For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Friday, 6 April 2012

So Who Gives Copyright Advice to the Copyright Lawyer?

I imagine that each linguistic-cultural environment has its own phrase for it. In English, it is said that "only a fool would have himself as a client." In Hebrew, there is a phrase that
can be translated as "the shoemaker goes barefoot". Whatever the language and the culture, the idea seems to be the same: giving professional advice to oneself is a recipe for potential disaster. However, as much as this Kat would like to be true to this maxim in all instances, the world is simply too complicated to allow him to do so.

This seems especially true when copyright is involved. Most of us create legally enforceable works protected by copyright on a daily basis. Because of the instinctive familiarity that most people have with copyright, not infrequently I am asked for some off-the-cuff copyright advice. This Kat tries hard to be a cooperative soul and thus he rarely declines to respond to such inquiries. But what happens when the person asking the question and expecting an answer is himself?

I was forced to deal with this situation this week in connection with preparing my updated course syllabus. One of the challenges in teaching a course for which no textbook exists is sorting out the copyright for the articles and case studies that will form the basis for the syllabus. Suddenly, those years of talking about transaction costs here and the tragedy of the anti-commons here become all too real, as I become, for a brief period of time, a poor man's content aggregator. What can be safely copied for the students; what can be uploaded on the course website; what can referenced by a link on the course website and what must ultimately be jettisoned for lack of an adequate copyright solution? Most importantly, to whom should I turn, in a world where the copyright laws fail to give clear operational directions? In trying to give answers to my questions, I found myself in a bit of a panic. It is one thing to give this advice to clients, but it is another matter entirely to counsel yourself. It is as close as this Kat can come to the "fear and trembling" of professional indequacy.

Why should this be? After all, clients rely on your advice and pay good money for you to give the best possible professional recommendations. This is all well and good, but the subjective fear of "getting it wrong" is somehow magnified when the party relying on the recommendation is yourself. Clients can be difficult, but there is no more difficult client than oneself. And there is the copyright law itself, which does not yield a clear answer to all of the possible issues that arise when tries to assemble and distribute course materials in an appropriate manner. [Are there any of you out there than think otherwise?]

And so we relied on a series of coping behaviours. Surely there must be guidelines from the institution--and indeed there are. But the guidelines are not a blueprint and, besides, it turns out that the law apparently declined to take part in the drawing up of the guidelines. I cannot say that I am surprised. At the end of the day, the law faculty, like any other faculty members, are employees of the institution. As such, they are subject to the same guidelines regarding copyright and course materials as are all other faculty members. To give advice on the guidelines is to make yourself both the dispenser and consumer of the legal advice. This is the institutional equivalent of being your own lawyer. In such circumstances, we relied on the guidelines, our conversations with the relevant informatics staff about institutional best practices and our own professional understanding, and best judgment. I would like to believe that we got it 150% correct. However, like it or not, we could not entirely come to grips with the fact that we were being own copyright lawyer, at least in part. We did not entirely like the feeling. What we wouldn't give for a new copyright matter to come through the door today--a client with a copyright problem for whom we could call on our years of experience in the field. Then we could be "a real copyright lawyer" once again.

2 comments:

Jackie Hutter, Intellectual Property and Patent Business Strategist and "Recovering Patent Lawyer" said...

Exactly my thoughts as I draft the patent application for my startup. As prior art comes flying over the transom, I think to myself "is this material?" and start sweat thinking about how I am going to manage it all. The key, I have found, is to take a deep breath and say "let's sort it out at the end like we always do."

And, as for your copyright issues in course prep, my historian husband goes through this almost weekly. One of the biggest fights he got in with the university's lawyers is over whether out of print books from the Soviet era were "public domain." It seems there was no case law on this issue and the lawyers were apparently concerned about the risk in the 2000's that the Soviet government would come after them for copying more than 10% of an obscure history text. He won that fight after prepping from me of case law on the "orphan" nature of IP rights from dead legal systems--but it took that much, and a professor without an IP expert for a spouse would have certainly given up. The risk aversion of lawyers in this regard certainly keeps scholarship at bay.

Anonymous said...

I can't imagine a criminal lawyer having similar problems so I don't quite see why there would be a problem for an IP lawyer.

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