From The Register:

Have you ever uploaded a photo to Facebook, Instagram or Flickr?

If so, you’ll probably want to read this, because the rules on who can exploit your work have now changed radically, overnight.

Amateur and professional illustrators and photographers alike will find themselves ensnared by the changes, the result of lobbying by Silicon Valley and radical bureaucrats and academics. The changes are enacted in the sprawling Enterprise and Regulatory Reform Act which received Royal Assent last week, and it marks a huge shift in power away from citizens and towards large US corporations.

How so? Previously, and in most of the world today, ownership of your creation is automatic, and legally considered to be an individual’s property. That’s enshrined in the Berne Convention and other international treaties, where it’s considered to be a basic human right. What this means in practice is that you can go after somebody who exploits it without your permission – even if pursuing them is cumbersome and expensive.

. . . .

The Act contains changes to UK copyright law which permit the commercial exploitation of images where information identifying the owner is missing, so-called “orphan works”, by placing the work into what’s known as “extended collective licensing” schemes. Since most digital images on the internet today are orphans – the metadata is missing or has been stripped by a large organisation – millions of photographs and illustrations are swept into such schemes.

For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work – the user only needs to perform a “diligent search”. But since this is likely to come up with a blank, they can proceed with impunity. The Act states that a user of a work can act as if they are the owner of the work (which should be you) if they’re given permission to do so by the Secretary of State.

The Act also fails to prohibit sub-licensing, meaning that once somebody has your work, they can wholesale it. This gives the green light to a new content-scraping industry, an industry that doesn’t have to pay the originator a penny. Such is the consequence of “rebalancing copyright”, in reality.

Link to the rest at The Register and thanks to Craig for the tip.

From The Guardian:

“My brain,” as one reader put it rather dramatically, “fell over at the thought of selling ‘used’ ebooks”. He wasn’t the only one. The reaction to the news earlier this year that Amazon had a patent to sell secondhand ebooks was almost universally strong: it could ruin authors’ livelihoods, said some commenters. It was dangerous for publishers, said others. It’s just boggling my mind, said most.

. . . .

It used to be that a book was published, and that was it. Permanent, physical, tangible, it could be referred to for as long as the copy survived. That’s not the case any more. We live in a world where page numbers – if they exist at all – don’t correlate from device to device, where digital text can be updated at the touch of a button, where the ebooks we own can vanish without our say-so. It’s something which is becoming a real issue, particularly for academics.

“I think it is a very grave problem,” says Robert Darnton, scholar, author and Harvard University librarian. “If you’re citing a digital version of a book, often you can’t cite the pages.” He adds that that documents have always been slippery – “there’s no definitive text of King Lear” – but the ease with which it is now possible to make changes to published ebooks means “you take a problem like that, multiply it by 1,000, and that is the world we are in.”

. . . .

He also worries about what the possibility to update ebooks will mean for quality. “For authors, the printed book means you’ve finished and that’s the final format – you can’t keep revisiting it,” he says. “You want the author to know this is the final version. If authors have 10 bites of the cherry, will they concentrate as hard as if they think it’s the final version? There’s a feeling with the web that you can put something up there, and people can change it. One of the advantages of books is that they’re permanent.”

The ability to update ebooks is there, however. “Publishers can make changes to their books and send us updated files any time,” says an Amazon spokesperson.

Link to the rest at The Guardian and thanks to Abel for the tip.

Disruptive technology change is, well, disruptive. For a lot of people. That doesn’t stop it from occurring.

PG will repeat his caution that watching published patent applications or issued patents is one of the worst ways to predict the future technology moves of a tech company. You’ll collect better information sitting in a bar near the company’s headquarters.

He will also observe that, speaking generally, Amazon is treating authors better than almost anyone else these days.

Predicting that the company will suddenly tear off its mask and be revealed as a great oppressor of authors is a pastime undertaken chiefly by publishers, agents and their fellow-travelers whose businesses and lives are being disrupted by today’s Amazon.

From Dr. Kevin Smith, Duke University’s Scholarly Communications Officer, whose principal role is to teach and advise faculty, administrators and students about copyright, intellectual property licensing and scholarly publishing.:

It was a rather embarrassing moment.  I was in a meeting with other copyright specialists from academic libraries when I received the email telling me that my article with Taylor & Francis had been published.  Before I could stop myself, I expressed my surprise out loud, then had to explain to my colleagues that I had just had an article published in a library science journal published by Taylor & Francis, and that I was not expecting it.

. . . .

[D]ue to their archaic authors’ rights policies, this is not a publisher with whom I would have chosen to do business or encouraged authors who consulted me to use.

. . . .

The story began when I gave a talk at the 2012 conference of NASIG, the North American Serials Interest Group.

. . . .

I signed an agreement, as a “Vision” speaker (kind of ironic), allowing my talk to be mechanically recorded and also agreeing that a human “recorder” would write up what I said for an article for The Serials Librarian.  In due time, that reporter sent me a copy of the article and I agreed that it was a good representation of the talk I had given, ready to be published.  Not until the article was published did I realize that The Serials Librarian was a Taylor & Francis journal, and to the best of my recollection I never signed a copyright transfer agreement with T & F.

. . . .

So the first lesson is obvious — be careful what you sign.  More careful than I was.  I should have determined who the publisher was and made an intentional decision before I signed that agreement about what would be done with the article that resulted from my talk.  It is quite likely that I would have agreed even after that small bit of research, since the article was actually written by someone else (as, I suppose, a derivative work from my original talk), and I had no further plans to use it in any way.  What I often tell authors is to consider the agreement they are presented with in light of their own plans and hopes for their work, and transfer or license rights in a way consistent with those plans.  If the agreements allow one to meet those goals, well and good; if they do not, negotiation is called for.  The decision should rest with the author.  In the experience I had, I did not make that decision in an informed way, and that, rather than the ultimate result, was the problem.

. . . .

Joint authorship arises, of course, whenever two or more people each contribute original expression with the intent of creating a unified work.  In the case of my talk, my original expression was fixed in the PowerPoint slides and notes that I had made.  Recorder Susan Davis then created a derivative work from that original, adding a great deal of her own original expression.  Once I had indicated my assent to that process, she and I became joint authors.  Like all joint authors, we each hold an equal and undivided share in the copyright, and are each entitled to exercise the exclusive rights granted by copyright, subject only to a duty to account to each other for any profits (which I don’t expect, in this case).  Because of this situation, if Susan signed a copyright transfer agreement for publication of the article, she was perfectly entitled to do so.  And because of the potential that fact has to create misunderstandings and surprises for other joint authors, it illustrates how important it is in general that joint authors agree in advance, whenever possible, about how their shared work will be used, licensed and made public.

Link to the rest at Scholarly Communications@Duke and thanks to Matthew for the tip.

Passive Guy is not an expert on scholarly publishing, but it is his understanding that typically, academic journals require that the author transfer copyright to the publisher, a practice that is seldom found in other publishing areas.

In PG’s obstreperously humble opinion, this is a barbaric practice and one more reason why traditional scholarly publications should be replaced by open-source publications as soon as possible.

Among other things, unless the author is careful in his/her negotiations, the copyright transfer may mean the publisher can modify the author’s writings without obtaining approval from the author, that the publisher need not acknowledge that the author is the author in its publication and/or the author cannot post the work on his/her own website or reprint it for distribution to colleagues or students.

From PatentlyO:

In 1990, ITC Chief Judge Donald Duvall published his treatise titled Unfair Competition and the ITC: Actions Before the International Trade Commission under Section 337 of the Tariff Act of 1930. He assigned legal title to the copyright to Clark Boardman Pub. (later purchased by Thompson Reuters) and continued to update the treatise on an annual basis. Judge Duvall died in 1999 and his right to royalty (beneficial title) passed to his widow, Kathryn Duvall.

Attorneys at Kenyon & Kenyon took over the annual updates and, as part of a royalty agreement, Ms. Duvall continued to receive annual royalties on sales of new versions of the book.

. . . .

In 2012, however, Judge Duvall’s name was removed from the publication and the publisher ceased making any royalty payments to Ms. Duvall.

. . . .

Ms. Duval has now sued Kenyon & Kenyon and the newly listed authors – alleging copyright infringement, declaratory judgment of authorship, illegal contract (between Kenyon & the publisher), breach of contract, breach of implied duty of good faith and fair dealings, civil conspiracy, interference with contract, and accounting for past royalties.

Link to the rest at PatentlyO and thanks to Joshua for the tip.

The case is still not over, but one lesson is that an author should hold onto his/her copyright and never assign it to a publisher.

From the CBC:

Some universities no longer feel the need to pay for the services of Access Copyright which has provided a pool of protected intellectual work for almost two decades while distributing royalties to the writers, artists and publishers it represents

A group of universities are now opting to navigate the world of intellectual property rights without a middle agent.

. . . .

Access Copyright is claiming Toronto’s York University, which opted out, has improperly been reproducing and authorizing the copying of protected works.

. . . .

Those institutions wouldn’t have to pay the tariff if they have direct licence agreements with publishers, use openly accessible work or copy a portion of a work small enough to be considered “fair dealing.”

. . . .

“At the end of the day, if Access Copyright is successful — although I have to say that based on where the law is at, that seems unlikely — we’re talking about millions and millions of dollars being paid by taxpayers to this group,” said Michael Geist, a University of Ottawa law professor who is an expert on intellectual property.

“The goal here is to scare post-secondary institutions into signing the licence.”

. . . .

The deal, effective until December 2015, requires institutions to pay the collective $26 per full-time equivalent student annually — an increase from a previous rate of $3.38 per full-time equivalent student plus a 10-cents-per-page royalty for copying protected works.

Link to the rest at CBC

From The Digital Reader:

France’s national digitization project moved one step closer to fruition this week with the release of a list of 60,000 out of print works to be digitized and released as commercial ebooks.

The list is the work of ReLIRE, a new division of the Bibliothèque National de France. ReLire was created and authorized by the French Parliament in February 2012 with the purpose of identifying out of print titles from the the 20th century, digitizing them, and getting them back into the market.

The list of titles that was released this week is merely the first of the works that could be digitized, and ReLire will likely be releasing new lists in the future.

. . . .

{T]he list that was released this week includes works not just by French authors and illustrators, but also works by a number of American SF authors.  The list is garbled and a little hard to navigate, but one eagle-eyed blogger noticed that there is at least one anthology of translated SF stories included, and after a little digging she identified the authors who had contributed:

• George Alec Effinger : La guerre à finir toutes les guerres (All The Last Wars At Once)
• James Sallis : Ceux qui font l’histoire (The History Makers)
• Harlan Ellison : Toute une vie, dont une enfance pauvre (One Life, Furnished in Early Poverty)
• Robert Silverberg : Dans les crocs de l’entropie (In Entropy’s Jaws)
• Gordon Eklund : Memphis, par un été torride (White Summer in Memphis)
• R. A. Lafferty : Grinçantes charnières du monde (Groaning Hinges of the World)
• Ursula K. Le Guin : Ceux qui partent d’Omelas, variations sur un thème de William James (The Ones Who Walk Away From Omelas)
• Gene Wolfe : La mort du doctor Ile (The Death of Doctor Island)
• Roger Zelazny : Nuit sans lune à Byzance (Moonless in Byzantium)
• James Tiptree, Jr. : Le plan est l’amour, le plan est la mort (Love Is the Plan the Plan Is Death)
• Samuel R. Delany : Le temps considéré comme une hélice de pierres semi-précieuses (Time Considered as a Helix of Semi-Precious Stones)
• Vonda McIntyre : De source, sève et sable (Of Mist, and Grass, and Sand)

. . . .

Come September 2013, any unclaimed title still on the list will be made available as an ebook. Any revenue from sales will be managed on behalf of the copyright holder by a collection society. It’s not clear to me exactly how an author would go about getting the money that is held for them, but it is clear that compensating the creator is part of the plan.

Link to the rest at The Digital Reader

From PC Magazine, something for copyright geeks:

An appeals court today ruled that streaming startup Aereo is within its rights to stream broadcast TV over the Internet.

The U.S. Court of Appeals for the Second Circuit found that Aereo is not infringing on the copyrights of broadcasters like Fox, ABC, CBS, and more.

Aereo, which is backed by IAC Chairman Barry Diller, manufactures tiny HDTV antennas and then stores the content they capture on remote servers. Aereo serves a single market – New York City – and provides access to NBC, ABC, CBS, Fox, the CW, and other local channels. Users can record shows, and don’t need to purchase or install any equipment.

. . . .

“We conclude that Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not ‘public performances’ of the [broadcasters'] copyrighted works under Cablevision,” the appeals court ruled.

. . . .

Today’s decision focused on the 2008 battle between Cablevision and various content holders, which accused the cable network of violating copyrights with its DVR. In that case, DVR functionalities were found not to constitute copyright infringement.

The appeals court said that an injunction against Aereo could only be approved if the broadcasters could prove that Aereo infringed on their public performance rights. But in examining the issue, the panel ruled that since Aereo provides content on a per subscriber basis rather than to the public at large, “the transmission is not a public performance.”

“When an Aereo customer elects to watch or record a program using either the ‘Watch’ or ‘Record’ features, Aereo’s system creates a unique copy of that program on a portion of a hard drive assigned only to that Aereo user,” the ruling said. “And when an Aereo user chooses to watch the recorded program, whether (nearly) live or days after the program has aired, the transmission sent by Aereo and received by that user is generated from that unique copy. No other Aereo user can ever receive a transmission from that copy. Thus, just as in Cablevision, the potential audience of each Aereo transmission is the single user who requested that a program be recorded.”

Link to the rest at PC Magazine

Aereo actually has one physical antenna (a tiny one) for each subscriber. Here’s a link to an article on GigaOm that talks about the decision and how Aereo designed its system around copyright law.

From Digital Book World:

ReDigi, the online service that allows users to buy and sell used digital content, violates copyright, a federal judge ruled today in New York. The highly anticipated decision in this case is thought to have wide-ranging ramifications for the ebook marketplace.

“ReDigi vicariously infringed Capitol’s copyrights,” said U.S. District Judge Richard Sullivan in his decision. In a statement to the court, ReDigi contended that the company’s technology did not make copies of any content.

The decision essentially makes it illegal to sell previously purchased digital content.

Link to the rest at Digital Book World

From Slate:

Is Sherlock Holmes in the public domain? In the United States, at least, it’s a somewhat tricky question—one that may soon be settled in court. Lawyer and Holmes scholar Leslie S. Klinger has sued the estate, which insisted that he pay a fee to them in order to publish a collection of short stories called In the Company of Sherlock Holmes.  One of the authors wanted to use a character from the 1924 Holmes story “The Adventure of the Illustrious Client.” The copyright to works published before 1923 have expired in the U.S., but since that story appeared after that date, Klinger asked the author in question to speak to the Conan Doyle estate.

The estate insisted that Klinger needed to license the whole book, and threatened to stop Amazon, Barnes & Noble, and other large companies from selling the book if he didn’t comply. Klinger and his coeditor, Laurie King, previously paid a $5,000 licensing fee to publish A Study in Sherlock, but they decided not to give in this time around.  The Conan Doyle estate is known for aggressively pursuing copyright claims, and most people looking to use the character—including the creators of the TV shows Sherlock and Elementary and the producers of the updated Sherlock Holmes movies—have paid licensing fees.

. . . .

Klinger’s lawsuit is a preemptive measure: If he wins he won’t have to pay a licensing fee for his book, and neither will other fans hoping to use Holmes and Watson in their own work. Klinger’s argument is that the famous Sherlock Holmes story elements—including Holmes’ deductive skills, his friendship with Watson, and his frequent disguises—mostlyappear in pre-1923 stories and have thus passed into public domain with the earlier stories.  The estate maintains that the character as a whole remains under copyright until all of the stories are in the public domain. As the Estate’s lawyer, Benjamin Allison, toldThe New York Times last week, “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”

. . . .

“Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly,” Tormey said. “Allowing subsequent character-tweaks to resuscitate otherwise dead copyrights in stories would diminish predictability of result while encouraging chaos and overstatement of rights. Conan Doyle is dead. It’s not like he’s going to be offended by new writers putting Sherlock Holmes in new situations.”

Link to the rest at Slate and thanks to L for the tip.

From The Hollywood Reporter:

For nearly a century, the masked outlaw Zorro has been a popular character who, in books and films, has been featured defending against tyrannical villains who seek to oppress the masses. Zorro has been played by Douglas Fairbanks, Antonio Banderas and others. Next year, 20th Century Fox is scheduled to release Zorro Reborn, starring Gael Garcia Bernal.

. . . .

On Wednesday, a lawsuit was filed that asserts that Zorro is in the public domain, that trademarks on the character should be canceled and that the company currently professing rights on Zorro has perpetrated a fraud and that the masses should be able to exploit Zorro as they wish.

According to complaint, “Defendants have built a licensing empire out of smoke and mirrors.”

The lawsuit, filed in Washington federal court, comes from Robert Cabell, who says that in 1996, he published a musical entitled “Z — The Musical of Zorro,” that’s based upon author Johnston McCulley‘s first Zorro story published in 1919 and the Fairbanks film that was released the following year.

. . . .

“Specifically,” says the lawsuit, “Defendants have fraudulently obtained federal trademark registrations for various Zorro marks and falsely assert those registrations to impermissibly extend intellectual property protection over material for which all copyrights have expired. Defendants also fraudulently assert that copyrights for later-published material provide defendants with exclusive rights in the elements of the 1919 story and the 1920 film.”

. . . .

In a 2001 decision, in a footnote, a federal judge said, “It is undisputed that Zorro appears in works whose copyrights have already expired, such as McCulley’s story The Curse of Capistrano and Fairbanks’s movie, The Mark of Zorro.”

Link to the rest at The Hollywood Reporter and thanks to BS for the tip.