Monday, November 29, 2010

Apples for Teachers

Last week I received the following question: "A question of earth-shattering importance that occurred to me ... When and why was it customary for students to bring an apple for the teacher?"

He asked the question of me because he though this was a linguistic question. We have expressions such as, "an apple for your teacher." I speculated that giving an apple to the teacher was a supplement to their small salaries. That was incorrect.

As a crop apples began to be cultivated in the mid-19th century. It didn't take long for people to discover how to keep apples edible for many weeks after harvest. Apples became a convenient snack for school children. They were easy to carry and became a sweet ready-to-eat treat. Teachers even gave them out as rewards.

Eating apples did have one problem for teachers who wanted disciplined, silent classrooms, students couldn't eat them quietly. Apples snap when bitten. Look at this quote relating what went on with an apple in the classroom from The Ohio educational monthly, Volume 34 page 257 1885 “ A Bit of Experience” by R. M. Streeter, of Titusville, Pa.,

Now, I like apples; and I suppose I have done what that boy has just been doing a good many times in my life. I saw him when his head went into the desk; when that big bite left the apple I heard it, and I saw every eye in that neighborhood turn to me to see if I knew what was going on. From that day to this the rest of those schoolboys believe that I never knew about that apple being eaten.

Students would hide their heads and eat snacks. In order for teachers to prevent this noisy behavior, they would require the students to leave their apples on the teacher's desk. Students who ate apples in secret would also drop the apple cores on the floor or throw them against the walls causing a mess and a walking hazard. (see The R.I. schoolmaster: Volume 7 1861 Page 235.)

From this it is a small jump to bringing an apple for the teacher.

Sunday, November 21, 2010

Getting to Yes

On Friday I was at a meeting at another college. Since I needed to take notes I used one of their computers. The background screen had a big "NO" -- no food, no cell phone use and no hats. The institution does not allow hats to be worn in the building.
The security guards will ask you to remove your winter hat, your baseball hat, fedora, Borsalino, Homburg, knit cap, sweat shirt hood, etc. It was interesting that the person running the meeting wore a straw cowboy hat.
A kipah or hajib (Muslim woman's head covering) is not considered a hat for this prohibition.

What really bothered me as well as a fellow librarian was the size of the word "no." The whole screen presented a negative image. Both of us said that restrictions could have been phrased in the positive such as : "Please respect the rights of others using the computers. Use your cell phone and eat in designated areas only."

I understand that food can get into the books and keyboards. Conversations on cell phone could disturb someone viewing a scholarly article. But please tell me how a quiet hat disturbs others. I did think of some amusing reasons for wearing a hat -- 1)Improper thought waves can be filtered through a hat and escape harmlessly rather than being forced to exit through the mouth; 2) Since the school's brain scanning device can not penetrate a hat, mind control is more difficult; 3) Computer users can hide flash drives in their hats or hair; 4)Baldness or buzz haircuts can be hidden; and 6) Teachers can say, "keep that idea under your hat."

Seriously -- in a well managed organization getting to "yes" is much better than forbidding an action. If one figures out a way to permit something it can be more easily controlled. If an action is forbidden that people want to do, they will find ways to hide the activity. Saying "yes" indicates more trust than "no." If one can't trust their people, they have bigger problems than hats.

Monday, November 15, 2010

What is Copyright? Part 2

Since writing part 1 of this series I have been humbled by the massive amount of research that others have done in the area of history of copyright. Copyright protections developed over a long period time starting in about 1489 and continuing to the most recent copyright laws. However, all the laws left areas that unclear or ambiguous. There are many gray areas of copyright and intellectual property protection.

Public domain

Public domain is the designation for works not protected by copyright. Public domain works include: 1) Works for which the copyright has expired, lost or never acquired; 2) Works not eligible for copyright (e.g. works written by a government agency); 3) Works designated by the author as public domain; 4) Works without tangible forms (e.g. ideas, words spoken in private); or 5) Common knowledge or facts (e.g. a recipe for chocolate milk or French toast). Titles of books can not be copyrighted, but under some conditions they can be trademarked. While the individual facts or data points may be in the public domain, the data base and its access software may be protected.[1]

Authors before the beginning printing did not see a need to protect their intellectual property. Josephus used the uncredited accounts and descriptions of events to write his histories, but we can’t find fault because he did not write with the same rules of scholarly citation that we use. In the Talmud rabbis frequently said something in the name of their teacher or rabbi. They also quote the Bible. This is a way of adding credence to the statements; standing on the shoulders of giants.

Intellectual Property

Until recently people didn’t understand intellectual property in the same way as physical property. For example: if someone steals John’s wallet, John doesn’t have anymore. It someone steals John’s words, John still has them. No one thought copying of ideas was a problem. Once printed and published many works were considered in the public domain. [2] When money was associated with intellectual property, authors, creators, and inventors wanted protection.

Several streams of legal protections developed. The commercial rights of businesses were protected from ancient times. See part 1 where I mention two cases from the Talmud. In medieval times the guilds protected their members. Since printing didn’t exist before the 1450’s no guilds developed. Patents were granted for a limited period for processes and technology. Trademarks are words, phases, or graphics that are associated with a business. The beginnings of copyright were for the business and commercial rights. The second stream protected authors and creators of works. This author protection was not fully developed until the 19th century. Before then, authors had not control of their words and derivative works.

Protections for intellectual property and the right to print and publish materials are similar, but sometimes competing philosophies or protection. Intellectual property rights reside with the author or creator while the commercial rights for the production and sale are protections for the printer and publisher. Both aspects of protection recognize the right to be compensated for the fruits of one’s labor. Copyright protections developed very slowly and at first only protected the printer/publisher.

Reading from an open Torah scroll
Before the printing press in order to “publish” a work, one needed an army of scribes.  To give you some idea of the costs involved let’s examine the production of a modern manuscript.  A Torah scroll that is used in the synagogue must be written by the hand of a trained scribe.  The scroll has more than 10,000 lines and could take 850-900 hours to create and get it ready for the end users.  The cost of a scroll with its wooden holders and cover varies from about $25,000 to $80,000.  A printed book with the vocalized Hebrew text of the Torah, an English translation and commentaries costs about $30, which is probably less than an hour of preparation time.   The printed book is about 1/850th (.001176%) of the cost of the hand written scroll.  Is it any wonder that printed books and periodicals soon became the first mass media?

Shakespeare copied many of the plots of his plays from history or other people’s work. He has been accused of copying long sections of earlier works and inserting them into his plays. His plays while in their original production had a fluid text. No contemporary thought he was guilty of plagiarism. On the flip side; many of our common phrases find their roots in Shakespeare and no one thinks twice about using them. If you say, "True is it that we have seen better days," do you think of the play, As You Like It Act 2 scene 7? However, if one says, “To be or not to be,” most people know this from Hamlet.

Common law derives its force from the consent or public policy of the people. Since common law is based on the decisions of the court, it is also called case law. These decisions amplify, define, and interpret statutory law. Common law is sometimes thought of as the “unwritten law,” but court decisions in state and federal courts are published in decision reporters (e.g. Illinois Decisions and Northeastern Reporter) and Jewish law decisions are published as books of responsa. Common law remains in effect until a legislative body passes a law making the rule null and void or another court decision overrules a previous decision.[3]  Most countries that were colonies of Great Britain (including the U.S., Canada, and Australia) adapted the English common law. [4]

Plagiarism is the uncited copying of someone else’s work. A pirated work is copied and sold without permission of the author, creator or original publisher. A pirated work does not deny the author. Since in the 19th century American works were not protected by copyright in other countries, British publishers printed and sold pirated copies of American works and American publishers pirated British works. This was legal. Copyright is limited by time and place. The need to cite an author’s work is forever.

For a work to be considered copyrightable the creator must have intent to create a new work. For example:[5] Case A. A girl has a doll protected by copyright such as “Barbie.” Her brother takes a hammer and crushes the skull. The girl throws the doll into the trash amid the other broken toys parts, papers and debris. Case B. An artist takes a “Barbie” doll crushes the skull and uses the crushed body with some common household trash to create a sculpture. In case A, the girl had no intent to create anything new. This is not a copyrightable event. In Case B the artist has the intent to create a new work. The new work is copyrightable.

Case C. A printed copy of classic work accidentally had two chapters missing. Case D An editor revises, abridges, and comments on Tolsky’s War and Peace. Case C is not copyright because there was no intent to abridge. The editor in Case D has intent for a new creative work and the result is copyrightable.

On August 28, 1963, from the steps of the Lincoln Memorial during the March on Washington for Jobs and Freedom, Martin Luther King delivered his moving and historic, “I have a dream” speech. King was a master of rhetoric and delivery. Parts this speech were delivered at other times and places. The end of the speech departed from the prepared text and became something list a Baptist sermon. [6] He includes Biblical references and allusions. Under the 1909 copyright law in effect then, speeches were in the public domain, but not performances or published speeches. Spoken words were not considered tangible and not protected by statutory copyright. Because Dr. King distributed copies of his prepared remarks at the time of the delivery and the delivered version was different, the copyright status of the speech was disputed. [7]

In 1994, CBS, Inc. produced a historical documentary series entitled "The 20th Century with Mike Wallace." One segment was devoted to "Martin Luther King, Jr. and the 1968 march on Washington. The speech was recorded by CBS. Other radio and TV networks also broadcast and recorded the speech. That episode contained extensive footage of the speech; CBS never sought permission to use the speech or offer to pay royalties. Dr. King did register the speech and the Copyright office issued a registration of copyright on October 2, 1963. For the next twenty years King and his estate had copyright protection and did license its use.

The Estate entered into litigation. CBS obtained summary judgment for dismissal from the district court. The Estate appealed to the U.S. Court of Appeals 11th District. The Copyright Law of 1909 was the source of analysis for this case because that was the law when the speech was given and Dr. King obtained copyright registration. According to the 1909 statute common law copyright existed from the moment of creation until general publication, when works had to fulfill the statutory requirements. The Court of Appeals reversed the District Court and sent the case back to the lower court. The Court held that a public performance of a speech is not the same as publication. The Courts did not rule on all the issues because the parties settled. This case demonstrated that delivering a speech is a performance. No matter what the size of the audience a performance is not considered publication.

The case of Walter v. Lane ([1900] AC 539) was seminal case in the rights of an author for copyright of his own work. Reporters from The [London] Times newspaper took down shorthand notes of a series of speeches given by the Earl of Roseberry. The notes were transcribed, edited, and later printed in the newspaper as verbatim speeches. The Respondent in the case published a book including these speeches, taken substantially from the reports of those speeches in The Times. The court was asked whether the reporters of the speech could be considered "authors" under the terms of the Literary Copyright Act of 1842. After several court cases The House of Lords, said the rights to the speech reside with the author.

How does strong copyright protection benefit to society? Which of the divergent viewpoints of copyright benefit the reading public? Protection should reward effort, capital risk, and creative effort. Since publishers who put up the money for publication, they get a much larger share of the book’s sale than the author. The contrasting viewpoint is that the work must be new and show creative intent i.e. the copyright belongs to the author or creator.& The law of the United Kingdom roughly follows the publisher’s viewpoint; in the United States the law roughly follows the second. In the end the reading public who funds or purchases the works pays the bills. In theory if the public gets value for their payments they will buy more books and other protected works, then both the publishers and the authors can succeed. Without fair remuneration, the authors will quit creating and the publishers will go out of business.


[1] For example MARC catalog records are in the public domain, but vendors such as OCLC and Library of Congress charge for data base services and forbid the copying of the data base or significant parts.

[2]For a fuller explanation of public domain and advise on how to use public domain materials see:
The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More /  By Stephen Fishman. 5th ed. Berkeley, CA, Nolo, 2010. Some chapters are available online from Google Books.

[3]  For example a case may be appealed to a high court or a new court ruling of the same court may, based on new laws or circumstances, over turn an earlier ruling.  Some Supreme Court cases radically changed the way we do things.  The web site Historic Court  Decisions has a list of case that are historically significant.  Included are Marbury v. Madision, (1803), Dred Scott v. Sandford, (1857) and Miranda v. Arizona (1966).

[4]   Louisiana and Quebec are two exceptions.  Since they were settled by French settlers, they adopted the French Napoleonic Code.

[5] The ideas for these cases come from “Copyright In The Dead Sea Scrolls : Authorship and Originality” by David Nimmer  (Houston Law Review 38:1, Summer 2001.  Retrieved from:

[6]  See:   “I Have a Dream“ for more details.

[7] See: Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. (194 F.3d 1211 (11th Cir. 1999)),_Jr.,_Inc._v._CBS,_Inc.

For a pdf version of this article visit: The Librarian's Lobby home page

(Received via e-mail and reproduced with permission)

At 01:33 AM 11/17/2010, Rich Stiebel wrote:
Both articles are very interesting on the history of, and the need for copyright protection, but they do not seem to address the current problem of "Under what circumstances can a Library that purchased VHS or cassette tapes copy (transfer) them to CD or DVD formats to enable circulation to users." A similar question is "just around the corner" with Blue-Ray DVDs, and will continue into the future as new media are developed. It would seem that the authors would have been compensated for their efforts when the original tapes were purchased.

Can you shed any legal light on this question?

Dr. Stuhlman's reply--

Even though chapter 1 paragraph 108 of the copyright law "Limitations on exclusive rights: Reproduction by libraries and archives" addresses this issue, so far in my research this is a gray area. The writers of copyright laws did not imagine all the ways we have of digitally sharing and copying content. In the beginning of printing the printers just wanted to recoup their investment from the first printing. As a non-lawyer, I do not give legal opinions. As a librarian, in a future article I will give my opinions from a librarian or scholar point of view. One solution may be a library licensed copy that would give the library rights for copies. Libraries would have to pay a higher cost than home users. Cash strapped libraries won't like that idea.

Rich Stiebel--

While having Libraries purchase an item with a "special" license that would allow them to copy the information to a more modern media would seem to "solve" the question I posed, it would not answer the question about all the existing material on CDs, DVD, VHS, or cassette tapes that were purchased prior to such special licenses being available.

It would seem that any solution to the problem would have to satisfy all the "stake-holders" currently in the business and meet a set of fair standards. Since I'm not an expert in the media production and distribution, a starter set of standards might include:

- Allow a library to copy purchased media to a newer media format with the result being only one format would be circulated at a time.

- Assure that the creator of the media received their fair royalties, but only once.

- Assure that the original producer of the original media received fair compensation, but again, only once per item.

Yes, you may use my prior comment as well as this one, if you choose, for your blog. We DO need a reasonable legal resolution to these questions. Thanks for researching the history.

Dr. Stuhlman's reply-

I agree that we need some better solutions. Perhaps the law could include a reasonable time limit (say 10 years) to insure the producers sold out their first printings?

Tuesday, November 2, 2010

What is Copyright? part 1

Last week a librarian queried a listserv about what to do with the library's cassette tape collection. Since few readers want to use cassette tapes, librarians want to have a media that will circulate. A company answered saying that they offer a fee based service that would copy cassette tapes to CDs. I stated that this copying could violate copyright law.  Many librarians gave answers that indicated they never read anything authoritative about the law. The answer from the company claimed this was within fair use. I was bothered about this discussion enough that I want to shed some light on issues of the purpose and history of copyright and why we care should.

In the next few columns I will explore copyright issues, history, and philosophy. Many questions for further investigation and thought will be raised. Copyright law is part of Title 17 of U.S. Code. The full copyright law of the United States may be found on the Copyright Office web site:  The site has links to the full text of the law, publications explaining aspects of the law, forms, and links to search copyrights. In addition to the letter of the law, the Librarian of Congress has an obligation to make rule interpretations. Many aspects of the law are written to comply with parts of the international copyright treaty under the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention dates from 1886 but the U.S. didn't join the convention until 1988.

I am not a lawyer and I write this only as an interested librarian and scholar. In preparation of this article, I talked to a lawyer who is on our faculty. He was not aware of the 1978 changes in copyright law that did away with "common law copyright." I heard from a librarian in Australia who told me that Australian law and practice concerning use of materials in schools differs greatly from American practice. The Australian government has an arrangement with publishers to purchase licenses that allows schools to more easily use copyrighted materials. (See the first comment for a further explanation.) There is no way in a series of short articles I could cover all aspects of copyright. There articles will relate some of the history and philosophy of the issues.  For a ruling you will have to ask an attorney knowledgeable in the law and its application.


Copyright is the set laws and interpretations granting some form of exclusive rights to the owner, author, or creator of an original work. The rights include the right to publish, copy, distribute, adapt, and reformat to another media, the work. These rights can be licensed, transferred and/or assigned by means of a contact or agreement. The rights cover both the intellectual rights and the physical manifestations or expressions of the the work. The term of the exclusive right is limited by law.

Berne Convention

The term of copyright and the automatic copyright protection are part of the Berne Convention. For many years the United States refused to be part of the Berne Convention. There was a fundamental difference between the Anglo-Saxon and French concept of copyright. In English law copyright protected the economic rights of the author; in French law creative rights are protected. Under the French version, copyright protection is automatic upon creation because this protects the creative and intellectual rights. In English law registration was required to show that the work is protected for economic purposes. A notice of copyright was required in British and American law to claim copyright. Before international copyright agreements, works had to have separate copyright claims for every country. National copyright laws protected only works created within that country. That meant that British works printed in the United States did not compensate the authors or original publishers. This was considered piracy by such authors as Charles Dickens and Benjamin Disraeli. Starting in 1837 they fought against this sanctioned literary piracy.  Professor Philip V. Allingham discusses the tug of war between authors and printers. [1] which led to bilateral agreements and led to the 1891 manufacturing clause of the Platt-Simmonds Act granted reciprocal rights to publishers to obtain U.S. Copyright protection. After a U.S. copyright was obtained, it was illegal to import a foreign edition. The authors and publishers were satisfied, but the U.S. public had to pay more for books. [2]

The full text of the Berne Convention is here: The Copyright Office has a publication discussing the international copyright relations of the U.S. called, International Copyright Relations of the United States This publication lists the countries and the treaties involved. Some of the treaties are part of the international agreements and some are bilateral. There are a few countries (e.g. Iran, Iraq and Afghanistan) without any copyright relations.

Privilege and Property. Essays on the History of Copyright / edited by : Ronan Deazley, Martin Kretschmer and Lionel Bently, (Open Book Publishers, 2010) discusses the history of copyright law. The law has its roots in a wide range of norms and practices.

When the printing press was invented, copying became easier.[3] Printing and publishing were new business concepts. In 1469, the German master printer Johannes of Speyer [4] obtained a five-year exclusive privilege to print in Venice and its dominions. In the Netherlands early copyright privileges were based on the royal desire to control and censure what could and could not be published.

Speyer's monopoly on printing in Venice was hardly distinguishable from other commercial licenses granted in Venice. Printing was viewed on the same level as other technological advances of the Renaissance. This was a business transaction and the Venice government had no connection to intellectual rights or property. However, this became an important first step to establishment of state granted copyrights.

There are aspects of Jewish law dating from the Talmud that could relate to commercial protection. In Baba Batra 21b there are two cases where commercial rights are protected. The first is the setting up of a hand mill and the second concern the rights of a fisherman.

"Rav Huna said: If a resident of an alley sets up a hand mill and another resident of the alley wants to set up one next to him, the first has the right to stop him, because he can say to him, 'You are interfering with my livelihood.'

May we say that this view is supported by the following: 'Fishing nets must be kept away from [the hiding-place of] a fish [which has been spotted by another fisherman] the full length of the fish's swim.'  ...  Fish are different, because they look about for food. "[5]

The rabbis of the Talmud recognized that merchants have a right to a protected territory, but also every business is not the treated the same.

The printers and publishers in the 15th, 16th and 17th centuries did not have legal copyright protection from central governments. Shakespeare never owned the copyright to his works. Below is a copy of the title page of the Merchant of Venice, printed by  J. Roberts in 1600. The verso of the title page is blank and no where does the author or publisher claim any copyright.  J. Roberts does not even claim to be a publisher.

Hebrew Bible from Amsterdam.  Printed in 1687.  The next page headed "Privilegie" grants the printer, Joseph Athias,  a ten year right to print the book.  The privilege is granted by the State of West Vriesland, not the central government.
There are several conflicting beliefs or opinions regarding intellectual property and its dissemination.  Authors,  printers, publishers, general readers, scholars, libraries, historians, and the state are all parties to both the philosophical conflict and the need for resolution and clarity.  In the scholarly world, monopoly on knowledge impedes understanding and wisdom.  In the commercial world publishers want to make money and authors should benefit from the fruits of their labor conflicts. Commerce sometimes conflicts with the gathering and spreading of scholarship. Part of this dispute was settled in the 1774 Donaldson v. Becket case before the House of Lords.  The case established that law could set a period for the exclusive right to print, publish and republish for an author.    More on the history of this intellectual conflict will be explored in further columns. Right now there are many more questions than answers.


[1] Nineteenth-Century British and American Copyright Law, , by Philip V. Allingham.  Mark Twain was so annoyed with Canadian printers printing his works without paying royalties, that he attempted to establish temporary residency in Canada.  He also was annoyed at American printers who favored British authors of American authors because they could be distributed without paying royalties.

[2] This remained the law until 1954 with two liberalizations. One allowed for the importation of foreign language materials and the other allowed a limited U.S. copyright for 5 years and 1500 copies of the book. Over the objections of printers and publishers, the U.S. joined the Universal Copyright Convention (UCC) in 1954.

[3] An excellent source of primary documents on the history of copyright in Italy,
Germany, France, Britain, and the United States is Primary Sources on Copyright (1450-1900), published by Faculty of Law, University of Cambridge,England, UK.

[4] For the full English translation of the text visit:

[5] Just to give you an idea of how complex the issue of copyright is, David Nimmer, a lawyer in Los Angeles and adjunct law professor at UCLA edited, Nimmer on Copyright, an eleven volume set. His father wrote the first edition of set in 1963.  He has written five books dealing with copyright and intellectual property. Copyright law must be in the genes.   Nimmer wrote a 44 page article,   "In the Shadow of the Emperor: The Hatam Sofer’s Copyright Rulings" which appeared in The Torah uMaddah Journal in 2008-09.  Available online: in which he quotes these sources and other responsa dealing with an 1807 case in Roedelheim, Germany concerning the printing of a Mahzor. This article does require further discussion.