Laura Young Bost: "What If: Permissions Issues When Moving Book to E-Book (NOTES)"--AAUP10

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Laura Young Bost's notes for her Presentation, "What If: Permissions Issues When Moving Book to E-Book," given at the AAUP Annual Conference 2010.

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Laura Young Bost: "What If: Permissions Issues When Moving Book to E-Book (NOTES)"--AAUP10

  1. 1. June 2010, AAUP meeting; Books to eBooks PERMISSIONS: MY PART OF THIS PRESENTATION IS BASICALLY “WHAT IF?” I am going to talk about eBook rights in the context of permissions, fair use, public domain, false copyright claims, your legal rights, tolerance for risk, and common sense. PERMISSIONS: In the world of eBooks, you should STRONGLY ADVISE YOUR AUTHORS TO ONLY USE AS MUCH THIRD-PARTY COPYRIGHT-PROTECTED CONTENT AS IS ABSOLUTELY ESSENTIAL TO THEIR WORK. Everyone is nervous about eBooks and how easily they might be pirated, deconstructed, or whatever, so permissions tend to be restrictive, eliminating the possibility the book might be made into an eBook such as Kindle, B&N, Google, or iPad. In order to have the most titles available for these programs, you MUST make sure your third-party content permissions are in order. There is no question that SOME third-party copyright-protected material used in scholarly publishing clearly needs permission to be included—it is decorative rather than essential to the author’s work, it is an entire poem or song without scholarly discussion, comment, or criticism, or it is not really relevant to the author’s work. On the other hand, it is also just as certain that some third-party copyright-protected material does NOT need permission because it is “fair use.” Or the material might be in the public domain and not require permission at all. THE TRICK IS TO FIND THE RIGHT BALANCE BETWEEN YOUR AUTHORS GETTING PERMISSION WHEN THEY SHOULD AND NOT GETTING PERMISSION WHEN THEY SHOULDN’T. You should advise your authors to analyze for public domain and fair use BEFORE they request permission. FAIR USE: We usually tell our authors that use of quoted prose material can be “fair use” if it meets the 4-points test. Many authors are under the impression that quotes of less than a certain length are “fair use” – such as 300 words, 500 words, or a thousand words. There is no truth to the “length of quote is fair use” rumor. However, if your authors are careful and a limited amount of text is used in a scholarly way (discussion, comment, criticism), they should NOT be getting permission because it IS “fair use.” While we are talking about “fair use” let’s ask the question: can images, poetry, or song lyrics be “fair use”? Of course they can. Let me tell you my Disney story. Last year, I got a letter from the Disney Publishing Worldwide. It said one of their “Guests” had complained to them that we had published a book containing Disney images without permission. They had no record of having granted permission for this book. While they were SURE this was misinformation, they asked for a copy of the book. I sent them a copy of the book with a short cover letter that
  2. 2. said the images were used in a scholarly book on film studies and were used under the “fair use” provision of copyright law. The book, FROM WALT TO WOODSTOCK by Douglas Brode, has 46 b/w images. The author was very careful in his selection of images, his captions clearly indicated the reason each image was relevant to his book, and we included a statement in the frontmatter that the images were being used as “fair use.” I NEVER HEARD BACK FROM THEM. Now, if Disney has to concede there is such a thing as “fair use,” even for images, then there IS such a thing as “fair use.” UT Press publishes two journals and many books each year on film studies, and we consider all film stills, screen grabs, and publicity photos as “fair use”—a professor of film studies on our faculty board commented that it is really hard to teach film studies without actually using film images. That is the point of the scholarship! We have never had a complaint from a rightsholder (well, other than Disney…). I CANNOT EMPHASIZE THIS ENOUGH: SCHOLARLY PUBLISHERS SHOULD BE ASSERTIVE ABOUT “FAIR USE.” PUBLIC DOMAIN: What if your author found an image in a book published in 1911? Does the author need to ask permission from the publisher? No, of course not. Works published in the USA before 1923 are in the public domain, as are works published between 1923 and 1963 if published with copyright notice and NOT renewed or if published without notice, and so on and so on. In the UT Press Permission FAQs (handout), there is a brief summary of US copyright and a fabulous copyright chart from Peter Hirtle of Cornell (with URL) that will tell you nearly everything you ever wanted to know about copyright status. YOUR AUTHORS SHOULD NOT BE ASKING FOR COPYRIGHT PERMISSION FOR PUBLIC DOMAIN MATERIAL. In just a moment I will talk about grants of permission for images from museums or archives where the original art is in the public domain. FALSE COPYRIGHT CLAIMS: What if your author gets a permission from an archive that claims copyright in something that is in the public domain? I have three examples, out of many, many I have found. “I have received your request for permission to publish the image “XXX in 1917” from the “Smith” archive. As we own copyright to the “Smith” archive, there is a fee in addition to the standard fees charged for publishing images from our collections.” I approved this book for eBook because this is a false claim of copyright ownership on the part of the archive. Another one was “from Author A, 1902. From facsimile edition of Book Title, published 1974 by ABC Publisher. Further reproduction prohibited.” I also approved this one. Another one excluded electronic rights for several photos taken in 1910. Needless to say, I also approved this one. There are many other examples of publishers granting “permission,” sometimes with restrictions, for works published before 1923 or published before 1963 for which the copyright was not renewed. YOUR LEGAL RIGHTS: HOWEVER…
  3. 3. Let’s talk about why authors sometimes seek permission, even if it is possible or even likely they do not need to do so. The main reason is to AVOID DOUBT. The author or publisher may not want to RISK asserting they have OTHER LEGAL AUTHORITY for the use, such as the use is likely “fair use” or the particular material (let’s say an image) is in the public domain, so they request permission. The author then may get a license or grant of permission that includes certain restrictions on what they can and cannot do with the item for which they’ve requested the permission. THIS PRACTICE OF INSISTING AUTHORS HAVE WRITTEN PERMISSION FOR ALL THIRD-PARTY MATERIAL WEAKENS “FAIR USE” AND AS SCHOLARLY PUBLISHERS, WE SHOULD BE ASSERTIVE ABOUT CLAIMING AND USING “FAIR USE.” IF WE DON’T USE IT, WHO WILL? SO… PUBLIC DOMAIN WITH LICENSE RESTRICTIONS: What if your author got permission from a museum or archive to use an image of an object that is clearly in the public domain? Let’s say, for example, the image is of a page from a 13th century codex. The museum or archive sends your author a copy of the codex page but sends along a “license” or agreement that imposes a reproduction or preservation fee, and the museum or archive puts restrictions on the photo’s use, such as “one edition” or “one-time use” or “no electronic or digital reproduction.” Or the license or agreement explicitly states that the author may not do anything else with the image without additional written permission from the museum or archive. Or the license says: “Subsequent use of the material, including reprints or new editions of a publication requires a separate request for permission to publish and payment of additional PRESERVATION fees.” The author signed the agreement. The material is in the public domain. Do you or don’t you? Is it “copyright law” or is it “contract/license law”? Is the photo protected by copyright, in light of the Bridgeman v. Corel court case which ruled that “slavish” reproduction without some originality does not confer copyright on the reproduction? What if the public domain object is a three dimensional one, such as a sculpture or pottery? Is a photo of that more likely to be “creative” and thus have copyright protection? I have consulted with an attorney, Georgia Harper, formerly Copyright attorney for the University of Texas System, about this. Georgia says (with kind permission to quote her…): “A permission from a museum/whatever to use an image for which the USER has OTHER, LEGAL VALID authority to use (such as fair use or public domain) CAN BE IGNORED as to its restrictions UNLESS the agreement between the museum and the user EXPRESSLY indicates that in return for some unique consideration of some kind that only the museum can provide, THE USER EXPRESSLY AGREES TO FOREGO HIS OR HER OTHER RIGHTS TO USE AN IMAGE PROVIDED BY THE MUSEUM, and agrees to use it only in accordance with the museum’s restrictions.” She goes on to say: “But, if one finds that the agreed-to terms of use under the permission are inadequate, and one feels comfortable with the assertion of public domain or fair use status, we have no less authority than the Supreme Court itself for the proposition that requesting permission and even being denied it entirely, TO SAY NOTHING OF GETTING IT WITH RESTRICTIONS, does not impair a fair use claim (Campbell v.
  4. 4. Acuff-Rose). In other words, a “no” or an “ok, but with these restrictions” is only ONE source of authority to use; fair use (and other legal possibilities) remain intact. It is POSSIBLE to agree to give up a right one has, but such giving up of a right has to be very explicitly stated in an enforceable contract. You have to have gotten something from the other party that made it worth it to you to give up a right you have for a privilege that only they can somehow give to you.” Having read about a zillion permissions recently as UT Press cleared books for eBooks, I can tell you “…IT IS UNLIKELY THAT MOST PERMISSIONS GO SO FAR AS TO INCLUDE A NEGOTIATED, CONTRACTUALLY BINDING GIVING UP OF LEGAL RIGHTS TO USE A WORK BY THE USER.” In other words, the license must explicitly state something like “the requester EXPRESSLY WAIVES “FAIR USE,” “PUBLIC DOMAIN,” OR ANY OTHER LEGAL RIGHTS related to the work and EXPRESSLY AGREES NOT TO DO ANYTHING ELSE with the image other than what was requested.” Or it could say something like “You agree not to claim your right to do anything else with this image.” Not one of the permissions I’ve checked has anything remotely resembling this language. It is NOT enough that a permission says “the user agrees to use the image only according to the terms of this agreement.” That phrasing does not WAIVE any other legal rights the user has under the law. This same principle came up recently with regard to “first sale doctrine” and library re- binders that purchase paperback copies and rebind them for the library market. Our UT attorney advised us that to prevent this we would have to add specific language to our sales invoices that said: “Purchaser EXPRESSLY WAIVES any ‘first sale’ rights related to the works and expressly agrees not to sell, give away, assign or otherwise re-convey the works to third parties following receipt of the works without publisher’s prior written approval.”—AND have the buyer sign it! Clearly, that is not a reasonable demand on our part, so we won’t be doing this. TO SUM UP: I want to reiterate that if the requested material is in the public domain or is likely “fair use” and your author requests and receives permission, legally that DOES NOT mean you MUST abide by the terms of any license or agreement a museum, archive, or other rightsholder might have sent to the author. YOU MAY HAVE OTHER LEGAL RIGHTS THAT WOULD ALLOW YOU TO INCLUDE THE MATERIAL IN AN EBOOK WITHOUT ADDITIONAL PERMISSION. SO… Does that mean you are free to ignore all permissions that don’t have explicit language giving up legal rights IF the image or text is public domain or “fair use”? TOLERANCE FOR RISK: THAT, IN LARGE PART, DEPENDS ON YOUR PRESS AND UNIVERSITY TOLERANCE FOR RISK. Legally, you CAN, but whether or not you WILL depends on a number of factors, some of which may lie outside your decision- making authority. For example, if the permission is from the Smithsonian or Art Resource, do you want to alienate the folks at Art Resource or at the Smithsonian who
  5. 5. might never again grant permission to one of your authors? I think it is highly unlikely that the Smithsonian or Art Resource will blacklist your press, but it is a consideration. By the way, is anyone here from the Smithsonian or Art Resource?? COMMON SENSE: Above all, I think we should use common sense to move forward into the digital age. We cannot go back and re-invent the past, contracts or permissions. The reality is that we are moving into a parallel print and post-Gutenberg digital age, and we should do so with confidence and courage. NOW LET’S TALK ABOUT THIRD-PARTY MATERIAL THAT IS CLEARLY STILL PROTECTED BY COPYRIGHT and is not “fair use.” Obviously, many books contain third-party material that is not public domain or “fair use” and your authors DEFINITELY SHOULD be getting permission. WHAT IF THE PERMISSION SAYS: “ONE PUBLICATION” or “ONE EDITION” or “ONE TIME USE” or “ONE FORMAT” or “NO SUBSEQUENT USE”– what do each of these mean? I always take the broadest interpretation possible. ONE PUBLICATION: This would mean the material could not be used in ANOTHER book. On one of our permissions, I found this: “The museum defines ‘one publication’ as a one language edition copyrighted and published under the imprint of one publisher.” So, the material could not be used in a translation or book club edition but COULD BE USED in an eBook. I like this definition. ONE EDITION: This would mean the book as it is published, in whatever format, INCLUDING EBOOK. Another edition would be a second or revised edition. I would approve this for eBook use. ONE TIME USE: This would mean it could not be used in any other context except the book for which it was requested, and I would approve this for eBook use. ONE FORMAT: This pretty much means one format—hardcover or paperback or digital book. This would require additional permission. NO SUBSEQUENT USE: Some possible interpretations are: subsequent editions (such as Second or Revised), other formats (paperback, foreign language, digital or electronic), or use in another book. I think this one depends on what the author asked for in their request for permission—if they asked for 1000 print copies, then the permission is for 1000 print copies. If you don’t know what the author asked for, then make the broadest interpretation possible. WHAT IF THE PERMISSION SAYS: “NO ELECTRONIC (OR DIGITAL) RIGHTS”: This pretty much means no electronic or digital rights. I will tell you that my observation is that university presses were probably the earliest adopters of this restriction. It seems we caught on before anyone else that electronic/digital rights were on the horizon. FOR UNIVERSITY PRESSES, A SUSTAINABLE FUTURE WILL INCLUDE EBOOKS, SO PLEASE DO YOUR PART FOR THE GOOD OF THE COMMUNITY AND INCLUDE E-RIGHTS IN EVERY PERMISSION YOU GRANT TO OTHER
  6. 6. UNIVERSITY PRESS AUTHORS. PLEASE DO NOT RESTRICT ELECTRONIC/DIGITAL RIGHTS!!!!!! WE ALL NEED EBOOKS, SO I PLEASE BE GENEROUS IN YOUR GRANTS OF PERMISSION TO OTHER UNIVERSITY PRESSES. In fact, if you have a permission from the University of Texas Press that restricts electronic use (and we had that in our permission forms for many, many years), you have my personal word that you can IGNORE THAT RESTRICTION. WHAT IF PERMISSION WAS GRANTED WITH NO OBVIOUS RESTRICTIONS, AND NO FEE WAS CHARGED? Do you assume that for electronic, no fee would be charged and go ahead and approve? If the permission does not specifically exclude electronic or digital use, I would approve it for eBooks. WHAT IF: THE BOOK WAS PUBLISHED MANY YEARS AGO AND SOME PERMISSIONS ARE MISSING? I am sure this does not happen to anyone else, but in the unlikely scenario you have published books for which you do not have complete permissions, what do you do? What if a permission is completely missing? What if a permission is not signed? I usually approve these for eBooks on the principle that if anyone objected to the material being included in the book, they would have complained before now. WHAT IF THERE IS NO PERMISSION FROM A POET OR ARTIST, BUT THEY GOT A FREE comp COPY OF THE BOOK? I assume since they got a copy of the book and didn’t complain that they hadn’t given permission, it is OK for eBooks. The permission might not have been formalized with paperwork but is clearly acceptable to the rightsholder. “PORTIONS OF CHAPTER XX PREVIOUSLY PUBLISHED IN “ABC BOOK” by AUTHOR XYZ, BY 123 PUBLISHER, USED BY PERMISSION” or “AN EARLIER VERSION OF CHAPTER XX WAS PUBLISHED, etc.” – is it OK to approve for eBooks? Of course, it depends on how closely the reprinted material matches the original. Often that is very difficult or impossible to tell. I take the broadest interpretation possible, and consider that if the content in our book is not EXACTLY the same as the previously published material, we can approve it for eBooks, EVEN IF THE GRANT OF PERMISSION FROM THE PUBLISHER SAYS “print only” or “one-time use.” WHAT IF: The author requested permission for an ADAPTED figure from a previous publication. The grant of permission says “CLOTH ONLY”. But the figure in your book is NOT exactly the same figure as in the original publication. Do you or don’t you? I would approve these for eBooks, especially if this was an archaeology or anthropology book because for some reason in those disciplines, they seem to freely borrow and adapt from each other. WHAT IF THERE ARE PRINT RUN LIMITATIONS? What if the permission is for 4,000 copies? You’ve sold 1,200 print copies? Can you then add eBook sales until you reach 4,000 copies? What if the permission is for 1,000 copies and you’ve sold 2,500? Do you go back and re-clear the permission? Do you ask your author to go back and re-clear
  7. 7. the permission? Or do you take the common sense approach and not worry about it? I usually approve these for eBooks. WHAT IF THE LICENSE IS VALID FOR XX YEARS LIMITATIONS? This is completely unrealistic in today’s world. I advise you to eliminate this restriction from permissions you grant and, in most cases, not be too concerned about it in permissions you get for your books. I usually approve these for eBooks. WHAT IF THE LICENSE IS VALID IN LIMITED TERRITORIES? This is completely unrealistic in today’s world. I advise you to eliminate this restriction from permissions you grant and, in most cases, not be too concerned about it in permissions you get for your books. I usually approve these for eBooks. WHAT IF THERE ARE EPIGRAPHS? What do you do if there are no permissions for epigraphs? We do not consider epigraphs “fair use.” If the book was published long ago and no one has complained before now, I will usually approve it for eBooks. If it is a new book, I usually do NOT approve it for eBooks. COVERS: I usually do not worry much about permission for cover images. In today’s world, anyone that grants permission for a cover must be aware that the cover will be used in Amazon and Google Book Search which are technically electronic or digital format. We should never accept a limited cover permission. MISCELLANEOUS: WHAT IF THE GRANTING ENTITY IS NOT IN THE USA OR THE PERMISSION IS IN A FOREIGN LANGUAGE? Do the same considerations apply? They should but if the permission is in a foreign language, do you translate it and try to adhere to it as much as possible? Or do you not? What if the particular material is covered by some sort of “national patrimony” such as Mexico has, and even if the material would normally be in the public domain, it is protected by special laws or rules? Use your best judgment—and a good online translation program. WHAT IF: The grant of permission says “the author is granted permission in accordance with the terms of their request” – and you don’t have a copy of the request letter the author sent to them? I assume the author has used our standard request form and without specific restrictions for eBooks would approve it. WHAT IF: The grant of permissions says “This permission shall be subject to the conditions set forth above and on the reverse of this form”—and you don’t have the reverse? This will be a judgment call. If the front of the form details the use, you might not have to be too concerned with what was on the back. If it doesn’t, you will have to decide if it was likely to be restrictive and decide from there. WHAT IF: You publish ethnographies and your author does not have signed releases from third-world country indigenous peoples for interviews or photos? I don’t worry about these unless there is something in the book that could endanger someone portrayed in the book. For example, we publish books on Middle East studies, and I have not approved a couple of titles that portray liberated women where the author had indicated
  8. 8. they did not wish their identities to be revealed in their home country. REQUEST LANGUAGE: I request non-exclusive permission to publish the stipulated material in the original and all subsequent editions and printings of my book and in all foreign language translations published by the University of Texas Press or its licensees. I also request permission to use it in all promotional materials and advertising connected with my work. OLD PERMISSION GRANTS: What if your permissions are from many years ago, when neither requesters nor granters were even thinking of eBooks? I usually approve these for eBooks on the principle that the material has been in our book for many years without complaint. FINALLY, think broadly when interpreting grants of permissions your authors have gotten. And think just as broadly when granting permission, especially to other university presses. Help us all to move forward into the eBook future. Please feel free to contact me if you have any questions. Laura Young Bost lbost@utpress.utexas.edu

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