August 2014 – Intersections

Chance and the Macaque 2

Maybe he does have a copyright interest . . .

UK based photographer David Slater’s infamous “monkey selfie” has a complicated jurisdictional history. The monkey took the photograph in Indonesia, where Slater set the scene for the photograph. Slater has a contract with UK based Caters News Agency, and Caters published the photograph online. Then, US based Wikipedia and parent organization Wikimedia posted the photograph online to an American domain site: Wiki Commons. If Slater were to go to court, he seemingly could have a choice of two different areas of law: American or British.

There has been a lot of speculation already on American copyright law, because the legal community has assumed that American law would apply. The general consensus has been that American law would not allow a copyright, because the photographer is the monkey, and American law does not recognize a right of an animal to hold a copyright.

Most people do not seem to realize that Wikimedia also has a registered non-profit in the United Kingdom, so Slater could probably sue that division under the laws of the United Kingdom. If the United Kingdom’s international choice of law rules follows the American choice of law rules, it is likely that the copyright law of the United Kingdom would govern as it is a citizen of the United Kingdom suing a non-profit incorporated under the laws of the United Kingdom. We don’t know whether a person in the United Kingdom can view the image in the UK on Wiki Commons website, because here in the Scholarly Communications Office, we don’t have access to an Emulator to see what the Internet looks like in London. Presuming that a person can access the image in Wiki Commons from London, the law of the UK would apply. The law of authorship there states “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” In this case, Slater may be that person, and UK law would determine that. What makes this case more interesting is that if American legal scholars are correct, then the monkey selfie would be in the public domain in the United States but protected under copyright law in the United Kingdom. It will be interesting to see how Wikimedia responds, as copyright law only covers national boundaries but the Internet is multinational.

Chance and the Macaque

Point/Counterpoint: an occasional feature where Anne and Brett offer two different takes on an intellectual property issue or idea.

Comments on the macaque that took pictures have been everywhere. They include:

Animals have no personhood and can’t own copyrights.

It was a picture taken by chance, and so the photographer can’t own the copyright.
The photographer says that the macaque acted as his assistant.
Does Indonesian law govern? Does the copyright law of the photographer’s home country govern?
The Copyright Office postulates that animals can’t own copyrights. Neither can spirit guides or deities. Good to know.

The New Yorker has a good analysis.

But the whole story has brought up a couple of related thoughts for me. The first is about chance in art, the capturing of chance and randomness in art, and the ability to copyright what results. Most think—and I do too—that it’s about intent. Silence is merely silence that isn’t and can’t be copyrighted until John Cage comes along. In those situations, it’s useful to think about what William Patry calls the continuum of idea/expression rather than the idea/expression dichotomy

I am aware of the role of chance in my own work, and that of many other artists. The paint makes contact with the wet watercolor in a way that I can predict but that is not completely under my control. I work with the result and create with intentionality, but some part of the resulting painting came about by chance. That role of chance is often less easy to point to in written works, but there are some writers and poets who work with words generated randomly. Perhaps the copyright is thinnest as intentionality lessens. At the same time, part of creation is seizing and recognizing felicitous, unintended results. It is a conundrum where lack of intentionality becomes intentionality.

I also began thinking about two articles I had read recently in the New York Times. One was about animal law, and the efforts of the Nonhuman Rights Project to convince courts to extend legal rights to primates. The other was on ideas about the thoughts and emotions of animals. Will we someday grant legal rights to animals? Could an animal understand the incentive of copyright and use it to create? It seems unlikely now, but I do wonder if it will be possible in the future.

Desk Tracker Categories for Scholarly Communications Office

Statistics to show our worth are both a boon and a bane. We create categories and log interlibrary loan, circulation, and reference statistics. Libraries try to measure and count anything in order to demonstrate our value to our communities. However, trying to track statistics can be difficult in departments with less directly measureable interactions. We used the categories, with some modifications that are detailed in an article titled “Copyright Information Queries in the Health Sciences: Trends and Implications from the Ohio State University” that Anne Gilliland wrote with her colleague Pamela Bradigan. At the University of North Carolina, in our libraries, we use Desk Tracker and have created the following categories to determine how to measure queries in the Scholarly Communications Office:

Categories:

Audio
Classroom use
Continuing education
Copyright infringement
Copyright registration
Digitization
Fair use
General copyright question
Images
Licensing
Linking or Embedding
MOOC/Non-Sakai/UNC Educational Services
Permissions
Policy/compliance information
Publicity
Scholarly publishing
Trademark
Video
Other

In Desk Tracker, these categories are all check boxes, so multiple categories of questions can be selected, in case one interaction has multiple questions or subjects. Often, the patron asks a single question whose answer blends into other categories, this is an opportunity for us in the Scholarly Communications Office to educate and explain related concepts..

We will review these categories later and evaluate how and whether they worked for us. We will revise the categories as necessary. For example, we added “Digitization” because it is a different kind of category then the other items that show up on this list. Stay tuned as we review the categories in a few months and determine what did or did not work for us.

About Anne Gilliland

Anne T. Gilliland is the libraries’ Scholarly Communications Officer at the University of North Carolina, Chapel Hill. She has a Master’s of Science in Library and Information Science from the University of Tennessee and a J.D. from Capital University. She is licensed to practice law in Ohio but is on inactive status.

Anne has worked in academic libraries and related organizations since the 1970s, including 15 years at the Ohio Library and Information Network (OhioLINK), a virtual academic library program of the Ohio State Board of Regents. In lieu of a more conventional mid-life crisis, Anne entered law school part-time at night in 2004. She took a position as the Head of the Health Sciences Copyright Management Office at the Ohio State University in 2008, shortly before graduation. She came to UNC in the summer of 2012.

Anne provides copyright consultations and education for the library and for university community as a whole. In addition, she provides information and education on related areas of law, such as privacy. Anne also works with library staff on other issues and projects related to new modes of scholarly communication.

About Brett D. Currier

Brett D. Currier is the Scholarly Communications Officer intern at the University of North Carolina, Chapel Hill. He starts his fourth year in a joint Master’s of Science in Library and Information Science and a J.D., both from the University of North Carolina, this August 2014. Brett has been interning in the Scholarly Communications Office since January 2014 and graduates from both programs in May 2015.