It’s official: as of yesterday, The UMN Libraries have joined the Google Book Search Project.

The University of Minnesota and 11 other Midwest universities in the Committee on Institutional Cooperation (CIC) have entered into a groundbreaking collective agreement with Google to digitize up to 10 million bound volumes, nearly doubling the number of universities participating in the Google Book Search Project. ...

The contract between Google and the CIC institutions is for six years with an option to renew. Google will fund digitization of up to 10 million volumes in CIC library collections. In turn, each CIC institution will support the costs of retrieving and preparing the books for digitization. The University of Minnesota will contribute up to one million volumes from its University Libraries collections. Prior to the Google Book Library initiative, libraries estimated the costs of digitization at approximately $60 per volume, according to the CIC. Hence, the value of this project to the University of Minnesota could reach $60 million.

It’s been so encouraging to watch this effort continue to grow so much in the short time since I briefed it for CCCC. At a certain point, the momentum and value become unavoidable, even for a suit as large as Authors Guild v Google.

Posted at 12:05 PM | Permalink

You know you’ve reached a new level of copyright geekery when:

• Yochai Benkler replaces Jon Stewart as your Other Smart Boyfriend.
• The concept of heterosexual marriage makes more sense to you in light of the concept of copyright registration. You don’t get full benefits unless you register with the government in either case.

Posted at 10:14 AM | Permalink | Comments (1)

Madeline and Jen both wrote thoughtful comments on my previous post on this topic. If you go look at those before you read the rest of this, it’ll probably make more sense. I was originally going to respond in the comments, but it became too long and so here I am.

If I’m hearing both of them right, it’s identity - and specifically the element of original genius, the uniqueness that an individual brings to their work - that’s bothering them. This is an entirely valid point. However, I think it’s important to examine the fact that this concern is tied to the ways we think about authorship now, in this civilization. It hasn’t always been this way. Most Authorship scholars argue that the notion of original genius is a fairly recent (18th century) development, and that prior to that inspiration (creativity) came from an external source, i.e. the Muse or the Gods. The writer (artists/composer/etc) was said to be subject to fits of divine madness while creating, to literally not be in his own mind. What if we work from this vantage point? Does this make the notion of Author as brand more palatable? It seems to me that under that construct, the person we would call an Author was even more a label associated with a product that s/he was not viewed as directly responsible for.

What if we work from a high poststructuralist perspective? Barthes, in Death of the Author, says the birth of the reader is at the cost of the death of the Author, that once a text enters the world the physical Author ceases to be particularly important in connection with it. ("The Author, when believed in, is always conceived of as the past of his own book: book and Author stand automatically on a single line divided into a before and an after" (145).) In What Is an Author?, Foucault claims the Author is a function with four distinct traits:

• The Author function is linked to the juridical and institutional system that encompasses, determines, and articulates the universe of discourse.
• It does not affect all discourses the same way at all times and in all types of civilization.
• It is not defined by the spontaneous attribution of a discourse to its producer, but rather by a series of specific and complex operations.
• It does not refer purely and simply to a real individual, since it can give rise simulataneously to several selves, to several subjects - positions that can be occupied by different classes of individuals (113).

There’s got plenty more to say about this, of course, but I have an exam in two hours that I've got to get going for. I’ve been struggling with the identity card a lot lately, particularly when it comes to authorship in blogs, with their simple, pseudonymous, anonymous and multi-authored constructs. I followed the poststructuralist line in my thesis, and in the six months since my defense have become more and more unhappy with the way this line of thinking pans out. Any thoughts on how all that works are more than welcome, as is continued discussion of the topic du jour.

Posted at 11:46 AM | Permalink | Comments (1)

(Still more test prep.)

A forthcoming article suggests that authorship is a form of “branding,” much like trademarks. In other words, authors need protection because they invest more than just “originality” in their works. Authorship is about creating an image�much like a brand�and that image should be protected as a trademark. Is authorship more like a brand than it is about creativity?

Authorship is certainly very much like a brand, and has been from the beginning. The Greeks differentiated an Aristotle speech from a Plato speech. Quintilian was concerned about protecting his brand, citing piracy concerns in the introduction to Institutio Oratio. Pliny was very much associated with Naturalis Historia. Today, we talk about the new Joyce Carol Oates novel, the new Tom Wolfe.

Perhaps one of the most striking examples of authorship as brand are the Rowley poems of Thomas Chatterton. Born in 1752, Chatterton is best remembered for a literary hoax. He claimed to have found a series of poems written by a Medieval monk named Thomas Rowley, which he provided to publishers. The work received widespread acclaim, unlike Chatterton’s own poetry. Not much later, it was discovered that Chatterton had written the poems himself and copied them onto parchment he had found in a rectory attic. For a brief time, though, he operated under two distinct authorial brands, one successful and one not. His “own” work never found popular success, and he committed suicide at 17. Chatterton was an icon to the Romantics, and is still a subject of study � but primarily for the Rowley works, not the writing he did as himself.

Modern and contemporary authors have also employed dual identities, albeit for less mendacious purposes; for instance, Stephen King is also Richard Bachman. King, who is very much a horror brand, is a much higher seller than Bachman, who holds the distinction of authorial credit for The Running Man. He wrote as Bachman during his early career because he felt that the public would only accept one book a year from an author and he wanted to publish two.

However, I don’t think that we can divorce branding from creativity. Without creativity there is no brand. Without an original, well-crafted story, nobody cares who the author is. The author’s unique creative voice is what we look for, and so we expect a different brand of creativity from Oates than we do from King, and a still different sort of creativity from Wolfe. Woodmansee defines the modern author as originary, proprietary, and solitary, and I would argue that ‘originary’ is perhaps the most crucial element of the bunch.

Posted at 8:41 PM | Permalink | Comments (4)

(More test prep.)

Can open source models serve as viable substitutes for copyright’s goals?

I’m assuming that we’re using “open source” to refer to specifically to non-proprietary source code models. And I’m also assuming that we accept that copyright’s goals are delineated in Title 17 and Section 106, as outlined in my post on Technology and Copyright. Assuming all of that, I would say that open source partially fulfills copyright’s goals. Open source makes the source code for a program public, and it requires that all changes to the code be re-released in a reciprocal manner. This spirit of reciprocity drives the progress of open source applications, since volunteer coders push them forward with new, innovative hacks. As such, it does fully promote progress and protect the commons.

Open-source licenses (particularly the GNU license) protect the author to an extent, since they allow individuals to profit from their contributions while at the same time contributing to the commons. They do not, however, secure Section 106 rights for programmers. This should not necessarily be construed as a failure of open-source, though. Instead, we should consider whether the standard rights are appropriate for an innovation commons like the Internet. 106 rights were developed for print, as was the rest of the code � the very same code that treats software as literature. Perhaps the standard rights to distribution, derivative works, performance and display are neither appropriate nor necessary in this instance. Software is certainly a prevalent enough force in our economy that it deserves to be considered as what it is, with its own section of code that addresses its unique concerns.

Posted at 9:57 PM | Permalink | Comments (1)

(Still working on test prep.)

What major changes to copyright’s basic structure would you recommend and why?

As an academic who studies the commons and who watches countless colleagues wrestle with copyright issues, I’m most concerned with orphaned works. This is, of course, intertwined with duration, which is something I’m conflicted about. Eldred seriously began the debate about our current duration periods, and life plus 70 years is, from the perspective of a commons scholar or advocate, an absurd period of time. A return to the 1790 term of 14 years with the possibility of a 14-year renewal is commonly advocated by copyleft activists. I myself have argued for it in seminars. However, it recently occurred to me that this argument fails to account for the fact that the average lifespan in the 18th century was around 37 years, which meant that if you produced a copyrightable work when you were twenty, the copyright could potentially outlive you. One might reasonably argue that the founders created such a limit to ensure that if the copyright holder produced a profitable work and was scrupulous about filing for renewal, he would be potentially set for life. Shouldn’t today’s copyright holders enjoy similar security? If you truly produce a popular, heartbreaking work of staggering genius, shouldn’t you be able to live out the rest of your days comfortably? Perhaps, then, a term that lasts for the life of the author might be appropriate today*.

While this would be an improvement over current duration periods, it still slows the flow of works to the commons. This is where orphaned works become vital. Simply: Why bother to protect works that aren’t available, salable, or even claimed by their creators? Such works would previously have fallen into the public domain due to failure to renew their copyright, but the Berne Convention removed formalities from the American copyright landscape. Kahle argues that this removal of formalities has been detrimental to the public domain. The plantiff argues that 85% of protected works would never have been renewed when their term expired and yet are afforded protection under BCIA duration. The suit asks that out of print (�orphaned�) materials be returned to the public domain and that the registration formality be reinstated. This change would greatly enrich the public domain, making a wealth of material available for study and restoring some sense of balance in the wake of the Bono Act. The opening brief for Kahle was filed a week ago, so we shall see.

* I’m not saying that we should ditch notions about shorter terms, but I do think that sometimes adequate compensation for creators gets lost in copyfight discourse.
**It’s worth noting that both of these arguments are particularly American, since they fail to take into account European concerns about moral rights or IP problems faced by developing economies who are trying to build their own creative wealth while complying with Berne and TRIPS.

Posted at 8:54 PM | Permalink | Comments (1)

(I’m working through a set of preparatory questions as I ready myself for an oral exam on Friday.)

What are the major functions of copyright law and in what way have new technologies transformed those functions?

Copyright�s original primary functions were twofold: to promote progress and to protect the Commons. These functions are codified in Title 17: “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In the 1790 code, the Founders promoted a limited monopoly that would encourage production of creative and scientific works, which would in turn enrich the information commons of a foundling nation.

In the 20th century, copyright was largely reinterpreted (in practice, if not in fact) as protection of the author, whether simple or complex. Section 106 secures specific rights for the Author: the right to reproduction, the right to prepare derivative works, the right to distribution, and the rights to public display and performance. The incremental increase of duration terms has reinforced the notion that copyright exists to protect the creator, not the commons.

I wouldn’t say that new technologies have transformed the functions of copyright. Rather, I might suggest that new technologies have reminded us of the original functions of copyright, and are pushing us to reconsider what it has become. Technological developments have transformed the physical nature of content and the means of production, most obviously for works that exist in digital spaces. Digital works facilitate reproduction and derivative works in ways that previous forms didn‛t. It is easier to rip-mix-burn, to left-click-save-as, than it ever was to reproduce a hard copy, and digital reproductions don’t suffer the loss of quality that analog reproductions did. Thus, we’ve been forced to start reconsidering the extent of protection afforded the creator, and how we make something that was developed for print work for something that isn�t really print. Software ain’t literature, but we’re still trying to legislate it as if it were. Are the periods of duration that we found reasonable for print still reasonable when digital reproductions are needed? Is the digital Author the same as the print Author? Both Authors have to eat, so how do we distinguish between them when it comes to rights? Should we distinguish between them at all?, if we want to promote progress in the digital commons? Should code be closed? Should mash-ups be permissible, and is repressing them denial of free speech? What about nonprofit bloggers who want to reproduce art on their blogs as homage?

Technology has not transformed the functions of copyright, but it has transformed the dialogue surrounding it. Eventually, it will transform the policy. In order to do that, the dialogue will continue on for quite some time.

Posted at 8:47 PM | Permalink

Languagehat links to a New York Times report on Pearson’s fair use suit against Little, Brown. The suit claims that Yiddish with Dick and Jane, which discusses adultery, drug use, and other adult issues, is not a parody and therefore an infringement:

The book, by Ellis Weiner and Barbara Davilman, with illustrations by Gabi Payn, states on the front and back covers, spine and copyright page that it is a parody. But the lawsuit says the book "is not a parody, but is an unprotected imitation" because it does not use the copyrighted characters "for the purpose of social criticism."

Posted at 12:25 PM | Permalink

If you happen to be a copyright history geek, Patterson‛s Copyright in Historical Perspective is absolutely it for an overview of events from the 1484 Statute to the mid-nineteenth century. I‛m still working my way through it, but am mightily impressed. I suspect that if one read it back-to-back with Mark Rose‛s Authors and Owners one would have a fairly good handle on the invention and development of formal copyright and authorship. (Or I hope so, because that‛s more or less what I‛ve done, in addition to various articles.)

One thing you don‛t usually see addressed in IP history texts is the oral-aural distribution of knowledge in preliterate societies and the eventual shift to containment of knowledge in medieval scripts, which began to shift information flows. I‛ve done a little reading on this for my current history project, but need to know so much more. This is the reason for my sudden interest in book history (and Ong and Havelock), and I hope to read more on that this summer.

Posted at 10:20 AM | Permalink

Sometimes you read something that, while it doesn‛t say anything new, says something better than the stuff you‛ve read before. I‛ve been thinking a lot about oppositional copyfight discourse lately, and then I ran across this quote from John Blossom several days ago in Open Access News:

Copyright can be the starting point of a dialogue rather than an impermeable barrier, a concept promoted by the Creative Commons approach to content licensing. When copyright becomes viewed as a right to discuss a relationship on one‛s own terms rather than a demand to avoid relationships, copyrighted content will find its way into more useful venues more quickly - with monetization to follow....Copyright is a tool born of the industrial age that is struggling to find its place in a post-industrial era. Copyrighting has allowed intellectual property to flourish for centuries, but as the factors supporting the flourishing of intellectual property shift so must our approach to copyright management. It‛s a useful tool that has not outgrown its usefulness, but one whose core value is shifting rapidly in an era of open access to content.

Posted at 10:18 AM | Permalink

Tagging a couple of older things here so I won't lose them:

Collin on "Mecology Revisited"
Knowledge Management: Social Network Analysis (I'm not sure where this one came from, but I suspect I nabbed it from Ton Zijlstra.)
Intellectual Property and the National Information Infrastructure: A Report of the Working Group on Intellectual Property Rights (Statement of Bruce Lehman. Pointed out to me by John Logie.)

Update: Also Johndan Johnson-Eilola's After Hypertext.

Posted at 8:41 AM | Permalink | Comments (1)