Friday, October 02, 2009

Seton Hall, Works in Progress in Intellectual Property conference

Panel 1, Chair: Frank Pasquale, Seton Hall Law School

Raizel Liebler, John Marshall Law School

Cutting the Gordian Knot: Possible Solutions to the Conflict between the Gift, Work-for-Hire and Market Models for Academic Work

Gordian knot is that institutions pay for work twice: pay academics to produce it, then they pay post-production to get the work back from publishers. Problem: when institutions encourage their professors to put works up on SSRN etc. and the professors don’t actually retain the copyright. Corynne McSherry’s book: Who Owns Academic Work?: the irony of professors’ fight to retain copyright as against their employers is that they turn around and assign it to publishers for free. One solution might be for work for hire status, but that would interfere with our concepts of academic freedom.

Think of the academic work as a gift to the community, as in Lewis Hyde’s concept of the gift—the gift increases in voluntary exchange, rather than remaining a commodity.

Legislative solutions: requiring federally funded work to be submitted to PubMed Central as a condition of the grant. Virtues: creates one location for finding materials, and it deals with content in really expensive journals (compare law, where a subscription to Harvard Law Review is $200/year, which is basically the price of one issue of high-end scientific/medical journals).

A last alternative: ad hoc licensing. Institutional repositories rather than overall repositories.

Sharon Sandeen: In practice, she represented some universities and tried to get them to adopt IP policies; the faculty got very angry. We all pretend the “teachers’ exemption” to work for hire is stronger than it is. If it’s true that institutions own the copyright anyway, faculty might be more willing to accept different models—might be more willing to accept direction from the institution to use repositories, so you might push that argument on an instrumental basis. Bayh-Dole: inventor has to share in money with the university—maybe that’s another model.

Q: What’s the government’s motivation to act? There’s state and private funding behind work as well.

A: She believes that a uniform standard for institutions would be better (hey, IRB model! Have the feds pressure institutions into making this a blanket policy).

My responses: (1) inertia is, as you say, huge—my own experience on Georgetown’s Copyright Committee is that professors largely don’t know and don’t care about institutional policies; it has to be automatic or a responsibility that is in some way made salient to them. (2) In discussing the NIH model, it would be useful to address the publishers’ takings-style argument that the rule is unfair to them and even unconstitutional (!); compare to the takings-type argument about copyright accepted in Golan v. Holder.

Glynn Lunney: Some top journals do earn money, even in law—so some schools don’t pay twice. They receive a benefit of being a place where scholarship is at its most advanced. Maybe second and third tier schools are subsidizing Harvard, but it’s not a zero sum game for everyone.

A: But Harvard and those like it are now creating institutional repositories; the issue is how to make that larger.

Lunney: Doesn’t Google Book Search solve all these problems for us, or at least address them in a particular fashion? It’s the elephant in the room whenever you talk about databases these days.

Frank Pasquale: Worries that established providers will say that it will put them out of business—and they serve a valuable certification function. He disagrees, but thinks Liebler should acknowledge the argument.

Deborah Gerhardt: There is a real access/justice argument here because of the discrimination against the poorest institutions.

A: Agreed, lots of libraries are being forced to cut subscriptions, and top-tier institutions will have disproportionate access.

Deborah Gerhardt, UNC School of Law

An Empirical Study of U.S. Copyright Publication Cases

Publication is an ambiguous concept, and incredibly important in figuring out what’s available for use, so what do courts actually say about it? We have a definition now, but what about things like a box of photos that are just available to the public, for example in a library collection? Seems to her that those should be published, but courts don’t reliably determine that this is so. Does placing a work in a public file constitute publication? Nimmer says no; he’s referring to architectural plans where people have to submit plans that are on file and publicly available in order to build the building. Perhaps an exception for “publicly available” is sensible in that situation, but should it be extended to all public files?

She is still working on coding her dataset; over 400 cases, most of the coded ones deciding whether a work is in the public domain but nearly 70 coded about whether a work is published for purpose of fair use, and a smattering of others (where a work was published for purposes of national protection, for example). Spike of litigation around 1968.

Research question: does court treatment differ across types of cases? Limited publication isn’t discussed in the fair use cases. Is the limited/general publication distinction still viable after the 1976 Act? Half of the cases finding limited publication have been decided since 1976.

Lunney: One issue to consider: whether the elimination of publication/notice after March 1, 1989 changed, retroactively, courts’ willingness to stick things in the public domain because they failed to satisfy requirements that no longer apply—effecting Congress’s intentions retroactively—imposing modern views on earlier works. Maybe limited publication is the tool they use to do that.

Comments: published decisions on this may differ from unpublished decisions—this could also affect the data, as courts have changed position on what decisions to publish over time.

Sandeen: Patent and trade secret law also deal with publication, and they have different definitions of those, for public policy reasons—patent’s definition of disclosure is much broader than trade secret’s. Also, maybe consider whether the requirement of publication for pre-1978 works before 2002 in order to get the extended term to 2047 had any effect—was there a spike in publications or claims of publications then?

Jessica Silbey: People differ strongly on whether “publication” means the same thing in §303 as in other statutory provisions—whether “by or under the authority of the author” is required for all types of “publication.”

A: She’s coding for that!

David Simon, Concordia University, Chicago-Kent College of Law

Teaching without Infringement: A New Model for Educational Fair Use

Story: Art Vandelay, high school philosophy teacher, teaching AP philosophy. He’s getting materials together. Concludes that Holden Caulfield illustrates some principles of Existentialism—wants to copy and distribute portions of Catcher for his class, but he’s worried that Salinger is litigious. So he checks the school’s photocopying policy. He sees the 1976 House Report guidelines, (ironically) verbatim. Assuming he understands them, his choices are: (1) to violate the policy and make the copies; (2) ask the school district’s lawyer for permision; (3) forego the use of the work. (2) is really unlikely; if he did that, he could be a pain to the school and he doesn’t want to risk that. (3) is bad for education. (1) seems likely to happen a lot, and this creates problems of the message it sends to students—students might not learn appropriate rules about copying; it also encourages teachers to ignore school policy; and it puts schools at risk. One of the copyshop cases uses exceeding the Guidelines as a reason to find bad faith.

His solution: variant of Jason Mazzone’s proposal in Administering Fair Use: an administrative agency that would promulgate rules and regulations to prevent interference with fair use. Not an EEOC model, which has huge costs for employers when an employee files a discrimination charge and the EEOC engages in discovery. Notice and comment rulemaking: this generates problems of lock-in; agency becomes psychologically committed to a rule when creating it, and doesn’t respond meaningfully to comments. Agency capture by special interest groups is also a problem. He thinks there should be two-tiered rulemaking: public participation earlier in the process, as well as when the final determination nears. Goal: create more certainty for users.

My Q: why not codes of best practices? If the copyright owners are being unreasonable, why not let educators debate it out themselves?

A: Educators want everything to be fair. Should put burden on copyright owners to show that a use is unfair. He knows educators that do copy consumable workbooks. (Me: But the best practices being developed by places like the Center for Social Media, as opposed to the individual behavior of certain teachers, don’t endorse that kind of thing—best practices documents by their nature are pretty clear about having limits.)

Laura Heymann: Procedure doesn’t itself create certainty. The rule produced by the procedure might not be certain. Why would your system be better?

A: He envisions things like a maximum word count. Current principles that give safe harbors don’t help educators enough.

Bill McGeveran: not sure about the fit between diagnosis and cure. Art Vandelay’s problem wasn’t vagueness. It was that he ignored the rules/they were too restrictive. Lack of clarity is not the defect of the Classroom Guidelines. Everyone just makes the floor into a ceiling. Most school districts will have a maximum word policy.

A: Disagrees that everyone understands what the Guidelines say and that they create certainty. Most copying takes place outside the Guidelines, and teachers don’t know what the standards are. So why not create a ceiling, beyond which no one can go? (Query: how does that solve the problem of teachers not knowing what the rule is? Or answer the objection that the current Guidelines serve in practice as a ceiling, for those who know them, and that this is a mistake? You will not get consensus on a higher ceiling, though maybe you could do it through best practices.)

Gerhardt: risk aversion is leading schools to pay the CCC for content they’re already subscribing to. One huge way to solve this at a university level is negotiating clear licenses that you can link to database content on Blackboard. But you can’t ever get to clarity if you’re working in a fair use model. Maybe you should think about expanding §110 instead—knowing we can show anything in class is so safe and useful.

A: Doesn’t think there should be a blanket exemption for things like consumable workbooks. But building off fair use and applying it to different areas could work.

David Levine: similar problems arise in remix culture. Compare debates over fair use there. He’s equally skeptical that rulemaking can solve the problem—maybe the issue is education. Settlements like the Schloss settlement where an author really asserted fair use shows that we could successfully use fair use—just need to educate the world about what fair use allows. Perception v. reality: could get right result without a long rulemaking process that may end up with bad rules.

A: Now, if you educate educators about the law, you tell them about the Guidelines, and that’s not very good. Universities need broader policies. (Me: like best practices?)

Sandeen: The Catcher example is pretty loaded. First, that book is widely available and probably inexpensive. Why not buy the book. Second, plenty of people would be perfectly happy if Catcher was not taught in high school because of copyright law.

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