its codes for dental procedures.

On the question of copyright in database structures, a court of appeals found that the structure of a yellow pages directory including listing of Chinese restaurants was entitled to a “thin” copyright, but that copyright was not infringed by a rival database that included 1,500 of the listings because the rival had not copied the plaintiff’s data structure. Similarly, a different court of appeals acknowledged that although a yellow pages directory was copyrightable as a compilation, a rival did not violate that copyright by copying the name, address, telephone number, business type, and unit of advertisement purchased for each listing in the original publisher’s directory. Finally, a database of real estate tax assessments that arranged the data collected by the assessor into 456 fields grouped into 34 categories was sufficiently original to be copyrightable.

Copyright and Linking

Periodically, I am asked to explain some feature of copyright law. When I do this in an email, I'm going to make it a practice of also posting the explanation here in case it's of use to others.

I was asked about what the copyright issues are with hyperlinks on the web. So, in US law, generally there is no copyright issue with linking because the link causes the person clicking on it to load a copy of the web site, but the person who posts the link is not making a copy, or displaying a copy, or distributing a copy so there's no copyright issue for the person posting the link. (And therefore, there's generally no legal theory that a site can use to stop someone from linking to their site, even if it's a so-called "deep" link or an in-line link). See Perfect 10 v. Amazon, Inc., 487 F.3d 701 (9th Cir. 2007).

The one exception is if the target site has material that infringes copyright on it. In that case, even though the person linking to the site is not directly infringing, they could be liable on the theory of indirect infringement - helping someone else to infringe copyright.

The one law that specifically deals with this is Section 512(d) of the Copyright Act, which creates a "safe harbor" for search engines and others who link to "online locations" with copyright infringing materials. As long as the search engine removes the link after receiving notice of the infringing materials, the search engine does not owe the copyright owner any money.

For more information, see the Chilling Effects site.

YouTube Tests Creative Commons Licenses

Very exciting news, as reported by Eric Steurer on the CC Blog:

Eric Steuer, February 12th, 2009

YouTube just made an incredibly exciting announcement: it’s testing an option that gives video owners the ability to allow downloads and share their work under Creative Commons licenses. The test is being launched with a handful of partners, including Stanford, Duke, UC Berkeley, UCLA, and UCTV.

We are always looking for ways to make it easier for you to find, watch, and share videos. Many of you have told us that you wanted to take your favorite videos offline. So we’ve started working with a few partners who want their videos shared universally and even enjoyed away from an Internet connection.

Many video creators on YouTube want their work to be seen far and wide. They don’t mind sharing their work, provided that they get the proper credit. Using Creative Commons licenses, we’re giving our partners and community more choices to make that happen. Creative Commons licenses permit people to reuse downloaded content under certain conditions.

Visit YouTube’s blog for information. And if you’re are a partner who wants to participate, fill out the YouTube Downloads - Partner Interest form.

Renewed Attack on Open Access in Congress

As Peter Suber reports, yesterday Rep. John Conyers (D-MI) re-introduced the Fair Copyright in Research Works Act. This year it's H.R. 801 (last year it was H.R. 6845), and co-sponsored by Steve Cohen (D-TN), Trent Franks (R-AZ), Darrell Issa (R-CA), and Robert Wexler (D-FL).

The bill language has not changed. Neither has the fact that there is no reasonable basis in law or in fact to support this legislation. The NIH Public Access Policy is working. Although publishers have made vague assertions, claims that there are legal problems with the NIH policy have been discredited. Similarly, there is no evidence to support the policy - with its allowance of an unduly long 12 month delay - that scholarly communication in the biomedical sciences has been harmed.

Indeed, it's really time to turn this conversation around. The United States' economy needs more than increased consumer spending to recover. We need to innovate, and innovation in basic research happens quicker and in more diverse directions in an open, networked environment. In a word, research should be linkable.

Wanna see? Do you have breast cancer or is there a woman in your life who does? Want to know more about the statistical risks? Thanks to the NIH Public Access Policy, I can simply suggest that you click here because your tax dollars supported the study.

Now that's just using the freedom to link to help quickly point you to an article or scientific letter you might want to read. But the real power of linkable science is that scientists would be able to use their computers to study the network of links to find otherwise hidden patterns in the research and to find otherwise hidden linkages between results in related but distinct fields of research or even in different disciplines. It's the power to process links that has made Google the leading search engine for the web. So why can't web technologies do for scientists what they do for web searchers looking to buy electronics or shoes? Because scientific information other than NIH funded research articles is not generally linkable!

So the path to linkable science and the innovations that will follow from processing the links is to release journal articles and associated data from the paywalls that surround them - either immediately through supply-side funded journals or after a short delay for subscription-based journals.

So, Chairman Conyers, with all due respect, the policy question is not whether Congress should act to deny scientists and taxpayers access to research funded by NIH, but rather, why should NIH-funded research articles be the only articles reporting federally-funded research that scientists and taxpayers like me can link to?

Author Deposit Mandates for Government Grantees

The NIH mandate is succeeding. Shouldn't all federally funded researchers who produce research articles with federal support have to deposit a copy of those articles in a federal repository or otherwise make them openly accessible?

That question will be discussed at a Public Symposium on Author Deposit Mandates for Federal Research Grantees at the National Academies in Washington, D.C. tomorrow afternoon, January 29, 2009. The symposium, which is open to the public and will be netcast (audio only), will begin at 4:30 EST (Washington, DC time) on the afternoon of Thursday, 29 January. Comments and questions from remote participants will be possible. Information about the symposium is available under "Upcoming Events" on the upper right corner of the website of the newly formed Board on Research Data and Information (BRDI), of which I'm a member.

Access Econ - Big Step for Open Access in Economics

The first thing a student learns in a microeconomics class is that "There ain't no such thing as a free lunch."

This lesson is emblematic of the deep skepticism that economists trained in liberal democracies harbor about any business model that relies on providing goods or services for "free".

So when economists decide to go open access and build a service business on the basis of free content, pay close attention. That's what economists John Conley and Myrna Wooders at Vanderbilt University have done with Access Econ.

Not only are they willing to host new open access journals in economics, they also are willing to provide the journal management software they've written to do the job. This creates some competition for Open Journal Systems, which is currently the dominant open source solution for open access journals. I think OJS is a great project, and I salute all the developers who worked on it and who maintain it. But, we're too early in the evolution of open access publishing to lock in on a standard. So the competition from Access Econ should be welcome as it should spur further innovation in this field.

There are plenty of proprietary packages for journal management software, so why did these smart economists pass up the opportunity to charge and offer their services for "free"? Here's their explanation to their skeptical colleagues:

Why “Free” is a good business model

As economists, you should be asking: why is “ free” a sensible business model? There are several reasons. First, our purpose in writing this software to begin with was to support JPET, APET, and EB. Thus, we would have incurred the fixed cost of creating this software in any event. There are very few additional fixed costs to recover. Second, the marginal cost of allowing others to use the system is very close to zero. We are good enough public economists to know that the efficient price is zero in this case. The only marginal costs to us are the time it takes to help get others started on the system. This is the reason for the “ mutual support” condition. Third, after careful reflection, we realized that we simply are not business people. The cost in terms of time away from research of shilling, billing and advertising is just not worth the potential financial benefit. To mangle the old joke about arbitrage: if there are five dollar bills lying on the ground it must cost ten dollars to pick them up. Finally, because of our experience at JPET and EB, we sincerely want open-access to spread as rapidly and widely as possible, especially in economics. To nickel and dime people who share this vision seems completely self-defeating.

Well said!

Intellectual Property and Price Discrimination - iTunes

There's a lot of debate about whether allowing or encouraging price discrimination - charging different people or classes of people a different price for the same good - is good policy with respect to goods that embody copyrighted works of authorship or patented inventions. The general population seems to have different reactions to different kinds of price discrimination schemes. On the one hand, most people don't seem to have a problem with senior citizen discounts at movie theaters, even though some seniors are quite wealthy. But, if Amazon chooses to customize the price of DVDs for each consumer, an uproar ensues.

I am very interested to see what happens with the recent deal between Apple and the recording companies to allow variable pricing on music files distributed by iTunes. This may or not be price discrimination depending on whether the good is "music" or particular songs because everyone will still pay the same price for particular songs.

Here, I just want to make two related theoretical points about the way that economists and legal scholars who use economic models talk about price discrimination.

Point 1. Most economic or law-and-economic analysts who talk about price discrimination say that the policy goal is to maximize people's welfare. I'm at the Penn Law Review symposium on the Foundations of Intellectual Property, and just watched Christopher Yoo make this point about his paper with John Conley on intellectual property and impure public goods.

For these analysts, whether price discrimination is good or bad for society depends on who wins and loses and by how much. But they model this trade off using people's willingness to pay for intellectual property goods as a signal for how much having a copy of a song or book or movie is going to improve their welfare. And these models get pretty complicated quickly, but they all are built on this foundation.

The problem is the gap between ability-to-pay and willingness-to-pay. If you care about welfare, ability-to-pay is a poor proxy for utility or welfare because the marginal value of a dollar depends on how many dollars you have. When iTunes charged you 99 cents a song, how does a consumer decide when it is worth paying that price? Imagine two people who value owning a legal copy of a particular song exactly the same, but one is wealthy and the other is struggling. At certain values, the wealthy person buys the song and the struggling person won't even though they both would get exactly the same amount of pleasure from the song because the relative cost to each person is quite different. So their respective decisions to buy or not are not really telling you how much they value owning a copy of the song.

So, in my view, analysts need to defend the proposition that their models tell us something about the effect of variable pricing on people's welfare when they have not accounted for the gap between wealth and welfare in the model. (Of course, this is a more general point about neoclassical economics, but it has particular salience in this context.)

Point 2. Those who have a reflexive antagonism to price discrimination need to be careful about form and substance. Some folks who have this reflex are reacting to the underlying market power that gives a seller the ability to engage in variable pricing without losing all of its customers to a competitor. I agree that market power is something to watch.

But firms with market power also engage in uniform pricing, as Apple has done with iTunes. In such a case, uniform pricing functions as a form of value discrimination or cost discrimination. Because the marginal value of a dollar varies across people, the price may be the same, but the relative cost of the song from the buyer's perspective varies. So if you want greater equality in the market place, you may actually want to encourage variable pricing if it has the economic effect of equalizing relative cost. I agree that this is very difficult to do in practice, but remember this is a theoretical point. In practice, though, this point about variable cost is what progressive taxation is all about.

So, if copyright is a tax on readers, should it be a progressive tax?

Can You CC License Music and Still Make Money?

Yes. Nine Inch Nail's Ghosts I-IV was released under a CC license and was the best selling album in 2008 on Amazon's MP3 store. As Fred Benenson writes on the Creative Commons blog:

NIN’s Creative Commons licensed Ghosts I-IV has been making lots of headlines these days.

First, there’s the critical acclaim and two Grammy nominations, which testify to the work’s strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week, and hitting #1 on Billboard’s Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon’s MP3 store.

Take a moment and think about that.

NIN fans could have gone to any file sharing network to download the entire CC-BY-NC-SA album legally. Many did, and thousands will continue to do so. So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon’s MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked.

The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule, and point them here.

A Thought on the Theory of the Firm

While participating in a conference at Vanderbilt Law School on "user generated content," the following thought occurred in the context of discussions how platform providers such as YouTube, Wikipedia, Facebook, derive value from user contributions.

Here's what's familiar to some. In a famous article, Ronald Coase suggested that in a capitalist economy, productive activities are organized either by a hierarchically-managed firm or through market exchange. The firm manager has to decide whether to "make or buy" a resource, and that choice will be guided or governed by the relative transaction costs associated with each option. See http://en.wikipedia.org/wiki/Theory_of_the_firm.

Recently, Yochai Benkler, generalizing from the experience with Linux and other large-scale free or open source software projects, argues that a third mode of production - "commons based peer production" - has been made feasible by the Internet and is superior to the firm or market exchange for the production of information and cultural goods.

Benkler acknowledges that projects such as Linux and Wikipedia have hierarchical structures, but these are more flexible and are designed to manage contributions from a large set of producers who need not have a relation to the project that is governed either by an employment or purchase contract.

I see a hybrid development in which the boundaries of the traditional, hierarchically managed firm are becoming more porous. While there is nothing new in firms' soliciting suggestions from consumers or responding to unsolicited suggestions, the scale of this activity has increased noticeably and the economic theory of these kinds of transactions has become more sophisticated.

On the economics, Eric von Hippel's book Democratizing Innovation moves us in the right direction. He points out that users face an innovate-or-buy decision when they need/want customized products. In his concluding chapter, he remarks about the failure of managers who rely on user innovation to acknowledge these inputs and a corresponding failure in management training to formalize processes for soliciting and managing user contributions to product development. Kathy Strandburg is doing interesting work on how patent law should respond to these insights.

I think we need to generalize von Hippel's insight further. User generated inputs extend beyond product development. How about marketing? Should the brand manager hire an advertising firm to develop a campaign, to manage a user-generated campaign, or should the campaign be fully outsourced to consumers? Are "consumers" inside or outside the boundary of the firm in options 2 and 3?

It seems to me that forward-looking firms are co-opting Benkler's and von Hippel's insights, and I suspect the future of management training will not limit the manager's choice to make or buy, but instead to extend the choices to make, buy, receive (user contributions) or collaborate (with user innovators). The last two options come with their own transaction cost structures, and so the initial Coasean insight remains valuable. Since many of these user contributions are likely governed by copyright, and reliance on user contributions may be incompatible with some firms' trade secret or patenting strategies, there is plenty of room for those concerned about the role that intellectual property law plays in managing these transaction costs to take these into account more explicitly in discussions about how to adapt/tailor IP law in these settings. (Paul Heald and Dan Burk also have done good work on the transaction cost perspective on IP).

The Digital Public Domain

Whatever one thinks about the rest of the Google Book business, I think it's important to focus on the digitization of public domain books by both Google and the Open Content Alliance and to use these efforts as the basis for conceiving of the Digital Public Domain as a more robust version of the traditional public domain.

Here's the gist of the argument:

1. Copyright and the Encouragement of Learning.

Copyright law is at the heart of concerns about using the Internet to provide universal access to learned and cultural works. These concerns arise in particular with respect to two related issues: access to books and other printed materials that can be digitized and shared over the Internet, and access to scholarly works yet to be produced, which could be shared over the Internet but routinely are not.

The purpose of copyright law has been to promote learning and the progress of knowledge. Two features of copyright law should provide the guide for how to respond to access concerns. First, copyright is an author's right. This is definitional. Prior to 1710, the law provided exclusive printing rights to printers, leaving authors with no rights other than ownership rights in a physical manuscript. The first copyright act, the Statute of Anne, fundamentally changed this relationship by giving rights to authors, who could then make choices about with whom or how to publish. Since that time, copyright law has consistently remained an author's right.

Second, copyright law explicitly balances the need to reward authors for their contributions to society with the public's interests in having access to works created by others and the rights to reuse such works. For this reason, copyright is a time-limited right. Copyright expires so that the public may ultimately gain unlimited access and use rights. This also is definitional. The Statute of Anne created the public domain, and the English courts held in favor of the public domain in the Battle of the Booksellers, in which English publishers argued that perpetual common law printing rights survived the creation of copyright law.

Therefore, by design, all copyrighted works are destined for the public domain. But, the public domain as a legal concept means only that a work is free from copyright restrictions. There is no positive commitment by the law to make such works available to the public other than the deposit requirement under U.S. law. Nonetheless, removing copyright restrictions gives those who would publish or publicize works an incentive to do so for works still deemed relevant or interesting to the public. See, e.g., Paul Heald's article.

2. The Digital Public Domain

In the age of the Internet, we need to reconceive the public domain as the Digital Public Domain. In the Digital Public Domain, it is not enough that a work is free from copyright restrictions. A positive commitment to universal access to the public domain requires first that public domain works be digitized or at least be subject to a protocol that enables digitization when cost effective.

Second, works free from copyright restrictions should be made accessible over the Internet. Mass digitization of the public domain promotes the goals of universal access, improved learning, and the progress of science.

Third, works free from copyright restrictions should not be subject to technological measures or contractual restrictions or "terms of use" that in any way inhibit members of the public from exercising their usage rights in public domain works.

Fourth, access and the absence of legal restrictions alone are insufficient. Those who search the Internet for information often do so for active purposes. It is not sufficient to find information that is topically relevant. The information also must be useful for the researcher's purposes. Marking and tagging works with their use rights enables computers to search for information that is both topically relevant and useful. I've argued more extensively about use relevance here.

From this principle follows the corollary that the digital public domain should be tagged and marked as such. An important purpose for making copyright a time-limited right is to make the work more useful to the public, who may now republish or repurpose the work without fear of legal liability. To further this purpose in the digital age, computers must be able to parse the public domain status of a work to communicate its usefulness to researchers.

Consequently, those public and private bodies that laudably have been investing in efforts to digitize public domain works should increase the returns on their investment by marking and tagging public domain works as such. Creative Commons provides a metadata standard for digitally marking works with their use rights, the Creative Commons Rights Expression Language (ccREL). Specifically, Creative Commons provides a means of marking a public domain work as such. http://creativecommons.org/licenses/publicdomain/. Creative Commons requires support to implement plans to update this protocol to provide more robust information about public domain works.

3. The Open Access Connection

Looking forward, how should the features of author's rights and balance between author and public influence the availability of contemporary and future learned works, particularly scholarly research reported in peer-reviewed journals? Here, the open access movement has an answer.

Faculty authors and other professional researchers have a responsibility to manage their copyrights in a way that ensures public access to the scholarly record well before copyright expires in these works. Why? Because the standard justification for granting author's rights does not neatly apply to these scholarly authors. They are motivated by the desire to be read and are not remunerated by journal publishers for publishing their work.

When authors have no need to limit access to their work for purposes of remuneration, they should make their work freely available to promote the progress of science. When researchers have been funded by the government or by private charities, it is inexcusable not to ensure reasonable and timely free public access to the fruits of this research consistent with copyright.

Progress has been made recently in improving free public access to recent scholarship. As directed by the United States Congress, the National Institutes of Health now requires researchers who accept NIH funds to ensure that NIH receives a copyright license to make peer-reviewed articles publicly available on the Internet no later than 12 months after the date of publication. Many public and private science funders in Europe, Canada, and Australia have similar policies, with 6 month deadlines.

Faculty authors are coming to the realization that the way they manage their publishing rights should reflect their core values and the university's core commitment to disseminating knowledge. A number of faculties have adopted resolutions recommending open access, but these have led to very few results. Just as was the case when the NIH policy was voluntary, authors at these institutions generally continue to sign away their rights to make their work available on the Internet or fail to use such rights when they have them by depositing manuscripts in an open access repository.

Change is on the way. Taking the lead in the United States, the Harvard Faculty of Arts and Sciences has adopted a policy through which faculty authors commit to deposit their peer-reviewed articles in the university's new digital repository and to grant the university an advance copyright license to any scholarly journal articles written by faculty members, subject to the author's right to waive the license on a per-article basis. Under the policy, faculty authors must manage their copyrights to ensure that their publication agreements are consistent with the university's public access license. Some faculties or departments at universities around the world have adopted similar open access mandates.

4. The Role of Universities

It is time for faculty and university administrators to get serious about the Internet as a knowledge medium. They need to organize a campus-wide process for developing a policy on knowledge dissemination in the digital environment. At most institutions it would be unwise or impractical for university administrators to impose an open access policy on faculty authors, unless the university were to take the position that peer reviewed journal articles are works made for hire and are therefore owned by the university. But, administrators should show leadership by organizing an ad hoc task force on scholarly communication comprised of leading scholars from major departments.

This should not be done by the library committee because the issue goes to the heart of the university's mission and is not merely a departmental budgetary concern. And, it should be made clear that experience teaches that if the task force recommends only adoption of a hortatory resolution requesting that faculty authors provide for open access, that is tantamount to a decision to do nothing to improve access to the scholarly record. Mandates work. Requests do not.

Those studying open access should take note that some authors have gone further to use public licensing as a means of giving the public broad use rights along with free access. Scholars who publish with publishers such as the Public Library of Science, BioMed Central or Rockefeller University Press grant the public a Creative Commons license that provides generous rights to translate, adapt and republish (with proper credit) their articles.

In sum, the initiatives to digitize public domain works and to provide open access to contemporary learning share the common goal of making the Internet a repository for human knowledge and a more powerful resource for researchers, students, teachers, and learners of all kinds around the world. Three principles derived from the purposes of copyright law, should guide these efforts: (1) the works should be freely available; (2) public domain works should be free from any contractual restrictions on use; and (3) the works should be marked with their use rights.

This post is derived from my presentation at the Boston Library Consortium's Universal Access Digital Library Summit in September with the aim of showing connections between book digitization projects and the open access movement.

Jesse Dylan and Creative Commons/Science Commons

Jesse Dylan, who directed the Emmy Award-winning "Yes We Can" Barack Obama campaign video in collaboration with rapper will.i.am., has donated his talent to make two videos for Creative Commons.

"A Shared Culture", explains the goals of Creative Commons.

Today, the release of the "Science Commons" video was announced in connection with a letter of support for Science Commons from Richard Bookman, University of Miami's Vice Provost for Research, Executive Dean for Research and Research Training.

Please Support Creative Commons

Creative Commons is asking for your support this year to enable us to continue the work we've been doing in promoting openness in the cultural, educational, and scientific fields. http://support.creativecommons.org/

If you support the vision, please help to staff the vision. Why? You might ask. How hard is it to host a web site?

Well, first of all, running a site that needs constant updating is more work than you might think. But, there's also much more to the organization. For example, CC staff, most of whom are professionals, promote the commons through a series of activities such as fielding inquiries from organizations that want to implement CC licensing, explaining CC licenses through public speaking engagements, working with communities - such as the open education community - to understand copyright law and CC licenses.

Some of that work is the more visible aspects of what we need support for. We continue to work with creators and other owners of copyrights in cultural works, our ccLearn division is promoting the use of CC licenses as a tool to support open education, and our Science Commons division is engaged in pathbreaking work on a number of fronts.

Here, I want to write about some of the less visible work that is hard, important, and really requires your support to continue.

Most people know Creative Commons through the licenses. We have been busy on that front. With support from the Mellon Foundation, CC is in the midst of a study about people's understandings and intuitions about commercial and non-commercial use to see if more should be done to clarify the non-commercial term of some CC licenses.

In addition, CC staff have worked with the network of affiliated professionals around the world to create a legal tool that will enable a person to waive copyright or dedicate their work to the public domain anywhere in the world. Because copyright law is national, and varies by nation, creating standardized tools that are effective on a global scale is challenging. Every copyrighted work is on its way to the public domain because all copyrights expire.

But around the world, the law makes it difficult for copyright owners to speed up that process by putting works into the public domain ahead of time. The CC zero tool is a substantial refinement of an existing tool that enables copyright owners to dedicate their copyright to the public domain in those countries that accept this and to otherwise waive or promise not to assert copyright-related rights against anyone.

One use for this tool is to help clean up the boundaries of copyright. Because copyright has become so expansive, this tool will be useful to those who want to put works at the edge of copyright that are connected to public domain information into the public domain. A prime example is arguably original database structures wrapped around factual data.

With your support, we would like to also improve on the tool that allows a person to assert that a work already is in the public domain, such as older works and works produced by U.S. government employees within the scope of their employment.

The CC tech staff also do amazing and important work. From the beginning, CC licenses were designed to be machine readable. Not all search tools currently fully exploit the machine-readable aspects of CC licenses, but one day they will. I've argued at length that copyright is an example of "use relevance" and anyone searching for information on the web with the question "What can I do with this" cares about use relevance. CC licenses provide an answer, and the Flickr search engine, which does use the license metadata, organizes the information according to its use relevance.

CC metadata has also become a case study for the future of the web, what some people call Web 3.0. CC people have been essential and instrumental in promoting a flexible technical standard, called RDFa, within the World Wide Web consortium. The vision behind this standard supports the decentralized architecture of the web while providing a means to enable machines to make better sense of the information published to the web.

The goal of this work is to enable tools to develop to support the commons by making works in the commons easier to find and to use. Importantly, these standards are also designed to support the role of attribution in the gift economy. With the right implementation, machines could do a better job at identifying the source material and its creators in mash-ups, remixes, and the like.

All it takes is you. http://support.creativecommons.org/

Obama-Biden and Creative Commons

The Obama-Biden transition team has adopted the Creative Commons Attribution 3.0 license for the content on its web site, http://change.gov/about/copyright_policy. This is great news, and the team should be congratulated for adopting openness and for making it machine-readable openness.

IP/Gender - April 24, 2009

CALL FOR PAPERS

IP/Gender: Mapping the Connections
6th Annual Symposium
April 24, 2009

Special Theme: Female Fan Cultures and Intellectual Property

Sponsored by American University Washington College of Law’s
Program on Information Justice and Intellectual Property
Women and the Law Program
Journal of Gender Social Policy & Law

In collaboration with
American University’s Center for Social Media
Rebecca Tushnet, Georgetown University
Francesca Coppa, Muhlenberg College

Deadline for submission of abstracts: December 19, 2008

The 6th Annual Symposium on “IP/Gender: Mapping the Connections” seeks papers on female subcultures and their relationship to intellectual property and copyright regimes, with a particular emphasis on fan works and culture. Appropriate topics include: fan arts, including fan fiction, arts, music, filk, crafts, and vids; and fan communities: including clubs, forums, lists, websites, wikis, discussion groups, rec sites, and other creative, celebratory, or analytical communities.

Introduction & Context

Historically, the study of subcultures has been biased toward male groups and activities: first, because male activities (e.g. punk rock, motorcycling, football hooliganism) tend to be public, and therefore visible; second, because many male groups have been seen as overtly resistant to mainstream norms. In contrast, many female subcultural activities took place in private, in the domestic realm or in other less visible spaces, and those that were visible tended, in the words of Sarah Thornton, to be "relegated to the realm of a passive and feminized 'mainstream' (a colloquial term against which scholars have all too often defined their subcultures)"; in other words, the things women did and do have often been framed as mainstream, passive, commodified, and derivative; consuming (in the negative sense of passive product consumption), rather than consuming in the sense of a passionate obsession or devotion to art or criticism.

This has changed significantly in the last twenty years, not only due to a rising feminist interest in subculture studies but also with the rise of fan and audience studies. In their pioneering "Girls and Subcultures" (1975), Angela McRobbie and Jenny Garber presciently suggested that scholars turn their attention "toward more immediately recognizable teenage and pre-teenage female spheres like those forming around teenybop stars and the pop-music industry." Even they had trouble seeing what girls do as interesting and importing, noting that "[b]oys tended to have a more participative and a more technically-informed relationship with pop, where girls in contrast became fans and readers of pop-influenced love comics." McRobbie and Garber don't associate being "fans" with participation, and they see girls as "readers" only. In fact, as we know from fifteen years of fan and audience studies, fandom is a highly participatory culture, and female fans also write, edit, draw, paint, "manip," design, code, and otherwise make things.

However, even within this brave new world of mashup, remix, and fan cultures, what boys do (fan films, machinima, music mash-ups, DJing) is often seen by outsiders and critics as better--more interesting, more original, more clearly transformative-- than what girls do (fan fiction, fan art, vidding, coding fan sites, social networking). This normative judgment risks legal consequences.

We are seeking projects that investigate the ways in which issues of originality and ownership as related to copyright and other issues of intellectual property intersect with this gendered understanding of cultural productions and engagement, especially since these historically female subcultural activities and practices have increasingly become culture.

IP/Gender Mapping the Connections Organizational Details

· DEADLINE for submission of abstracts is DECEMBER 19 at 5:00pm.

· To submit an abstract for consideration, fill in the web-based form at https://www.wcl.american.edu/pijip/ipgender/proposals.cfm . Participants will be notified if their paper has been accepted for presentation by January 15.

· The symposium will begin at 6:00 Thursday, April 23, 2009 at the American University Washington College of Law in Washington, D.C. The symposium will convene from 9:00 am until 4:00 pm on Friday, April 24, 2009.

· To view papers and programs from prior IP/Gender: Mapping the Connections symposia, please visit http://www.wcl.american.edu/pijip/go/events/ip/gender/ip/gender-mapping-the-connection

· Papers may be published in the American University Journal of Gender, Social Policy and the Law.

· If you are interested in attending the event, but not presenting work, please contact Angie McCarthy, Women and the Law Program coordinator at angiem@wcl.american.edu for details.

Open Access to Privately Funded Research - Autism Speaks

If private funders of scientific and scholarly research want to maximize the impact of their investments, they should condition their funding on a promise from grantees to make any resulting peer reviewed journal articles openly accessible on the Internet within a reasonable time after publication.

To date, the most prominent private funder on this front is the United Kingdom's Wellcome Trust, which funds medical research and requires resulting articles to be deposited in PubMed Central or UK PubMed.

Private philanthropies in the United States have lagged on open access. But the tide is finally turning. On November 12, 2008, Autism Speaks, the United States' largest autism advocacy organization announced that effective December 3, 2008, all researchers who receive an Autism Speaks grant will be required to deposit any resulting peer-reviewed research papers in the PubMed Central online archive, which will make the articles available to the public within 12 months of journal publication.

This is a very important initiative. As Peter Suber notes, advocacy organizations that seek cures for particular diseases should have a particular interest in making sure that their communities have access to published research. I would add this is further evidence to refute the elitist argument against open access.

To learn more about Autism Speaks, see www.autismspeaks.org

Jillian Raye and the Bard: The Vitality of the Public Domain

So, my family recently lost a friend, Jillian Raye.

I'd keep my remorse to myself, but Jillian had a special relationship with William Shakespeare, and that relationship is emblematic of why copyright's public domain matters and how it maintains its vitality in our cultural life.

When we lived in Takoma Park, Maryland, Jillian, her husband, David Minton, and their daughter, Imogen Minton, moved into our neighborhood and changed it forever.

Jillian founded Lumina Studio in their home as a community youth theater to stage primarily Shakespeare's plays. Jillian and David trained as Shakespearian actors and met onstage and off in a production in Dallas, Texas.

Jillian built her casts from the community, and the ages ranged from young children to middle-aged adults, with young teens as the principal actors. My daughters had their first stage experience as fairies in Midsummer Night's Dream, which we subsequently staged outdoors on a midsummer night. Jillian's vision for the show required that all the lights be turned off near the end of the show so that these three-to-five-year-old fairies could flit about the stage with lit candles. Jillian's will overcame parental objections, and the result was pure magic.

For each show, Jillian developed a highly distinctive but adaptable vision, and she drove hard to realize it. Her visions were animated by her deep understanding and personal relationship with Shakespeare's works. The kids in the cast would begin rehearsals for each show as usual middle and elementary schools would for any after-school activity. But, Jillian would quickly impress upon them that this was serious fun. She worked with the actors to understand their characters and the context for the action.

In the course of these interactions, she breathed life into the Bard's alien language and demanded that the actors make it their own. And, they did. I can still distinctly hear the young actress playing Mercutio in Romeo and Juliet, as she stalked the stage, poised for the fight, and spat out:

MERCUTIO

Tybalt, you rat-catcher, will you walk?

TYBALT
What wouldst thou have with me?

MERCUTIO
Good king of cats, nothing but one of your nine
lives; that I mean to make bold withal, and as you shall use me hereafter, dry beat the rest of the eight. Will you pluck your sword out of his pitcher by the ears? make haste, lest mine be about your ears ere it be out.

TYBALT
I am for you.

Jillian could stage the shows as she envisioned and as she wished because the works of William Shakespeare are in copyright's public domain. She could not legally have applied her prodigious talents to the works of playwrights whose works were still under copyright without a license. And, those licenses often are quite expensive or not available at all.

So, the fundamental policy that copyrights must expire was necessary for a unique institution like Lumina Studio to exist and to grow. And, those who care about this policy need to document how creative individuals like Jillian Raye keep works in copyright's public domain alive and relevant.
While her family mourns, her community has institutionalized her vision and will carry on staging plays and making magic. Perhaps Jillian has joined Oberon and Titania in the kingdom of Shadows and Fairies. It's hard to say, but I know that we will miss her.

With this field-dew consecrate,
Every fairy take his gait;
And each several chamber bless,
Through this palace, with sweet peace;
And the owner of it blest
Ever shall in safety rest.
Trip away; make no stay;
Meet me all by break of day.

(Midsummer Night's Dream, Act V)

Goodbye Jillian.

Law Professors Defend NIH Policy

I want to thank my colleagues in the legal academy who responded to the AAP's unfounded legal attack on the NIH Public Access Policy by deflecting the TRIPS Hammer with a straightforward explanation of why TRIPS does not apply to the NIH policy. NIH is fully respecting copyright - an author's right.

The letter to Chairman Conyers and shared with the other Members of the House Judiciary Committee has made some on the Hill start to think that certain copyright owners are misusing the TRIPS Hammer.

Here's the letter:

September 8, 2008

The Honorable John Conyers, Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, D.C., 20515

Re: NIH Public Access Policy

Dear Chairman Conyers:

The undersigned professors at law schools throughout the United States teach copyright law or engage in scholarly research about copyright law. We write to respond to serious misstatements relating to copyright law contained in a recent submission to the National Institutes of Health with respect to the relationship between the NIH Final Policy on Public Access and certain aspects of U.S. and international copyright law. The letter (hereafter "the Proskauer Letter") was written by Jon A. Baumgarten of Proskauer Rose LLP, dated May 30, 2008, to Allan Adler, Vice President for Legal & Government Affairs, American Association of Publishers in response to Mr. Adler's request and with the understanding that the letter would be part of a public submission to NIH by the AAP.

As you know, the NIH Policy requires grantees to ensure that all investigators funded by NIH submit an electronic version of their final peer-reviewed manuscripts to the National Library of Medicine's PubMed Central (PMC), which then makes the manuscript publicly available within twelve months of the official date of publication. The NIH adopted this policy as required by a provision included in the Labor, Health and Human Services, Education, and Related Agencies FY 2008 Appropriations Bill.

The Proskauer Letter alleges that the NIH Policy may constitute an involuntary transfer of copyright in violation of Section 201(e) of the Copyright Act. Contrary to the Proskauer Letter's assertions, the Policy does not create an involuntary transfer, a compulsory license, or a taking of the publishers' or investigators' copyright. Rather, under the Policy, NIH
conditions its grant of funding on the grantee's agreement to ensure that investigators provide PMC with a copy of articles reporting NIH-funded research along with a non-exclusive copyright license to make the article publicly available within one year after the article's publication in a journal.

In other words, if the investigator chooses not to receive NIH funding, the investigator has no obligation to provide the article to PMC or a copyright license to NIH. But if the investigator elects to receive NIH funding, he or she accepts the terms of the grant agreement, which include the requirement to deposit the article with PMC so that the article can be made publicly accessible within one year after publication. Because the investigator has this basic choice, the policy does not constitute an involuntary transfer.

Furthermore, because the author makes this choice long before the publisher enters into the picture, the policy does not take any intellectual property away from the publisher. When the investigator transfers copyright to the publisher, as most publishers require as a condition of publication, the copyright is already subject to the non-exclusive license granted by the investigator to NIH. Thus, the policy does not change the scope of the publisher's copyright after the publisher has acquired it.

Additionally, it is important to note that the Policy requires deposit of the author's final manuscript after peer review, not the final published version of the article. This aspect of the Policy renders moot any debate about whether the publisher obtains a copyright interest in the article through the process of copy editing or layout. The publisher performs its copy editing after the investigator submits the manuscript to PMC. While the publisher plays a role in coordinating peer review, this process does not result in any copyrightable expression attributable to the publisher. Any edits or additional text written in response to peer reviewers' comments is written by the investigator, not the publisher.

Building on the erroneous premise that the Policy is an involuntary transfer of copyright or a compulsory license, the Proskauer Letter then suggests that the NIH Policy might violate U.S. obligations under the Article 9 of the Berne Convention or Article 13 of the TRIPS agreement. This argument lacks any basis in law. As discussed above, the NIH Policy governs the terms of contracts, not exceptions to copyright law. As such, the Policy in no way implicates Article 13 of TRIPS or Article 9 of the Berne Convention, which address permissible copyright exceptions. These treaty provisions are completely silent on the issue of the terms a licensee can require of a copyright owner in exchange for valuable consideration.

The federal government provides funding to state and local government agencies and private entities for a wide range of activities, including homeland security, law enforcement, agriculture, transportation, education, and research. Congress frequently imposes conditions on recipients of this federal funding. While one might question the wisdom of a particular condition, Congress without doubt has the authority to impose
them. Similarly, Congress has the authority to require NIH grantees to deposit their manuscripts with PMC and to grant a license to make these publicly accessible over the Internet within a year of publication. Such a requirement conflicts neither with the Copyright Act nor with international treaty obligations.

Respectfully,

Keith Aoki, Professor of Law
University of California Davis School of Laaw
Davis, CA 95616

Ann Bartow, Professor of Law
University of South Carolina School of Law
Columbia, SC 29208

Dan L. Burk, Chancellor's Professor of Law
University of California, Irvine
Irvine, CA 92697-8000

Adam Candeub, Acting Director, IP & Communications Law Program
Michigan State University, College of Law
East Lansing, MI 48824-1300

Michael W. Carroll, Visiting Professor of Law
Washington College of Law, American University
Washington, DC 20016

Anupam Chander, Visiting Professor of Law
University of Chicago Law School
Chicago, IL 60637

Andrew Chin, Associate Professor of Law
University of North Carolina School of Law
Chapel Hill, NC 27599

Margaret Chon, Donald and Lynda Horowitz Professor for the Pursuit of Justice
Seattle University School of Law
Seattle, WA 98122-1090

Robert Denicola, Margaret Larson Professor of Intellectual Property
University of Nebraska-Lincoln College of Law
Lincoln, NE 68583-0902

William Fisher, Wilmer Hale Professor of Intellectual Property Law
Harvard Law School
Cambridge, Massachusetts 02138

Brett M. Frischmann, Visiting Professor of Law
Cornell Law School
Ithaca, NY 14853-4901

Lolly Gasaway, Associate Dean For Academic Affairs & Professor
School of Law, University of North Carolina - Chapel Hill
Chapel Hill, NC 27599

Deborah R. Gerhardt, Director of Intellectual Property Initiative
University of North Carolina School of Law
Chapel Hill, NC 27599

Llewellyn Joseph Gibbons, Associate Professor of Law
University of Toledo College of Law
Toledo, Ohio 43606-3390

James Grimmelman, Associate Professor of Law
New York Law School
New York, NY 10013

Dan Hunter, Visiting Professor of Law
New York Law School
New York, NY 10013

Peter Jaszi, Professor of Law
Washington College of Law, American University
Washington, DC 20016

E. Judson Jennings, Professor of Law
Seton Hall University Law Center
Newark, New Jersey 07102-5210

Dennis Karjala, Jack E. Brown Professor of Law
Arizona State University Sandra Day O'Connor College of Law
Tempe, Arizona 85287-7906

Jay P. Kesan, Professor of Law & Mildred Van Voorhis Jones Faculty Scholar
University of Illinois at Urbana-Champaign
Champaign, IL 61820

Raymond Ku, Professor of Law
Case Western Reserve University School of Law
Cleveland, Ohio 44106

David S. Levine, Assistant Professor of Law
Charlotte School of Law
Charlotte, NC 28208

Doug Lichtman, Professor of Law
University of California, Los Angeles
Los Angeles, California 90095-1476

Jessica Litman, Professor of Law
University of Michigan Law School
Ann Arbor, Michigan 48109-1215

Lydia Pallas Loren, Professor of Law
Lewis & Clark Law School
Portland, Oregon 97219

Michael J. Madison, Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA 15260

Mark P. McKenna, Associate Professor of Law
Notre Dame Law School
Notre Dame, IN 46556

Michael J. Meurer, Professor of Law and Michaels Faculty Scholar
Boston University School of Law
Boston, MA 02215

Joseph Scott Miller, Visiting Associate Professor of Law
University of Georgia School of Law
Athens, GA 30602

Neil Netanel, Professor of Law
UCLA School of Law
Los Angeles, CA 90095

Tyler Ochoa, Professor of Law
Santa Clara University School of Law
Santa Clara, California 95053

Ruth Okediji, Professor of Law
University of Minnesota School of Law
Minneapolis, MN 55455

Frank Pasquale, Loftus Professor of Law
Seton Hall University School of Law
Newark, New Jersey 07102-5210

Malla Pollack, Professor of Law
Barkley School of Law
Paducah, Kentucky 42001

David G. Post, I. Herman Stern Professor of Law
Beasley School of Law, Temple University
Philadelphia, PA 19122

R. Anthony Reese, Arnold, White & Durkee Centennial Professor
School of Law, The University of Texas at Austin
Austin, TX 78705

Michael Risch, Associate Professor of Law
West Virginia University College of Law
Morgantown, WV 26506-6130

Matthew Sag, Assistant Professor of Law
DePaul University College of Law
Chicago, IL 60604

Pamela Samuelson, Richard M. Sherman Distinguished Professor
University of California, Berkeley
Berkeley, CA 94720-4600

Joshua D. Sarnoff, Practitioner in Residence
Washington College of Law, American University
Washington, DC 20016

Wendy Seltzer, Visiting Practitioner-in-Residence
Washington College of Law, American University
Washington, DC 20016

Katherine J. Strandburg, Professor of Law
DePaul University College of Law
Chicago, IL 60604

Madhavi Sunder, Professor of Law
UC Davis Law School
Davis, CA 95616-5201

Hannibal Travis, Visiting Assistant Professor of Law
Villanova University School of Law
Villanova, PA 19085

Rebecca Tushnet, Professor of Law
Georgetown University Law Center
Washington, DC 20001

Deborah Tussey, Professor of Law
Oklahoma City University School of Law
Oklahoma City, OK 73106

The AAP tries to kill the NIH policy with the TRIPS Hammer

Having failed to stop the NIH Public Access Policy from becoming mandated by Congress, the American Association of Publishers reached for the handy TRIPS hammer. Their argument - the NIH Policy makes the United States look weak on IP. The legal argument they rely on is here.

The TRIPS Hammer

Lobbyists for the trade organizations of large copyright-owning intermdiaries, such as the MPAA, RIAA and AAP, have become fond of pulling out the TRIPS hammer whenever they meet resistance to their proposals for more rights.

The TRIPS hammer is the argument that Congress must do what the lobbyist wants or the United States will be non-compliant with its international obligations under the TRIPS Agreement. The hammer then comes down with the argument that the United States has to set an example for the rest of the world about how to "respect" intellectual property because otherwise, certain trading partners will undermine the effectiveness of the TRIPS agreement.

And, of course, this is all said with a straight face even after the United States has been judged to be in violation of TRIPS and has failed to remedy the violation.

The Attack on the NIH Policy

I am behind on posting, and there's much news.

Last month, Chairman Conyers (D-MI) introduced the "Fair Copyright in Research Works Act" (H.R. 6845) into the House. Paul Courant, Peter Suber, and others, rightly pointed out that "fair" is foul in this case.

The aim of the bill is to use the Copyright Act to override longstanding federal procurement law, including the NIH Public Access Policy and to assert Judiciary Committee jurisdiction over federal procurement agreements that involve support for the creation of copyrighted works, such as journal articles reporting the results of scientific research.

The sad news is that the American Association of Publishers were successful in persuading the Chairman to introduce this bill even though it is terrible public policy.

The better news is that it does not look like this bill is going anywhere during this Congress. Neither Mr. Berman (D-CA)(Chair of the relevant House Subcommittee) nor Mr. Coble (R-NC) (Ranking Member on the Subcommittee) signed on as co-sponsors.

This initiative to snuff out the NIH policy has actually had a galvanizing effect on the community of supporters, and it's time to press the other agencies, such as the Department of Energy and the National Science Foundation, on the question of public access to federally-funded research.