Transcript: Innovator’s Guide to Copyright

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Interview with Skott Klebe, Copyright Clearance Center

For podcast release Monday, May 28, 2012

KENNEALLY: In the new-fangled digital world, what every author and publisher needs is a good old-fashioned copyright. At least that’s the view of my next guest, who will speak at BookExpo America on Wednesday, June 6th about how and why copyright applies to a range of important issues facing new media and new content delivery methods.

Welcome, everyone, to Copyright Clearance Center’s podcast series. My name is Christopher Kenneally. And in 2012, e-books, multimedia applications, the cloud and other online publishing platforms have forced publishers and authors to review how they apply copyrights in order to protect their published works. Intellectual property law in the U.S. and elsewhere is also grappling with how the borderless Internet maps to the territoriality of copyright.

Joining me today on Beyond the Book with a preview of his BEA presentation, “An Innovator’s Guide to Copyright,” is Skott Klebe. Scott, welcome to Beyond to Book.

KLEBE: Happy to be here, Chris.

KENNEALLY: Well, it’s nice to see you again. We did this last time you were at BEA, in 2011, giving a presentation there. It was about the e-book wars, as I recall. And you’re joining us again with another focus on innovation and new media.

We’ll tell people why that makes sense for what you do. You’re my colleague here at Copyright Clearance Center, where you are Manager of Special Initiatives. And you’ve worked in copyright and licensing technology for more than 15 years. You were the architect of RightsLink, Copyright Clearance Center’s point-of-content licensing system and you’re the inventor of several patents in the fields of content and licensing, so you’ve got the innovative piece of you here today as well as the copyright guru and licensing expert.

And so I want to start by asking you about your thoughts, Skott, on the relationship of technologists and innovators to the entire notion of copyright. Are they friends? Are they frenemies? Or are they gladiators locked in mortal combat?

KLEBE: It’s an interesting way – All those are different and interesting perspectives on the question, and I think you can see aspects of all of those in the way that things have played out. Certainly, when I first came as a technologist into the field of copyright, it was almost like I was in a foreign country, driving and not knowing the rules of the road. My car was like a car and the roads were like roads, but I kept seeing things pop up that didn’t fit with what I expected, where the rules of copyright didn’t mesh with what my intuitions about them as a technologist would suggest them to be.

So over time – all these years of working closely with copyright lawyers and in the fields of licensing, I’ve built up sort of an internal conversion guide – a translation, if you would, between the way that a technologist thinks and the way that you have to think when you’re trying to stay within the bounds of what copyright would offer.

KENNEALLY: Well, and one of the things about copyright and innovation or technology is that it seems as if copyright is always trying to catch up with technology. Technology moves awfully fast. Copyright, by its nature, is something that requires an act of Congress to really be changed. So it’s going to take longer.

KLEBE: Right. Well, and I think you could take it a lot further back than that, even before Congress got involved because copyright, from its beginning, has been a long history of the legal systems of whatever country trying to catch up to those crazy things that the technology innovators would do – like originally it was the printing press.

And initially, rulers didn’t like the printing press because it meant that anybody could make copies of whatever documents they wanted to, so the first sort of laws around sort of reproduction of textual material were an attempt to control them – to license them to make sure that the printers only printed what the rulers wanted to.

So over time you have – a lot of the genuine movement toward free speech has been driven by this sort of reprographic technology, starting with digital – starting with movable type and up to today’s advanced tools for laying out and flowing and even reproducing vast amounts of copies without anyone’s hands touching them.

KENNEALLY: Right. Well, we live and breathe copyright here at Copyright Clearance Center. It’s practically in the water we drink. But for a lot of people listening today, they know the word, obviously, but they may need a little bit of a rundown on what exactly copyright protects. Can you remind us all – what are some of the things that get copyright protection?

KLEBE: Oh, the rule of thumb is that copyright protects original works of authorship that are expressed in a fixed form. So if we were simply like doing – you and I were doing like an improve routine in the public square, say, with a bunch of people in the audience there, it wouldn’t really be protected until it was, say, recorded, but anything that can be recorded in a fixed form, from – like a literary work is one of the terms, but that doesn’t include just like, say, the novels of Nabokov.

In copyright terminology, a literary work is really like anything that can be recorded as symbols with meaning on a page, sort of, so it includes not just fiction but poetry, the nonfiction. And even the source code for software is protected by copyright. And of course other obvious examples are music, artistic works – paintings and sculpture – dramatic works – plays – choreography. And then the most modern works would be things like motion pictures and recordings of music or sound or whatever.

KENNEALLY: Well, you mentioned the copyright protection for software. What about for databases – what’s the status on that today?

KLEBE: Databases are a very interesting case, because it’s certainly possible for something that might be called a database to have some originality, some expression. But the bar is relatively high. A simply – list of facts or an alphabetized list of something wouldn’t receive that protection.

The key case in this regard was about a phonebook in North Carolina. It was – Feist v. Rural is the name of the case – and it was a case in which the fact of the copying was absolutely established – that the maker of the phonebook had included phony directory entries for people – for listings that didn’t exist – and those listings were reproduced in the copy of this phone directory. But this went all the way to the Supreme Court, and it was established that the mere fact of copying was not enough to prove infringement in this case.

In the case of database copyright, there has to be some sort of decision – some sort of authoring or editing of it, something more like a collection of articles that were selected on a particular topic or a collection, perhaps, even of recipes – ordinarily not copyrightable but that were expressive like, say, a collection of the foods of Tuscany or something like that, which might, with careful selection, be something that would rise to that level.

KENNEALLY: So some originality is required. And once we have copyright protection, what does that enable an author or a publisher to do? I mean we all know about making the book available in Barnes and Noble or on Amazon. But it’s really much more than that. Briefly, what’s that all about?

KLEBE: Oh, the key fact about copyright is that it begins by belonging to the person who is the creator. So eventually, when we, as book readers or music buyers – when we’re thinking about copyright, it’s something that’s existing because it’s on the book or the CD that we’ve received. But it started with a creator, in most cases.

And so what happens there is that the creator, having that sort of monopoly on these exclusive rights to the content that copyright provides, sells – licenses some of those rights to a publisher or a distributor or whatever in order to – you know, for – what monetary gain, for the help in promoting it or whatever – and, as a result, is either able or not able to sell other rights to other people for the same things.

KENNEALLY: So the copyright provides, I think in some of the terminology, an incentive to the creators so they can realize some benefit. And as you point out, the benefit does not necessarily have to be a monetary benefit. It can be about reputation or something like that.

KLEBE: Exactly. In some cases, an author might convey copyright in order to receive the prestige of being published by some like this – this is something that rarely or never happens in fiction, but in some kinds of scholarly publishing, it’s quite common.

Another point – I sort of breezed by the topic of exclusive rights. And especially in today’s new publishing market, in which authors are going direct to the Amazons, the Barnes and Nobles, the Apple iBookstore and so on, there’s a real structural difference in how that publishing is occurring with respect to copyright.

If you’re an author in the traditional model, working with a big six publisher or even an indie publishing house, what you’re doing in general is that you’re selling a part of your exclusive right to reproduce your content to the publisher, who then becomes a holder of that exclusive right.

So what is an exclusive right? It’s not like we might think of like an exclusive meaning the first person to report a piece of news or an exclusive meaning the only place you can buy something. In the terminology of copyright, an exclusive right means that you have the right to exclude other people from doing something.

So when you’re conveying part of your exclusive right to reproduce your copyrighted work to your big publishing partner, you’re enabling that partner to sue, for instance, on your behalf to prevent unauthorized copies. And depending on the terms you might see in your Kindle – or publishing or digital publishing agreement where you’re not working with a traditional publisher, you might be holding on to that exclusive right yourself.

KENNEALLY: Well, I think that’s a really important point. And it’s BookExpo America – it’s the country’s largest book trade fair. But we’re hearing a lot about self-publishing. There’ll be a number of programs presenting on various aspects of self-publishing. There’ll be self-published authors there.

This whole notion of copyright is tied up in this discussion because, once you have that copyright, it enables you as a publisher/author to go about your business. But with the right comes responsibilities. You are now responsible not only for creating the work, but for distributing it and doing all those things, all of which rests on copyright. Do I have that just about right?

KLEBE: That’s really important – that so many more people are getting into a position of needing to know about copyright, either because they’re trying to function without the traditional partners who would be expert in it, like agents or publishers, but also because there are new kinds of companies, like technology companies, getting into the business, where they’re needing to understand copyright.

They could be aggregating content that they find on the Web. They could be providing new kinds of publishing platforms that might be used by authors in place of traditional mechanisms.

What they’re doing there – they need to know what rights they’re going to convey, what rights they’re going to ask for, what rights they need to make sure that they have access to, whether on a non-exclusive or on an exclusive basis, to make sure that they’re doing the right thing by their creator partners, to make sure that they’re not infringing the rights of creators that they don’t have specific agreements with.

And that’s where I get to the point of it’s like needing to know the rules of the road in the country that you’re driving in where, you’re driving without knowing those rules, then you run the risk of violating one without realizing it.

KENNEALLY: Well, and not only violating, but you could end up in an accident and –

KLEBE: Yeah. Yeah.

KENNEALLY: – you don’t want to see that happen.

KLEBE: And it’s not like, just because you’re new to the territory, they’re going to change the laws –

KENNEALLY: Right.

KLEBE: – in order to accommodate the unique and even valuable things that you want to do.

KENNEALLY: That’s a great point. Just because you showed up, it doesn’t mean that you get the right to drive on the wrong side.

KLEBE: Right. And so the two things that I try to cover in my Innovator’s Guide talk are sort of what are the rules of the road – you know, what side do you drive on and that kind of thing – and then I talk about notable cases that are really important to understand because they’re about technical innovators who are trying to demonstrate new ways of driving on the road.

And how you do those things, how you demonstrate those new driving tricks or those new kinds of vehicles has a great deal to do with how much trouble you’re going to be in when the police officer pulls you over and whether in fact you get to talk your way out of the ticket or not.

KENNEALLY: (laughter). Well, we are talking here today with Scott Klebe, my colleague at Copyright Clearance Center, who is manager of special initiatives here. And he will be at BookExpo America on Wednesday, June 6th, with a presentation called “An Innovator’s Guide to Copyright.”

And, you know, Scott, one of the interesting sort of twists in all of this comes not on the creator’s side of things but on the consumer’s side of things, which is where an e-reader – the terms of use changes what we mean about owning a book, so it goes from owning the physical copy to licensing its use. Untangle that just a little bit.

KLEBE: Sure. Well, the first point about copyright is that it’s a way of giving property rights to things that you can’t actually hold in your hand. I mean the example I often use is a chair. You can sit on a chair. You know that, if you own a chair, it’s your chair. You can touch it, reach out.

KENNEALLY: You can move it to the next room or do what you need to do.

KLEBE: So what’s the difference in that respect between a chair and a book, right? Because a book – you own the physical hard copy book. You know, I can reach out and touch that. And I can sell that again, right? But what does that say about the extent to which I can do stuff with the content of the book – the words printed on the page, the story, the copyrighted work, the intellectual property that that piece of physical property contains?

And I don’t think that anybody today expects, because they bought a physical copy of a book, to say, well, this is now my copy of this Nabokov novel. I now have the right to copy those words into a new format and publish them and sell them and that would be fine, right? And it’s clear that there’s a difference between owning the physical property and owning any part of the intellectual property rights to the copyrighted work within.

Well, that wasn’t always crystal clear. I mean certainly, before sort of an international copyright regimes began to take hold, it was commonplace for even publishers – legitimate publishers, particularly, of all things, the United States – to rush to the dock to get the new copy of the new Dickens novel and print up their own copies and sell them, without any regard to the intellectual property rights that Mister Dickens might have thought he had.

So there’s been a balance, right? At one time, publishers actually sued somebody who was selling books after they had been bought the first time – that they had the right to determine what price a book could be sold at, however many times it was sold.

So what we think of this right – buy the physical book and take it to a used bookstore and get a partial credit toward another book – that was something that had to be established originally, first by the courts in the early years of the 20th century. And it was later enshrined into the current Copyright Act as the right of first sale.

KENNEALLY: Right, the first-sale doctrine. Right.

KLEBE: Right. So – but that’s about buying the physical copy of a book, and it’s not giving you any of those intellectual property rights that are attached to that book that come along with it.

When you’re buying – as the common phrase goes – a book from the Kindle bookstore or from the Apple iBookstore or the NOOK bookstore, what you’re actually doing is you’re purchasing a license. And that license is going to let you read that book any number of times. But it specifically says it’s not a sale within those terms and conditions. You’re buying the right to read it any number of times, but not the right to give it to anybody else or sell it to anybody else.

KENNEALLY: Right. And the other piece that is important to tease out, just kind of as a preview of your program, is the role of the DMCA – the Digital Millennium Copyright Act. And one of its provisions is that, if something’s got some kind of a lock on it – digital rights management, DRM – of any kind, you are not allowed, as the owner of that physical file – not physical file, rather, digital file – to attempt to unlock it. That would be unlawful.

KLEBE: Yes. And that’s actually that’s probably the most famous part of the DMCA. It was the part of it that aroused the most controversy when that law was proposed and then passed in the late ’90s. You had people in technology industries saying, oh, this is going to mean you don’t own your computer anymore and things like that.

And to the extent that content protection methods have attempted to like, say, lock away part of the computer so it couldn’t be changed, I think that those haven’t been tremendously successful in the marketplace. But yeah, certainly it is unlawful to try to remove the digital content protection from a protected file.

But I sometimes say that the DMCA is like that bad kid up the street. You might have seen him breaking the window once, but you have no idea how much work he does for charity or whatever.

He’s not that bad a kid – awesome – you just caught him at a bad time – because there’s another provision of the DMCA that’s had extremely far-reaching effects on online service providers – services that we use every day and rely on, like Facebook and Twitter and Google. And that’s the part that creates what the law refers to as limitations on liability for online service providers. They’re sometimes called the DMCA safe harbors.

What that’s really like is that, when you’re an online service provider offering the ability for your users to upload pictures, say, or other kinds of media – YouTube’s an example, Twitpic of Facebook’s image sharing feature – that, as long as you follow certain rules about making sure that you’re taking down copyright-infringing content when you’re notified – things like that – that the service itself has a limitation on its liability for copyright infringement.

Without those, it’s arguable that we wouldn’t have like these widely used photo-sharing services or even YouTube, just because of the difficulty of remaining clean with respect to copyright. So that’s an important feature of that law that we all need to understand – and understand its limits as well as its powers.

KENNEALLY: Right. And the connection there between the law and an innovation is striking. Because of the safe harbor, I think you’re saying – you’re suggesting – that it allows for a kind of creative wiggle room that brings to use Facebook and Instagram and all of these other services.

KLEBE: Right. It’s not to say that those services have been without their legal difficulties. I believe we’ve seen Viacom v. Google stretch on for years. And in fact they’re going back to the trial court for another go-around after a recent appeals court decision.

But it gives that room to operate that, as long as you’re – again, knowing the rules of the road, being prepared for take-down in an appropriate way and sort of being a good citizen, trying your best to do the right thing, then you’ve got a safe harbor, as it were – or you can dock the boat out of the reach of the incoming waves.

KENNEALLY: Right. Well, we’ve touched on a lot of things that you’ll be going into in greater depth in your program at BEA. I want to finally close things out with a brief kind of lesson in the ways that disruption can have unforeseen impact on a certain part of the media industry.

And there was, a few years ago – more than 20 years ago, actually – the emergence of videocassette recorders, VCRs. That brought on its own legal wrangle that shaped copyright law as well as Hollywood. Tell us about that and why you think it may have some potential to be a case study worthy of interest to the book publishing business.

KLEBE: Well, that’s a very famous case at the intersection of copyright and technology – the Sony Betamax, which, although it was a loser in the marketplace to VHS, which is still around, at least in my house – it was a very important victor in years of legal wrangling – almost 10 years in fact – a case that went from trial court to the Ninth Circuit appeals court all the way up to the Supreme Court and was argued so thoroughly and so carefully over such a long period of time that it’s been an incredibly important precedent on what companies can do with respect to new ways of handling existing copyrighted media.

The trial court judge in this case was very far-seeing, in that he was looking at something that hadn’t been handled before – the personal taping by individual – not for profit, just for home use – of copyrighted materials.

To that point, prior to this music studios versus Sony case – movie studios versus Sony case – most of the copyright infringement cases had been around rights holders suing each other or rights holders suing publishing houses or other authors, as opposed to, say, the third parties – eventual consumers of the media.

And so the case really hinged on whether Sony was promoting infringement by selling these devices that were capable of infringement. And the solution to the – and the very creative solution that the trial court adopted – recommended – that’s become precedent for us ever since is that, in cases where there is a significant non-infringing use – in the case of the Betamax, it was time-shifting – recording a show at one time to watch at another – then the manufacturer of that technology couldn’t be held liable for promoting the infringement.

And the Supreme Court adopted this doctrine, was very persuaded by, say, the testimony of, among others, Fred Rogers – that is Mister Rogers – in saying how helpful to society it was for families to be able to record a show that was broadcast at one time but watch it when it was available to the whole family at once.

And so this is a guideline that technical innovators have been able to rely on, to the extent that they’re actually demonstrating or providing something that promotes a significant non-infringing use. In cases where the non-infringing use is not very significant – or imaginary, in a few cases – it’s not a helpful guideline. And we’ve seen companies that tried to rely on that but weren’t able to substantiate the non-infringing use.

KENNEALLY: Well, these are the kinds of things that you can hear a great deal more about and ask questions on if you attend Skott Klebe’s presentation at BookExpo America – “An Innovator’s Guide to Copyright,” focus on new media and new content delivery.

That’ll take place on Wednesday, June 6th from 10:00 a.m. in room 1E02 in the Javits Convention Center. And we’ve been chatting now with our colleague at Copyright Clearance Center, Skott Klebe, Manager of Special Initiatives. Thank you so much for joining us.

KLEBE: It’s been a pleasure.

KENNEALLY: It has indeed. We look forward to your program, again, at BEA, coming up on June 6th. Beyond the Book is produced by Copyright Clearance Center, a global rights broker for the world’s most sought-after materials, including millions of books and e-books, journals, newspapers, magazines and blogs, as well as now images, movies and television shows.

You can follow Beyond the Book on Twitter, like Beyond the Book on Facebook and subscribe to the re-podcast series on iTunes or on our Website – copyright.com/beyondthebook. My name is Christopher Kenneally. For all of us at Copyright Clearance Center, thanks for listening to Beyond the Book.