Category: Copyright

As well as the committee charged with choosing a course management system for our campus (no new news to report just yet… still banging head against wall), I’m also on a committee that’s drafting a copyright policy and educational material about copyright for our campus. And now we’re stuck (again) because we’ve got a nice little policy that’s going before the admin council tomorrow morning, and we’ve got a nice little collection of educational material and decision aids, but now it turns out that the faculty really don’t want to know how to comply with the law. They want us to set up an office on campus that’ll do it for them. And I can TOTALLY sympathize. I wouldn’t want to wade through this on a regular basis, either, if someone else would do it for me. There are only two problems with this plan: it would reduce the purview of fair use, and it would be impossible to set up.

It would reduce fair use because an office of this type simply could not weigh the four factors effectively. This means that, when in doubt (which would be most of the time), they would have to err on the side of not getting sued, so they would become very quick to seek and pay for permission. As soon as you pay for a use that could have been fair, you’ve effectively increased the market for that work, and future uses would therefore be less fair. Fair use absolutely atrophies if no one exercises it. In the long run, this would increase the cost of copying, because more uses would require payment for permission. So if you need a bottom-line reason as well as a philosophical one there it is.

Even if we decided that this didn’t matter to us, there’s the whole impossibility of setting up such an outfit. We won’t get more staff to run this thing, and I imagine that even if we were funded and permitted to hire a whole office, we’d have a hard time recruiting copyright whipping-boys-and-girls.

So what can we do? We absolutely have to make compliance as easy as possible or no one will pay attention. But fair use, by far the most crucial and precious part of the whole operation, can only be deployed effectively by well-informed individuals who are weighing uses on a case-by-case basis.

Not only that, but our recent talks with faculty have revealed universal surprise that the library wasn’t checking up on the copyright status of everything being brought in and put on reserve even though it’s stated very clearly on everything we send out every term that it is up to the professor to check this and deliver copyright-cleared copies to us. Clearly, the message just isn’t clear enough or getting to our users at their point of need. Maybe a standard required waiver asking them to check either the box that says this is fair use or the box that says they’ve received permission, followed by a signature? It’s something to consider.

And may I just point out that citing and proper attribution have NOTHING to do with copyright. Aside from who, exactly, is supposed to insure that we’re all following copyright law, this seems to be the single greatest source of confusion on campus. I can’t tell you how often I’ve heard earnest and well-meaning professors, students, and staff tell me how much our educational materials are needed because so many people out there put together PowerPoint presentations or class papers that include images without attribution… You can cite every word, image, or sound and still be in violation of copyright law. You just won’t also be guilty of plagiarism.

While I’m on the subject, guidelines such as the Classroom Guidelines seem wonderful and helpful, but they aren’t failsafes, and they aren’t the law. Believe it or not, there’s no clause in the copyright law that mentions 10% of a book or the idea that you get one free use but have to pay after that. You can still get sued if you use less than 10%, and frequently you’d be just fine using more than 10%. Weighing the four factors is the only way to know for sure. (Luckily the University of Minnesota has created a tool that can help walk you through the four factors. We use it all the time at our college. Thanks UMN!)

Well, that’s enough screaming and pulling-of-hair for one night.

Just as I’m lamenting the current state of Copyright Law, I hear from News.com that Congress, in it’s infinite wisdom, is drafting a revision to current law that would make things much, much worse. If the new draft becomes law, it will become a crime to intend to violate copyright protections. That just smells of Big Brother…

Here’s what the news article says about other changes in the law:

The proposed law scheduled to be introduced by Rep. Smith also does the following:

• Permits wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating “advanced tools of forensic science to investigate” copyright crimes.
• Amends existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.
• • Boosts criminal penalties for copyright infringement originally created by the No Electronic Theft Act of 1997 from five years to 10 years (and 10 years to 20 years for subsequent offenses). The NET Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.
• • Creates civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be “destroyed” or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.
• Says copyright holders can impound “records documenting the manufacture, sale or receipt of items involved in” infringements.

Just when I think it can’t get worse…

Clothing designs and cooking recipes can’t be copyrighted. They’re creative expressions (some more than others). They’re fixed in a tangible form. But there’s a 200-year-old rule that things that are “useful” can’t be regulated. At least, that’s what the New York Times says in their article “OK, Knockoffs, This is War,” which ran on March 30th. I haven’t found any original expression of this “legal principle” yet, but the NYT calls it “outdated in this era of sophisticated mass copying.” They go on to quote a lawyer:

”The whole underpinning of that 200-year-old law of functionality was to promote creativity and innovation,” said Alain Coblence, a lawyer hired by the Council of Fashion Designers and by fashion trade groups in Paris and Milan, which also promote the legislation. ”Yet the situation is exactly the reverse because designers now must ask what is the incentive to innovate if you know your creation is going to be stolen within days and your designs are going to be used before you have a chance to use them for yourself?”

Now, I’m by no means an expert on copyright law, or law of any kind, but I fail to see how this law is “outdated” just because it allows copying. After all, rich people will always buy designer originals rather than knockoffs, and regular people will never buy designer originals. I’m also having trouble imagining what we regular folks would be able to buy once all the clothing designs out there have been copyrighted with rights reserved for a “limited” time of only 120 years. (I’m using the current term length for unpublished works because I don’t know exactly how you would “publish” a dress or a coat.) How will this encourage innovation? I think it would innovate us right out of clothing!

There seem to be two main arguments for increased regulation: copying isn’t “fair,” and “people now have more disposable income” so they can afford the originals. The second reason needs no comment. The first sounds wonderful and all, except that my understanding of copyright law is that it has very little to do with fairness. Plagiarism isn’t “fair,” but unless it violates copyright law it isn’t actually illegal. And from my limited knowledge of fashion knockoffs, they get most of their fame from “citing” the original source. After all, those Oscar dress knockoffs wouldn’t sell very well if they weren’t copies of dresses worn at the Oscars.

Luckily, the NYT seems to be on my side. Author Eric Wilson ends with a quote from Gela Taylor, a designer at Juicy Couture talking about the proposed regulation.
”I don’t think anybody’s naive about this,” Ms. Taylor said. ”Fashion is a strange and ephemeral thing. But this proposal is for people who are not inspired by anything but looking for an easy way to make money.”

Now my question is, isn’t scholarship “useful”?