SHAKSPER 2008: Books to Buy

From: Hardy M. Cook (editor@SHAKSPER.NET)
Date: 02/04/08 

The Shakespeare Conference: SHK 19.0068  Monday, 4 February 2008

[1] 	From:	David Bishop <dvbishop@mindspring.com>
	Date:	Friday, 1 Feb 2008 15:06:10 -0500
	Subj:	Re: SHK 19.0061 Books to Buy

[2] 	From:	Larry Weiss <larry@lweiss.net>
	Date:	Friday, 01 Feb 2008 15:07:12 -0500
	Subj:	Re: SHK 19.0061 Books to Buy

[3] 	From:	Larry Weiss <larry@lweiss.net>
	Date:	Friday, 01 Feb 2008 15:49:07 -0500
	Subj:	Re: SHK 19.0061 Books to Buy

[4] 	From:	Gabriel Egan <mail@GabrielEgan.com>
	Date:	Saturday, 2 Feb 2008 15:00:13 -0000
	Subj:	Re: SHK 19.0061 Books to Buy


[1]-----------------------------------------------------------------
From:		David Bishop <dvbishop@mindspring.com>
Date:		Friday, 1 Feb 2008 15:06:10 -0500
Subject: 19.0061 Books to Buy
Comment:	Re: SHK 19.0061 Books to Buy

The more people read my book the happier I'll be. Going around copyright 
may involve stealing from the author, though it does seem most likely to 
occur with a work in great demand and for which the author therefore 
does receive more than a pittance. Some say free downloading stimulates 
cd sales, and I imagine it stimulates demand for concert tickets. In the 
case of an author it might help open up jobs, and raise speaking fees. 
It might also stimulate discussion. Maybe that would be best of all.

As I understand it, Gabriel Egan is against copyright laws that extend 
copyright too far from the deserving author, to distant heirs and other 
piggybackers. On that I'm with him.

Best wishes,
David Bishop

[2]-----------------------------------------------------------------
From:		Larry Weiss <larry@lweiss.net>
Date:		Friday, 01 Feb 2008 15:07:12 -0500
Subject: 19.0061 Books to Buy
Comment:	Re: SHK 19.0061 Books to Buy

 >I've been over this point in great detail with a copyright
 >attorney. His contention is that though the material contained
 >in that book (and the book itself) is 400 years old, the
 >images are not. Just like a photographer can copyright
 >his/her images, the institution can do the same. It's the
 >image that's copyrighted and illegal to reproduce, not the
 >work itself.

Yes, but if the image is just an image of a two-dimensional work, such 
as a facsimile of an old book, it is probably not protected under U.S. 
law, at least in courts that follow Judge Kaplan's decisions in 
Bridgeman Art Library, Ltd. v. Corel Corp., 25 F.Supp.2d 421 (SDNY 
1998), confirmed on rearg., 39 F.Supp.2d 191 (1999). I understand that 
the law in the U.K. may well be different.

[3]-----------------------------------------------------------------
From:		Larry Weiss <larry@lweiss.net>
Date:		Friday, 01 Feb 2008 15:49:07 -0500
Subject: 19.0061 Books to Buy
Comment:	Re: SHK 19.0061 Books to Buy

Gabriel says that

 >The ownership of ideas generated by people who work for educational
 >institutions is a vexed and unresolved question. Universities rightly
 >think it iniquitous that they pay academics to generate knowledge that
 >is then given (virtually for free) to publishers and thereafter sold
 >back at great cost to the university library.

This reflects two rather commonplace misconceptions. The first is that 
copyright law grants an author a monopoly in his ideas. It most 
assuredly does not!  Copyright law protects only expressions, not ideas. 
Patents grant monopolies for limited times in new and useful inventions 
(ideas), but those protections are far more circumscribed than 
copyrights. Thus, for example, if I write an article presenting a 
solution to a crux in one of Shakespeare's plays, you are all able to 
teach that solution, write about it yourself, incorporate it in your 
edition of the play, etc. What you may not do (except to the extent 
permitted by the fair use doctrine) is to copy what I wrote.

Second, this passage reflects a concern about the extent to which a 
university might claim to own the copyrights in works written by their 
faculty. The "work made for hire" doctrine (defined in 17 USC ? 101) 
makes an employer the owner of the copyrights in "works prepared by an 
employee within the scope of his or her employment." The issue is not 
entirely free from doubt, but in Weinstein v University of Illinois, 811 
F.2d 1091 (7th Cir. 1987), the Court of Appeals rejected the 
university's claim to own the copyright in a work written by a member of 
its faculty. The university's argument was that the creation of such 
works is part of a teacher's job, as it had a publish or perish policy. 
The court rejected the argument, noting that there is an "academic 
tradition" that the rights to scholarly articles belong to the authors.

In addition to works created within the scope of employment, certain 
specified works (including instructional texts, tests and answer 
materials for tests) can be works made for hire, but only if they are 
"specially ordered or commissioned" and "the parties expressly agree in 
a written instrument signed by them that the work shall be considered a 
work made for hire." The enumeration of instructional texts and test 
materials as among the limited categories of works which can be works 
made for hire pursuant to a written agreement strongly suggests to me 
that the framers of the 1976 Copyright Act did not intend to grant the 
copyrights in college teachers' writings to their employers under the 
"scope of employment" rule.

[4]-----------------------------------------------------------------
From:		Gabriel Egan <mail@GabrielEgan.com>
Date:		Saturday, 2 Feb 2008 15:00:13 -0000
Subject: 19.0061 Books to Buy
Comment:	Re: SHK 19.0061 Books to Buy

Ron Severdia writes:

 >It's the image that's copyrighted and illegal to
 >reproduce, not the work itself.

The distinction between the 'image and the 'work' is not philosophically 
straightforward and moreover it disappears in digital reproduction. 
There's a copyright notice on www.shaksper.net reserving the rights to 
the picture (of Shakespeare using a laptop) that adorns the site's 
homepage. I've just checked and my web-browser cache contains a copy of 
this picture. There are now at least two copies of this picture in 
existence (one on Hardy's server, one on my computer) and they are 
identical. Calling one the 'work' and another the 'image' is to apply to 
the digital medium terms that made sense in the pre-digital media. The 
terms, and the old laws that use them, no longer make sense.

The licence agreement for Early English Books Online (EEBO) makes a 
plucky attempt to put into words its creators' sense of right and wrong 
usage of its contents, but any literal reading of its terms is quite 
impossible. After all, what counts as "saving of texts" (paragraph 8) 
when the machines involved are continuously multiplying digital copies 
as part of their normal operations?

Joe Egert asks:

 >But Gabriel, doesn't going beyond the
 >"permitted" limited distribution in fact
 >undermine those sales and constitute yet
 >another example of  "outright law-breaking"?

It might break the laws of certain countries and not of others, so there 
aren't hard distinctions to be made here. Moreover, the legal 
jurisdictions that apply can be hard to determine in the digital media. 
If one takes a common UK permitted limit on copying, which is "one 
chapter of a book, or 5% of the pages, whichever is the greater", it is 
clear that this is an arbitrary limit that leads to wildly varying 
outcomes. One can hardly be sure that this rule draws the line in 
exactly the right place since it allows one to copy a quarter of a book 
that has four chapters, but only 5% of a book that has twenty-five 
chapters, regardless of their relative lengths or other characteristics.

I don't feel morally bound to adhere to such irrational rules when 
copying materials for the general good of teaching and research, and 
indeed I don't think these limits do the books' authors any good either.

Joe also asks:

 >. . .  won't universities be tempted to
 >charge for access to and use of their
 >Institutional Repositories

It seems most unlikely, since the entire intellectual thrust of the Open 
Access movement has been to give away for free the knowledge that was 
formerly charged for. But, technically, yes a university could try to do 
this and so compete with the large private collections of knowledge sold 
by publishers. If this happens, it will be a set-back for Open Access, 
but we will be no worse off than we are now with most publicly-funded 
knowledge ending up in private hands.

 >Would you deny them this right?

I would, and I would encourage colleagues not to deposit their works in 
Institutional Repositories if I thought the scenario you sketch were 
even remotely likely to come about.

 >. . .  Gabe's* cheery defense of piracy, which
 >will appeal to the Oedipal rebel in all of us.

It is perfectly rational to defend piracy. I would go further: it is a 
social good to liberate knowledge by piracy. Two simple examples: 
Pericles (1609), and the BBC TV and Radio Archive, which now appeals for 
anyone who illegally taped BBC broadcasts to come forward with those 
tapes and so help the BBC fill the gaps in the archive where their own 
tapes have been wiped. This morning I enjoyed an episode of Hancock's 
Half Hour called 'The Bolshoi Ballet' recovered by this means. This 
afternoon I am unable to enjoy the defunct ArdenNet Shakespeare website 
because its servers kept the Wayback Machine out and the only copies of 
ArdenNet essays (including my own) are ones retained by their authors or 
pirated by users who thereby broke Arden's rules about copying material 
off their site.

Gabriel Egan

* I don't mind 'red-baiting', but unauthorized diminutives are a bit 
cheeky. I started last semester with an announcement in my first lecture 
about forms of address to tutors and the assertion that "I'm not Gabe." 
I mustn't have stressed that final plosive hard enough, for I heard 
distinct mutterings of "Why did he tell us he's not gay?"

[Editor's Note: My apologies. Knowing Gabriel (and never referring or 
hearing anyone else refer to him with any other designation) and knowing 
his preference, I have been editorially correcting the "Gabes" when I 
have caught them. Unfortunately, this one got through the net. I 
blinked. -HMC]

_______________________________________________________________
S H A K S P E R: The Global Shakespeare Discussion List
Hardy M. Cook, editor@shaksper.net
The S H A K S P E R Web Site <http://www.shaksper.net>

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