Australian Librarians Start 'Cooking For Copyright' Campaign To Change Law For Unpublished Works

from the grilled-fair-use dept

Thu, Jul 30th 2015 5:21am — Timothy Geigner

This history of copyright in the United States is long and filled with changes, mostly in the direction of greater and longer protection. There are a few instances that go the opposite way, however, and one of them is the way that unpublished works are protected by copyright restrictions. In the early days of America, a work that an author had not chosen to publicly publish was actually afforded perpetual copyright under common law rights up until the author either published the work or registered it for statutory copyright protection. In fact, the earliest copyright case to go before the Supreme Court in part dealt with unpublished works. Later, in the early 1900s, the Ninth Circuit Court ruled on a case that decided that unpublished works are only afforded the same copyright term and length as registered or published works. It was a good result, in my view, as I believe the entire point of copyright is to grant control in order to spur creation and publication for public consumption. Granting copyrights to unpublished works breaks the give/take nature of copyright law. The 1976 Copyright Act finally made it official that unpublished works do not get perpetual copyright (though, it expanded copyright in almost every other way possible).

In Australia, the law never made the transition regarding unpublished works, and now a group of librarians is pulling an online stunt in order to get the public interested in making that change.

Librarians across Australia are cooking up a campaign to change the country's copyright laws. However, those involved want people to bake biscuits and cakes rather than picket Parliament.

Social media users are being encouraged to cook a vintage recipe and share a photo of the result. The aim is to encourage the Attorney-General to look at changing the law so that unpublished works are treated the same way as published ones. Executive director of the Australian Library and Information Association (ALIA) Sue McKerracher said the nation had "some rather strange copyright laws".

Strange may be a bit unfair. Antiquated is probably more accurate. In Australia, unpublished works are offered perpetual copyright, so long as they remain unpublished. Published works get the life-plus-70-years deal that we're familiar with. The librarians goal in this is to be able to offer more educational and historical materials to students.

"All we'd like to do is just change it so that unpublished works come under the same terms as published works," Ms McKerracher told 774 ABC Melbourne's Red Symons. "That way, all of the wonderful materials in libraries, galleries, historical societies and museums could be released to students, researchers and historians."

Ms McKerracher said changing the law would allow historians access to soldiers' diaries from World War I, for example.

Also included under current protections would be historical recipes, hence the cooking awareness campaign. The librarians group went so far as to dig up some recipes from historical figures' diaries and private writings, such as Captain James Cook, and encouraged the public to cook them up and post pictures on social media under the hashtag #CookingForCopyright. It's a cute idea, one which will hopefully encourage Australia to bring its copyright law into line with modernity. If you'd like to join in, there are details over here.

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Filed Under: australia, cooking for copyright, copyright, librarians, libraries, unpublished works

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Anonymous Coward, 30 Jul 2015 @ 5:45am

Wouldn't it be easier to say that when an owner of a work, including those they obtained via inheritance, donate it to a library, learned society, or similar institution, then they are placing it in the public domain. I mean why else donate works to such institutions if the intent is not to make them available to anybody who takes an interest in them.
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andy, 30 Jul 2015 @ 5:46am

Copyright law
Copyright law only cover those making money from content otherwise there is no copyright law on the internet, as has been shown over and over and over again everyone who uses the internet breaks copyright laws multiple times every day, the laws are just not compatible with the internet and as soon as everyone accepts that then we can move forward and start creating laws that encourage free use of content for personal use and for non profit use. Yes i believe businesses that use content to make a profit should pay but not crazy prices like the woman that is suing twitter for 140 000 for a photo they did not take down because she did not use the dmca properly.

If anything the internet has destroyed all copyright laws in one foul swoop, nobody abides by the stupid law that absolutely everyone ignores.

As for those that say they deserve to be paid for their content, yes you do if you do not put it on the internet in any way, keep your photos off-line and sell them if you can but once it is online i can copy share and photoshop any image i want. And if someone comes to me and asks if they can buy the photoshopped photo i have i would see that as nothing more than a lucky break and use the money to make my life a little better even if it was just enough to buy a burger.
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That One Guy (profile), 30 Jul 2015 @ 6:40am

And, why again?
If one assumes, as the public is constantly assured/lied to is the case, that copyright is ultimately meant to benefit the public, then what possible reason is there for unpublished works to enjoy any copyright status at all? The public is getting nothing, so what possible reason is there for the work to get the same, if not more, legal protection that published works get?

At least the published works theoretically will eventually enter the public domain for the public to use, the same can not be said for unpublished works.
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cpt kangarooski, 30 Jul 2015 @ 7:20am

Re: And, why again?
It depends on the timeline. All works are unpublished between the time they're created and the time they're published. We should provide some grace period so that an author who has completed a work can shop it around to different publishers, etc. Similarly, a work might be held for publication pending something, e.g. a blockbuster film that gets completed in February will get held until May when the summer movie season starts. A book intended for simultaneous publication worldwide will not get published once the native language MS is set, in order to give the translators time to work.

OTOH, the grace period shouldn't last forever. Eventually there comes a point in time when the public is better off not punishing manuscript pirates than it is in continuing to try to incentivize an author into publishing a work.
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Mason Wheeler (profile), 30 Jul 2015 @ 7:23am

Ms McKerracher said changing the law would allow historians access to soldiers' diaries from World War I, for example.

That line makes me a little bit uncomfortable.

If the soldier left behind a diary that was never published, and it's still around, it's quite reasonable to suppose that only one copy exists and it's in the possession of the soldier's heirs or next of kin. How exactly does Ms. McKerracher expect for that to work? Will the historians have a right to force the current owner to produce a copy?

For all our talk of how copyright infringement is not theft, that does feel uncomfortably like theft to me.
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Anonymous Coward, 30 Jul 2015 @ 7:41am

Re:
We are discussing works that have been handed over to some institute, like a museum or library, where a reasonable assumption is that they were being made available to the public. Any work passing down a family can be destroyed at any time, and will not be known outside the family unless they draw attention to it.
Nobody is suggesting that private individual are forced to hand over privately held works, just that the status of works handed over to any institution, museum, library, regimental association etc., be clarified. The very handing over strongly suggests a desire for the work to be preserved and made available to others.
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That One Guy (profile), 30 Jul 2015 @ 7:44am

Re:
I imagine it would be less a matter of 'You will hand over that diary', and more simply that if the contents of the diary has been made public, like to a museum or something like that, then it can't be 'claimed' by someone as still being covered by copyright, and therefor can be accessed by all without having to ask permission from whoever the 'owner' of the rights happens to be.

Families can still keep the diaries of the parents/grandparents/greatgrandparents private, but if they decide to make them public, they become public to all, not just those willing to pay.
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Mason Wheeler (profile), 30 Jul 2015 @ 7:52am

Re: Re:
All right, that makes more sense.
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k-h, 30 Jul 2015 @ 8:10am

Re: Re:
Families can still keep the diaries of the parents/grandparents/greatgrandparents private, but if they decide to make them public, they become public to all, not just those willing to pay.

And if the family decides to publish, not just "make public"? The family should lose the copyright by publishing?
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Anonymous Coward, 30 Jul 2015 @ 9:08am

Re:
...access to soldiers' diaries from World War I, for example...

Did these soldiers intend their diaries be published?

Many folks who keep diaries never intend for them to be published, or made available in any form to those outside their immediate family, if that much. If there's no intent to publish why should there be an automatic copyright (as That One Guy said).
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nasch (profile), 30 Jul 2015 @ 10:27am

Re: Re: And, why again?
Seems like opt-in copyright would solve all that.
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cpt kangarooski, 30 Jul 2015 @ 10:56am

Re: Re: Re:
Then they either publish it in a timely manner, and keep the existing copyright, or they wait too long, and the copyright expires before it is published.

Here in the U.S., if I found the secret diary of Thomas Jefferson, in which he says that he made the Louisiana Purchase while drunk, and was surprised to wake up from a week long bender with a big bill and possession of a sizable part of the continent, I could publish it because the deadline for its copyright as an unpublished work already expired. It's the passage of time that terminated the right in this case, not the act of publication.
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k-h, 30 Jul 2015 @ 3:27pm

Re: Re: Re: Re:
So how long after the author dies should unpublished books be granted copyright?

I ask this because I recently published 3 novels written by someone who died 26 years before I published them. Under Australian law they got the full 70 years from the date of publication. I didn't actually think of the US situation but as ebooks they are published in the US too.
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G Thompson (profile), 30 Jul 2015 @ 5:34pm

This is a brilliant idea and one I absolutely support, except well.. In Australia like most places (USA as well) recipe's themselves are not actually copyrightable in the first place.

The example they are using is of a recipe from a page of Captain James Cook (approx 1778CE) . The problem is the actual recipe itself is not under any copyrights and never will be, though the rest of the page which is not a recipe is.

So the so called "infringing biscuits, cakes and marmalade" are not actually infringing in any way whatsoever. Yeah pedantry.. but when dealing with Copyright or any legislation it's all about the specifics not puffery
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Anonymous Coward, 30 Jul 2015 @ 5:34pm

General vs. limited publication
Before the adoption of the U. S. Copyright Act of 1976 two kinds of publication existed;
general publication and limited publication.

A general publication occurs when a work is made available to members of the public at large without regard to who they are or what they propose to do with it.

A "limited publication," by contrast, occurs when tangible copies of the work are distributed, but to a limited class of persons and for a limited purpose.

The purpose is to exclude the public and to preserve a common-law copyright.

Mere limited publication has been found where the range and purpose of distribution did not suggest that the general public was free to obtain and use the work. Thus in "Patterson," the court found no general publication despite the fact that copies of the film in issue were circulated widely; the copies were sent only to non-profit groups to be shown for non-commercial purposes, with no authorization to copy them further and, apparently, with the understanding that they would be returned.

"The targeted distribution to selected congregations is a limited publication."

In WHITE v. KIMMELL ET AL.,

"Nobody seeking the mimeographed manuscript appears to have been asked for any sort of credentials. In a word, we are unable to see in this picture any definitely selected individuals"

also
"And, as already appears, this distribution was to designated persons. None was made to a public institution where the public had access to it. None was sold.”

Hotaling v. Church of Jesus Christ of Latter Day Saints

"we hold that a library distributes a published work... when it places an unauthorized copy of the work in its collection, includes the copy in its catalog or index system, and makes the copy available to the public."

The most recent case of a "limited publication" is the speech by Martin Luther King.

...
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G Thompson (profile), 30 Jul 2015 @ 5:43pm

Re: Re:
The diaries in question were from the Boer War and World War 1 (with some from WW2) bequeathed to the Australian War memorial by either the soldiers themselves or posthumously by there estates for the specific purpose of having a public and official history available to all.

If there was no estate the diaries (and all property of the deceased) is transferred to the State and whether it was a soldiers wish to keep private or not is a moot point. That's not the problem.

The problem is where the Estate transferred the articles/diaries and the Estate no longer exists, or cannot be found. Therefore creating orphaned works under our copyright legislation since they were not 'published' in the legal copyright sense of the word. It's a weird problem.
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G Thompson (profile), 30 Jul 2015 @ 5:45pm

Re: General vs. limited publication
Great.. though your point being?

Remember this is Australian Copyright legislation and laws. Not USA and any USA precedent's or opinions carry little to no weight and your Act's carry even less
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Anonymous Coward, 30 Jul 2015 @ 7:52pm

Remeber the Attorney General?
Remeber, this is the Australian Attorney General we're talking about. The one that wants to legalise racism. The one that enacted metadata retention laws. The one that ignored the ALRC in favour of Hollywood.

This will probably spur the AG to say that unpublished works will brought into line with published works. Great! Life + 70 years. But is the author dead yet? Who knows? So the life period will never expire because no-one will know when the 70 years begin.
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nasch (profile), 30 Jul 2015 @ 8:16pm

Re: Remeber the Attorney General?
The one that wants to legalise racism.

Racism is illegal in Australia?

But is the author dead yet? Who knows? So the life period will never expire because no-one will know when the 70 years begin.

That's a problem with orphan works, not unpublished works. There is likely much overlap, but they're independent issues.
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Anonymous Coward, 30 Jul 2015 @ 8:19pm

Re:
The inheritance of the copyright may not follow the inheritance of the physical work, especially if the residuary legatee decides to give the work to someone else (e.g. a sibling) and neglects to hand over the copyright.
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Patroclus, 30 Jul 2015 @ 8:27pm

Re: Remeber the Attorney General?
TBH it's generally a lot easier to confirm if a known person has died, than locate their descendants who may or may not have inherited the rights over the decades / centuries, and negotiate with them for providing access now.
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Trish, 30 Jul 2015 @ 11:38pm

Re:
Libraries, museums and the Australian War Memorial are just some of the institutions that have soldier diaries, generally donated by the soldier/families, often with no statement regarding copyright/incomplete paperwork. Other real issues are collections donated to libraries with third party copyright (such as letters written to politicians) or works where no copyright holder can be found (such as many business papers from old companies)
Even if copyright is standardised (70 years post death for publishes and unpublished works) this would have no effect on physical ownership or control of a diary, or any other item.
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Trish, 30 Jul 2015 @ 11:41pm

Re:
The recipe itself isn't (the ingredients, method of manufacture) but the expression of those instructions is. The digitisation breaches that expression - you can check out the Australian Copyright Council's helpful fact sheet on recipes if you'd like to check the semantics;)
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Trish, 30 Jul 2015 @ 11:41pm

Re:
The recipe itself isn't (the ingredients, method of manufacture) but the expression of those instructions is. The digitisation breaches that expression - you can check out the Australian Copyright Council's helpful fact sheet on recipes if you'd like to check the semantics;)
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G Thompson (profile), 31 Jul 2015 @ 6:15pm

Re: Re:
I fully realise the distinction between the actual expression of the words and the actual recipe itself, which is why the last paragraph states (and still stands) that the actual cooking and creation of the 'so called "infringing biscuits, cakes and marmalade" are not actually infringing in any way whatsoever'

That's what is the problem.

Also, the actual list of ingredients and quantities of such is definitely not protected either whether written or otherwise.
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