 Along with the Office of Scholarly Communication, Professor Schieber and team and the Berkman Center for Internet and Society, my intellectual home at the Law School and the Harvard Law School Library were delighted to bring a second speaker of the year in Dr. Kenneth Cruz to talk about the emerging and very important issues around copyright and academic work. We had a few months ago, as you may recall, Peter Schuber here as the first in the series. We had a great and spirited conversation among librarians and others about the open access policy here and elsewhere, and I look forward to a similar conversation with Dr. Cruz. For those of you who don't know him, which is probably very, very few, I'll give a brief introduction. He's an extraordinarily accomplished scholar of intellectual property law. He's held since 1996 a chair professorship at Indiana University School of Law. He is now most famously at Columbia having taken up a job as the director of the Copyright Advisory Office, which is within the library system or no, is technically within the university service based within the library system. And he is, I think, leading a very important effort at Columbia that parallels in many respects what Professor Darten and Professor Schuber and others are doing here at the Harvard University campus, and he's going to talk for a short while, and then we'll have questions and discussion, so I think we go for about an hour, and I look forward to a lively and interactive session. So with that, Dr. Cruz, thank you so much for being here. Thank you, John. Thank you. Thanks. Well, thank you, John. Thanks to Stuart, to Amy, to Tom, to everybody else who's part of the Office of Scholarly Communication here, and I'm grateful for this opportunity. It's really a pleasure. Thanks to all of you, and if the camera isn't catching it, it's a beautiful, clear day outside, but it's such a lovely afternoon of copyright on the inside. So really, really, thank you for coming indoors to enjoy this. And I feel a little bit miscast in some ways, because it's certainly awkward for me to come here to Harvard University to talk about these issues of scholarship and publication agreements and open access and all of these interesting things. Because I tend to look to what you have done through your Office for Scholarly Communication, through your resolution with the faculty and open access. I tend to look to you as leaders. So I have this certain fear that everything that I'm going to say, you've already heard 100 times over. And that may or may not be true, but if I see you shaking your head, I'll know that that's true. So I am a little bit wary about everything that I'm going to say, because you've really been leaders. And really, there's so many people here to credit for that leadership. And I certainly thank all of you for being in that position. So our subject about scholarship, your scholarship, our scholarship, the work that we do here at the university, and all of these subtitle labels, the catch words of copyright, publication agreement, open access, and how do they ultimately fit together? And of course they do. So we're going to be jumping around a little bit from one to the other. And I hope ultimately weaving some of these pieces together. We're exploring these issues with really, gee, some modest goals, starting with advancing our scholarship. That's why we're doing. That's why we're exploring the issues that we are exploring. Because by exploring them, by being better stewards, by addressing these issues, by managing these issues in a productive, flexible, creative way, ultimately we're doing it not for its own sake, but we're doing it because it advances scholarship, because it promotes access to our publications, because it has the effect of preserving the academic freedom that's so important for all of our work. And the list goes on. It's expanding our work worldwide, creating that next generation of scholars. And to a great extent, but it's not my primary goal. But it is breaking down some of these barriers. Definitely it's a goal of breaking down barriers. I wonder what it's going to do to costs. Are we shifting costs, or is it really going to reduce costs? That's something that we'll be debating and playing out for a long time. Of course, these aren't modest goals. These are extremely ambitious goals. But it's our reminder that we're exploring these issues because they relate to, because they have the potential of really advancing some of the fundamental things, issues, principles that we stand for at the university. Now, you had Peter Suber here recently. And when he talks about that open access and defines open access, he's talking about not just open, but online, free of charge and free of most copyright and licensing restrictions. We'll talk a little bit about what that means and whether that's what we're really accomplishing in full. But underlying it is a strong public interest. And so let me take the privilege of really layering on, just a note about the public interest. I have the privilege of traveling a lot, meeting many people and going to many parts of the world. And if you can read anything that's up there, one picture is from the court system of the Navajo Nation. Another picture is the History Museum in Chichodal, Moldova. Another picture is the border crossing between the Emirates and Oman. All of these far away kinds of places. And what I'm finding is no matter who they are, no matter what country they're part of, no matter what their goals are, I'm seeing something that's very interesting. And that is that the access to the internet is expanding rapidly. And almost any of these places where I go, people are connected. And if they're not, it's because they haven't tried. That there is a lot of potential for connection of the world via the internet. And in fact, it's in place in many of these distant locations. And yet what's not there is any cash to buy content. And so visiting the state library of Moldova, for example, there's pretty good internet connection at the university, at the library. But there's a zero book buying budget, just plain zero. And so your work that we produce, the scholarship that I produce, that you produce here at the university, and that's available for sale, whether at a small price or a large price, it doesn't matter. Nobody in some of these locations will buy it. They can't. There's a zero budget. But they can get to it if you make it available, if we make it available. And so there's definitely this strong motivation that I feel that this is altruism. It's all of those other things that were on the previous slide. But it's also a chance in self-interest to make our work more readily available. And it's also in our interests as stewards, as colleagues of people that we don't know in all parts of the world, to strengthen their access to our good work. And that certainly motivates a lot of what I do. And so also we can ask the question, not only why, that's what we've already talked about, but why right now? And I start by giving a lot of credit to you. The resolution, your Harvard resolution of 2008 about the requiring open access and the mandate of open access and the creation of the repository. This was a powerful gesture, as you well know, and is being imitated at many other universities. Also kickstarting this whole issue, the NIH public access policy, also of 2008, drawing not only being an effective tool for providing broader access to NIH-funded materials, but also flat out drawing broad attention to the development of open access by requiring authors of NIH-funded materials to make their work available through PubMed Central. So starting with those two initiatives, yes, we've been talking about open access for many years, but 2008 was the pivotal year with these two developments about really motivating all of us to start doing more about it. So a flip side of why is why not? What could possibly go wrong? And really what we're talking about is some of the counterparts of the good things that we've already said, that we're talking about if we don't do this, if we don't move toward broader access, we're talking about limited access. We're talking about limited impact of our works. We're also talking, this gets me migrating into the copyright theme. We're talking about a loss of rights. We're talking about a loss of control of our own scholarship as individuals and as a society. We're talking about missed opportunities. Again, you can look at it socially, look at it selfishly, look at it both ways. It's the lost opportunity to be able to use your work. It's the lost opportunity for other people to benefit from your work. And then part of being a good steward of your copyrights is also knowing that you've got some ability to manage the way they're used and to watch for some of the pitfalls that can result from misuse of your works. And that may be a separate conversation. So again, why right now? Well, now it's not 2008, it's now 2009. And we've got another set of challenges. We've got a bill in Congress that would purport to undo that NIH public access policy. Now we have to not only enjoy the opportunities under the policy, we have to get ready to fight Mac against people who want it to go away. We're seeing again, because it's the time for further review this season of the exceptions to the anti-circumvention provisions in the so-called DMCA. And right now the Copyright Office is holding hearings to review whether there should be exceptions to the rule, the provision about cracking the code, about unlocking those technological protection measures on the different copyrighted works. And then of course, this big thing that's demanding a lot of our attention, the settlement of the litigation involving Google books and the access to those materials. But that settlement, this is all I'm planning to say, but you can ask questions later, we're talking about a settlement that really would impose very tight controls on access to and the usability of that content, which honestly makes me wonder, are we putting together a database of now one number I'm hearing is 20 million volumes that will just be guaranteed to frustrate the heck out of all of the users because of the constraints on access and the control on access and the expense of access. So we gotta wonder about that. And then of course, buried in it to paraphrase Franklin Roosevelt, it's somebody making money with other people's copyrights. And this too goes to the question of are we being good stewards of our own copyrights especially when we watch how other people are able to take advantage of them in ways that we're not exactly what many of us were anticipating and certainly some of us may object to. So let's put things in copyright context. Pardon the digression into a little bit of a tutorial. Many of you have probably been here already. So I'll move through the next few slides fairly quickly but to talk copyright, we have to understand a few things. Point number one, nearly everything is protected. If you can see it, read it, watch it here and it's probably protected by copyright. That copyright applies instantly, automatically to original works that are fixed in some tangible medium. And we can see this broad range of types of works writings, arts, computer software, and the list goes on. Another basic fundamental of copyright is that once copyright applies, it grants a broad set of rights with respect to that work, rights of reproduction of the work in copies, distribution of those copies, the making of new versions, derivatives. You wanna write an abstract or a translation of that article you wrote? Those are derivatives of the original work. Who has the copyright? That person gets to control. And public performance and display has had renewed importance with the expansion of the internet because in part that's what the internet does. It shows things on computer screens, translate that into legalese. It's a concept of displaying or performing works through the computer. But for our purposes, back to our key topic for today, about publication agreements, open access. Let me focus on this last point and make sure we understand it. That this bundle of rights called the copyright, that those rights are divisible. The first thing we have to do to be good managers and good stewards of our copyright and to pursue a lot of what we're talking about is realize that answering the question who owns the copyright is actually not very important. What's really important is who has which particular rights in that copyright. And so do I have the rights of reproduction of the work? Then I'm the one who gets to decide who makes copies. But we can make this copyright divisible in other ways. In the old days, when we had strictly print publication, it was common for a publisher to take the rights of publishing, which are pretty much added up as rights of reproduction of the work. Think of selling books. I'm gonna reproduce it in copies and I'm going to ship them out to people who buy them a distribution of those copies. So these first two points, reproduction and distribution, are an act of publishing. But in the old days, you know a publisher agreement could say, I have North American rights. I have the rights of reproduction and distribution in North America. The rest of the world goes to somebody else. So it was dividing it geographically or we could divide it chronologically. I have the rights for the next five years and after that they go someplace else. So we could divide it that way or I have the rights of reproduction and distribution only in that version, other versions somebody else has. We can divide this in any number of creative ways we want and the limit, it's limited really only by our own ambition and that's going to be critical when we get to this notion of better agreements and better and open access. Now we could think of not legal rights but real practical rights that go with being the copyright owner. Some things you won't find in the law like I've got the right to manage, I've got the right to make decisions, that's an exercise of those rights. But one other thing that's going to be very important to us is that legal right to make decisions about transfers or licenses or permissions to use the materials. So let's get back to a few points of law that somebody we've now determined in whatever work, a journal article, a software package, a work of art, somebody is the copyright owner. It's usually either that the creator of the work or it could be a work for hire or it could be mine but maybe I've transferred it or a piece of the copyright, the divisible copyright to you or to somebody else. And in the world of open access and the quest for better publishing agreements, we're really struggling with some of these issues. Are we talking about a transfer of copyright which we know is common in many areas of scholarly publishing or the migration toward a licensing of the rights? So again, if I'm the author, let's stick with scholarly work, the mainstay of our work here at the university. I own the copyright, you're my publisher. In many conventional models, I would transfer the copyright to you but now we've got all those problems that I opened with. I've lost all control of the work. I've lost all rights in that work. You now possess all control over my scholarship because I signed the agreement. Or are we going to parse this differently where there's going to be a transfer to you but then the agreement gets a little smarter and it's going to license back or even transfer back to me pieces of the right to use that work. So now in the same agreement, I have the right to reuse it in my future research and my future teaching in whatever else I could think of, posting it to the repository, posting it to my website. Whatever I can get, I negotiate for and I see what I can get. Or a little healthier model is moving toward a license in the first place so that I remain the copyright owner but I license to you, the publisher, only a defined set of rights of use, the right to publish it in this manner in this context and then by default, if not explicitly in the agreement, all of the other rights associated with that work remain with me. Let's step back from all of what I've just said in the last two minutes, that what we're talking about in all of this is a sharing model. It's taking the thing called the copyright, unbundling it in a way that we can define however we see appropriate, however we can agree between the parties to define it and share those rights out. So far, I've only talked about sharing between the two parties, author and publisher, but it could be sharing with a third party who's maybe going to do something else, do the database version in a delivery of this, prepare some of those derivatives like a translation of the work, so we share with that person or share with the big unknown public, the right to put this work in a repository for full public access. Or we agree that yes, you will publish it, but you'll publish it with a Creative Commons license that lets somebody in Moldova who can access it now know that they can use it for, let's say, non-commercial purposes per one of the familiar Creative Commons kinds of licenses. And you can see where we're going with splitting this issue open, getting to a productive result, but you can also see that there's a path to get there. And that path means, at a minimum, we have to pay attention, we have to know what we're doing, we have to know what we're asking for, we have to ask for it, and we have to see if we can get it written down so we all know what we've done. So the process of engaging with a publisher is no longer, I contend, the process of here's the standard form, sign it and send it back, but it's a process of negotiation. It's a process of knowing what you, the scholar, the author, knowing what you are doing and asserting your rights for your own benefit and for the benefit of others. Let's take it further. Little bit about work for hire, I don't think we need to go there. I'm glad you see the humor in that one. So some of this we've already talked to, talked about to a great extent. The right smack in the middle of this slide, notions of the publication agreement, is it a transfer, is it a license, what rights are being retained, what are those future rights of use? We've already talked something about that. And then we could ask the question, why again, why in the world are we talking about some of these issues? And honestly, the answer is probably just glaringly obvious. And the answer in part is because of technology. Because technology has made it possible for us to accomplish more. Technology has made it possible for each of us to become an author, for each of us to become a publisher, for lines between the different parties to become blurred. And this is a good thing. But it's a good thing that we can really exploit. Again, only if we take the time to follow a path that really gets us to that productive result. And then back to the notion of open access, it's open access, it's access to our works that ultimately allows for the growth of scholarship. And the impact of our work really depends on access. And so it's technology that's allowing us to get to these good results. And we need to be able to take advantage of that. So being a good steward of our copyrights in this context means understanding our own interests and understanding the interests of the people that we associate with that are important parties to the work that we do. To understand that the interests in that scholarly work are not limited to me and my set of specialized colleagues, but that there are funding parties who have an interest. There's an institution that supported me in my work that has an interest. There is revenue, and that's an interest. I get a royalty check once in a while from some of my work. I kind of enjoyed the dinner in a movie that night. It's a good thing. So I have no inhibitions about money and we shouldn't be concerned about money. Money's a good thing because we also need to rearrange the money to keep new models of publishing afloat. It may not be money into my pocket or your pocket, but it's money that keeps the system going. And we need to follow that money and make sure that we look forward to the time when we can move some of it in order to move the model of publishing in a better direction. And then there's quality, the integrity of our work and the quality of our work, and that's critical too. We usually don't say much about that in a copyright context, but boy is it important because if I can control the copyright, one of the things I have the ability to do is stop somebody from using my work in a way that I feel that somehow harms the quality of it, the reputation of me or the work. Sometimes that might be a good little bit of control for me to assert. And so we need to know who's got the rights to watch and review and be able to do something about quality issues and quality of the works. And then we also need to realize, just as we talked about the copyright is not a monolith. It's a set of rights and unbundling and the sharing, but we also need to realize that not all copyrights are created equal. Yes, copyright applies instantly, automatically gives that broad range of rights with respect to the work, but not all works need to be treated in the same way. And we need to move past that as well. So who gets to decide who's really the one driving this vehicle? And the answer is the person who has the legal rights. And for starters, if we're talking about scholarship, that's typically you. If you're the one who is the author of the work, you're the one who owns the copyright, but as we've already suggested, that might be migrating to somebody else. It's up to you to decide if that migration is a good thing. So I'm gonna contend that no matter what, managing this work in a way that moves us toward open access publishing of a lot of our scholarly work is a good thing. And we have various ways of accomplishing that. We can do it through self-publishing, just posting it, just moving it out. As I say, we are really in the position to become, if we're not there already, many of us are, to be publishers. Just post it yourself, take control of the publication, or publish it through an open access journal, or put it in the repository. But here too, we're going to run in, anytime we work with any kind of publishing outlet that's not ours to control, we're likely going to run into an agreement. Or no agreement, what does no agreement mean? A lack of a written agreement can become a way of sorting rights. Hmm, because there's a default to the law here as well. But usually we're going to want an agreement, especially to accomplish some of the more subtle, more sophisticated aspects. So we're gonna end up with agreements that are gonna be dense pack with language. Here's one of the ironies. The happier the agreement, the longer the agreement. How's that? The opposite actually has a little bit of truth to that. No agreement whatsoever could be a good agreement, because if I publish my article with your journal, and we just do it on a handshake, the default of the law, I hold all the rights. All you got was just a license or implied license to publish, but everything else is still with me. So actually the simplest possible arrangement can be a happy arrangement from the author's point of view. But apart from that, once we start writing things down, we think of more, and we start to think of more, and we think of more, and we think of more, and pretty soon we have to read all that fine prints. Like that Apple commercial, you know, where all the fine print starts building up at the bottom of the screen. Well, we have to look for language that does happy things for us. The author shall at any time have the right to make or authorize others to make a pre-print or final version of the article available in digital form on the internet. This is happy language. This gets you the green check mark in the inventory of publication agreements. That this is the kind of language we need to look for in our publication agreements, and if it's not there, we need to know to ask for it. Or another one, the author shall without limitation have the right to use the article in any form or format in connection with teaching, presentations, lectures, scholarly work, and all other academic and professional work. This is happy language, and this is the kind of language we have to know to look for and to ask for. And then we have to think about how we're going to fill the gaps, because there's always going to be something that arises five years from now that we didn't anticipate five years ago when we signed that agreement. So how do we fill the gaps with different things? A license versus a transfer. One of the consequences of choosing that is if it's a license, then anything we forgot to mention presumably is going to stay with me. Whereas if it's a transfer of the copyright, anything we forgot to mention stays with you. So where are we going to leave the unknown with me or with you? And that's one of the critical differences between a license versus a transfer. But fill the gaps in other ways. Gaps in the law. Did you know that you have no right to have your name on your work? How about that? So if the publisher just forgot and left your name off. Under the law, there's very, very little to protect you or to give you any recourse. Want your name on the work that's worrying you? Put it in the agreement. So the agreement becomes a way of filling in where the law leaves off. And so the agreement becomes important in so many ways. The use of creative commons. That's not in the law, of course. Or later publication. Or citation to the work. Kind of like having your name on it. These are things that are not necessarily in the law. And so we need to think of them and use a good agreement to fill in the gaps. And so one of the questions that constantly comes up. But do I still own the copyright? Well, yes, unless you don't. And unless you don't, it's kind of gonna come back to, well, unless you gave it away in that contract. But managing that copyright was already the problem. So we're just trying to come back to some of these fundamental questions. And then the tough questions I won't even pretend to even begin to answer. Well, maybe I will. Will colleagues respect something that's published in an open access journal? You know, I think we can be much more sanguine about some of these questions today than we could have even a year or two ago. That horizon of open access, of electronic publishing that seems so prohibitive and seems so frightening when you throw me in front of my promotion and tenure committee. They're not quite so harrowing today as they were a few years ago. Is it compatible with peer review? Of course it is. Absolutely, positively. In fact, none of this touches or jeopardizes peer review. You know, in fact, it might even increase it. I was talking with a colleague at one of the leading law reviews. And he said, you know what we do? As soon as we accept an article for publication, we tell the author to post this for public access, SSRN most likely. Please make this draft available because if anybody sees any questions, problems, issues with it, it's better off if we find out now. It's like inviting public peer review. So in some ways, we can have whatever systematic peer review we want, but we might be able through open access to actually enhance peer review. And then other issues about cost, the economics of publication, the survival of journals. I'm not sure what the answers are, but I think the problem is much more real than we even like to talk about. I think we need to invent that safety net. We need to build that model of publishing because we need to be ready to catch the existing publishers when the publication of journals that have been familiar to us for 10, 20, 50 or more years when that publication model begins to crumble. We need to be there to catch it with new alternative forms of publication, which takes us all the way back to better agreements. Seek friendly publishers. Encourage your publishers on which, that you work within whatever way. Negotiate those agreements. Keep copies and look for deposits. And so I like to wrap up all of my talks on this point by driving home a few points. If you forgot everything else that I said, please remember this. You have choices about management and access to your work. It's your work, you have choices. Please become familiar with those choices. Please assert them. Please be a good steward of your own intellectual property. Know what's right for keeping and controlling. Know what's right to give away and share. But make decisions and make decisions as you go. Maybe one work at a time, but make decisions. And then in the end, whatever you sign with whatever publisher, read that agreement, understand it, negotiate and ask for variations, get better terms. And please, whatever you sign, please keep a copy. Keep a copy of that agreement. Endlessly, somebody will come to me. What can I do with this article that I've published whatever last year, 10 years ago? And I'll say, well, the beginning of the answer to that question is, what did you sign? Let's take a look at your agreement. And I think you can script it from there. You know, the wet agreement, that's usually the next question. But please keep a copy. It's really very exciting. When I say, let's take a look at your agreement. And somebody says, well, here it is. And they pull it out of the file. And we really have to do that. How long do copyrights last? Anybody happen to know? Too long, too long. Life, basic rule, life of the author plus 70 years. That's a long time. How long do you need to keep that agreement? Life of the author plus 70 years. To my loving grandchildren. I give you this file of agreements. We need to know. We need to know. And I've had situations where we've reached into the archive from the 1930s. And there it is. There's the agreement. Somebody kept it. And I can't tell you, now we begin to know what the answers are. Now we can begin to sort this out. And so also just looking ahead. Why in the world are we paying attention? Good heavens, why is somebody throwing this on us? Can't we just ignore what's going on? Well, look back to 1976. The Copyright Act that we have today. It's been amended many, many, many times. But it's fundamentally the Copyright Act of 1976. So in October of 76, this headline from the New York Times, Ford, who? Didn't he get a bailout last week? Yeah, yeah, Ford due to approve new copyrights law. Wow, we made the New York Times. But look at what the New York Times wrote. After 15 years of debate and discussion and a lobbying effort that was the bread and butter of hundreds of lawyers, Congress has finally reviewed the nation's copyright law for the first time since 1909. No firecrackers went off when the compromise bill was cleared on October 1st, the last day of the congressional session. And no bells are likely to ring when President Ford signs the measure sometime this week. The matter is simply too technical, complicated, and cumbersome for anyone but specialists to get very excited. That's the perspective of 1976. And in the year 2009, we are all copyright specialists. We are all excited, aren't we? We are all involved. And the decisions we make individually make the difference to the entire copyright system, and ultimately, the entire access to our work. So I thank you all very much. It's been my pleasure to be here. Thank you. Dr. Cruz, I'm sure you can tell from the response that this was extremely helpful to you. But I look forward to some questions. We have about 20 minutes. So who will have at our guest? I suspect there will be a few. Please. Well, just following up on your comment about Google settlement now, can you just tell us what you thought about Google settlement? Following up on your comment about the Google settlement. I did ask for that, didn't I? Yeah. I was wondering if you could. Never heard of it. Yeah. Yeah. Well, the Google settlement, the Google settlement. I mean, of course, there's so much we can say about the Google settlement. And the quickest summary I can give of it for those of you who haven't even heard this summary is major copyright litigation. Was it within fair use for Google to scan millions of books in full but allow access to only the snippets, the three lines at a time? Question, was that fair use? That's a whole separate issue. And in November of last year of 2008, the parties to the litigation announced a proposed settlement agreement that's now scheduled to go to a hearing before the federal judge in October of 2009. And if I take the time to read the agreement, it will just really wow you. The basic agreement itself is about 150 pages and plus, you know, notebooks full of side agreements. But the key point being that it's the creation, it permits Google to continue its scanning enterprises and to create this fantastically large, very useful, very valuable archive of materials. But the access to it is going to be tightly controlled and restricted. I won't pretend that this is exactly right, but it's things like, if it's in copyright commercially available works, publicly you can only get bibliographic information. You want more than that? You sign up for the database subscription, which you can bet is going to have a handsome price attached to it. But never mind the price, the terms of access to those full book materials in the database will be limited to something like, and again I'm working from memory, so pardon me if I get it exactly, if I don't get it exactly right, but things like 20 pages or 20% or whatever of that particular work. And so it's going to be just tightly controlled, limited access, and it's going to be a bookselling system. I mean it really sets up Google and the affiliated registry that's created as part of the settlement. It really sets them up to become the new large bookseller. And so you click on, you want the whole thing, click on, pay a fee, buy a copy of the work, but you're really not buying a copy. You're buying access online to the full work. So it's still going to have all the tight controls that go with online access. It's not really yours to possess the way you can with a conventional book. And I think the challenge for all of us in looking at this, and that's only just a hint of the complications of the agreement. But the challenge for all of us is there is no question, this proposal, should it become approved by the court and become the legal standard, is the biggest, most important step toward digital access of materials that were not previously available. It's our big step into the world of the Jetsons and ubiquitous access to information. And the hard question is, do we want to move into that exciting new future on these terms? And they're very complicated, cumbersome terms. And I daresay I really only give the settlement several years before it really is going to collapse under its own weight. And they'll be back into court looking for restructuring of the settlement. How long do copyrights last? Yeah, that many years. And the settlement really by its own terms lasts as long as any of the books in it are still under copyright. So this is a settlement and a system of access for the ages. And we have to decide, do we want to move into that future? That's the challenge for all of us. One of the general directors of the University Library. Orphan Works. Orphan Works is the question. What kind of legislation you would recommend? Do you feel that the settlement is a takeover of Orphan Works by the litigants and Google? What is your view in general on Orphan Works? Yeah, yeah, a couple key points. Start with what is an Orphan Work? Question about Orphan Works. And an Orphan Work is because it's a work that's protected by copyright. But as a practical matter, we can't find the owner or identify the owner. You remember I said that copyrights vest automatically in that vast range of original works. So you're going, it doesn't matter. You're going through the library shelves through the archives or even at home, emptying one of your closets. And look, you know a scrapbook. Who wrote this stuff? Where did this come from? Important archival material. A book on the shelf from a publisher that went extinct decades ago. But the copyright lives on. But we can't find anybody to give us permission, consent to use that work. It's deemed in that kind of context an Orphan Work. And a couple of years ago, the US Copyright Office proposed legislation to address this issue. And I gotta say, I thought it was just eminently reasonable what they proposed. It had to do with do reasonable search, keep track of your records, be ready to pay some kind of compensation. But it put significant protection for the user if you did that kind of good faith research. I thought it was a very good proposal given the alternatives that they could have come up with. But of course, he handed over to Congress and we all just sort of like descend on this. And probably every change that was made, what started out as a bill about this long and became a bill about that long, just every change was a step backwards. Putting more burdens, more hurdles to the point where some of my colleagues disagree. But I thought it was a good thing that the legislation died last year. I think we're better off without it. So I'd love to see the Copyright Office bill come back, but it won't come back in its original form. It'll still have all of the other amendments. I contend that we're in pretty good shape where we are right now, fair use. If you can't find somebody, maybe you're right of fair use broadens. Fair use is a whole separate topic. You also say, ask Bob, what about tying this into the Google Settlement? This is I think one of the most serious problems with the Google Settlement. The Google Settlement allows the registry, this new management organization, to collect revenues from the uses of these, the works in the database, and then to distribute those out to the right, the money out to the rights holders. But if there are no rights holders who line up to claim that money, who gets it? Who gets it? And again, my apologies, I'm not working from the document, so my apologies if I make a mistake here. But the basic idea is that that money that's left over is used first to pay overhead of running the organization. Okay, I worked in Hollywood for a while. I know how to make that money disappear. But, and then if there's a pool of funds left, this is, remember, this is somebody else's copyrights that they've made money off of. Now who gets that money that's left over? It's 70% of it gets distributed out to the people who did show up to claim something in the database. I'm an author of a book. I file my claim, pay me some money. I get a share of somebody else's money. And then the other 30% goes into a pool that's used for different kind of charitable, funding of research, charitable organizations, and so on. We'll see how much money is left over there. So this is a real problem. The more, even more serious problem is it would give Google a monumental advance head start over anybody else in working with orphan works. If I decide to set up a competing system and scan and upload orphan works, I don't have the protection of a court approved settlement to give me the security to move ahead. I'm back to arm wrestling with anybody who has an interest in those materials and hiring lawyers to figure this out. The Google settlement would give a green light to that initiative and give them a head start. I think this is a very formidable problem with the agreement. But Dorothy, Africa, over here. I am the managing editor for a graduate student journal here at Harvard. And we're about to go into Jay's door. And at the moment, author, contributors to the proceedings sign over everything to Harvard. And I worry sometimes about some of the younger contributors who gave maybe their first paper to a small gathering at Harvard. It goes out, open access into the greater world of electronic, digital, whatever. Some of these articles are perhaps not well considered. And I worry about some of these kids being chagrined for the rest of their academic career haunted by the specter of the first article that they rushed into print. Under the new world of copyright, if somebody regrets this first child, can he or she ever get it back under wraps? Well, yeah, let me cut right to the chase and focus on your point, because there's so many other details that in the rest of your question. But yeah, if I put something out there, I'm the author of a work, I've got the right to do it and I make it open access, whatever. I post it on a website. Can I go and reel it in when I change my mind? And the answer is, well, legally yes, assuming I haven't given away that right of control. So legally yes, but realistically no, because it's probably been downloaded, uploaded. It's been mirrored in different sites. It's on the internet archive. Let's face it, in this big, brave new world, when things are released out on the web, I've seen many people reel them in for whatever reason, but it's not an easy thing to do. So you're an editor of a journal and you continue to play, apart from copyright, an extremely important role in vetting some of the material, in vetting all of the material that comes to you, that you ultimately choose for publication. So there's still an important role. There always will be an important role for editors, for peer reviewers, for colleagues, for friends to help us improve our work. That's critical. And we should be constantly reminding people who are joining this industry of scholarship that that's how you help get to quality and protect the quality of your work. Then the next question is, great, we've done that. Let's assume we have. Now, what form of publication agreement? What sharing of rights are we gonna come to? And that's the whole rest of the talk. I hope that got to your point. Thank you. Hi, thanks a lot for coming. I think this is really interesting. I've been interested in copyright for a long time. But the particular question I have is, I think it's a conversation that might even need to be expanded to more layers of the academic hierarchy, particularly undergraduates. And I wonder what your thoughts are on copyright and the knowledge that's passed on in a classroom and ownership of lecture notes and things like that. Sure, yeah, yeah, yeah. There's a whole lot to say about that. What I thought you were gonna go with your question was pick a subject. Some are more obviously related to copyright than others, journalism. Copyright's an important part of journalism. But sociology, we may not think of copyright being so obviously important, but it is. Every time, because if the default of the law is, anytime anybody creates an original work that's fixed, there's instant, automatic copyright protection. And that means that there's a management responsibility that goes with that. It might be a small responsibility. It might be a big one. We might handle it in a complex way. We might handle it in an easy way. We make different decisions. Not all copyrights are created equal. They don't all merit the same attention. But sometimes we have to manage them. Your question ultimately got to student-created works. And the general, again, every rule has exceptions, but the accept that rule. The general notion of student works is, if you're the student and you created that work, keep it uncomplicated. There's no other hidden wrinkle here. You created that work as part of your coursework. It's your term paper or modern version of a term paper. That's yours. That's yours. But now, shift gears to 2009. And we're doing wikis and we've got all the students signed on and everybody's melding their comments into different things. Now you come to me as a copyright lawyer and say, what of it? And I say, nightmare. Because under the law, what you've created is this joint copyrighted work that's jointly owned among the 10 or 30 or 300 students in the class. And if any one of them is ticked off, you've got a problem. I didn't like that B minus I got in the class. I'm gonna slam me on copyright. And we've seen these sorts of things happen. Now they happen so rarely that they're, we don't have to go crazy with management, but we should take a few simple basic steps like, let's all agree that we're gonna leave each other alone. And we can put that in simple license terms. There are a few things we could do to make life a whole lot easier and prevent a whole lot of other issues. I know that there was more to your question, but I hope that's a starting point. That's a great answer. Thanks. Jonathan Holbert here from the General Counsel's Office. Since you have a captive audience of private people, did you wanna ask anything? I'm in trouble now. I'm in trouble. Comments? It seems to me that every change in the copyright law has gotten away from the original intent, which was to preserve creativity, to allow people to create something that they would then have rights to for a limited period of time before it became openly accessible. And with, especially with this change where everything is copyrighted, that's, it's become a nightmare, like you said. It seems to me that if we maintained a registry of copyright, we would still have the same, keep the same intentions. And if we set a limit of, renew your copyright every 20 years or 25 years, people would still be able, like Disney, would still be able to hold their rights for a long period of time, but we would get rid of a lot of these problems. It seems to me that the laws were not very well written. And there's so many ways I could respond to that. You know, you mentioned that gotten us away from original purpose. Or when I think original purpose, at least under American copyright law, we go back to the Constitution. And the U.S. Constitution has powers. You know, the first thing the Constitution does is it creates a government, that there shall be a Congress, there shall be a president. And then when it comes to the Congress, it says the Congress shall have these powers. And there's a list. You know, most things on that list are stated in a very straightforward manner to enact uniform bankruptcy law, to coin money. You know, it's simple statements. Loaded statements, but stated very simply. And then it comes to copyright, and it doesn't say copyright, but it says the Congress shall have power to promote the progress of science and the useful arts by granting to authors, inventors, and inventors for limited times the exclusive right to their respective writings and discoveries. It doesn't use the word copyright. It doesn't use the word patent. It talks about granting rights, limited times. But for a purpose, this clause is just totally unlike the rest of the list, because it says it's for a purpose. It's for the purpose of promoting progress of science and the useful arts. Translate that from 18th century language. It's the promoting of learning and knowledge. If we were to rewrite it today, we'd use words like that. And so that's what copyright is intended to serve. There are many reasons why we've gotten away from that. We can point to lobbyists. We can point to industry. We can point to Hollywood. We can point to all sorts of people. But I'll point to another one. And that is the international system of copyright. The Berne Convention, B-E-R-N-E, capital of Switzerland. The Berne Convention's been around for 100 years and the U.S. joined in 1989. And it sets basic rules. If you're gonna be a member of this club, you must change your laws to be like this. And it sets certain rules. And one of those rules is broad scope of copyright, automatic protection, no formalities as a prerequisite to protection. So if you said we wanna have people register, sorry, that's a violation of the Berne Convention. To do that means you've decided to drop out of the international system. Well, wait a minute. We've locked it in in so many ways. We've locked it in by joining the Berne Convention. The Berne Convention has been incorporated by reference into the WTO, the World Trade Organization. We've now locked in those provisions into bilateral trade agreements with Australia and South American countries and so on. So the system has become locked in. And so the decision to require formalities is a decision to give up on layers and layers of locking in of international legal structure. You can imagine you're a member of Congress and you're looking at this bill and that you're supposed to vote on, you say, but this is terrible, I want law the way you described. And the basic rebuttal, people will always have arguments on the substance and on the merits. But they'll also come back and say, but if we don't pass it, we're in violation of this and that and this and that, we're kicked out of this and we're kicked out of that, so we have to pass it. And that's where we are. That's a lot of what's driving domestic copyright law and patent law in the United States and in nearly every country of the world. You want real change? Go to Geneva, I'll be there in two weeks. I'm quite sure we could spend the entire afternoon with more questions, but I think we should let everyone get back to their day jobs. But before we do, just to thank handful of people in particular, this event as with the last one was a joint effort between three institutions, Amy Brand, managing director of the Office of Scholarly Communications and her friend, Tom, who is the man with the mic. Amar Asher, the moustachioed man in the back with a camera, the events director at the Berkman Center, and Michelle Pierce, the bibliographer of Anglo-American literature at the Harvard Law School in Chanika, McAllister have worked hard to pull together this event. And otherwise, I hope you'll join me in thanking this crew. And for the much in demand, Dr. Kenny Cruz, thank you so much for making this trip. Thank you. Thank you.