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Scholarly Publishing and the Law: Copyright, Contracts, and Why You May Need a Lawyer!
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Scholarly Publishing and the Law: Copyright, Contracts, and Why You May Need a Lawyer!
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Segment:0 .
Good afternoon. Thank you for coming, everyone. So we're going to get started. My name is John long. I'm the director of publications for the biophysical society. I'm in the unique position of both having 20 plus years of experience in scholarly publishing and also being a lawyer. I took a detour from scholarly publishing to pursue a law degree right here at the University of Baltimore, and I was sworn in to the bar of the state of Maryland in 2012.
I'm happy I got the law degree, but I'm also happy that my path brought me back to scholarly publishing. I always thought a law degree would be a handy thing to have and look great on a resume, no matter what I ended up doing. Turns out when I came back, a lot of people in scholarly publishing didn't care about it as much as I thought they might. I don't use my legal knowledge every day in my job, but it does come up sometimes, and it is sometimes useful because we do have legal issues that we come across in our industry what they are, how frequently they come up and how you handle them is going to vary greatly depending on exactly what you do and what kind of organizations you work for.
The idea behind this session is to give you a better understanding of how to spot legal issues, how to understand them a little bit better, and how to know when it's time to turn to a professional. So before we begin, I always want us to show the code of conduct for SSP. Of course, always keep that in mind when we're having discussion later to be respectful of everyone.
And also keep in mind the core values of SSP. And what would session about the law be without a legal disclaimer. So no one associated with this presentation is trying to serve as your attorney. We're trying to give you some general ideas and information to point you in the right direction. Every situation is going to be different for your own needs, and you should hire an attorney who will represent you and your specific interests.
And then the last thing is. So we're going to have we're going to bounce around on the panel here. And then we'll have questions and answers at the end as questions come up. Of course, because facts are different and your situation is different. Always be prepared to hear it depends as an answer quite a bit.
Now I'm going to introduce the rest of the panel. So joining me is Pooja tellychakkar. Do you want to introduce yourself. Pooja hi, I'm Pooja Chawla. I am the licensing and subsidiary rights manager with American Psychiatric publishing. Ken laubach hi, I'm Ken laubach, I'm an attorney with the impress Law Group in Arlington, Virginia. I work mainly with intellectual property rights, licensing and sales.
And I'm Greg. And I'm Greg Britton. I'm the editorial director at Johns Hopkins University press, and I am not an attorney. Happily thanks. All right. So we're going to jump in. And the two main ways that you might run into the law in publishing, run into legal issues in publishing regard contracts and copyrights.
And so first I'm going to talk a little bit about contracts. You might have contracts with your vendors, with book authors, with journal authors. But what does a contract actually do. They can be quite long. They can include a lot of things. But at their core, what they're about is two parties agreeing to do something that they wouldn't otherwise have to do.
So there has to be an offer, an acceptance, and consideration. Now, the first two are pretty straightforward. But if you haven't been to law school, you might think, well, what's consideration. Consideration means that both parties have to actually put up something of value. So the example you often hear of something that sounds like a contract but isn't is called a gift promise. So if I tell you, hey, show up here tomorrow and I'll give you my car and I don't show up the next day.
We didn't have a contract, and I haven't breached. And you can't sue me for anything. But if I say show up tomorrow, I'll sell you my car for $10,000. And you say deal. $10,000 and I don't show up. Now we both have said promise to do something we wouldn't otherwise have to do. I'll give you my car. You give me $10,000.
Now we've got a contract. So, Greg, you're in book publishing. So when you're negotiating contracts with authors, what are some of the clauses that are important. And how do you negotiate those. Yeah thanks. I come to this from a book publishing perspective and specifically from an editorial perspective.
I'm an acquisitions editor, and over the last few decades, I think I have probably negotiated or looked over the shoulder of the person negotiating about 3,000 book contracts. And that's been with authors with teams of authors, with editorial, with general editors or with associations. And I've done that with books that were scholarly, books with text and trade books.
And with professional titles. And I've done that across the humanities and social sciences and the sciences. Mostly I work on contracts with authors, and some of them have agents. And when an author has an agent, there's often a complication involved. Philosophically, I think of the contract as a tool that documents our collaboration.
And I think of it as something like, here's what we're going to do and here's what you're going to do. And I also want them to understand what they're giving up in this contract and what we are bringing to the table as well. For example, we're not just getting the rights to make a print book and an e-book. We're also getting this entire bundle of other rights. And I really want them to understand what property is on the table because of this.
I really insist that an author understand every detail in their contract, because what I don't want is for them to not understand something. It's really important to me that we have that conversation before they sign that contract. When it comes time, for example, to do the index, I don't want the author to say, wait, what. I have to do the index. Why didn't I know this.
And had they read clause 11 in the contract, they would have known that. I once had an author. So we negotiated a contract and we send the contract by DocuSign, which is commonly used by publishers to sign a contract. And I sent this contract and the author within about 15 seconds had signed it, and it bounced back to me.
And it seemed odd that it happened that quickly. And I called her and I said, did you read this. And she said, no, no, no, I'm so excited that we're going to be working together. I just wanted to get this signed so I could tell people I'd signed the contract. It's like, wait a minute, do you know what you just signed. And she said, I really trust you. I've really liked working with you, and I. I voided the contract and I wish I could do electronically.
And I said, let's walk through this. I want you to understand this because this is a collaboration and I want you to know what you're signing. So that's really how we get into those contracts and those negotiations. So, so on that topic, Greg, I mean, who wouldn't trust this guy. I think it's important, one of our goals in this discussion, having two attorneys, two non attorneys.
All of us work really deeply with copyright and legal issues in our respective realms of publishing, is to really lay out what copyright is, what it does in our favor as publishers, how we can better understand it, and how we can be prepared to really look future forward as technologies and expectations change. So actually, Greg, I have a question for you. Since you voided the contract and you started over to go a step even before that, what's the negotiation process look like.
So that's a good question. There are two things that I'm keeping in mind when I negotiate. The first is that. I know the rough dollar value of every term in that contract. I know how much an index is probably going to cost. I know that moving the Royalty on a book by 1% percentage point, roughly what that will cost the press or building an escalator, what risk we're taking on when I do that, or if an author has, requires or is interested in an advance, often with an agent, they'll ask for an advance.
I know how much relatively that will cost the press. And so. Or here's the one I love. When an author says, I'd like 10 extra free copies. They're the author of free copies. I know what that's worth to the press. And so as I'm negotiating, I'm always thinking, how much money am I giving up. And that's something that I know from experience.
It's an easy rule of thumb for me. And the second thing that I keep in mind is I want this to be as fair as possible. I represent the interests of the press. But what I really want is for this author to come to trust the press is going to treat them fairly and that they're going to be a willing collaborator with us because I know if I don't that I'm passing to my colleagues down the pipeline, someone who is felt they were dealt with dishonestly and that means someone like you end up I pass this author off to you.
So as a rights manager, I am typically downstream of the decisions that Greg and his authors and other folks in editorial make, which can either expand or limit my ability to exercise the rights that the press has acquired from the author. You work with agents, and you mentioned that they also bring a set of experience and expectations to the process. At what point when you're negotiating.
So before you send that DocuSign link, do you get a lawyer involved. Because we have some lawyers here. Oh, I try and you guys are great, but I. It is rare that a lawyer gets involved in one of our contract negotiations. There are certain clauses that I know. I tell the editors I work with that these are non-negotiable things.
And then there are certain clauses that are negotiable. And here's again how we can maneuver those agents often come with their own many agents or attorneys themselves, or come with legal departments, and they will often try to rewrite a contract in their favor. Sometimes they simply will rewrite clauses to put it in their language and not ours.
But it's essentially the same. And we're really careful about those contracts. There's so much more work than just working from our template. So Ken, now I have to come in and defend the lawyers on this entire issue. And obviously, Greg, you have a lot of experience in dealing with these contracts. You spent a lot of time understanding what the terms are, what they mean to your business.
You understand you understand what risks you're taking when you change a particular clause. Unfortunately, not everyone has that same experience. And in particular, when there are new and novel issues that are arising, something that you haven't dealt with before, something that you don't have advice on. And I know this is I understand this is now a drinking game here, but the example we have right now that everyone's talking about is artificial intelligence and how that works into drink, all sorts of contracts.
And what I would suggest is that you do take advice when you're particularly when you're starting to develop the policy about what is the press going to do in this particular situation, maybe not on an individual contract by contract basis because that's again, I appreciate that's an expense. Sure and absolutely. It's not always necessary, particularly when you understand the contract well, but to develop that policy decision on how are we going to deal this, how are we going to write the new base clause claws on.
I What are we going to. What risks are we going to accept. What are we not going to accept. That's when a lawyer, someone who understands and is following that the developments, well, that's when they can really come to the fore and provide really useful advice. Yeah that's a good point. We, I keep a running list of changes that I want to make to our standard contract.
And when they reach a certain critical mass, I call our general counsel's office and show them a draft of how I would like to change that contract. And so we do get that legal advice on the standard boilerplate. And then we have that conversation again what's a meaningful change to this that we can negotiate. What should we not touch.
And that's been super helpful. I think adding to the utility of working with lawyers is ensuring that you're working with attorneys, whether in-house or out of house, who understand what your priorities are as a publisher. And that puts the onus on you as the publishing representative to understand what your priorities are. So if you're adopting a language about I use or prohibiting I for certain things, if you reach critical mass on certain clauses that are creating friction in the negotiation process, you want to be.
You don't just want to hand it off to the lawyer and say like, go. You want to make sure that your objectives and priorities are really clear between parties so that what you're codifying into this boilerplate really reflects what you're trying to do with your publishing program. So I find it to be an ongoing process. Every year or two, maybe five max, especially with the technology right now, is I make sure.
When did. When was the last time we looked at these templates, do they reflect how we're doing business, how we set expectations for receiving things. Is this how we want to exercise our copyright and our subsidiary rights. Do we have other plans. So I think it's a really healthy thing to have a living, breathing contract template that you're comfortable interpreting and working with lawyers to make sure that interpretation is clear.
Explain what a subsidiary right is. Well, I'm glad you asked, Greg. So my role in this is to give a brief overview about copyright. I know you guys are familiar with the concept and its applications in the different kinds of publishing you do. But generally speaking. And to really give a big overview is copyright is enshrined in US law to promote and incentivize people to create.
And those creations can be creative in nature. Books and novels and poetry. They can also be scholarly, right. So scholarly research is protected by copyright, and that those rights are then transferred in the publication process from an author or a series of authors or researchers to a publisher, whether it's a University Press or a scholarly society like the APA where I work. And so the primary thing that we want to make sure our editors, like Greg, acquire, is the primary right to publish so that we can produce this material in print format, in e-book format.
We can add it to an online subscription. All of the different media mediums that we have to enable the scholarship to be disseminated. Subsidiary rights. And I'm eager for the day that we take the sub and just rename it as something else, because they're just as important as primary rights are the kind of bundle of rights that rights managers like me hope to acquire that we can exercise that include audiobooks, translations, adaptations, derivatives, and those derivatives can be very broadly defined.
And so at APA, we're a medical publisher in psychiatry. A lot of the really unique ways that we can license our content, not just to monetize it, but to really expand the reach of it, is through software applications in the health care industry. So my previous experience was in the University Press world scholarly monographs. Most of your suberites are going to be translations into other languages and other markets around the world. But working at the APA, I've been introduced to the entire software world and all these different ways that our content can be created into different products to meet the needs of clinical researchers, of academic researchers, of students, to source and aggregate data on patients to be able to do really meaningful research on that.
I think we might have a slide just to give you a quick overview of and you probably. Yeah there it is. Thanks, John. These are just some images of translated books across different disciplines. The one on the far right. You're far left. The one in Korean.
I should just put it that way is a Korean book on the dental ethics, and it published by Georgetown. And the other two are from the APA, including our flagship publication, the DSM, which is widely translated and distributed around the world. So these are more traditional suberites. These are ways that a publisher can engage in business contracts with other publishers or other individuals to enable these rights to be transferred.
There's usually some money exchange involved, and typically other contracts will allow some of that compensation to flow to the authors. But what I encourage you guys, as you're looking at copyright, and especially if you're looking to increase your revenue or really expand your reach by using existing intellectual property that is valuable is to look into some of these new applications, including software, including digital technologies, where the content doesn't have to just be A or an e-book, which is its own kind of version of a.
Ken, I'm so curious how AI has changed how we think about copyright. It's a really big question because. Oh, I'm sorry, I said we have to drink. Because there are two issues that are really, really under discussion right now. First is how do we deal with generative AI and the creation of works by an AI.
But also, how does that affect your work with your authors. And how are your authors using AI to develop works for you. And I don't know that there's been a lot of discussion about that, I don't know. Do you have a clause right now on how your authors can use AI. We have a policy. We don't have a clause in the contract. Is it based on ethics or is it based on the law. Is the question, because what I've seen mainly is an ethics based approach from the publishing industry.
If we're going to use AI in a product, we need to tell people that it's being used. We need to disclose that whatever we have to disclose, part of the work that's been done, we can't name AI the AI as an author, that actual physical people need to take responsibility for the work. It's lovely from an ethics point of view. As a lawyer, unfortunately, I have no regard for ethics whatsoever.
And I'm looking at it more from a legal point of view. And they actually the USPTO has put out a few. The patent and Trademark Office has put out some guidance on using generative AI, but even they haven't addressed what I think is probably the biggest concern for you in my mind, at least with when you're working with your authors. Is that a well-known principle in copyright law is that works have to be produced by a human being.
A work produced by a machine without human intervention is not copyrightable. It's not owned by anybody. So it is absolutely wonderful if you have the ethical approach say, an I worked on these pieces of this document and/or this publication. But if when it comes time to actually enforce your copyright, when someone has infringed and taken a publication and reproduced it, and they for some reason feel that they're in the right, you end up in front of a court.
That court is going to be asking you, OK, what portions of that text were created by the AI. What portions were created by the author. How did the author intervene in the production of that work. And John, I have there's the one slide with the pictures that I have that I think is a great visual example. This was a very meticulously made copyright application. It was the final output was AI generated.
And it's lovely that it's a paper too, because it's very visual. The prompt is given on the left hand side. These were all submitted to the Copyright Office. This is coming out of Copyright Office documents. The middle is the a hand drawing made by the made by the artist. And the final product is what the generative AI produced. It's very clear from this application what they're trying to copyright.
They're copyrighting the human part of that, which is the prompt and the input and the way that the output represents the prompt and the input. But if I wanted to copyright those colors, if I wanted to copyright that shading, I can't do it. That was generated by AI. If someone steals that color, if they sample that color like they did in the music industry, you don't.
You can't own it. The author, the artist doesn't own it. It was created by a machine. The machine can't own it. It's a machine. So I believe that honestly, this example was done meticulously. This just to prove a point that the author was saying these. I want to test copyright law. I wanted to show what can be copyrighted, but I think it gives you a great visual reminder of what it is that you own, which is very difficult to do in text because an author is going to have a paragraph written, then they're just going to edit the paragraph.
And how do you know which words were the author's words, which words were the generative AI'S words, and how that's all intermingled. It starts to become very difficult if people are again, people are taking just small snippets. But if there's an author that's written a whole page with an AI hasn't edited it at all, just submitted it. Now, as an owner of the rights of the publisher owning the rights, do you really own it.
No, the page is not yours. I have a really. Can I ask about a case study. Of course. All right. Here's a case study that came across my desk. An editor friend from another publishing house called me, was working on an A, had a subsequent edition of a book that was basically a Crohn's disease encyclopedia.
This is a book about Crohn's disease, a really debilitating chronic disorder that if one is diagnosed with, one is going to live their entire life with this. And so the publishing house had published this encyclopedia, which delivered all sorts of information to that patient and those. And this book was one of the publishing houses, very strong Sellers, and was in a subsequent edition and was getting to be about 700 pages, again a reference book, but aimed at the patient level.
And the author came to the editor and said, patients are starting to ask me, is there a short version of this. Is there the Pocket Guide to living with Crohn's disease OK. And the editor thought, this is a great idea for a book, but could you. Could you distill the 700 page book down to the pocket guide. And the physician said to her.
That's great. I don't have time to do that. I'm seeing patients. I don't have the capacity to write this. And the editor thought, this is an opportunity to use AI to create something. So takes the text of the larger book. OK puts it into a proprietary walled garden of an AI system. OK writes the appropriate prompts and saying, do not go outside the text of this book, OK.
Using only the text of this book, create a 100 page version of it. And do it in this author's voice. And after a couple of rounds, this editor said this looked pretty good and showed it to the author who read it and said, this sounds like let me read it over the editor or I'm sorry. The author marks it up, fixes a few places where the nuance wasn't what he thought it should be, and turned it back to the publisher and said, we should publish this as the concise guide.
The question I would have is, how do you copyright that. It's based on the author's writing. It is repurposed by I. It has been re reworked and re-edited by the author. Is that a copyrightable product. There's a lot in there that is copyrightable, and it's much like it's much like this example. You have the prompt. In this case, the prompt is the 700 page book of you have the instructions stay within.
Stay staying within the book really helps a lot. Staying within the four corners. And you have the editing at the end, which is, of course human, a human activity. And I am sure there are words and phrases from the original 700 page work that are found verbatim in the summary. I'm just guessing there must be somewhere. So when you go to copyright this, you are going to.
I think you have certainly copyrighted the underlying material and you have copyright in the way in the human way that was expressed. Much like this picture has additional embellishments to it and extra things that aren't copyrightable. But there is so much of the author's original work included in that you probably have a very strong copyright, but you're going to want to be able to show the prompt, show the original book.
You probably want to keep the original. I response as not necessarily show that with the Copyright Office, but if someone ever goes to copy it and you have to go into court and say, this bit was generated by the AI and this is the bit that we wrote. If you don't have the bit that was written by the AI, you have no proof. And then your opposing counsel is going to start Messing with your head and saying, well, you have to prove that this word was in the original book or wasn't part of the Edit.
It's keeping, unfortunately, it's keeping a lot of documentation, but it's the evidence you're going to have in court should it ever become an issue. And that's again, the scary bit about it. Oh, it just seems like that cheese sandwich that you put in the microwave and it melts and it's like you can't melt that cheese.
You can't. But did you own the cheese in the first place. That's the question. In a way, though, I mean, making the distinction of using AI as a tool as a very specific closed environment, the way we use spell check, the way we use to check traffic on our phones. These real time innovations in AI. What Greg is describing is using a tool.
And when I think I used to do copyright registrations for years and you have to list what is excluded, right. So if there's public domain material, if there's previously copyrighted material, the Copyright Office, I don't think the examiners really pursue that level of research. It's really on the publisher. But you need to be able to distinguish and differentiate the source material.
What was added and what was human intervened, right. You have the Copyright Office. Does they do a cursory review. But they're not going to investigate. The only time you're going to need to pull out all this documentation is when you're in court, trying to stop an infringer from stealing your work, at which point, the original copyright comes under can come under question again, whether or not there was even a valid copyright in the work itself.
And people will if that's the way to get out of the get out of jail. And you've said perhaps under your AI policy ethics policy that AI helped generate some of this, they will grab that and say, OK, now you have to tell us what parts were generated and which parts weren't. So that kind of circles back to if you are able to establish you have a copyright, you brought up litigation that can happen if you establish your copyright and somebody out there actually cares, that's going to prevent them from using your material.
But also if they do something more on a large scale and have actually harmed you financially, you might actually want to go to court for that. Because if somebody throws something up on a website and somebody notices it, you might just say like, hey, that's our copyright. And if they take it down, that's all you're trying to get done. But there could be something larger. Do you have something to add.
Because I know Pooja has something to say about protecting copyright. I mean, I have a lot to say about infringement, but we don't have time for that. I think what's interesting, and I'm not going against AI or defending it, it's a lot of gray area. But I think what's really interesting is the public perception of copyrighted material and the notion that this material is protected and requires permission to use or to create a derivative or to distill.
It's really changing because a lot for most of us publishers, if you don't know this already, sorry. But like a lot of our stuff is already out there. And it's a little bit too late to close the doors on the barn. And so a lot it's kind of reshaping the value of our work. And then coming up with policies that enable people to use AI constructively with our content. And I just use this as an example, not destructively especially for the APA.
There's a lot of medical liability. And if you guys have seen AI generated images, you may have noticed that AI is really bad at doing hands. There's too many fingers or not enough. So if you're using a model that interprets source material that way, and you're creating a medical guide for surgeons who might amputate hands to look like, it's a really big example and I don't hopefully there is a human element that says, no, we don't want surgeons using this AI generated image of a hand missing most of its fingers.
Like, that's not what we're working towards. But those kind of errors and hallucinations, as they're called in the technical field, they're really consistent and it's changing public's perception of that information is already free and I found it online and I ran it through ChatGPT, so it's fine versus ways that we as publishers can really work innovatively to streamline our production workflows. Could get a really great distillation of that 700 page book.
But you're not abandoning your editorial process along the way, ideally. But there are ethical issues when you look at how a lot of these papers are being generated through AIs and that it's not disclosed and it's impossible for us to find what's original. Yeah can you raise this interesting dichotomy of the ethics versus the law. Can you say more about that.
I would never recommend that people act unethically, because I honestly feel that the Ethics are very important that we. However, ethics aren't always respected in the law. There is what should I do and what does the law require me to do. And those can be very different things. And a Honestly, I have no problem.
I think having an ethical obligation to disclose that I produced some of this work, particularly in scholarly publications where people are using these publications for important things and need to know how they've been generated and how they've been produced of just for the integrity of the information that's included in them. But we can't confuse that with the legal, with the legal right and a legal obligation.
What your legal rights are. I'm not arguing that we shouldn't have some sort of legal restriction on that, but it's that that's a policy decision. That's not necessarily a legal decision right now. But yeah, but please do act ethically. I hope I didn't give you any sort of misconception about me and my practice.
So, Ken, did you have some advice on having discussed all of this. If you don't have a lawyer who works directly with your organization, or maybe you don't even have one that you've had on call in the past, when is it may be time to go talk to somebody. I think I alluded to it earlier. I think there are three main points. And they're interrelated.
First is all based on your comfort level. Do you understand. Do you understand your contract. Do you understand what an author is asking you if they have requested a change. Are you comfortable at being able to say what is the risk, either monetarily or reputationally or whatever the risk is in changing a particular contract clause if you're comfortable doing that.
I don't think at that point I don't believe you need a lawyer. There's nothing magic about the law. After years of working with these contracts and talking to people about them, you're going to come to understand portions of the contract. But if you're not comfortable, if you don't understand what the risks are, then you absolutely, in my opinion, need some sort of legal advice to help you particularly.
And this would be the second one. If it's a large risk, if you have a small dollar contract for a small run or something that it's oftentimes the cost of the risk does not justify bringing in someone, bringing in a lawyer outside advice to try to help you through it. But conversely, when it is something very, very large, if it's something that your.
House publishing house is dependent on maybe it's something that's very controversial. And if said the wrong way could lead to some sort of litigation or political backlash or something, then you really have to think about that value. And is it worth it at that point. A lawyer can be a very inexpensive insurance policy, someone who can give you some advice and help you understand exactly the size of the risk.
And for a larger for a large value project, that's very important. And the third time is, as we were discussing earlier, with novelty, when there's something new that you don't have in your client, you don't have it in your standard contract. Now, you don't have an clause with your authors describing how much they can use, how little they can use, but you want to have a policy on it, and you're not sure exactly what that policy should be.
You don't know if that's going to depend on your circumstances. But someone to help you work through those novel issues and really understand what's behind the headlines when people are talking about this. Because of course, there are legal principles behind. The interesting thing about the Patent Office is they put out a number of reports. None of them have recommended a change in the law. What they are doing is applying the existing law to this new novel situation, finding that it generally meets their needs.
I think they're still going to be a policy discussion about whether or not the current law actually addresses AI sufficiently, and that's just a discussion that's happening right now in the courts and in Congress. Yeah, I would a few to that. This is not an exhaustive list, of course, but obviously dates are important. If you're talking about with authors book authors that need to meet certain dates.
If you have a vendor contract that ends at a certain date, if there's an expiration date, a termination date, that's something to be aware of. You might need to give notice a certain amount of time in advance that you don't intend to renew the contract. And so I had a situation like that where it was the contract was written perfectly. Well, it's not that anything was missing. And it said if no one renews by a certain date, then this is going to expire.
But there are other implications for that. And we've been purposely vague about some of these things. I should say that to protect the innocent. We aren't using specific examples from actual contracts that we've used with details, but you could get to the expiration of a contract and it's like, OK, it's going to end. But then what happens with the content that we have done, we have published up until now, how are we going to close this down.
So we actually negotiated like an addendum to the contract, to say, this is what we're agreeing to do. With everything that we've done so far. So that's another thing to keep in mind. Of course, if there's a breach, if you think someone has breached the contract and you have been harmed and you need to be made whole in some way, you want to talk to an attorney. Lawyers are expensive.
People have some negative feelings about attorneys, but kind of following up on what Ken said, that it is like an insurance policy and spending some money on a lawyer up front or at some point really does can save you a lot of trouble down the road. If things are more clear and everybody knows what's expected and there are no surprises, because having to go through litigation is going to be a lot more expensive.
So just a few things for doubling back to contracts a little bit that when you're negotiating them, there might be things in there that are lists of definitions and warranties and a confidentiality clause. Force majeure. What the governing law is going to be. Some of those things are pretty standard.
And you have to pick your spots with what you want to argue about. And like Greg was saying about things being non-negotiable. Also, sometimes there's going to be a vendor who's a big company negotiating with somebody small, like an individual, like an author. And if the author here is like, oh, that's non-negotiable, I have to sign it. Well, you don't have to sign anything.
You didn't sign it yet. They might have used it with every author they've ever signed with, but if you don't want to sign it, you can say so. And if it's something you're willing to say, well, I will not sign that contract if that's in there. And if they say, well, it's in every contract, then maybe you won't sign it. And that kind of ends up with remembering that what Greg said earlier about wanting to keep good relationships and giving somebody an opportunity to understand what's in the contract.
That's good business. That's a good way of doing things. But also just if you're talking strictly about the law, if you're like, oh, great, he signed it in 15 seconds and didn't even read it. If that ever came to litigation, someday it could be found to be not a valid contract if well, wait, did that person know that you weren't their lawyer.
Like, he thought you were real nice and said he liked working with you. Did you point out I'm not your lawyer. You should probably talk to somebody who's going to represent your interests, because lawyers do have rules of ethics, and they cannot represent both sides of a contract at the same time. John, can I just add something to that.
So contracts we've used terms like non-negotiable. And then also agreement contracts are intended and they are best when they are a codified codification of the relationship between parties. They can be amended. They can be amended. You can have clauses struck. You can cancel the whole thing and start over. None of these are an indication that you're a bad publisher that you're dealing with a difficult author, right.
These are all actually pretty healthy phases to go through. Ideally, their conversation and their relationship is transparent from the outset, and that your author feels comfortable reading the contract and talking to their editor, to their lawyers, whomever is involved. But I'm constantly in the process of amending things and adjusting things and expanding things. And we don't always say no, we don't always say yes, but it depends on the context of what they're asking.
We want the success of the project for our authors. We want the success of the project for our licensees. And there's so many different. You want to look at it really holistically and be willing to use this like I as a tool to move things forward, to expand the frame of the research or the scholarship or just the relationship with your author. So this is not to say that there are absolute non-negotiables, because maybe you just never thought to adjust something until that one author said, hey, wait a minute.
Technology is changing, needs are changing. Students are changing. We want to make sure we can acknowledge it, that they've done you a big favor in pointing out something that maybe in your publishing sphere, you kind of had a blind spot about. So I do encourage an openness and that we stand to learn a lot from our authors and from the audiences and the kinds of people that their scholarship is geared towards.
Well, we're going to leave time for questions. That's a good kind of a good place to wrap up. Was there anything else that popped into your heads while we were talking that you wanted to get out there. We would also love to hear from you. We've been asking talking amongst ourselves. There is a microphone there. I'm going to start with one question, mostly for Ken, but please, anyone can chime in and it is about I.
So I'm sorry if you're playing the drinking game, I hope you're drinking water. With AI innovation moving so fast and I think it's just accelerating at extraordinary speeds. It seems like generative AI products are outpacing the rights holders ability to keep up. And I know that the very good folks at the CDC and others are really working to create licensing agreements so that we can incentivize people who want to do the right thing to have a license that they can work off of.
But what are your recommendations or what opportunities do you see for copyright holders to not miss the boat. It's very difficult right now because it is at some level the Wild West. There's the fair use argument that the large language model developers are using it. It actually was the subject of a US Patent Office patent and Trademark Office report which the draft report was published, I think a month ago and in at least in my opinion, caused the firing of the librarian of Congress and the head of the Copyright Office.
A very unusual situation, because all the report was doing was recommending that there be some sort of license mechanism. But to the extent that this is very much, obviously a hot button political issue. As a copyright holder, I honestly don't know what you can do, because if the government is going to have a policy of extending fair use to training of AI, then.
There's not much you can do because it is a government. It's a legal right that you have in copyright. It's the so. It is interesting that some other countries are taking a different approach to copyright and training of large language models, saying that the training is actually a fair use, but we're going to take a look at the product of the AI and decide whether or not the product has infringed on someone's copyright, regardless of how it was trained.
So it's possible that there are some other ideas like that will come out, possibly some sort of licensing scheme. But I'm not out of this administration, I wouldn't think I don't think that's going to be that's political right now. We have a question. Hi, Nicola Posner with the American Mathematical Society and thinking about AI as a tool.
Sorry, everybody take another sip of water. One of the things we are dealing with, and I know a lot of other publishers are, is needing to make our online versions of our content accessible. And when you've got a big back file and you need to create Alt text, AI seems like a good way to get that done. So what does that do to copyright.
Do we need to I mean, typically we would just regenerate those files and repost them. Do we need to do something differently. Do we need to be looking at the Copyright. I think it's something you need to consider that you always have the copyright in the original work. And the question is, what is the AI doing to that original work to help you present it in a new way to the extent you're using it like a tool, like you, like you use word.
Your copyright. What seems to be right now is that retaining your copyright is you have much stronger case to retain your copyright in the new work that's produced to the extent that it's transforming it, I get very worried when Greg talks about summarizing something where the AI is doing a lot of work. I had a actually quite a long discussion earlier today with one of the vendors about creating audio versions of text and having an AI create the audio version as opposed to a human creating the audio version and rights in the performance that were created, which is I think I talked myself around three different ways for saying that there was a copyright then not then, right.
It absolutely isn't clear how much human intervention is required to maintain your copyright, but it's something I think you want to look at. You do. I think you do want to have a lawyer take a look at that to see what you're doing and what you can still protect. Wait, I want to follow up on that. You're saying that if we have AI voice and audio book, that we may lose copyright in that product, not in the product, in the performance, in the performance copyright, there are six different rights in copyright.
And one of them is to create derivative works, to create copies, but also to perform right. So if someone taped that performance, do you actually have. It's questionable whether you have a right. If they could play that tape again. You still have your underlying copyright in the work. I think it would be very difficult for them to claim that they could then transcribe that performance and now copy that work in written form.
But the performance itself is it's an open question, I think you lose. You're going to lose the right. So it sounds like the Alt text may not be copyrightable, but the underlying work is safe. Well, the underlying work still remains safe. That's not a question. But the question is, what is the AI doing. How is it transforming?
Thank you. Pooja, did you get to talk about the fact that you deal with Pirates. If we have time at the end, I would love to address questions. But yes. I'd be happy to tell you stories about Pirates. OK well, we have another question.
Elliot Hibbeler from Boston College. I feel like in a lot of walks of life, like in service contracts, a lot of the times, they have arbitration clauses. But I don't really see that often when it comes to contracts between authors and publishers. So I'm just wondering, without disclosing what you put in contracts, just what the panel feels about the pros and cons of putting an arbitration clause in the contract versus trusting the judicial system.
If a dispute comes up. Sorry, I know I have never seen an arbitration clause in a publishing contract, and that's such a great question. That's what I want to say. Yeah honestly, it particularly when you're dealing with an author, there is a disparity in resources.
And, Greg, I would suggest to you that it's unfair to your authors to force an arbitration clause on them, because arbitration is very expensive. You're talking about having the author pony up half of the fees for the actual just for the judge, at whatever rate they're charging nowadays for what could be very it could be expensive. It's one of the reasons I hate it in consumer contracts, because it's patently a mechanism by companies to take advantage of consumers and make it and make it impossible for them to have some sort of judicial adjudication because you're literally out of pocket before you even start.
You're starting you have to start paying fees and generally in an arbitration. So well that's why we don't do it. Yeah Absolutely thank you. No I've never seen one. Yeah that's a great question. Sorry hi I'm Christina with bio one and I'm on the sales and licensing side.
And so things that I spend all my who knew I was going to be on Law and Order or intellectual property division when we started in publishing. But what we're starting to see in subscriber license agreements and this is just it's all new is use of AI our library clients want to start putting this in that their students can utilize our content within I. And it's just started to come up.
I actually pushed pause on a contract. I'm like, I'm going to ask around it SSP and see what people are doing on this. So what questions should we be asking of this. Because this is an entirely new area for us. I don't know what the students want to do. I was talking with the librarian earlier this week and said, well, it's just like they would use, text and data mining.
I'm like, I don't know if that's true. So I don't know where to start in answering this or evaluating this for us. OK I think the big concern when you need to think about is how people are using it. When I first started about started thinking about particularly training LLMs large language models, it was how is that so different from Ken going out, buying a book, reading it, learning something from it, and then writing something new based on what I've learned or synthesize it.
At some level, it's similar, except for the scale that an LLM large language model can do that. If we're talking about a student using an AI as a tool to assist them in learning what is in your properly licensed book or properly licensed materials. That seems to be very, to me, very different from the student using your information to train to train their large language model, either natively or through some sort of context engine to then go and compete with your materials.
And how I'd have to think about that, how you would look at a license and decide what the license rights are. It seems to me it's a personal it's more like a personal use license where you're licensing the materials to them to read and to consume. Anyways, if they are using that I to assist them in it. That feels to me that feels right. But to use it then to go compete and generate something that is now competitive with your product is difficult. And that's honestly where there was a court case in Delaware just in January that came out in similar on similar terms where.
A lot of the concern was about the monetization and the scale and scope of what a large language model can do that is so different from. Bob going out and reading your book and writing an essay on it, or using the AI to help find a particular portion that he wants to use. But that's the way I would frame the question about what we're doing, trying to do so to facilitate.
That utilizing the content it'll wake you up. Intended for personal use. Yes and not for commercializing it and making it into some sort of business. Yeah, just to echo that. I mean, ask a lot of questions. You're under no obligation to do this. But the questions I always ask when we're approached by someone who wants to license our content for something that does not fit the contours of our existing licensing agreements or business models is, I ask a lot of questions.
What is the content. What is the intended use of that content. What are you going to do with it. So personal use for learning could be creating a summary. Creating a CliffsNotes version of some dense content that the student can learn from. And that probably falls within the guidelines of your intended use as a publisher, but using it to generate a term paper. Even on a non-commercial basis, it's not competing with the scholarship commercially, right.
But it's misrepresenting the student's own work. And this is a lot of the ethical issues around student use of AI is that they're not generating original work and that they're turning in. So really making getting into those granular details, if you were to extend a license, the challenge, though, and this kind of goes to John's thing about Pirates is who's going to enforce that. Are the librarians in a position to enforce student use students.
I mean, we are all students at one point. We can be very innovative in finding ways around to circumvent different kinds of rules to our benefit. So that's the other question is, even if you were to get to the granular level, at what point are you willing to let go and say, well, we can't enforce this, and if it's unenforceable, do you still want to pursue it. All right.
We're out of time. I want to thank Pooja, Ken and Greg. And if you have other questions for us, feel free to come up after. Thanks for coming.
Segment:0 .
Good afternoon. Thank you for coming, everyone. So we're going to get started. My name is John long. I'm the director of publications for the biophysical society. I'm in the unique position of both having 20 plus years of experience in scholarly publishing and also being a lawyer. I took a detour from scholarly publishing to pursue a law degree right here at the University of Baltimore, and I was sworn in to the bar of the state of Maryland in 2012.
I'm happy I got the law degree, but I'm also happy that my path brought me back to scholarly publishing. I always thought a law degree would be a handy thing to have and look great on a resume, no matter what I ended up doing. Turns out when I came back, a lot of people in scholarly publishing didn't care about it as much as I thought they might. I don't use my legal knowledge every day in my job, but it does come up sometimes, and it is sometimes useful because we do have legal issues that we come across in our industry what they are, how frequently they come up and how you handle them is going to vary greatly depending on exactly what you do and what kind of organizations you work for.
The idea behind this session is to give you a better understanding of how to spot legal issues, how to understand them a little bit better, and how to know when it's time to turn to a professional. So before we begin, I always want us to show the code of conduct for SSP. Of course, always keep that in mind when we're having discussion later to be respectful of everyone.
And also keep in mind the core values of SSP. And what would session about the law be without a legal disclaimer. So no one associated with this presentation is trying to serve as your attorney. We're trying to give you some general ideas and information to point you in the right direction. Every situation is going to be different for your own needs, and you should hire an attorney who will represent you and your specific interests.
And then the last thing is. So we're going to have we're going to bounce around on the panel here. And then we'll have questions and answers at the end as questions come up. Of course, because facts are different and your situation is different. Always be prepared to hear it depends as an answer quite a bit.
Now I'm going to introduce the rest of the panel. So joining me is Pooja tellychakkar. Do you want to introduce yourself. Pooja hi, I'm Pooja Chawla. I am the licensing and subsidiary rights manager with American Psychiatric publishing. Ken laubach hi, I'm Ken laubach, I'm an attorney with the impress Law Group in Arlington, Virginia. I work mainly with intellectual property rights, licensing and sales.
And I'm Greg. And I'm Greg Britton. I'm the editorial director at Johns Hopkins University press, and I am not an attorney. Happily thanks. All right. So we're going to jump in. And the two main ways that you might run into the law in publishing, run into legal issues in publishing regard contracts and copyrights.
And so first I'm going to talk a little bit about contracts. You might have contracts with your vendors, with book authors, with journal authors. But what does a contract actually do. They can be quite long. They can include a lot of things. But at their core, what they're about is two parties agreeing to do something that they wouldn't otherwise have to do.
So there has to be an offer, an acceptance, and consideration. Now, the first two are pretty straightforward. But if you haven't been to law school, you might think, well, what's consideration. Consideration means that both parties have to actually put up something of value. So the example you often hear of something that sounds like a contract but isn't is called a gift promise. So if I tell you, hey, show up here tomorrow and I'll give you my car and I don't show up the next day.
We didn't have a contract, and I haven't breached. And you can't sue me for anything. But if I say show up tomorrow, I'll sell you my car for $10,000. And you say deal. $10,000 and I don't show up. Now we both have said promise to do something we wouldn't otherwise have to do. I'll give you my car. You give me $10,000.
Now we've got a contract. So, Greg, you're in book publishing. So when you're negotiating contracts with authors, what are some of the clauses that are important. And how do you negotiate those. Yeah thanks. I come to this from a book publishing perspective and specifically from an editorial perspective.
I'm an acquisitions editor, and over the last few decades, I think I have probably negotiated or looked over the shoulder of the person negotiating about 3,000 book contracts. And that's been with authors with teams of authors, with editorial, with general editors or with associations. And I've done that with books that were scholarly, books with text and trade books.
And with professional titles. And I've done that across the humanities and social sciences and the sciences. Mostly I work on contracts with authors, and some of them have agents. And when an author has an agent, there's often a complication involved. Philosophically, I think of the contract as a tool that documents our collaboration.
And I think of it as something like, here's what we're going to do and here's what you're going to do. And I also want them to understand what they're giving up in this contract and what we are bringing to the table as well. For example, we're not just getting the rights to make a print book and an e-book. We're also getting this entire bundle of other rights. And I really want them to understand what property is on the table because of this.
I really insist that an author understand every detail in their contract, because what I don't want is for them to not understand something. It's really important to me that we have that conversation before they sign that contract. When it comes time, for example, to do the index, I don't want the author to say, wait, what. I have to do the index. Why didn't I know this.
And had they read clause 11 in the contract, they would have known that. I once had an author. So we negotiated a contract and we send the contract by DocuSign, which is commonly used by publishers to sign a contract. And I sent this contract and the author within about 15 seconds had signed it, and it bounced back to me.
And it seemed odd that it happened that quickly. And I called her and I said, did you read this. And she said, no, no, no, I'm so excited that we're going to be working together. I just wanted to get this signed so I could tell people I'd signed the contract. It's like, wait a minute, do you know what you just signed. And she said, I really trust you. I've really liked working with you, and I. I voided the contract and I wish I could do electronically.
And I said, let's walk through this. I want you to understand this because this is a collaboration and I want you to know what you're signing. So that's really how we get into those contracts and those negotiations. So, so on that topic, Greg, I mean, who wouldn't trust this guy. I think it's important, one of our goals in this discussion, having two attorneys, two non attorneys.
All of us work really deeply with copyright and legal issues in our respective realms of publishing, is to really lay out what copyright is, what it does in our favor as publishers, how we can better understand it, and how we can be prepared to really look future forward as technologies and expectations change. So actually, Greg, I have a question for you. Since you voided the contract and you started over to go a step even before that, what's the negotiation process look like.
So that's a good question. There are two things that I'm keeping in mind when I negotiate. The first is that. I know the rough dollar value of every term in that contract. I know how much an index is probably going to cost. I know that moving the Royalty on a book by 1% percentage point, roughly what that will cost the press or building an escalator, what risk we're taking on when I do that, or if an author has, requires or is interested in an advance, often with an agent, they'll ask for an advance.
I know how much relatively that will cost the press. And so. Or here's the one I love. When an author says, I'd like 10 extra free copies. They're the author of free copies. I know what that's worth to the press. And so as I'm negotiating, I'm always thinking, how much money am I giving up. And that's something that I know from experience.
It's an easy rule of thumb for me. And the second thing that I keep in mind is I want this to be as fair as possible. I represent the interests of the press. But what I really want is for this author to come to trust the press is going to treat them fairly and that they're going to be a willing collaborator with us because I know if I don't that I'm passing to my colleagues down the pipeline, someone who is felt they were dealt with dishonestly and that means someone like you end up I pass this author off to you.
So as a rights manager, I am typically downstream of the decisions that Greg and his authors and other folks in editorial make, which can either expand or limit my ability to exercise the rights that the press has acquired from the author. You work with agents, and you mentioned that they also bring a set of experience and expectations to the process. At what point when you're negotiating.
So before you send that DocuSign link, do you get a lawyer involved. Because we have some lawyers here. Oh, I try and you guys are great, but I. It is rare that a lawyer gets involved in one of our contract negotiations. There are certain clauses that I know. I tell the editors I work with that these are non-negotiable things.
And then there are certain clauses that are negotiable. And here's again how we can maneuver those agents often come with their own many agents or attorneys themselves, or come with legal departments, and they will often try to rewrite a contract in their favor. Sometimes they simply will rewrite clauses to put it in their language and not ours.
But it's essentially the same. And we're really careful about those contracts. There's so much more work than just working from our template. So Ken, now I have to come in and defend the lawyers on this entire issue. And obviously, Greg, you have a lot of experience in dealing with these contracts. You spent a lot of time understanding what the terms are, what they mean to your business.
You understand you understand what risks you're taking when you change a particular clause. Unfortunately, not everyone has that same experience. And in particular, when there are new and novel issues that are arising, something that you haven't dealt with before, something that you don't have advice on. And I know this is I understand this is now a drinking game here, but the example we have right now that everyone's talking about is artificial intelligence and how that works into drink, all sorts of contracts.
And what I would suggest is that you do take advice when you're particularly when you're starting to develop the policy about what is the press going to do in this particular situation, maybe not on an individual contract by contract basis because that's again, I appreciate that's an expense. Sure and absolutely. It's not always necessary, particularly when you understand the contract well, but to develop that policy decision on how are we going to deal this, how are we going to write the new base clause claws on.
I What are we going to. What risks are we going to accept. What are we not going to accept. That's when a lawyer, someone who understands and is following that the developments, well, that's when they can really come to the fore and provide really useful advice. Yeah that's a good point. We, I keep a running list of changes that I want to make to our standard contract.
And when they reach a certain critical mass, I call our general counsel's office and show them a draft of how I would like to change that contract. And so we do get that legal advice on the standard boilerplate. And then we have that conversation again what's a meaningful change to this that we can negotiate. What should we not touch.
And that's been super helpful. I think adding to the utility of working with lawyers is ensuring that you're working with attorneys, whether in-house or out of house, who understand what your priorities are as a publisher. And that puts the onus on you as the publishing representative to understand what your priorities are. So if you're adopting a language about I use or prohibiting I for certain things, if you reach critical mass on certain clauses that are creating friction in the negotiation process, you want to be.
You don't just want to hand it off to the lawyer and say like, go. You want to make sure that your objectives and priorities are really clear between parties so that what you're codifying into this boilerplate really reflects what you're trying to do with your publishing program. So I find it to be an ongoing process. Every year or two, maybe five max, especially with the technology right now, is I make sure.
When did. When was the last time we looked at these templates, do they reflect how we're doing business, how we set expectations for receiving things. Is this how we want to exercise our copyright and our subsidiary rights. Do we have other plans. So I think it's a really healthy thing to have a living, breathing contract template that you're comfortable interpreting and working with lawyers to make sure that interpretation is clear.
Explain what a subsidiary right is. Well, I'm glad you asked, Greg. So my role in this is to give a brief overview about copyright. I know you guys are familiar with the concept and its applications in the different kinds of publishing you do. But generally speaking. And to really give a big overview is copyright is enshrined in US law to promote and incentivize people to create.
And those creations can be creative in nature. Books and novels and poetry. They can also be scholarly, right. So scholarly research is protected by copyright, and that those rights are then transferred in the publication process from an author or a series of authors or researchers to a publisher, whether it's a University Press or a scholarly society like the APA where I work. And so the primary thing that we want to make sure our editors, like Greg, acquire, is the primary right to publish so that we can produce this material in print format, in e-book format.
We can add it to an online subscription. All of the different media mediums that we have to enable the scholarship to be disseminated. Subsidiary rights. And I'm eager for the day that we take the sub and just rename it as something else, because they're just as important as primary rights are the kind of bundle of rights that rights managers like me hope to acquire that we can exercise that include audiobooks, translations, adaptations, derivatives, and those derivatives can be very broadly defined.
And so at APA, we're a medical publisher in psychiatry. A lot of the really unique ways that we can license our content, not just to monetize it, but to really expand the reach of it, is through software applications in the health care industry. So my previous experience was in the University Press world scholarly monographs. Most of your suberites are going to be translations into other languages and other markets around the world. But working at the APA, I've been introduced to the entire software world and all these different ways that our content can be created into different products to meet the needs of clinical researchers, of academic researchers, of students, to source and aggregate data on patients to be able to do really meaningful research on that.
I think we might have a slide just to give you a quick overview of and you probably. Yeah there it is. Thanks, John. These are just some images of translated books across different disciplines. The one on the far right. You're far left. The one in Korean.
I should just put it that way is a Korean book on the dental ethics, and it published by Georgetown. And the other two are from the APA, including our flagship publication, the DSM, which is widely translated and distributed around the world. So these are more traditional suberites. These are ways that a publisher can engage in business contracts with other publishers or other individuals to enable these rights to be transferred.
There's usually some money exchange involved, and typically other contracts will allow some of that compensation to flow to the authors. But what I encourage you guys, as you're looking at copyright, and especially if you're looking to increase your revenue or really expand your reach by using existing intellectual property that is valuable is to look into some of these new applications, including software, including digital technologies, where the content doesn't have to just be A or an e-book, which is its own kind of version of a.
Ken, I'm so curious how AI has changed how we think about copyright. It's a really big question because. Oh, I'm sorry, I said we have to drink. Because there are two issues that are really, really under discussion right now. First is how do we deal with generative AI and the creation of works by an AI.
But also, how does that affect your work with your authors. And how are your authors using AI to develop works for you. And I don't know that there's been a lot of discussion about that, I don't know. Do you have a clause right now on how your authors can use AI. We have a policy. We don't have a clause in the contract. Is it based on ethics or is it based on the law. Is the question, because what I've seen mainly is an ethics based approach from the publishing industry.
If we're going to use AI in a product, we need to tell people that it's being used. We need to disclose that whatever we have to disclose, part of the work that's been done, we can't name AI the AI as an author, that actual physical people need to take responsibility for the work. It's lovely from an ethics point of view. As a lawyer, unfortunately, I have no regard for ethics whatsoever.
And I'm looking at it more from a legal point of view. And they actually the USPTO has put out a few. The patent and Trademark Office has put out some guidance on using generative AI, but even they haven't addressed what I think is probably the biggest concern for you in my mind, at least with when you're working with your authors. Is that a well-known principle in copyright law is that works have to be produced by a human being.
A work produced by a machine without human intervention is not copyrightable. It's not owned by anybody. So it is absolutely wonderful if you have the ethical approach say, an I worked on these pieces of this document and/or this publication. But if when it comes time to actually enforce your copyright, when someone has infringed and taken a publication and reproduced it, and they for some reason feel that they're in the right, you end up in front of a court.
That court is going to be asking you, OK, what portions of that text were created by the AI. What portions were created by the author. How did the author intervene in the production of that work. And John, I have there's the one slide with the pictures that I have that I think is a great visual example. This was a very meticulously made copyright application. It was the final output was AI generated.
And it's lovely that it's a paper too, because it's very visual. The prompt is given on the left hand side. These were all submitted to the Copyright Office. This is coming out of Copyright Office documents. The middle is the a hand drawing made by the made by the artist. And the final product is what the generative AI produced. It's very clear from this application what they're trying to copyright.
They're copyrighting the human part of that, which is the prompt and the input and the way that the output represents the prompt and the input. But if I wanted to copyright those colors, if I wanted to copyright that shading, I can't do it. That was generated by AI. If someone steals that color, if they sample that color like they did in the music industry, you don't.
You can't own it. The author, the artist doesn't own it. It was created by a machine. The machine can't own it. It's a machine. So I believe that honestly, this example was done meticulously. This just to prove a point that the author was saying these. I want to test copyright law. I wanted to show what can be copyrighted, but I think it gives you a great visual reminder of what it is that you own, which is very difficult to do in text because an author is going to have a paragraph written, then they're just going to edit the paragraph.
And how do you know which words were the author's words, which words were the generative AI'S words, and how that's all intermingled. It starts to become very difficult if people are again, people are taking just small snippets. But if there's an author that's written a whole page with an AI hasn't edited it at all, just submitted it. Now, as an owner of the rights of the publisher owning the rights, do you really own it.
No, the page is not yours. I have a really. Can I ask about a case study. Of course. All right. Here's a case study that came across my desk. An editor friend from another publishing house called me, was working on an A, had a subsequent edition of a book that was basically a Crohn's disease encyclopedia.
This is a book about Crohn's disease, a really debilitating chronic disorder that if one is diagnosed with, one is going to live their entire life with this. And so the publishing house had published this encyclopedia, which delivered all sorts of information to that patient and those. And this book was one of the publishing houses, very strong Sellers, and was in a subsequent edition and was getting to be about 700 pages, again a reference book, but aimed at the patient level.
And the author came to the editor and said, patients are starting to ask me, is there a short version of this. Is there the Pocket Guide to living with Crohn's disease OK. And the editor thought, this is a great idea for a book, but could you. Could you distill the 700 page book down to the pocket guide. And the physician said to her.
That's great. I don't have time to do that. I'm seeing patients. I don't have the capacity to write this. And the editor thought, this is an opportunity to use AI to create something. So takes the text of the larger book. OK puts it into a proprietary walled garden of an AI system. OK writes the appropriate prompts and saying, do not go outside the text of this book, OK.
Using only the text of this book, create a 100 page version of it. And do it in this author's voice. And after a couple of rounds, this editor said this looked pretty good and showed it to the author who read it and said, this sounds like let me read it over the editor or I'm sorry. The author marks it up, fixes a few places where the nuance wasn't what he thought it should be, and turned it back to the publisher and said, we should publish this as the concise guide.
The question I would have is, how do you copyright that. It's based on the author's writing. It is repurposed by I. It has been re reworked and re-edited by the author. Is that a copyrightable product. There's a lot in there that is copyrightable, and it's much like it's much like this example. You have the prompt. In this case, the prompt is the 700 page book of you have the instructions stay within.
Stay staying within the book really helps a lot. Staying within the four corners. And you have the editing at the end, which is, of course human, a human activity. And I am sure there are words and phrases from the original 700 page work that are found verbatim in the summary. I'm just guessing there must be somewhere. So when you go to copyright this, you are going to.
I think you have certainly copyrighted the underlying material and you have copyright in the way in the human way that was expressed. Much like this picture has additional embellishments to it and extra things that aren't copyrightable. But there is so much of the author's original work included in that you probably have a very strong copyright, but you're going to want to be able to show the prompt, show the original book.
You probably want to keep the original. I response as not necessarily show that with the Copyright Office, but if someone ever goes to copy it and you have to go into court and say, this bit was generated by the AI and this is the bit that we wrote. If you don't have the bit that was written by the AI, you have no proof. And then your opposing counsel is going to start Messing with your head and saying, well, you have to prove that this word was in the original book or wasn't part of the Edit.
It's keeping, unfortunately, it's keeping a lot of documentation, but it's the evidence you're going to have in court should it ever become an issue. And that's again, the scary bit about it. Oh, it just seems like that cheese sandwich that you put in the microwave and it melts and it's like you can't melt that cheese.
You can't. But did you own the cheese in the first place. That's the question. In a way, though, I mean, making the distinction of using AI as a tool as a very specific closed environment, the way we use spell check, the way we use to check traffic on our phones. These real time innovations in AI. What Greg is describing is using a tool.
And when I think I used to do copyright registrations for years and you have to list what is excluded, right. So if there's public domain material, if there's previously copyrighted material, the Copyright Office, I don't think the examiners really pursue that level of research. It's really on the publisher. But you need to be able to distinguish and differentiate the source material.
What was added and what was human intervened, right. You have the Copyright Office. Does they do a cursory review. But they're not going to investigate. The only time you're going to need to pull out all this documentation is when you're in court, trying to stop an infringer from stealing your work, at which point, the original copyright comes under can come under question again, whether or not there was even a valid copyright in the work itself.
And people will if that's the way to get out of the get out of jail. And you've said perhaps under your AI policy ethics policy that AI helped generate some of this, they will grab that and say, OK, now you have to tell us what parts were generated and which parts weren't. So that kind of circles back to if you are able to establish you have a copyright, you brought up litigation that can happen if you establish your copyright and somebody out there actually cares, that's going to prevent them from using your material.
But also if they do something more on a large scale and have actually harmed you financially, you might actually want to go to court for that. Because if somebody throws something up on a website and somebody notices it, you might just say like, hey, that's our copyright. And if they take it down, that's all you're trying to get done. But there could be something larger. Do you have something to add.
Because I know Pooja has something to say about protecting copyright. I mean, I have a lot to say about infringement, but we don't have time for that. I think what's interesting, and I'm not going against AI or defending it, it's a lot of gray area. But I think what's really interesting is the public perception of copyrighted material and the notion that this material is protected and requires permission to use or to create a derivative or to distill.
It's really changing because a lot for most of us publishers, if you don't know this already, sorry. But like a lot of our stuff is already out there. And it's a little bit too late to close the doors on the barn. And so a lot it's kind of reshaping the value of our work. And then coming up with policies that enable people to use AI constructively with our content. And I just use this as an example, not destructively especially for the APA.
There's a lot of medical liability. And if you guys have seen AI generated images, you may have noticed that AI is really bad at doing hands. There's too many fingers or not enough. So if you're using a model that interprets source material that way, and you're creating a medical guide for surgeons who might amputate hands to look like, it's a really big example and I don't hopefully there is a human element that says, no, we don't want surgeons using this AI generated image of a hand missing most of its fingers.
Like, that's not what we're working towards. But those kind of errors and hallucinations, as they're called in the technical field, they're really consistent and it's changing public's perception of that information is already free and I found it online and I ran it through ChatGPT, so it's fine versus ways that we as publishers can really work innovatively to streamline our production workflows. Could get a really great distillation of that 700 page book.
But you're not abandoning your editorial process along the way, ideally. But there are ethical issues when you look at how a lot of these papers are being generated through AIs and that it's not disclosed and it's impossible for us to find what's original. Yeah can you raise this interesting dichotomy of the ethics versus the law. Can you say more about that.
I would never recommend that people act unethically, because I honestly feel that the Ethics are very important that we. However, ethics aren't always respected in the law. There is what should I do and what does the law require me to do. And those can be very different things. And a Honestly, I have no problem.
I think having an ethical obligation to disclose that I produced some of this work, particularly in scholarly publications where people are using these publications for important things and need to know how they've been generated and how they've been produced of just for the integrity of the information that's included in them. But we can't confuse that with the legal, with the legal right and a legal obligation.
What your legal rights are. I'm not arguing that we shouldn't have some sort of legal restriction on that, but it's that that's a policy decision. That's not necessarily a legal decision right now. But yeah, but please do act ethically. I hope I didn't give you any sort of misconception about me and my practice.
So, Ken, did you have some advice on having discussed all of this. If you don't have a lawyer who works directly with your organization, or maybe you don't even have one that you've had on call in the past, when is it may be time to go talk to somebody. I think I alluded to it earlier. I think there are three main points. And they're interrelated.
First is all based on your comfort level. Do you understand. Do you understand your contract. Do you understand what an author is asking you if they have requested a change. Are you comfortable at being able to say what is the risk, either monetarily or reputationally or whatever the risk is in changing a particular contract clause if you're comfortable doing that.
I don't think at that point I don't believe you need a lawyer. There's nothing magic about the law. After years of working with these contracts and talking to people about them, you're going to come to understand portions of the contract. But if you're not comfortable, if you don't understand what the risks are, then you absolutely, in my opinion, need some sort of legal advice to help you particularly.
And this would be the second one. If it's a large risk, if you have a small dollar contract for a small run or something that it's oftentimes the cost of the risk does not justify bringing in someone, bringing in a lawyer outside advice to try to help you through it. But conversely, when it is something very, very large, if it's something that your.
House publishing house is dependent on maybe it's something that's very controversial. And if said the wrong way could lead to some sort of litigation or political backlash or something, then you really have to think about that value. And is it worth it at that point. A lawyer can be a very inexpensive insurance policy, someone who can give you some advice and help you understand exactly the size of the risk.
And for a larger for a large value project, that's very important. And the third time is, as we were discussing earlier, with novelty, when there's something new that you don't have in your client, you don't have it in your standard contract. Now, you don't have an clause with your authors describing how much they can use, how little they can use, but you want to have a policy on it, and you're not sure exactly what that policy should be.
You don't know if that's going to depend on your circumstances. But someone to help you work through those novel issues and really understand what's behind the headlines when people are talking about this. Because of course, there are legal principles behind. The interesting thing about the Patent Office is they put out a number of reports. None of them have recommended a change in the law. What they are doing is applying the existing law to this new novel situation, finding that it generally meets their needs.
I think they're still going to be a policy discussion about whether or not the current law actually addresses AI sufficiently, and that's just a discussion that's happening right now in the courts and in Congress. Yeah, I would a few to that. This is not an exhaustive list, of course, but obviously dates are important. If you're talking about with authors book authors that need to meet certain dates.
If you have a vendor contract that ends at a certain date, if there's an expiration date, a termination date, that's something to be aware of. You might need to give notice a certain amount of time in advance that you don't intend to renew the contract. And so I had a situation like that where it was the contract was written perfectly. Well, it's not that anything was missing. And it said if no one renews by a certain date, then this is going to expire.
But there are other implications for that. And we've been purposely vague about some of these things. I should say that to protect the innocent. We aren't using specific examples from actual contracts that we've used with details, but you could get to the expiration of a contract and it's like, OK, it's going to end. But then what happens with the content that we have done, we have published up until now, how are we going to close this down.
So we actually negotiated like an addendum to the contract, to say, this is what we're agreeing to do. With everything that we've done so far. So that's another thing to keep in mind. Of course, if there's a breach, if you think someone has breached the contract and you have been harmed and you need to be made whole in some way, you want to talk to an attorney. Lawyers are expensive.
People have some negative feelings about attorneys, but kind of following up on what Ken said, that it is like an insurance policy and spending some money on a lawyer up front or at some point really does can save you a lot of trouble down the road. If things are more clear and everybody knows what's expected and there are no surprises, because having to go through litigation is going to be a lot more expensive.
So just a few things for doubling back to contracts a little bit that when you're negotiating them, there might be things in there that are lists of definitions and warranties and a confidentiality clause. Force majeure. What the governing law is going to be. Some of those things are pretty standard.
And you have to pick your spots with what you want to argue about. And like Greg was saying about things being non-negotiable. Also, sometimes there's going to be a vendor who's a big company negotiating with somebody small, like an individual, like an author. And if the author here is like, oh, that's non-negotiable, I have to sign it. Well, you don't have to sign anything.
You didn't sign it yet. They might have used it with every author they've ever signed with, but if you don't want to sign it, you can say so. And if it's something you're willing to say, well, I will not sign that contract if that's in there. And if they say, well, it's in every contract, then maybe you won't sign it. And that kind of ends up with remembering that what Greg said earlier about wanting to keep good relationships and giving somebody an opportunity to understand what's in the contract.
That's good business. That's a good way of doing things. But also just if you're talking strictly about the law, if you're like, oh, great, he signed it in 15 seconds and didn't even read it. If that ever came to litigation, someday it could be found to be not a valid contract if well, wait, did that person know that you weren't their lawyer.
Like, he thought you were real nice and said he liked working with you. Did you point out I'm not your lawyer. You should probably talk to somebody who's going to represent your interests, because lawyers do have rules of ethics, and they cannot represent both sides of a contract at the same time. John, can I just add something to that.
So contracts we've used terms like non-negotiable. And then also agreement contracts are intended and they are best when they are a codified codification of the relationship between parties. They can be amended. They can be amended. You can have clauses struck. You can cancel the whole thing and start over. None of these are an indication that you're a bad publisher that you're dealing with a difficult author, right.
These are all actually pretty healthy phases to go through. Ideally, their conversation and their relationship is transparent from the outset, and that your author feels comfortable reading the contract and talking to their editor, to their lawyers, whomever is involved. But I'm constantly in the process of amending things and adjusting things and expanding things. And we don't always say no, we don't always say yes, but it depends on the context of what they're asking.
We want the success of the project for our authors. We want the success of the project for our licensees. And there's so many different. You want to look at it really holistically and be willing to use this like I as a tool to move things forward, to expand the frame of the research or the scholarship or just the relationship with your author. So this is not to say that there are absolute non-negotiables, because maybe you just never thought to adjust something until that one author said, hey, wait a minute.
Technology is changing, needs are changing. Students are changing. We want to make sure we can acknowledge it, that they've done you a big favor in pointing out something that maybe in your publishing sphere, you kind of had a blind spot about. So I do encourage an openness and that we stand to learn a lot from our authors and from the audiences and the kinds of people that their scholarship is geared towards.
Well, we're going to leave time for questions. That's a good kind of a good place to wrap up. Was there anything else that popped into your heads while we were talking that you wanted to get out there. We would also love to hear from you. We've been asking talking amongst ourselves. There is a microphone there. I'm going to start with one question, mostly for Ken, but please, anyone can chime in and it is about I.
So I'm sorry if you're playing the drinking game, I hope you're drinking water. With AI innovation moving so fast and I think it's just accelerating at extraordinary speeds. It seems like generative AI products are outpacing the rights holders ability to keep up. And I know that the very good folks at the CDC and others are really working to create licensing agreements so that we can incentivize people who want to do the right thing to have a license that they can work off of.
But what are your recommendations or what opportunities do you see for copyright holders to not miss the boat. It's very difficult right now because it is at some level the Wild West. There's the fair use argument that the large language model developers are using it. It actually was the subject of a US Patent Office patent and Trademark Office report which the draft report was published, I think a month ago and in at least in my opinion, caused the firing of the librarian of Congress and the head of the Copyright Office.
A very unusual situation, because all the report was doing was recommending that there be some sort of license mechanism. But to the extent that this is very much, obviously a hot button political issue. As a copyright holder, I honestly don't know what you can do, because if the government is going to have a policy of extending fair use to training of AI, then.
There's not much you can do because it is a government. It's a legal right that you have in copyright. It's the so. It is interesting that some other countries are taking a different approach to copyright and training of large language models, saying that the training is actually a fair use, but we're going to take a look at the product of the AI and decide whether or not the product has infringed on someone's copyright, regardless of how it was trained.
So it's possible that there are some other ideas like that will come out, possibly some sort of licensing scheme. But I'm not out of this administration, I wouldn't think I don't think that's going to be that's political right now. We have a question. Hi, Nicola Posner with the American Mathematical Society and thinking about AI as a tool.
Sorry, everybody take another sip of water. One of the things we are dealing with, and I know a lot of other publishers are, is needing to make our online versions of our content accessible. And when you've got a big back file and you need to create Alt text, AI seems like a good way to get that done. So what does that do to copyright.
Do we need to I mean, typically we would just regenerate those files and repost them. Do we need to do something differently. Do we need to be looking at the Copyright. I think it's something you need to consider that you always have the copyright in the original work. And the question is, what is the AI doing to that original work to help you present it in a new way to the extent you're using it like a tool, like you, like you use word.
Your copyright. What seems to be right now is that retaining your copyright is you have much stronger case to retain your copyright in the new work that's produced to the extent that it's transforming it, I get very worried when Greg talks about summarizing something where the AI is doing a lot of work. I had a actually quite a long discussion earlier today with one of the vendors about creating audio versions of text and having an AI create the audio version as opposed to a human creating the audio version and rights in the performance that were created, which is I think I talked myself around three different ways for saying that there was a copyright then not then, right.
It absolutely isn't clear how much human intervention is required to maintain your copyright, but it's something I think you want to look at. You do. I think you do want to have a lawyer take a look at that to see what you're doing and what you can still protect. Wait, I want to follow up on that. You're saying that if we have AI voice and audio book, that we may lose copyright in that product, not in the product, in the performance, in the performance copyright, there are six different rights in copyright.
And one of them is to create derivative works, to create copies, but also to perform right. So if someone taped that performance, do you actually have. It's questionable whether you have a right. If they could play that tape again. You still have your underlying copyright in the work. I think it would be very difficult for them to claim that they could then transcribe that performance and now copy that work in written form.
But the performance itself is it's an open question, I think you lose. You're going to lose the right. So it sounds like the Alt text may not be copyrightable, but the underlying work is safe. Well, the underlying work still remains safe. That's not a question. But the question is, what is the AI doing. How is it transforming?
Thank you. Pooja, did you get to talk about the fact that you deal with Pirates. If we have time at the end, I would love to address questions. But yes. I'd be happy to tell you stories about Pirates. OK well, we have another question.
Elliot Hibbeler from Boston College. I feel like in a lot of walks of life, like in service contracts, a lot of the times, they have arbitration clauses. But I don't really see that often when it comes to contracts between authors and publishers. So I'm just wondering, without disclosing what you put in contracts, just what the panel feels about the pros and cons of putting an arbitration clause in the contract versus trusting the judicial system.
If a dispute comes up. Sorry, I know I have never seen an arbitration clause in a publishing contract, and that's such a great question. That's what I want to say. Yeah honestly, it particularly when you're dealing with an author, there is a disparity in resources.
And, Greg, I would suggest to you that it's unfair to your authors to force an arbitration clause on them, because arbitration is very expensive. You're talking about having the author pony up half of the fees for the actual just for the judge, at whatever rate they're charging nowadays for what could be very it could be expensive. It's one of the reasons I hate it in consumer contracts, because it's patently a mechanism by companies to take advantage of consumers and make it and make it impossible for them to have some sort of judicial adjudication because you're literally out of pocket before you even start.
You're starting you have to start paying fees and generally in an arbitration. So well that's why we don't do it. Yeah Absolutely thank you. No I've never seen one. Yeah that's a great question. Sorry hi I'm Christina with bio one and I'm on the sales and licensing side.
And so things that I spend all my who knew I was going to be on Law and Order or intellectual property division when we started in publishing. But what we're starting to see in subscriber license agreements and this is just it's all new is use of AI our library clients want to start putting this in that their students can utilize our content within I. And it's just started to come up.
I actually pushed pause on a contract. I'm like, I'm going to ask around it SSP and see what people are doing on this. So what questions should we be asking of this. Because this is an entirely new area for us. I don't know what the students want to do. I was talking with the librarian earlier this week and said, well, it's just like they would use, text and data mining.
I'm like, I don't know if that's true. So I don't know where to start in answering this or evaluating this for us. OK I think the big concern when you need to think about is how people are using it. When I first started about started thinking about particularly training LLMs large language models, it was how is that so different from Ken going out, buying a book, reading it, learning something from it, and then writing something new based on what I've learned or synthesize it.
At some level, it's similar, except for the scale that an LLM large language model can do that. If we're talking about a student using an AI as a tool to assist them in learning what is in your properly licensed book or properly licensed materials. That seems to be very, to me, very different from the student using your information to train to train their large language model, either natively or through some sort of context engine to then go and compete with your materials.
And how I'd have to think about that, how you would look at a license and decide what the license rights are. It seems to me it's a personal it's more like a personal use license where you're licensing the materials to them to read and to consume. Anyways, if they are using that I to assist them in it. That feels to me that feels right. But to use it then to go compete and generate something that is now competitive with your product is difficult. And that's honestly where there was a court case in Delaware just in January that came out in similar on similar terms where.
A lot of the concern was about the monetization and the scale and scope of what a large language model can do that is so different from. Bob going out and reading your book and writing an essay on it, or using the AI to help find a particular portion that he wants to use. But that's the way I would frame the question about what we're doing, trying to do so to facilitate.
That utilizing the content it'll wake you up. Intended for personal use. Yes and not for commercializing it and making it into some sort of business. Yeah, just to echo that. I mean, ask a lot of questions. You're under no obligation to do this. But the questions I always ask when we're approached by someone who wants to license our content for something that does not fit the contours of our existing licensing agreements or business models is, I ask a lot of questions.
What is the content. What is the intended use of that content. What are you going to do with it. So personal use for learning could be creating a summary. Creating a CliffsNotes version of some dense content that the student can learn from. And that probably falls within the guidelines of your intended use as a publisher, but using it to generate a term paper. Even on a non-commercial basis, it's not competing with the scholarship commercially, right.
But it's misrepresenting the student's own work. And this is a lot of the ethical issues around student use of AI is that they're not generating original work and that they're turning in. So really making getting into those granular details, if you were to extend a license, the challenge, though, and this kind of goes to John's thing about Pirates is who's going to enforce that. Are the librarians in a position to enforce student use students.
I mean, we are all students at one point. We can be very innovative in finding ways around to circumvent different kinds of rules to our benefit. So that's the other question is, even if you were to get to the granular level, at what point are you willing to let go and say, well, we can't enforce this, and if it's unenforceable, do you still want to pursue it. All right.
We're out of time. I want to thank Pooja, Ken and Greg. And if you have other questions for us, feel free to come up after. Thanks for coming.
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