[via BoingBoing]

Copyright and the National Portrait Gallery
The Gallery has a public duty not only to conserve and display works in its Collection but also to ensure they are correctly represented in reproductions and publications.

As a result of continuing research, from time to time adjustments are made in the attributions of artists and sitters, and these amendments are reflected in Gallery publications such as this website. Likewise, we ensure pictures are represented in their most recent state of restoration.

There are sometimes sensitive issues involving artists, sitters, donors or lenders of Collection works, to which we must be responsive. Accordingly, we tightly control the circumstances and quality of reproductions from the Collection.

The Gallery’s image licensing department issues images for reproduction purposes. We also exert strict controls on all photography in the Gallery, which is allowed only on the understanding that copyright rests with us and that any further reproduction deriving from resulting photographic materials is subject to our written permission.

The Gallery is a strong supporter of free entry – we don’t think visitors should have to pay to see the Collection. Those who may never be able to visit us can enjoy and learn about the Collection through images published in books and magazines, and on television and the internet.

The Gallery’s image licensing department raises money by licensing reproductions, thus supporting both the free entry policy and the Gallery’s main functions caring for its Collection and engaging people with its works.

(emphasis added by me). That sounds to me like an assertion of exclusive rights–under this policy, how is anyone but the National Portrait Gallery allowed to make copies of the museum’s public domain art?

I’m thinking here two moles destroying my garden. I hope that doesn’t reveal to much about my psyche.

choreographers’ decision not to rely on copyright and to instead develop their own “community” system of protection, protection believed to be better suited to choreography and providing better protection. The community system works in large part because of the concentration of choreographers in New York City, the tight-knit nature of dance companies, and the reputation within the community enjoyed by choreographers.

This community approach to determining who has a right to stage dances, however, can be problematic with dancers who have had long, legendary careers. This is illustrated by the rancor and legal wrangling associated with the estate of Martha Graham (New Yorker dance critic Joan Acocella writes about this elegantly in her essay The Flame) where she left her estate to her longtime companion rather than to dancers who had worked closely with her for decades. So even if some dancers may have had a greater claim on Graham’s dances based on reputation or familiarity with Graham’s body of work, legally they were shut out from performing her work.

[Via BoingBoing]

The situation reveals the stark divide between the business models of some electronic content distributors, which aim to grant mere licenses to use their products, and traditional sales where a buyer has complete dominion over a physical book. Here’s an excerpt from Amazon’s Terms of Service for the Kindle:

Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.

Restrictions. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove any proprietary notices or labels on the Digital Content.

As far as Terms of Service provisions go these days, the TOS are actually quite straightforward.² But the TOS are brutal nonetheless in how little they give purchasers of digital books compared to the ownership rights buyers of real books receive. Property rights are composed of a bundle of rights. When you purchase a traditional book, you have, of course, a number of things that legally you’re allowed to do with the physical copy of the book. You can mark it up, tear pages out if you want, give it away, lend it out, you can read it aloud to your children and you can also resell it. Certainly, the seller cannot snatch it away from you once it leaves the store. With Amazon’s business model for the Kindle–what the customer buys is radically different. The customer is essentially buying a contract to use the book in a manner that Amazon allows. You cannot give the digital book away. You can’t read it on another company’s digital reader. You can’t sell your copy. You may also not be able to have the Kindle read out loud the text.  With a download of a Kindle e-book, the “buyer” only has a contractual right to read the book.

Hugh D’Andrade of the Electronic Frontier Foundation frames this as a matter of excessive digital rights management, or DRM, and notes that copyright law did not require the deletions. I’ve always thought of DRM as a way of restricting digital content that the customer actually owns. The Kindle model goes beyond this–seemingly taking the contractual relationship almost entirely outside the realm of copyright.³ Indeed, earlier this year, the Authors’ Guild protested the Kindle 2’s text-to-speech feature which enables the Kindle to read out loud text with the extremely faulty legal assertion that using the feature was a derivative audio right and therefore violative of an author’s copyright. In response, Amazon did not challenge this misguided legal theory and now allows each author or publisher a contractual say in whether to enable the feature.

This business model of providing a license is something that book consumers will have to get used to for the Kindle to truly succeed. And as far as persuading customers that this model is a good thing,⁴ I can’t think of anything worse than deleting a product from the accounts of its customers. Really, it would have been far preferable for Amazon’s business aims to work out a compensation deal among Amazon, the publisher with the United States copyright and the unauthorized seller. As part of its business strategy, fighting for the rights of its customers should be a higher priority for Amazon. (Photo of Kindle by bfishadow.)

1. Nineteen Eighty-Four is in the public domain in Canada, Russia and Australia, but not in the United States or the European Union.
2. But not straightforward enough for me to see how Amazon can delete copies in this situation where the purchaser has done nothing illegal–does “permanent copy” have a meaning that I’m not thinking of?
3. One can imagine a DRM regime that provides for ownership of a digital copy but restricts that ownership to mimic what a buyer of a physical book gets. For example, you can pass the digital book on to your friend, but when you do, you no longer have a copy: your copy is deleted.
4. Harvard Professor Harry Lewis does think it’s a good thing: “I’ve never loved the fact that I can’t lend a book to my wife after I’ve gotten through reading it, though. And while I know that I’m kind of renting the books rather than buying them, so far that’s been OK. In fact it’s been great — when I accidentally deleted a book from my Kindle, I could get it back for free. Can’t do that with my copy of The Greening of America that is lost somewhere in my basement. Owning it does me no good.”