From control to contempt

I hope it was clear, when I wrote about the press release from Elsevier addressing their new approach to authors’ rights and self-archiving, that I believe the fundamental issue is control.  In a comment to my original post, Mark Seeley, who is Elsevier’s General Counsel, objected to the language I used about control.  Nevertheless, the point he made, about how publishers want people to access “their content,” but in a way that “ensures that their business has continuity” actually re-enforced that the language I used was right on the mark.

My colleague Paolo Mangiafico has suggested that what these new policies are really about is capturing the ecosystem for scholarly sharing under Elsevier’s control.  As Paolo points out, these new policies, which impose long embargo periods on do-it-yourself sharing by authors but offer limited opportunities to share articles when a link or API provided by Elsevier is used, should be seen alongside the company’s purchase of Mendeley; both provide Elsevier an opportunity to capture data about how works are used and re-used, and both  reflect an effort to grab the reins over scholarly sharing to ensure that it is more difficult to share outside of Elsevier’s walled garden than it is inside that enclosure.

I deliberately quote Mr. Seeley’s phrase about “their content” because it is characteristic of how publishers seem to think about what they publish.  I believe it may even be a nearly unconscious gesture of denial of the evident fact that academic publishers rely on others — faculty authors, editors and reviewers — to do most of the work, while the publisher collects all of the profit and fights the authors for subsequent control of the works those authors have created. That denial must be resisted, however, because it is in that gesture that the desire for control becomes outright disrespect for the authors that publishing is supposed to serve.

Nowhere is this disrespect more evident than in publisher claims that the works they publish are “work made for hire,” which means, in legal terms, that the publisher IS the author.  The faculty member who puts pen to paper is completely erased from the transaction.  To be clear, as far as I know Elsevier is not making such a claim with its new policies.  But these work made for hire assertions are growing in academic publishing.

Three years ago I wrote about an author agreement from Oxford University Press that claimed work made for hire over book chapters; that agreement is still in use as far as I am aware.  At the time, I pointed out two reasons why I thought OUP might want to make that claim.  First, if something is a work made for hire, the provision in U.S. copyright law that allows an author or her heirs to terminate any license or transfer after 35 years simply does not apply.  More significantly, an open access license, such as is created by many university policies, probably is not effective if the work is considered made for hire.  This should be pretty obvious, since our law employs the legal fiction that says the employer, not the actual writer, is the author from the very moment of creation in work made for hire situations.  So we should read these claims, when we find them in author agreements, as pretty direct assaults on an author’s ability to comply with an open access policy, no matter how much she may want to.

As disturbing as the Oxford agreement is, however, it should be said that it makes some legal sense.  When a work is created by an independent contractor (and it is not clear to me if an academic author should be defined that way), there are only selected types of works that can even be considered work made for hire; one of them is “contribution[s] to a collective work.”  So a chapter in an edited book is at least plausible as a work made for hire, although the other requirement — an explicit agreement, which some courts have said must predate the creation of the work — may still not be met.  In any case, the situation is much worse with the publication agreement from the American Society of Mechanical Engineers (ASME), which was recently brought to my attention.

ASME takes as its motto the phrase “Setting the Standard,” and with this publication agreement they may well set the standard for contemptuous maltreatment of their authors, many of whom are undoubtedly also members of the society.  A couple of points should be noted here.  First, the contract does claim that the works in question were prepared as work made for hire.  It attempts to “back date” this claim by beginning with an “acknowledgement” that the paper was “specially ordered and commissioned as a work made for hire and, accordingly, ASME is the author of the Paper.”  This acknowledgement is almost certainly untrue in many, if not most, cases, especially since it appears to apply even to conference presentations, which are most certainly not “specially commissioned.”  The legal fiction behind work made for hire has been pushed into the realm of pure fantasy here.

What’s more, later in the agreement the “author” agrees to waive all moral rights, which means that they surrender the right to be attributed as the author of the paper and to protect its integrity.  Basically, an author who is foolish enough to sign this agreement has no relationship at all to the work, once the agreement is in place.  They are given back a very limited set of permissions to use the work internally within their organization and to create some, but not all, forms of derivative works from it (they cannot produce or allow a translation, for example).  Apparently ASME has recently started to disallow some students who publish with them to use the published paper as part of a dissertation, since most dissertations are now online and ASME does not permit the  writer to deposit the article, even in such revised form, in an open repository.

To me, this agreement is the epitome of disrespect for scholarly authors.  Your job, authors are told, is not to spread knowledge, not to teach, not to be part of a wider scholarly conversation.  It is to produce content for us, which we will own and you will have nothing to say about.  You are, as nearly as possible, just “chopped liver.”  It is mind-boggling to me that any self-respecting author would sign this blatant slap in their own face, and that a member-based organization could get away with demanding it.  The best explanation I can think of is that most people do not read the agreements they sign.  But authors — they are authors, darn it, in spite of the work for hire fiction — deserve more respect from publishers who rely on them for content (free content, in fact; the ASME agreement is explicit that writers are paid nothing and are responsible for their own expenses related to the paper).  Indeed, authors should have more respect for themselves, and for the traditions of academic freedom, than to agree to this outlandish publication contract.

Learning how fair use works

How many cases about fair use have been decided in the U.S. since the doctrine was first applied by Justice Story in 1841?  Take a minute to count; I’ll wait.

If you came up with at least 170, the Copyright Office agrees with you.  Last week they announced a fascinating new tool on the CO website, an index of fair use cases.  That index contains summaries of approximately 170 cases, along with a search tool.  The introductory message, however, acknowledges that the index is not complete, so those of you who thought there were more than 170 cases are almost certainly correct.

This index is potentially a very useful tool, and it also raises some interesting questions.  I want to consider the questions first, than discuss how the new fair use index might be used by someone who wanted to learn more about how fair use works (which, by the way, is one of the avowed purposes behind its development).

Coverage is the obvious first question, and, as I said, the CO acknowledges that it is incomplete.  Specifically, it seems heavily weighted toward more recent cases.  There are only 11 cases listed in the index dating to before 1978, and two older cases (1940 and 1968) that are presented in my law school casebook on copyright as important fair use precedents are not included.  So it looks like there are some pretty significant gaps, which one hopes the Copyright Office will address as it continues to develop this tool.

By the way, the issue of continuing development also brings up the question of why the C.O. thought this was a worthwhile investment. It looks useful, to be sure, but there are other sources for similar data, so it is a bit curious that the C.O. chose this among all its potential priorities.

To return to the issue of coverage, it is always important to ask which specific cases were chosen and how they are characterized.  Of the 170 cases, there are 78 for which the result is listed as “Fair use not found,” and 64 in which the C.O. says that fair use was found.  The remaining 29 are listed as “Preliminary ruling, mixed result or remand.”  This last category is rather unhelpful.  For example, the Authors Guild v. HathiTrust case is listed this way, even though it was a strong affirmation of fair use and the remand involved a fairly unimportant issue of standing.  Even more surprising is the fact that this “mixed result” tag is applied to Campbell v. Acuff Rose Music, the “Oh Pretty Women” case from the Supreme Court that is at the heart of modern fair use jurisprudence.  Again, this was a clear fair use win; the case was remanded only because that is what the Supreme Court usually does when it reverses a Court of Appeals’ decision.  So the representation of the holdings is technically accurate, it seems, but not as helpful as it might be in actually focusing on the fair use aspect; while some “mixed result” case genuinely were that — fair use was found on one issue but not for another — many of the remanded cases actually did involve a clear yea or nay about fair use, and it would be more helpful to categorize them that way.

A particularly useful feature of this index is the ability to limit the listings by jurisdiction (the Appellate Circuits) and by topic.  For example, limited to just cases out of the Fourth Circuit, where I reside, I find that the Court has ruled on seven fair uses case and upheld fair use in six of them.  The seventh was one of those genuinely mixed results, where one challenged use was held to be fair and another was not.

If we limit the subject area of the cases to those labeled “Education/Scholarship/Research,” fair use seems to fare better than it does overall.  In that category of 42 total cases there are 18 findings in favor of fair use and 16 rejections.  Of the remaining 8 mixed results, at least two of them — the HathiTrust Case and the GSU case — should be seen as affirmations of fair use, even if the parameters of that use are still unsettled in GSU.  So the impression many of us have that educational and scholarly uses are a bit more favored in the fair use analysis than other types of cases seems to be confirmed.

Things get more interesting when we look just at the Supreme Court in this index, and the issue of how cases are chosen is again highlighted.  The index shows four fair use cases, with one holding in favor of fair use (Sony v. Universal Pictures), one mixed result (Campbell, as discussed above), and two rejections of fair use (Harper v. Nation and Stewart v. Abend).  This last case, Stewart v. Abend, is actually almost never treated as a fair use case; while fair use was dismissed as a potential defense in the case, the real issue involved assignments of copyright and who could exercise the renewal right that existed at that time.  And this case was remanded, just as Campbell was.  So it is odd that Campbell, with its central finding in favor of fair use, is shown as a mixed result, while Stewart v. Abend, where fair use was tangential and there was also a remand, is tagged as a rejection of fair use.  This suggests at least an unconscious bias against fair use findings.

A different listing of Supreme Court fair use cases, on the IP Watchdog site, includes several additional cases — nine, in all — but does not list Stewart v. Abend as one of them. Several of the cases included by IP Watchdog do not seem to me to really focus on fair use, so I am not saying that the C.O. has under-reported the cases.  But the very different lists do suggest that it is a surprisingly subjective undertaking just to identify the cases that should be included in a fair use index.

Finally, the analysis provided in the C.O.’s case summaries needs to be considered carefully.  To take one example, for the recent case of Kienitz v. Scoonie Nation, about which I wrote earlier this year, the short note about the holding ignores the thing that may be most significant about the case — the reluctance of Judge Frank Easterbrook to apply a “transformation” analysis to the fair use question (HT to my friend and colleague David Hansen for pointing this out).  Again, this is not necessarily a problem, and the case summary of Kienitz at the Stanford Copyright & Fair Use site has a similar synopsis, but it is a reminder that these projects are always created by individuals with specific perspectives, viewpoints and limitations.

Even with all these caveats, I think the Copyright Office has created a useful tool, which can be used by those interested to learn a lot about how fair use is applied, especially by looking at the different categories.  The Stanford site, linked above, and especially its own, much shorter list of cases, might usefully be used alongside the C.O. index.  The Stanford descriptions are  very tightly focused on the fair use issue, so reading them in conjunction with the C.O. summaries, with their attention to procedural matters that sometimes obscure the fair use holding, might produce a more balanced approach.

In any case, this new tool form the Copyright Office, and some of the tools that predate it, remind us that the best way to understand fair use, and to become comfortable with it, is too look closely at the cases, both in the aggregate and individually.  This C.O. database offers a statistical perspective, as well as the ability to focus on parody, or music, or format-shifting, while the Stanford summaries emphasize in a few words the core of the fair use analysis.  Both point the interested reader to full opinions, where the analysis can be understood in the context of all the facts.  Combined in this way, these resources offer a terrific opportunity for librarians, authors, and others to dig deeply into the nuances of fair use.

Stepping back from sharing

The announcement from Elsevier about its new policies regarding author rights was a masterpiece of doublespeak, proclaiming that the company was “unleashing the power of sharing” while in fact tying up sharing in as many leashes as they could.  This is a retreat from open access, and it needs to be called out for what it is.

For context, since 2004 Elsevier has allowed authors to self-archive the final accepted manuscripts of their articles in an institutional repository without delay.  In 2012 they added a foolish and forgettable attempt to punish institutions that adopted an open access policy by purporting to revoke self-archiving rights from authors at such institutions.  This was a vain effort to undermine OA policies; clearly Elsevier was hoping that their sanctions would discourage adoption.  This did not prove to be the case.  Faculty authors continued to vote for green open access as the default policy for scholarship.  In just a week at the end of last month the University of North Carolina, Chapel Hill, Penn State, and Dartmouth all adopted such policies.

Attempting to catch up to reality, Elsevier announced last week that it was doing away with its punitive restriction that applied only to authors whose institutions had the temerity to support open access. They now call that policy “complex” — it was really just ambiguous and unenforceable — and assert that they are “simplifying” matters for Elsevier authors.  In reality they are simply punishing any authors who are foolish enough to publish under these terms.

Two major features of this retreat from openness need to be highlighted.  First, it imposes an embargo of at least one year on all self-archiving of final authors’ manuscripts, and those embargoes can be as long as four years.  Second, when the time finally does roll around when an author can make her own work available through an institutional repository, Elsevier now dictates how that access is to be controlled, mandating the most restrictive form of Creative Commons license, the CC-BY-NC-ND license for all green open access.

These embargoes are the principal feature of this new policy, and they are both complicated and draconian.  Far from making life simpler for authors, they now must navigate through several web pages to finally find the list of different embargo periods.  The list itself is 50 pages long, since each journal has its own embargo, but an effort to greatly extend the default expectation is obvious.  Many U.S. and European journals have embargoes of 24, 36 and even 48 months.  There are lots of 12 month embargoes, and one suspects that that delay is imposed because those journals that are deposited in PubMed Central, for which 12 months is the maximum embargo permitted.  Now that maximum embargo is also being imposed on individual authors.  For many others an even longer embargo, which is entirely unsupported by any evidence that it is needed to maintain journal viability, is now the rule.  And there is a handful of journals, all from Latin America, Africa, and the Middle East, as far as I can see, where no embargo is imposed; I wonder if that is the result of country-specific rules or simply a cynical calculation of the actual frequency of self-archiving from those journals.

The other effort to micromanage self-archiving in this new policy is the requirement that all authors who persevere and wish, after the embargo period, to deposit their final manuscript in a repository, must apply a non-commercial and no derivative works limitation on the license for each article.  This, of course, further limits the usefulness of these articles for real sharing and scholarly advancement.  It is one more way in which the new policy is exactly a reverse of what Elsevier calls it; it is a retreat from sharing and an effort to hamstring the movement toward more open scholarship.

The rapid growth of open access policies at U.S. institutions and around the world suggests that more and more scholarly authors want to make their work as accessible as possible.  Elsevier is pushing hard in the opposite direction, trying to delay and restrict scholarly sharing as much as they can.  It seems clear that they are hoping to control the terms of such sharing, in order to both restrict it putative impact on their business model and ultimately to turn it to their profit, if possible.  This latter goal may be a bigger threat to open access than the details of embargoes and licenses are. In any case, it is time, I believe, to look again at the boycott of Elsevier that was undertaken by many scholarly authors a few years ago; with this new salvo fired against the values of open scholarship, it is even more impossible to imagine a responsible author deciding to publish with Elsevier.

Copyright follies

The joy of being a copyright specialist is the amazing array of cool, beautiful, and profound things that make up the raw material of what we do.  It is a privilege to be granted even a tiny window into the creativity of the many people we get to work with.  And even the cases we only read about share in this astonishing diversity.

But let’s be honest.  There is also a lot of nonsense in the copyright world.  The idea of “owning” creative expression just makes some folks go a little nuts, and some pretty absurd claims get made about copyright (monkey selfies, anyone?).  So here is a quick review of some recent bizarre cases, although by the end of it we will have the opportunity to review some important principles about copyright law.

Perhaps a good place to begin is with the claim by descendants of Nazi Propaganda Minister Joesph Goebbels that they are entitled to licensing fees for quotes from Goebbels’ diaries that are used in a new biography of him.  One of the strangest things about this case is that it may well be a valid claim, although there is some dispute over who actually is the copyright holder, since most assets of the Nazi leaders were seized by the Allies after the war.  But the very fact that it is being raised suggests some interesting questions.  How much money would make it worthwhile to publicly identify oneself as a descendant of one of the worlds most vilified war criminals, an architect of the “final solution?”  And will there be a fair use/fair dealing defense raised, as the blog Techdirt has suggested?  It certainly seems like we should avoid a situation where a war criminal’s family would be in a position to censor a biography of him, which would be one possibility if they were found to hold copyright.  Random House seems mostly to assert the “no money to a war criminal” defense against the claim, but it is worth remembering that copyright is not only about money, it is about control.

Just before publishing this post I saw an excellent analysis of the issue of royalties for ex-Nazi’s or these descendants here, in Inside Higher Ed.

Another development this past week was the filing by John Deere in regard to a proposed exception to DMCA anti-circumvention rules in which they claimed that the software in a tractor is only licensed to a consumer, not owned by them.  It was inevitable that such a claim would be made eventually, and I predicted it somewhat eerily in this post from last year (substituting John Deere for Ford).  John Deere wants to sell you a tractor, and they are fine with you using it as you wish, unless you decide to modify the software.  At that point they assert that you, the purchasers, only have an implied license to use the software and that anti-circumvention rules would prevent modification, and should continue to do so.  What makes this claim more dangerous than absurd is that it raises the idea of new limitations on what we mean by ownership.  We thought that the doctrine of First Sale was sufficient to protect the traditional idea of ownership in regard to copyrighted material, but the DMCA, and the desire of some companies to suppress competition, has changed that.  What new and un-imagined restrictions on my use of the tractor in my driveway might be down the line from John Deere? We are getting ever closer to the point where our courts will need to develop clear guidelines about what it means to own a machine that incorporates copyrighted material.  In the meantime, I would think twice before I “bought” a John Deere tractor; I like to know what I am getting for my money, and John Deere seems to think they can upend my reasonable expectations whenever it suits them.

Most readers are likely already familiar with the next of the follies I want to discuss: the claim made on behalf of the bystander who filmed the police shooting of Walter Scott in South Carolina that he, the bystander, is entitled to a licensing fee — apparently as much as $10,000 — every time the media replays the video.  There are two especially troubling aspects of this claim.  The first is the absurd misunderstanding that leads to a statement that the fair use “period” has “expired” for this video.  There is not a time limit on fair use, of course.  It seems to me that a few people are confusing fair use, a statutory boundary on copyright that lasts as long as the rights do, with the so-called “hot news” doctrine.  The latter was the creation of courts, is of uncertain application, and was largely preempted by the 1976 copyright act.  In fact, the hot news doctrine was a limit on the exclusivity that a news organization could have over its report of newsworthy events, so the doctrine acted in the reverse of how it is being asserted, under the wrong name, in the Scott shooting video case.  Fair use continues to exist in spite of the lapse of time, and only a very poorly-advised news organization would accept this idiotic argument.

Which brings me to the most troubling aspect of this case, the apparent fact that the New York Times agrees that fair use can expire.  According to the Forbes report linked above, the NYT claimed that “copyright experts” agreed that this alleged fair use period has passed.  They quote a lawyer for the Copyright Clearance Center (hardly a disinterested party) whose argument, while using temporal language, can only sensibly refer to the specific conditions surrounding a particular use (i.e. whether the use is for the purpose of news reporting or not).  I wonder if the CCC can cite any case law for this proposition that fair use can expire?  If not, then they and the NY Times are just spreading FUD which, at least for the Times, is unexpected and reprehensible.

Finally, I want to briefly comment on this story about a former researcher who is suing his former post-doctoral adviser at Brown University for having published an article that they apparently wrote together without giving authorship credit to the former post-doc.  There are complicated details to the case, and I would not like to offer an opinion about who is right or wrong in the overall dispute.  But the controversy raises one issue that I do want to comment on: the situation between joint authors.  So much of the scholarship produced today is written by multiple authors — I recently saw an article with 102 listed authors — that it is increasingly important to understand a couple of points.

First, to qualify as a joint author in the copyright sense, each author must contribute protectable expression to the preparation of the overall work.  That means that some, at least, of those 102 authors are not co-owners of the copyright because their contributions did not involve the creation of protectable expression.  We don’t worry too much about this distinction in the academic world, but it could be an issue if a dispute over publication arises, as it has in the Brown University case described above.

Second, it is important to understand that each co-owner of the copyright, each joint author, is entitled to exercise the rights in the copyright bundle independently.  That means that one author can conceivably authorize publication without the permission of the other authors, as seems to have happened in this situation.  On the copyright issue, at least, it seems clear that the post-doc cannot object to publication simply because the article he worked on with others was published by one of them without his knowledge or consent.  The author who published would be obligated to account to all co-authors for any profits from the publication, but it would not be infringement to simply publish the article without consent from the others.

This precise situation, also involving a dispute about how authors were listed, was considered by the Seventh Circuit Court of Appeals in 1987 in a case called Weinstein v. the University of Illinois, and the panel of judges, two of whom were themselves well-known academics, came to the same conclusion — no infringement when one co-owner of the copyright publishes without permission from the others.  So whatever the other details are in the Brown case, a copyright claim against the former adviser from one of his co-authors is unlikely to be successful.  This is why it is so important (especially in cases like this involving commercial sponsorship) for all of the authors to agree together about the use and publication of any intellectual property that arises from the project.  That sort of agreement, worked out calmly and in advance of any conflict, is still the best way to avoid being involved in any copyright follies.

Steps toward a new GSU ruling

It looks more and more like we will get a new ruling from the trial court in the Georgia State case about what is or is not fair use for digital course readings.  The case, of course, was reversed and remanded to the trial court after the publishers appealed the initial decision to the 11th Circuit, with instructions to produce a new opinion consistent with the Court of Appeals ruling.    The publisher plaintiffs then asked the trial court to reopen the record in the case and apply the putative new fair use analysis to a different, more recent, set of readings employed by the GSU faculty.  The University opposed this motion, arguing that what would amount to a whole new trial was not necessary.

Last week, District Court Judge Orinda Evans dismissed the motion to reopen the record and issued an order about briefing the court on what a new analysis of fair use for the original excerpts considered in the trial should look like.  Judge Evans wrote that “It does not make sense at this juncture to spend months, probably longer, on what considerations might govern if Plaintiffs prove they are entitled to injunctive relief by virtue of the claimed 2009 infringements.”  The motion is dismissed without prejudice, meaning that the plaintiffs can renew it at a more appropriate time, although I must admit that I do not see what that would mean if the case is to go forward on the original set of readings.

It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage.  Now Judge Evans has explicitly told them, in her scheduling order, that what is required is “consideration and reevaluation of each of the individual claims” in order to redetermine “in each instance… whether defendants’ use was a fair use under 17 U.S.C.  section 107.”  Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now.  Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

A new home for copyright?

The idea that the Copyright Office should move out of the Library of Congress was first raised some years ago by Bruce Lehman, who was, at the time, the Director of the Patent and Trademark Office.  The idea seemed to be that the Copyright Office should join the PTO as an agency within the Commerce Department.  That idea did not seem to be very well-received by many, and I had not heard of the discussion for a while.  But apparently the possibility of moving the CO is still kicking around, and last month current Registrar of Copyright Marie Pallante sent a letter about the topic to Rep. John Conyers, the Ranking Member of the House Committee on the Judiciary.  Her letter was requested after a hearing about the functions and resources of the CO held back in February.

Pallante’s letter makes interesting reading, especially if one is interested in the inside politics of Executive Branch appointments, separation of powers, and the like.  The bottom line, however, is that Registrar Pallante thinks that the Copyright Office should be separated from the Library of Congress, should not move into the Commerce Department, and should instead become an independent agency with its leader directly appointed by the President and confirmed by the Senate.  There has been some discussion about this letter and the ramifications of the debate among my colleagues, and I want to consider two issues that I think are of interest to a wider audience, while admitting that I am shamefully cribbing ideas from those colleagues.

The first issue is why the Copyright Office should leave the Library of Congress in the first place.  Registrar Pallante offers several reasons in her letter.  One is the claim that the Library of Congress is in a Constitutionally awkward position, since it is apparently an Executive branch agency (the Librarian is appointed by the President), but its functions, including advising Congress about copyright law, are at least partially legislative.  While I see the issue, it is not clear to me why it is more pressing for the CO than it is for other offices within the Library, including, for example, the Congressional Research Service.  Nor do I fully understand why making the CO an independent agency, with its head still appointed by the President, would solve this dilemma.  There is certainly an issue of prestige here, but I am not convinced that it is enough to justify a new Federal agency.

The other reason Pallante offers for moving out of the Library of Congress are the “operational challenges,” including staffing and pay.  All bureaucracies are difficult, of course, and rumor has it the LoC is more difficult than most these days.  But, again, it is not obvious that a new agency would necessarily be better.  Everything would depend on the personnel and the budget.  More troubling, however, are the footnotes in Pallante’s letter that refer to the “conflict of interest” between the CO and the Library, which apparently was mentioned by some witnesses during those February hearings.

Is there a conflict of interest between a library and the office that administers our national copyright policy?  If there is, what does that tell us?  To my mind, it suggests that our copyright policy has gotten out-of-line.  We may be developing an approach that sees copyright as a trade regulation that protects specific industries, not as a policy decision about how best to ensure the continuous creation of new works of knowledge and culture.

This concern was clearly raised during the hearings, where Rep. Zoe Lofgren challenged the assumption that the Copyright Office was no longer a good fit with the Library of Congress by suggesting that over the years, the librarians have been better at understanding copyright than some staff at the CO.  To her credit, in her letter Pallante does not endorse the idea of moving the CO to Commerce, where the symbolism of copyright as a sort of trade regulation would be even stronger.  But I would argue that our predecessors knew what they were doing when they centralized copyright services inside the Library of Congress.  Libraries epitomize the social benefits that copyright is supposed to support, and the “optics” of moving the Office, at least, would inevitably undermine that long-standing commitment to the public good.

In fact, if the CO was located in the Commerce Department, as my colleague Brandon Butler points out, it would have to consider all aspects of commerce related to copyright, including those industries that depend on fair use and other copyright exceptions.  The wrong-headed narrative about the competition between the content industry and the technology sector, with the former held up as copyright dependents and the latter as modern-day pirates, would be harder to sustain.  The unfortunate possibility exists that the CO’s desire for independence represents a desire to become even less balanced in its approach than it has been in the past, focusing entirely on its perceived role as enforcer of rules that protect Hollywood from the threatening innovations of Silicon Valley.  An office in the Commerce Department would be less able to take sides.

In terms of rationale and purpose, the Library of Congress is a good fit for the Copyright Office, even if the CO does not, under its current leadership, recognize this.  If a new home is really necessary, Butler makes the wonderful suggestion that the Department of Education should be considered.  The DoE, more than Commerce and maybe even more than the Library of Congress, could refocus copyright policy on the reason we have these laws in the first place — to promote the progress of knowledge and science.  If we lose track of that purpose, it becomes an open question whether we need the law or the CO at all.

Listening to Lessig

Like many other attendees, I was pleased when I saw that the closing keynote address for this year’s Association of College and Research Libraries Conference was to be given by Professor Larry Lessig of Harvard.  But, to be honest, my excitement was mingled with a certain cynicism.  I have heard Lessig speak before, and I am afraid I worried that I would be listening to essentially the same lecture again.

My suspicion was not wholly unwarranted.  In part I think it is the fault of Lessig’s instantly recognizable lecture style.  It is energetic and entertaining, but because its rhythms and conventions are so idiosyncratic, I think it may flatten the message a little bit.

In any case, I sat down in the ballroom of the Oregon Convention Center on Saturday with somewhat mixed expectations.  But what I did not expect was for Lessig to begin his talk by acknowledging that all his public lectures were really the same.  Had he read my mind?  No, his point was a little different.  Over the years, he told us, he has had three major themes – political corruption, net neutrality, and copyright/open access.  But, he told his audience of attentive librarians, those three themes are fundamentally just one theme.  Each is about equality.  Not three themes, but only one — equality.  Equality of access to the political process is the heart of his current campaign against the corruption of our political system by the endless pursuit of money.  Equality of access to the means of communication and culture is key to the fight for net neutrality.  And equality of access to knowledge is what animates the open access movement.

So it turns out that my worry, prior to the talk, was both unfair and, in a sense, correct.  All Lessig’s lectures are very much the same, because the underlying value he is asking us to focus on is the same.

Thinking about this unity-behind-diversity in the messages about political corruption, net neutrality and open access set me thinking about the way my colleagues and I frame our advocacy for the last of those items, open access to scholarship.  Our messages, I think, tend to focus on incremental change, on the benefits to individual scholars, and on not rocking the academic boat too much.  Lessig reminded me that there are good reasons to rock a little bit harder.  Publishing in toll access journals and neglecting open access options or additional means of dissemination is not just short-sighted.  It is dumb, and it is harmful.  We need to say that occasionally.

Publishing exclusively through closed access channels is dumb because it ignores huge opportunities available that can, quite simply, make the world a better place.  And such publishing fails to take full advantage of the greatest communications revolution since the printing press.  Indeed, online toll-access deliberately breaks network technology in order to protect its outmoded and exclusionary business model.  Doing this is simply propping up the buggy whip manufactures because we are afraid of how fast the automobile might travel.  The academy is not usually this dumb, but in this case we are wasting vast amounts of money to support an obsolete technology.  I know that the promotion and tenure process is often cited as the reason for clinging to the old model, but this is simply using one outdated and inefficient system as an excuse for adhering to another such system.  Traditional modes of evaluation are breaking down as fast as traditional publishing and for the same reasons.  Hiding our heads in the sand is no solution.

More to the point, however – more to Lessig’s point – is the fact that this traditional system we are so reluctant to wean ourselves from actually hurts people.  It fosters ignorance and inequality.  It makes education more difficult for many, retards economic progress, and slows development worldwide.  As academics and librarians who by inclination and by professional responsibility should be committed to the most universal education possible, it is shameful that we cling to a system where only the rich can read our scholarship, only the privileged gain access to the raw materials of self-enlightenment.  How can a researcher studying the causes and treatments of malaria, for example, be satisfied to publish in a way that ensures that many who treat that disease around the globe will never be able to see her research?  How can an anthropologist accept a mode of publishing that limits access for the very populations he studies, so they will never be able to know about or benefit from his observations?  Why would a literary scholar writing about post-colonialist literature publish in a way that fosters the same inequalities as earlier forms of colonialism did?

In this wonderful column from Insider Higher Ed., the ever-insightful Barbara Fister writes about what we really mean when we talk about serving a community, and what we might mean by it.  She comments on the “members-only” approach to knowledge sharing that has become an accepted practice, and challenges us to rethink it.  Like Lessig, Fister is calling us to consider our core values of equality and the democratization of knowledge.  She also reminds us of how dumb – her word is wasteful – the current system is.

Perhaps the most vivid example of how subscription-based publishing fosters, and even demands, inequality is found in the ongoing lawsuit brought against a course pack publisher in India by three academic publishers.  Two of the “usual suspects” are here – Oxford University Press and Cambridge University Press (joined, in the Delhi University suit, by Taylor and Francis) – and this lawsuit is even more shameful than the one brought against Georgia State.  The problem, of course, is that the books published by these modern-day colonialists are too expensive for use in India.  I once was told by a professor of IP law in India that a single textbook on trademark law cost over a month’s salary for his students.  Photocopying, whether it is authorized by Indian law or not (and that is the point at issue) is a matter of educational survival, but these publishers want to stop it.  Their rule – no one should ever learn anything without paying us – is a recipe for continued ignorance and inequality.  It is disgraceful.

I use the word colonialists in the paragraph above quite deliberately.  What we are seeing here is the exploitation of a monopoly that is imposed on a culture with the demand that people pay the developed world monopoly holders in order to make progress as a society.  We have seen this too many times before.

The thing I like best in the article linked above – the whole thing is well worth a careful read — is the brief story of how a student group in India began handing out leaflets about the lawsuit at a book fair where CUP representatives were hawking their wares.  They wanted to let people know that buying books from Oxford and Cambridge is supporting a worldwide campaign of intimidation that is aimed at reducing access to knowledge and culture.  Publishing with these presses is a form of colonial occupation that extorts from whole populations a high price to obtain the means of cultural and intellectual growth.  The reaction, of course, was predictable; the publisher summoned the police to protect themselves and others from these unpleasant truths.  But the technique has merit; perhaps we can also find ways to shame these publishers when they attend our academic or professional conference, when they send salespeople to our campuses, and when they recruit our colleagues to write and review for them.  A commitment to equality demands no less.

Copyright, Open Access, and Human Rights

The United Nations Human Rights Council is holding its 28th session this month, and one item on the agenda is discussion about a report from Farida Shaheed, who is a “Special Rapporteur” in the area of “cultural rights.”  Ms. Shaheed is a well-known Pakistani sociologist and human rights activist.  Her report is a remarkable document in many ways, with a lot of things to like for those who are concerned about the overreach of copyright laws.  There are also some points that are troubling, although, on balance, I would love to see this report get attention and action from the U.N.

In some sense, the most remarkable thing about this report is its frank recognition that intellectual property laws are in tension with the fundamental human right of access to science and culture. In only its third paragraph, the report reminds us that since at least 2005, the World Intellectual Property Organization, a U.N. agency, has been mandated (whether effectively or not) to give “renewed attention to alternative policy approaches to promote innovation and creativity without the social costs of privatization.”  In short, the WIPO is charged, whether effectively or not, to find ways to facilitate open access to science and culture.  This charge is made explicit in the recommendations, where the Special Rapporteur directly suggests that “[p]ublic and private universities and public research agencies should adopt policies to promote open access to published research, materials, and data on an open and equitable basis, especially through the adoption of Creative Commons licenses” (para. 113).

When librarians and other open access advocates discuss OA policies with their faculties, perhaps we should recognize that there is a compelling argument to be made that this is not just a “what’s best for academia and for my interests” issue, but a true human rights issue.  Ms. Shaheed’s report makes this case in a concise and compelling way.  And this point also reminds us of why open access that is achieved simply by paying the commercial publishers to release articles is not a solution, because it does not really promote equitable access.  The fees charged are too high for many authors, they are not administered in a transparent way, and, frankly, some of the publishers cannot be trusted to fulfill their end of the bargain.  Barbara Fister discussed some of these problems in more detail in her recent Inside Higher Ed blog post, called “New Predatory Publishing in Old Bottles.”  If we take open access seriously as a step toward a more democratic and equitable culture, we must embrace a wider variety of “flavors” of OA, and not assume that the “usual suspects” can do it for us.

To return to a reading of the Human Rights Council report, there are strong endorsements of the idea that cultural and scientific development depends on restraining the reach of IP protections.  The section on “Copyright policy and cultural participation” is structured around three themes that all begin with “promoting cultural participation through…” and then go on to discuss copyright limitations and exceptions, international cooperation, and open licensing.  Here are some specific recommendations that I found very encouraging:

  • In regard to negotiations that are already underway, the report endorses ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Disabled, or Otherwise Print Disabled.  On the other hand, Ms. Shaheed expresses concern (para 19) about the Trans-Pacific Partnership Agreement that is currently being negotiated in secret, which is the problem that the report focuses on, calling for all such multinational agreements to be discussed in a transparent way (para 92).  Since the TPP is often defended with the claim that it will benefit developing countries, it is fascinating to see it cited as an example of a “democratic deficit in international policy making.”  From a different article, this editorial about the TPP by a U.S. Senator raises the same type of concern, and together they make a strong case against the agreement.
  • In paragraph 22 the report discusses the potential that a pervasive licensing environment can inhibit artistic self-expression and slow cultural development.
  • The report calls for the adoption of international treaties on copyright limitations and exceptions for libraries and education.  Given the current climate in the WIPO, this seems like a long shot, but is valuable in part because it calls attention to that climate, which is dominated by representatives of commercial interests (including, unfortunately, the U.S. Trade Representative).
  • On the issue of copyright limitations and exceptions, the report specifically points to fair use as a tool for allowing a more “comprehensive and adaptable” approach to unlicensed uses (para 73).  The report notes that most countries take the route of adopting exceptions for specific types of use, which provides more certainty, but adds that that approach may be inadequate in the current environment.  In general the report calls for a flexible approach to “uncompensated use of copyrighted works , in particular in contexts of income disparity, non-profit efforts, or under-capitalized artists” (para 106).  It specifically asserts, in this regard, that member states should not take a rigid approach to the so-called “three-step test” for copyright exceptions that is found in the Berne Convention (para 104), which is often used as a weapon by commercial interests against broadly applicable exceptions.
  • One of the recommendations I like best in this report, found in paragraph 107, is that states should enact laws that would prevent copyright limitations and exceptions from being overruled by contractual provisions, and protect such exceptions from excessive technological interference as well.  The UK has recently adopted the contractual part of this idea, stating that certain uses that are allowed by the law cannot be prohibited by contracts.  As I have said before, this is an idea we need to incorporate into U.S. copyright law, and it is good to see the U.N. special rapporteur endorse it so firmly.

There is an overall emphasis in the report that focuses on copyright as an authors’ right, and it is this focus that gives me some ambiguous feelings about the document.  On the one hand, I agree that a focus on authors and supporting authorship will help re-balance our approach to copyright.  Where we have most often gone wrong in this area is when we have allowed copyright discussions to focus on supporting the business models of intermediary organizations, regardless of whether or not those models really helped incentivize authors and creators.  Throughout its history, copyright has been called an authors’ right and treated like a publishers’ privilege.  Re-focusing on authors is part of restoring copyright to its proper function, and makes sense in a document about human rights.  And yet, it is also true that too much stress on author rights can also become unbalanced.  Copyright cannot benefit society unless it weighs the rights of both users and creators, especially since the former often aspire to become the latter.  Authorial control is an important part of the creative incentive, but it can easily go too far.

One troublesome area where this is a real danger is protection for “traditional knowledge and traditional cultural expressions” — the cultural creations of indigenous peoples.  This is an area where there have certainly been abuses, and it is not surprising to find a concern over TK and TCE, as the international community abbreviates them, in a report about IP and human rights.  Unfortunately, protection for these cultural products raises as many problems as it does solutions.  Should there be a public domain for TCEs?  If not, why not?  And who is the legitimate rights holder in traditional knowledge?  The national government?  In an article back in 2011, David Hansen explored some of these issues and found real incompatibility between traditional knowledge protections and the values that animate IP law.

So my final attitude toward this report is mixed, but still strongly positive.  I think it recommends many of the right steps toward restoring copyright and other IP rights to their proper scope and function.  It rightly places the focus on authors and on economic and cultural development.  It reminds us that all high-level copyright conversations should have a human rights perspective.  Where I have concerns, I see a chance for continued conversation.  But at least those conversations would take place with the proper grounding, if the report is taken as seriously as it deserves.

In the GSU case, the wheels keep turning

NB — An embarrassing correction — the motion discussed below was actually filed by the plaintiffs, the publishers, not by GSU.  So this does look very much like the publisher intent is to go forward with new proceedings in the District Court.  And speculation below about what GSU intends is misplaced.  Sorry, folks.

Spurred by this error, I have uploaded the motion, so interested readers can see it here

Before I get way down in the weeds to describe a new development in the GSU case, I want to tell readers about a wonderful new article about the case, still in draft form here on SSRN, by Brandon Butler, lately of the ARL and now at the George Washington College of Law at American University.  This is a clear and concise summary of where we are regarding educational fair use after the Court of Appeals ruling that reversed and remanded the GSU case.  It also is as good a set of “instructions” as I have seen for how we can move forward with fair use in the academy; I hope many of you will read it.

And, now, for those who enjoy the more arcane aspects of our law, the latest on that very case.

When last we heard from the Georgia State University copyright infringement lawsuit, the publishers were facing a decision — should they appeal to the Supreme Court, try to settle the case, or let the case go back to the trial court for further proceeding in light of the Court of Appeals ruling?

I have no insight into what is going on in the minds of the plaintiff publishers, or those who are instructing them; all I can say is that I don’t think they have yet filed with the Supreme Court for a Writ of Certiorari.  But because of a filing made in the District Court last week, we do now know something about what GSU is thinking, and it seems they are preparing for reconsideration of the case by Judge Orinda Evans.

On February 24, right in the middle of Fair Use Week, GSU filed a motion in Judge Evans’ court to “reopen the record on remand.”  When a case is appealed, the trial court “certifies” the record and sends it up to the court that will hear the appeal; that is, the lower court attests that the materials sent to the Appellate level are complete and accurate.  Now the case has been sent back to that trial court, and GSU wants to reopen the record — the documentary evidence in the case — so that Judge Evans would base any new opinion on the most up-to-date evidence.

At the root of this request is the fundamental fact in this case that Georgia State, as a state university, cannot be sued for money damages because of sovereign immunity.  In other words, they cannot be assessed a fine by the Federal courts for past actions. Early in our nation’s history, we decided that we did not want to give the Federal courts that kind of power to reach into state treasuries and redistribute taxpayer money.  So all that a plaintiff suing a state university can hope for is an injunction — a form of order from the court that tells the defendant to stop doing something in the future.  There is no looking back at past wrongs when sovereign immunity is in play; only the potential for future violations of the law can be addressed.  This is an exception to sovereign immunity from a Supreme Court case called Ex Parte Young, and it is supposed to be followed quite strictly.

Those paying close attention may recall that this single-minded focus on the future came into play earlier in the GSU case, when the Regents of the University of Georgia system adopted a new copyright policy.  At that time, GSU successfully argued that only actions taken after the new policy was adopted should be considered by the court, since any injunction could only address future actions, which would be governed by the new policy.  The trial court agreed, and the case was tried over specific excerpts from books published by the plaintiffs that were used in the GSU e-reserve system after the new policy was adopted.

Since the trial, however, the GSU policy has changed again. Specifically, the Regents acted to incorporate into that policy the instructions given them by Judge Evans, who found a couple of flaws in the original form of the new policy.  So once again, GSU is asking that they be judged only on the current state of practice, which is the appropriate context for an injunction (which always looks forward).  They are asking that the record be reopened so that, in her reconsideration of the case, Judge Evans would evaluate only excerpts used in GSU’s e-reserves since the original trial and the subsequent amendment of the copyright policy.

If this motion is granted, and it makes sense both under the legal rule of Ex Parte Young and the past history of the case, the publishers would have to look at more recent semesters than were the subject of the original trial, and see what excerpts, if any, from works they own were used for e-reserve after the 2012 ruling.  If they find any that they think are infringing, it would be those materials, rather than the “original” 75 excerpts, that would be the subject of Judge Evans’ reconsideration.

In short, GSU is asking that those “further proceedings consistent” with the Court of Appeals ruling, be focused on a new set of excerpts, ones used by the GSU faculty since the copyright policy was last revised.

If the motion is granted, the new proceedings in the trial court would have a very different look.  There would not necessarily be a new trial, but at least the Judge would have to reconsider her approach to fair use based on what the Court of Appeals has told her, and then apply that revised approach to a different set of readings.  It seems clear that GSU believes that this would improve the chance that she would still find lots of fair uses.  Perhaps they are more confident that the revised policy is being followed and, since it was revised based on the Judge’s instructions, it will still pass muster with her.  Perhaps GSU has been careful not to use many, or any, of plaintiffs’ works since the trial.  And, perhaps, this is a gambit in settlement negotiations.

I will be anxious to see how the Judge responds to this motion, if the case reaches the point for her to rule on it.  I suspect that the publishers will see this request as a kind of trickery, designed to pull the rug out from under them and fight the case on new terrain.  But they knew the boundaries when they sued a state institution, or at least they should have.  From another perspective, this motion reflects an attempt by GSU to be consistent, and even to act with integrity.  If they believe, as I think they do, that they have tried at every turn to employ fair use as it has been clarified for them by the courts, this is nothing more than a plea to be judged on their current understanding and current practice, which seems very fair and appropriate.

 

 

 

Resistance is Futile

This is a guest post by Jeff Kosokoff, the Head of Collection Strategy & Development for the Duke University Libraries.

In an outstanding example of Buzzword Bingo, EBSCO’s Friday press release announcing their acquisition of YBP from Baker & Taylor (B&T) says that they are assembling the tools “to truly streamline and improve administrative (‘back end’) services in ways that optimize the impact these services have on the end user experience” (EBSCO PR:  https://www.ebsco.com/news-center/press-releases/ebsco-shows-major-commitment ).

If B&T was trying to move YBP, then there were likely multiple bidders, perhaps ProQuest, perhaps one or more of the major publishing concerns. After all, YBP is one of a small handful of comprehensive book jobbers still standing and they have well-established relationships with a large percentage of libraries. At its core, this is a business decision, and EBSCO is not a charity. The acquisition is a way to maximize profits at a company that has been very good at doing so. There is real value in creating more seamless and streamlined workflows within libraries, and this is especially true where libraries are facing staffing challenges. This recent acquisition, along with the recent demise of Swets, has certainly allowed EBSCO to extend their customer base and increase engagement.

After the initial shock, I suppose not many in the library community were particularly surprised. YBP faces increasing financial challenges as library print book acquisition expenditures fall. As we would expect, the narrative from the parties was upbeat and filled with promises that nothing would change beyond some wonderful synergies to come. EBSCO is continuing to position itself as the closest thing we have to a soup-to-nuts library information content and services vendor. EBSCO claims to be the largest library discovery service provider (6,000+ customers), the leading e-content provider (360,000+ serials, 57,000+ e-journals, 600,000+ e-books). Over the past 20 years, they have moved from a serials jobber to a reseller of abstracting and indexing, a major serials and book jobber, a comprehensive and state-of-the-art discovery service, a contract publisher and aggregator of a massive amount of full-text content through a diverse portfolio of subject databases, an e-book aggregation platform. EBSCO has a strong engagement with development of the KOHA open source ILS. While the materials outcomes are unclear, EBSCO is even a partner in the Open Access Scholarly Publishers Association. Adding YBP also brings in another major library analytics tool, Collection HQ to join EBSCO’s Plum Analytics.

So, what’s the problem?

  1. Not Enough Competition?

What are the risks associated with giving too much of your business to a single company? What if things go sour? Many librarians have been frustrated with the dwindling choices we have in the jobber market. In the halcyon summer of 2014, my institution felt like it had three choices for our serials jobbing. When Swets went under last fall, we were left with only two choices. The book jobber market has faced so much consolidation over the past 2 decades that those of us who are dissatisfied with our book jobbers do not feel we have many options.

  1. Too Big/Monolithic To Fail?

I tend to agree that EBSCO can leverage this merger to enable efficiencies. Those efficiencies will certainly be best realized if a library commits more resources to EBSCO’s family of library services and systems. Business risk assessment professionals can offer comment here, but doing too much business with a single corporate entity is fraught with obvious risks. The movement by EBSCO and others to promote end-to-end library systems flies in the face of efforts to modularize library systems and services. Many have been working to build interoperable components instead of single systems. Modularity allows one to both mitigate risk and promote flexibility and evolution of the local set of systems over time. How will we feel limited when it becomes difficult or impossible to replace an unsatisfactory component of a monolithic implementation? The more singular one’s commitment to a small number of providers, the impacts of failure and obsolescence grow. And what happens if EBSCO’s corporate parent gets into trouble? Admittedly, EBSCO is probably the most diversified company in our space. In fact, it is a little surprising not to see EBSCO’s Vulcan Industries competing with Demco and Brodart in the lucrative library fixtures space.

  1. Can a wholly-owned subsidiary really remain agnostic?

For those of us in the trenches of emerging e-book workflows, a continuing challenge is metadata supply and alignment. This is an emerging area of practice, and while ProQuest, perhaps the major aggregated e-book competitor to EBSCO, says it will be business as usual (PQ Blog: http://www.proquest.com/blog/pqblog/2015/Support-Continues-with-YBP.html ), it seems like they might be more than a little nervous. Often a book is available on multiple platforms, and one wonders if long-standing meta-data workflow issues between YBP and EBL will receive the attention they deserve. If I were a smaller e-book publisher that does not want to join with EBSCO’s platform, I think would be very anxious about the acquisition.

  1. Can we learn anything from EBSCO’s past behavior?

During my 20-year professional career in libraries, I have witnessed a lot of very aggressive behavior from vendors. In my experience, EBSCO has been one of the most aggressive. In the 1990s, at a time when most discovery providers were content to resell existing databases, EBSCO brought new A&I products to market that directly competed with existing ones in business, health care and the social sciences. While one could argue this drove improvements, the outcome was essentially a doubling of our subscription loads. Combined with exclusive agreements with minor and major periodical publishers such as Time-Warner and Harvard Business Publishing, libraries have sometimes felt that EBSCO was forcing the issue and gaining something of an unproductive advantage. In the discovery space, there are those who feel EBSCO takes an all-or-nothing approach where their systems work great if-and-only-if you also bring along all your subscriptions to their platform.

Consolidation and further amalgamation in the library information services market has been a trend for a few years now. We have fewer ILS vendors, fewer jobbers, bigger players, and lots and lots of financial capital trying to make lots and lots of money in our industry. Perhaps resistance is futile; perhaps it is the only rational choice.