Category Archives: Libraries

After another defeat, what will GSU publishers do in 2015?

Back in October the 11th Circuit Court of Appeals issued its ruling in the Georgia State copyright infringement suit brought by three publishers and the Copyright Clearance Center to try to end reliance on fair use for course readings that are digitized and made available to students in a closed online forum.  As has been widely reported, that decision looked like a win for publishers, in that it vacated the lower court decision that largely favored Georgia State University, and it remanded the case back to the District Court for further proceedings.   But what looked like a win was very dissatisfying to the publisher plaintiffs — Cambridge University Press, Oxford University Press and Sage Publishing.  In the course of the opinion, all of the radical changes to copyright law that they hoped to advance with the lawsuit – the imposition of the 1976 Classroom Copying guidelines as a maximum limit rather than a safe harbor, the idea that the copy shop cases involving commercial course packs were appropriate precedents for in-house electronic reserves, a move from analysis of individual claims of fair use to a comprehensive impact analysis, and a statement that non-profit educational use did not necessarily favor fair use — were rejected by the Court of Appeals.

The publishers were very unhappy with this decision, even though it gave them the outcome they desired in the specific conflict.  They are looking for a radical realignment of fair use; the actual case is relatively unimportant, I think, compared to this desire to change the landscape so that many more licenses for educational institutions would be required.  So they asked the entire 11th Circuit to rehear the case (en banc) instead of letting the decision of the usual three judge panel stand.  Their petition for rehearing is a wish list of the principles they would like to have govern copyright in academia, which, of course, all point to paying those publishers more money.

On Friday the 11th Circuit rejected this petition for an en banc rehearing, as well as the petition for rehearing filed by GSU.  The Court did not comment on the rejection; they simply denied both petitions, thus leaving the opinion of the Appellate panel as the Court’s final word on the case.

For libraries, this means we are still in the uncertain and murky position I describe back in October.

For the publishers, there are a dwindling number of options left for them:

  1. They can petition the Supreme Court to hear the case.  This is really the only option that is available if the plaintiff publishers still want to fight for the ridiculous arguments they have been championing throughout the six and a half years of this lawsuit, so I will not be surprised if they do this.  I am sure the lawyers representing the publishers are advocating for this; so is the Copyright Clearance Center, in all likelihood, and they are paying the bills.  But the Supreme Court accepts only a tiny fraction of the cases they are asked to consider — the number is less than 4% of cases for which the petitioner has paid the usual filing fees (it is much lower for cases submitted where the plaintiff, usually a prisoner, claims that they cannot pay the costs).  The cases the Supreme Court is most likely to accept are those where there is a split of opinions among the different Circuits of the Court of Appeals, and that is not the case with the GSU opinion.  So this is a long shot for the publishers, but their only option now if they hope to save any of those principles that they have gone to war to establish.
  2. They can seek the rehearing by the District Court that is the point of a remand from the Appeals Court. That hearing must be “consistent” with the analysis in the 11th Circuit ruling, so it is not likely to gain much for the publishers.  The best they can hope for here would be a slightly tighter e-reserves policy at GSU that they could wave under the noses of other universities.  But that would be a victory for them that would feel an awful lot like a loss.
  3. Finally, they could settle the case.  This would be the rational approach, but the plaintiff publishers (or those who are calling the shots for them) have shown little taste for reasonableness.  They have poured a lot of money into fighting to undermine fair use for education, and settling now is probably less sensible, from their perspective, than it would have been months or years ago.  And, to be honest, GSU has little to gain from a settlement at this point; they might just as well wait for further proceedings in the District Court.  A settlement earlier in the case might have given the publishers a lever to use in negotiations with other institutions, but that opportunity faded when the 11th Circuit rejected all of those principles that the publishers were after.  Now they have a much weaker hand.

Overall, I think we will see a petition for a Writ of Certiorari, which is what you file to ask the Supreme Court to consider your case.  I doubt it will be granted, but I expect that 2015 will be a year of tilting at windmills for the publishers in this case.

Getting into print the hard way

I hope I will be forgiven some self-promotion if I point out that my first book (that’s a little like saying my “first” marriage – so far it is the only one, and no other is anticipated, but one should never say never) has just been published. It is a handbook of intellectual property designed specifically to address the needs and concerns of researchers and teachers, and it was published on December 10 by the Association of College and Research Libraries. It is available for purchase on the ALA Store site here. There is also a PDF made available under a Creative Commons Attribution/Non-commercial license on the ACRL site.  I also expect to have a PDF in the DukeSpace institutional repository soon.

As a last piece of book promotion, I will note the blog post about the book on the Author’s Alliance web site, which was largely written by me.

All that aside, the real purpose of this post is to tell the story of publishing this book, because I think it is instructive for thinking about scholarly communication today. If I had to start with a moral for the whole story, it is that I should have started with the librarians, because they are a group — the ACRL was wonderful to work with — that can publish in the way most consistent with academic values and needs.

The story begins when I was contacted in 2009 by an editor for the University of Chicago Press, who suggested that I should write a handbook on IP for scholars.  I was immediately interested, and, at the editor’s request, wrote first a proposal and then drafts of the first two chapters.  Those chapters were sent out for review and we received both helpful suggestions and a recommendation to continue to develop the book from three reviewers.  With that step complete, the U of C Press and I signed a contract in late 2010, and I set out on a long and difficult journey to finish and publish the book.

The writing process took me considerably longer than I expected; no surprise there, of course.  When I apologized to my editor I was assured that it was OK; they would be interested in the project, they said, whenever it was complete.  During this time, however, I got the first indications that this would not be a smooth relationship.  I sent in chapters as I finished them, as the editor encouraged me to do, but did not get any of the promised feedback as I progressed.  For a couple of years I was essentially writing in a vacuum.

I finished writing in March 2013 and, in May of that year, finally sent the Press the completed draft of the manuscript, which they sent out for review.  The Press’ policy is that they must have two reviews of the full manuscript that recommend publication before they refer the book to their board for a final thumbs up.  So I began to wait.  After six months I checked in and was told that the Press had sent the manuscript to three reviewers.  One had sent in a report with a recommendation to publish.  One had reviewed just two chapters of the book, asserting that they were only qualified to comment on a portion of the subject matter.  The editor had not yet heard from the third reviewer, and without two full review that recommended publication, they could not move ahead.  The editor told me that the third reviewer would be reminded and that the Press would also look for an alternate reader.

Five months after this, having still heard nothing, I inquired again.  My e-mail went unanswered.  A second e-mail did elicit a response, which was that they were still waiting for that third reviewer.  There was no sign they had ever sought that additional reader.

At this point I was pretty frustrated.  Five people had read at least part of the manuscript, and all had recommended publication.  All of them had also made really helpful suggestions for improving the text which I tried to adopt. But the U. of C. Press was still passively waiting for that one final reader so they could comply to the letter with their self-created rules.  What bothered me most was the apparent lack of effort and commitment I was getting from the Press.  After talking with several academic authors about my situation, I decided to withdraw the book from the U of C Press.

When I told my editor about this decision, the first reaction was to try to talk me out of it and ask me to have patience.  The second reaction was to remind me of our contract and to suggest that I had no alternative but to wait it out with the U. of C.  In response, I suggested two concessions from them that would make the waiting easier.  First, I asked (for the first time, I am embarrassed to admit) for some form of open access to a version or a part of the book.  Second, I asked to be paid half of the advance we had agreed on as a sign of the Press’ commitment to the project.  I was told, however, that the first request was impossible because they needed to protect potential sales for the book, and that the second was contrary to their policy.  In regard to the latter issue, I was pointed to specific language in my contract about when the advance would be paid.  So I looked.  It turns out that the contract language was actually different from what the editor told me it was.  It stated pretty clearly that I would be paid the advance when I sent in the manuscript, not, as I had been told, only when and if the board approved final publication.  I have no idea why the contract language was what it was, or if it was really different from what the editor thought it should be.  I had not changed or negotiated that part of the agreement back when it was signed.  Maybe the Press just figured that no one will read their contracts, so they could claim whatever they wanted about them.

Anyway, I brought this discrepancy to the attention of my editor.  That was the last contact I ever had with that person.  A few days later I got an e-mail from the Director of the Press, apologizing to me for the treatment I had received and confirming that the Press had breached our contract by not paying the advance in a timely fashion.  I was told that I would be released from the contract AND that the Press would still pay the advance I was owed.  Over the next few weeks, we signed a formal letter releasing me to publish the book elsewhere and I received a check for the long-delayed advance.

On the plus side of this relationship, I did get quite a lot of very helpful feedback for my manuscript from the readers (although, of course, I am solely responsible for whatever errors remain).  Also, when faced with the clear evidence that they had not lived up to their side of the bargain, the Press did the right thing (maybe just to get rid of me!).  But on the negative side, I got almost no help from the editor in actually developing the manuscript, the “management” of peer-review was lackadaisical, and I wasted over a year after the book was finished waiting for the Press to get its act together before I asserted my freedom to start looking for another publisher.

After this experience, I spoke to one other commercial publisher, and this time made the expectation of an open access copy a condition from the beginning.  That led to a very short conversation.  So finally I did what I should have done from the start — work with the ACRL.  That experience was smooth, collaborative, and focused on the best way to make my work serve the needs of the audience it was intended for.  The ACRL arranged for excellent and expeditious copy-editing and indexing.  They agreed to immediate open access for the entire book. When there was a problem with the first print run of the book, the ACRL took immediate responsibility and re-printed the whole run.  The process took less than six months from signing a contract to publication.

From this experience I take away three lessons, which I think are worth sharing.  First, the claims about how much effort publishers put into a new book, and the help they provide to authors, are at least sometimes exaggerated.  I was working with a prestigious university press on a book they had solicited in the first place, and yet did not get nearly the kind of assistance or interest that I sometimes hear promised.  Second, it is extremely important to read, negotiate and save a copy of the publication contract.  That my book is now in print is largely due, I believe, to the fact that I could go back to the actual language of our agreement in order to convince the U. of C. to release me to find another publisher.  And finally, as I said at the beginning, libraries and library organizations, in my experience, understand the needs and goals of scholarly authors better than commercial presses.  As the future of academic publishing unfolds, I strongly hope that more and more of it will be in the hands, or under the oversight, of libraries.

 

 

Cancelling Wiley?

Because they were spaced almost a full year apart, I really did not connect the dots when two Canadian universities announced that they were cancelling their “Big Deals” with John Wiley & Sons publisher.  The Times Higher Education reported on the decision at the University of Montreal back in January 2014, while the announcement made by Brock University came only a few weeks ago.  I would not have considered this a trend worth commenting on had it not been for conversations I had last week at the Fall CNI Membership meeting.  During that meeting, two different deans of large university libraries told me, unbidden and in separate conversations, they they were also considering ending their deal with Wiley.  I was struck by the coincidence, which caused me to remember these two announcements from Canada and to begin to ponder the situation.

Two different questions occurred to me when I thought about these four significant cancellations or potential cancellations, all directed at a single publisher.  First, why was Wiley the focus of this dissatisfaction?  Second, what is the next step?

As for what the complaints are about Wiley, the answer is pretty much what it always is — money.  The THE article and the Brock University report both tell us that exchange rates have made the annual “higher than the inflation rate” price increases for these packages even harder to bear than usual.  They also point to another problem.  Pricing is based on the large number of titles included in these package deals, but many of those titles are not very useful.  The Brock post notes that the Wiley package has a significantly higher cost per use than does their Elsevier package, which presumably reflects the fact that many of the titles the University is paying for in the package simply do not get used.  The same reality is probably behind the fact noted by THE that Montreal would subscribe to less than 25% of the titles that had been included in the package it was cancelling.  It would be interesting to find out, a year on, how much those other titles have been missed.

In my conversations with the two library deans, much the same thing was said about Wiley — demanding a large price increase, being inflexible in negotiation, and selling “a lot of junk that I don’t need” in the package.  Libraries are beginning to discover that they do not need to put up with those tactics.  Publishers often tell us that they are publishing so many more articles, which justifies their price increases, and they tell us how selective their flagship journals are.  But when we look at these big deals, it is clear that selectivity is not an across-the-board approach; many articles that are not very useful just slide down the hierarchy to get published in journals whose main purpose is to pad out a “big” deal.

To me the more important question is “what now?”  Unfortunately, many times when a library makes this kind of decision there is actually little money saved, since the funds simply go into re-subscribing to a smaller, selected list of titles from the same publisher.  But presumably some of these cancellations result in dollars saved.  And when they don’t, I propose that libraries ought to reexamine their approach.  When you have cancelled a dross-laden package, think twice before reinvesting all of that money in as many individual subscriptions from the same publisher as possible; make a careful decision about where the division between useful titles and unnecessary ones really lies.  Because here is the thing — money that can be saved and reinvested in open access projects will give us a higher return on our investment, because those projects will provide greater access.

It seems clear that, over time, libraries will need to move more and more of their spending away from the consumption side of scholarly production and do much more to support the creation and dissemination of knowledge directly.  Commercial publishers hope to capture those dollars as well, but one of the real benefits of supporting open access can and should be more freedom from businesses addicted to 30% profits.  I would like to challenge libraries to consider, when they have to cancel, using the money to support non-profit or lower profit open access projects.  Work with a society to provide subvention for a scholarly journal to become OA.  Work with your university press to support OA monographs.  Finally, even if not compelled by immediate budget realities, think about making some strategic cancellations in order to take these kinds of steps.  We know that open access is our future, and it is vital that we take control of that future before others take it from us.

I don’t know if Wiley is the worst offender amongst the large commercial publishers, or whether there is a real trend toward cancelling Wiley packages.  But I know the future of scholarship lies elsewhere than with these large legacy corporations.  The process of weaning ourselves from them will be slow and drawn-out.  But especially when the cancellations are going to happen anyway, we should have the idea of using the funds to advance the transition to open access foremost in our minds.

For a similar, but likely better informed, perspective on the idea of cutting subscriptions to support open access, please read Cameron Neylon’s post on “Letting it go — Cancelling subscriptions, funding transitions,”which ties the idea in his title to the discussion going on in the Netherlands about Elsevier’s big deal.

Swimming in muddy waters

Since the ruling from the Eleventh Circuit Court of Appeals in the Georgia State copyright case came out two weeks ago, most commentators have come to the same conclusions.  It is a mostly negative ruling, in which publishers actually lost a lot of what they were fighting for.  Georgia State also lost, in the sense that the case is not over for them and they are no longer assured of being reimbursed for their attorney’s fees and court costs, as Judge Evans had originally ordered.  But apart from those parties to the case, has the library community lost by this decision, or gained?  Once again, what we have gained is mostly negative — we know that we do not have to strictly observe the 1976 Classroom Copying Guidelines, we know that the cases involving commercially-produced course packs do not dictate the fair use result for e-reserves, we know that 10% or one chapter is not a bright line rule.  But there is little benefit in knowing how NOT to make fair use decisions; it is easy to see why one commentator has pled for bright line rules.

One affirmative point we can take from the case is that we know we still can, and must, do item-by-item analyses to make fair use decisions.  But what exactly should the process for those decisions look like?

As Brandon Butler from American University has pointed out, the decision-making processes will be different when we are assessing uses for teaching that are transformative versus those, like e-reserves, that are not.  We still have a good deal of freedom when the use is transformative — when the original material becomes part of a new expression, a new meaning, or a new purpose.  And this is important for a great deal of scholarship and teaching.  We should not lose sight of this important application of fair use, or assume, incorrectly, that the 11th Circuit ruling creates new limits on transformative fair use.

But when we must make decisions about digital course readings, we need to apply the “old-fashioned” four factor test.  What does it look like after the Appeals Court ruling?  I am afraid it has gotten pretty muddy:

The first fair use factor — the purpose and character of the use — continues to favor fair use whenever that use is undertaken by a non-profit educational institution.  If a commercial intermediary is involved, as was the situation in the course pack cases, this is no longer true.  But where there is no profit being made and the user is the educational institution itself, the first factor supports a claim of fair use.  And that is where the clarity ends.

The second factor — the nature of the original — can go either way, depending on the specifics of the work involved.  Is it more factual or interpretive?  This is a judgment call, and one which librarians may be hard-pressed to make when processing a number of e-reserve requests in a discipline they are unfamiliar with.  The good news is that the Court said that this factor is relatively unimportant, so the safest course may be to consider this factor neutral; call it a draw — at least where the item is not clearly creative — and move on.

On the third factor we thought we had a rule, even if many of us didn’t like it — 10% or one chapter was the amount that Judge Evans said was “decidedly small” and therefore OK for fair use for digital course readings.  The bad news is that we no longer have that rule.  The good news is that we no longer have that rule.  The 11th Circuit panel wanted a more nuanced approach, that balances amount with the other factors and especially looks at how appropriate the amount used is in relation to the educational purpose.  When the other factors line up in favor of fair use, this approach could well allow more than 10%.  If the other factors tend to disfavor fair use, only a much shorter portion might be permissible.  It is just very hard, after this ruling, to have clear standards about the amount that is usable, and that makes things difficult for day-to-day decisions.

With the fourth factor — impact on the market for the original — the 11th Circuit made things even more unclear.  The panel actually affirmed the lower court in its analysis of this factor, emphasizing that it is permissible to take into account the availability of a license for the specific use as part of evaluating this factor.  So if a license for a digital excerpt is unavailable, does that mean this factor favors fair use, as Judge Evans said?  Maybe, but the 11th Circuit added two complications.  First, it said that the Judge should have included the importance of license income to the value of the work in her fourth factor reasoning, rather than treating it as an additional consideration for breaking “ties.”  Second, they said that the fourth factor should have more weight in non-transformational settings.  How are we to put these instructions into practice?  Libraries do not have access to publishers’ accounts, as the judge did, so we cannot assess the importance of licensing income (nor can we trust publishers to give us straight answers about that importance).  And what does more weight mean?  If there is no digital license available, does more weight on this factor mean more room for fair use, perhaps of a larger excerpt?  Again, maybe.  But it also seems to mean that where such a license is available, even 10% or one chapter might be too much for fair use.

How does one swim in water that is this muddy?  The answer, of course, is very carefully.  We must keep on making those decisions, and we do have space to do so.  The fair use checklist, by the way, received a relatively sympathetic description from the 11th Circuit, but not a definite embrace.  At this point, my best advice is to keep on doing what we have been doing, thinking carefully about each situation and making a responsible decision.  I would recommend a somewhat more conservative approach, perhaps, than I might have done three weeks ago, especially when a license for a digital excerpt is available.  But the bottom line is that the situation is not much different than we have always known it to be, there is just a little more mud in the water.

GSU appeal ruling — the more I read, the better it seems

Those of us who heard the oral arguments in the Eleventh Circuit Court of Appeals last November, in which the publishers appeal of the District Court ruling favoring fair use in their copyright infringement lawsuit against Georgia State was heard, mostly expected a discouraging result from the Appellate panel. An initial or cursory reading of the opinion issued by the panel of the 11th Circuit on Friday might even confirm those fears.  After all, the fairly positive ruling from the District Court is reversed, the injection and the order for the publishers to pay GSU’s costs and attorney’s fees are both vacated, and the whole case is remanded back to the District Court to reconsider.  But once one begins to read carefully, the panel opinion gets much better.  All of the big points that the publishers were pushing, which consequently are the really bad potential rulings for higher education, go against the publishers.  In many ways, they won a reversal but lost the possibility of achieving any of their most desired outcomes.  Higher ed didn’t exactly win on Friday, but the plaintiff publishers lost a lot.

There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here.

For those of us struggling to make responsible fair use decisions on a day-to-day basis, this Appeals Court ruling doesn’t actually change much.  The message for us is that it could have been much worse, the case is far from over, and we must just keep on making the same kind of reasoned and reasonable fair use decisions we have been making for years.

What we got from the three-judge panel of the Eleventh Circuit on Friday is a mostly negative ruling that outlines where both Judge Evans of the District Court and the plaintiff publishers are wrong, as the panel thinks, about fair use.  To be exact, two judges — Tjoflat and Marcus — tell us those things.  The third judge, Vinson, concurs in the result — the reversal and remand of the case — but would have accepted virtual all of the publishers arguments and closed the door on fair use for even very small classroom readings.  His concurrence suggests that getting an opinion together was probably a difficult process involving a lot of compromise (it took eleven months), and it also tells us how bad the opinion could have been for universities.  Instead, what the panel majority issued is mostly bad for the publishers.

In my opinion, there were five major principles that publishers wanted to get from this lawsuit, and in the Appeals Court ruling they lost on all of them:

  1. Publishers wanted the Appeals Court to hold that Judge Evans should have ruled based on the big picture — the large number of electronic reserve items made available to students without permission — rather than doing an item-by-item analysis for each reading.  Instead, the Appeals Court affirmed that the item-by-item approach was the correct form the analysis should take.  This, of course, is the key that allows universities to make individualized fair use decisions, and it rejects the attempt to force all schools to purchase a blanket license from the Copyright Clearance Center (which was, in my opinion, the fundamental goal for which the case was filed in the first place).
  2. The plaintiffs wanted a ruling that non-profit educational use did not mean that the first fair use factor always favored fair use.  They wanted the Appeals Court to hold that where the copying is non-transformative, and both Judge Evans and the Appeals Court felt that the copying at issue was non-transformative, the first fair use factor does not favor the defendants, even when they are non-profit educational institutions.  But the Court of Appeals correctly applied Supreme Court precedent and held that the first fair use factor still favors fair use for such “verbatim” copying when it is done for an educational purpose without profit.
  3. The Appeals Court held that the so-called “course pack” cases, which rejected fair use for course packs made for a fee by commercial copy shops, were not controlling precedent in the situation before it, where GSU was doing the copying itself and made no profit from it.
  4. The publishers wanted a clear statement that the Classroom Copying Guidelines were a limit on fair use for multiple copies made for classroom use, defining a maximum amount for such copying of 1000 words.  They lost there too; the panel held that the Guidelines were intended as a minimum safe harbor and did not define a limit on fair use.  Therefore they do not control the decision for this type of copying.  Instead, the panel rejected the 10% or one chapter rule applied by Judge Evans as too rigid and instructed her to use a more flexible approach that takes account the amount appropriate for the pedagogical purpose.
  5. Finally, the publishers were hoping that the Appeals Court would reject the idea that the availability of a license for a digital excerpt was relevant to the fourth fair use factor; they wanted a rule that says that any unlicensed use is an economic loss for them, even if they have decided not to make the desired license available.  They lost that too; the panel affirmed that the District Court was correct to consider the availability of a license for the specific use when evaluating market harm.

These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final.  They are now binding precedent in the 11th Circuit, and persuasive throughout the country.  The publishers could presumably appeal to the Supreme Court, but it seems unlikely the current Court would take the case because there is no split amongst the Circuit Courts, only a growing consensus about fair use.

So if the publishers lost on everything that really mattered to them, why was the case reversed?

First, as I have said, this is a big loss for the publisher plaintiffs, but it is not a win for GSU.  With the reversal of the District Court ruling and the injunction and fee award vacated, their copyright policy is again up in the air.  And, of course, they have lost the immediate prospect of collecting about $3.5 million in costs.  But for now, they, like all libraries, should probably just carry on with their normal practices and wait to see what happens on remand.

When (if?) the case gets back to Judge Evans, who I very much doubt wanted it back, the fair use analysis will look somewhat different. The Appeals panel found specific errors in her analysis of the second and third fair use factors. On the second factor they have told her that she cannot presume that the works in question are all “informational.” She has been told to do a work-by-work evaluation, but also told that this factor is not very important.  On the third factor, the amount used, the panel said that her bright-line rule of no more than 10% or one chapter was too rigid (as would have been the much lower bright-line rule the publishers wanted).  Here too, the Appeals Court wants a more nuanced and fact-specific analysis, looking at both quantity and quality (the heart of the work).  Significantly, they have told Judge Evans to look at the pedagogical appropriateness of the excerpt when determining how the amount factors into a fair use analysis.  Since this corresponds with what many of us tell campus faculty — use only what you really need and no more —  it is nice that the panel approved.  Finally, Judge Evans has been told to give the fourth factor — market harm — more weight, rather than counting all the factors equally.  This would probably, but not certainly, result in fewer findings of fair use.  Instead of the split we got — 43 fair uses versus 5 infringements (plus 26 for which there was no prima facie showing of infringement)– there would probably be a different division.  Maybe 30 excerpts would be fair use and 18 infringing; who knows?  But I think we should consider whether or not getting to that point really benefits anyone.

Which brings me to considering what the various players should do now, in light of this ruling.

The publishers, as I say, have pretty much lost even as it looks like they were winning.  There is no good that can come out of a remand for them.  At best they will get that different division between fair use and infringement as a result, and will be able to use it to spread a little more fear amongst academic libraries about the uncertainty of fair use.  But that is not their real goal, I hope.  They were hoping to radically change the landscape, and they have failed spectacularly.  If there is any common sense left in their board rooms and executive suites, they need to considering settling with Georgia State and then engaging in real, good-faith negotiations with higher education and library groups.  Don’t open those negotiations with threats, as you did before.  We now know how toothless your threats are.  But it is still the case that libraries and faculties would like some standards they can follow that are realistic in light of what the courts have told us.  There is no windfall for publishers in such negotiations, but there might be some stability, not to mention the savings they will realize if they stop wasting money on foolish and unavailing litigation.

As for academic libraries, this long, drawn-out case, although not over yet, appears to have been much ado about nothing.  We still should be making careful, responsible and good-faith decisions about copyright and fair use, just as we have done for years.  We need to educate ourselves, look at the array of precedents we have from the federal courts, and continue to do our best.  There has been no revolution, and no dramatic alteration of the conditions under which we do our work.  The bottom line is that, after this ruling, libraries should just keep calm and carry on.

A reversal for Georgia State

The Eleventh Circuit Court of Appeals has issued its ruling in the publisher appeal of a district court decision that found most instances of electronic reserve copying at Georgia State to be fair use.  The appellate court ruling is 129 pages long, and I will have much more to say after I read it carefully.  But the hot news right now is that the Court of Appeals has reversed the District Court’s judgment and remanded the case back for proceedings consistent with the new opinion.  The injunction issued by the District Court and the order awarding costs and attorney’s fees to GSU have been vacated.

Looking at its analysis of the four fair use factors suggests that applying the Court of Appeals’ ruling will be challenging.  The panel has held that th=Judge Evans of the District Court was correct to find that the first factor favored fair use, even though, both courts say, the use is not transformative.  The non-profit educational character of the use seems to carry the day on that factor.  On the other hand, the Appeals Court finds error in the District Court’s sweeping finding that the second factor favored fair use.  The panel also disagrees with the 10% or 1 chapter standard used by Judge Evans to decide about the third fair use factor, the amount used; they object to any mechanical standard and want a more nuanced, work-by-work analysis.  The Court of Appeals also agrees with the District Court about the fourth factor — largely favoring plaintiffs when a digital license is available.  But the 11th Circuit wants the factors to be balanced with a different touch; not treated as all equal.

What is interesting here is that it looks like a considerable victory for the publishers, but there is still a lot of work to do.  Judge Evans will need to do her analysis over again, and the results will be different.  But given the way the Appeals Court agrees with some parts of her initial analysis and corrects her on others, it is hard to predict, on first glance, what the final result will be.

A copy of the opinion can be found here.  I am sure there will be lots more written about the, including by me, in the days to come.

How useful is the EU’s gift to libraries?

On Thursday the European Union’s Court of Justice issued an opinion that allows libraries to digitize books in their holdings and make those digital copies accessible, on site, to patrons.  In a way, this is a remarkable ruling that recognizes the unique place of libraries in the dissemination and democratization of knowledge.  Yet the decision does not really give libraries a tool that promises to be very useful.  It is worth taking a moment, I think, to reflect on what this EU ruling is, what it is not, and how it compares to the current state of things for U.S. libraries.

There are news stories about the EU ruling here, here and here.

What the EU Court of Justice said is that, based on the EU “Copyright Directive,” libraries have permission to make digital copies of works in their collections and make those copies available to patrons on dedicated terminals in the library,  The Court is interpreting language already found in the Directive, and adding two points.  First, library digitization is implied by the authorization for digital copies on dedicated terminals contained in the Directive, and, second, that this is permissible even if the publisher is offering a license agreement.  Finally, the Court makes clear that this ruling does not permit further distribution of copies of the digitized work, either by printing or by downloading to a patron’s storage device.

As far as recognizing what this decision is not, it is very important to realize that it is not the law in the United States.  It is easy sometimes, when the media gets ahold of a copyright-related story, to forget that different jurisdictions have different rules.  The welter of copyright information, guidelines, suggestions and downright misinformation can make the whole area so complex that simple principles can be forgotten.  So let’s remind ourselves that this interesting move comes from the European Union Court of Justice and is the law only for the EU member states.

The other thing this ruling is not is broad permission for mass digitization.  The authorization is restricted to copies that are made available to library patrons on dedicated terminals in the library.  It does not permit wide-spread distribution over the Internet, just “reading stations” in the library.  That restriction makes it unlikely, in my opinion, that many European libraries would invest in the costs of mass digitization just for such a relatively small benefit.

So how does this ruling in the EU compare to the rights and needs of libraries in the U.S.?

Let’s consider section 108(c) of the U.S. copyright law, which permits copying of published works for preservation purposes.  That provision seems to get us only a little way toward what the EU Court has allowed.  Under 108(c), a U.S. library could digitize a book if three conditions were met.  First, the digitization must be for the purpose of preserving a book from the collection that is damaged, deteriorating, or permanently missing.  Second, an unused replacement for the book must not be available at a fair price.  Third, the digital copy may not be made available to the public outside of the library’s premises.  This last condition is similar, obviously, to the EU’s dedicated terminal authorization; a patron can read the digital copy only while present in the library.

Two differences between the EU ruling and section 108(c) are especially interesting:

  1. The works for which this type of copying are allowed in the U.S are much more limited.  The EU says that libraries can digitize any book in their collection, even if it is not damaged or deteriorating, and even if another copy, even a electronic one, could be purchased.  This seems like the major place where the EU Court has expanded the scope for library digitization.
  2. On the other hand, the use of a digital copy may be less restricted in the U.S.  Instead of a dedicated terminal, a U.S. library could, presumably, make the copy available on a restricted network, so that more than one patron could use it at a time, as long as all of them were only able to access the digital copy while on the library premises.

In the U.S., of course, libraries also can rely on fair use.  Does fair use get us closer to being able to do in the U.S. what is allowed to European libraries?  Maybe a little closer.  Fair use might get us past the restriction in 108(c) about only digitizing damaged books; we could conceivably digitize a book that did not meet the preservation standard if we had a permissible purpose.  And the restriction of that digitized book to in-library use only would help with the fourth fair use factor, impact on the market.  But still we would have issues about the purpose of the copying and the nature of the original work.  Would general reading be a purpose that supports fair use?  I am not sure.  And what books could we (or could we not) digitize?  The specific book at issue in the case before the EU Court was a history textbook.  But textbooks might be especially hard for a U.S. library to justify digitizing for even limited access under fair use.

If we wanted to claim fair use for digitizing a work for limited, on site access, my first priority would be to ask why — what is the purpose that supports digitization?  Is a digital version superior for some articulable reason to the print copy we own (remembering that if the problem is condition, we should look to 108)?  One obvious purpose would be for use with adaptive software by disabled patrons.  Also, I would look at the type of original; as I said, I think a textbook, such as was at issue in the EU case, would be harder to justify under U.S. fair use, although some purposes, such as access for the disabled, might do it.  Finally, I would look at the market effect.  Is a version that would meet the need available?  Although the EU Court said that European libraries did not need to ask this question, I think in the U.S. we still must.

Ultimately, the EU Court gave European libraries a limited but useful option here.  Unfortunately, in the U.S. we have only pieces of that option available to us, under different parts of the U.S. law.  It will be interesting to see whether, in this age of copyright harmonization, U.S. officials begin to reconsider this particular slice of library needs because of what the EU has ruled.

 

 

Planning for musical obsolescence

Gustavo Dudamel is one of the most celebrated conductors of his generation.  As Music Director of both the Los Angeles Philharmonic and the Simon Bolivar Orchestra of Venezuela, he has built a solid and enthusiastic following amongst lovers of symphonic music.  He is also, according to his website bio, deeply committed to “access to music for all.”  So it is particularly poignant that a recording by Dudamel should serve as the prime example of a new access problem for music.

When Dudamel and the Los Angeles Philharmonic release a new recording of a live performance of Hector Berlioz’s Symphonie Fantastique, it should be a significant event, another milestone in the interpretation of that great work.  But in this particular case we are entitled to wonder if the recording will really have any impact, or if it will drop into obscurity, almost unnoticed.

Why would such a question arise?  Because the Dudamel/LA Philharmonic recording was released only as a digital file and under licensing terms that make it impossible for libraries to purchase, preserve and make the work available.  When one goes to the LA Philharmonic site about this recording of Symphonie Fantastique and tries to purchase it, one is directed to the iTunes site, and the licensing terms that accompany the “purchase” — it is really just a license — restrict the user to personal uses.  Most librarians believe that this rules out traditional library functions, including lending for personal listening and use in a classroom.  Presumably, it would also prevent a library from reformatting the work for preservation purposes in order to help the recording outlive the inevitable obsolescence of the MP3 or MP4 format.  Remember that the section 108 authorization for preservation copying by libraries has restrictions on digital preservation and also explicitly allows contractual provisions to override that part of the law.

At a recent consultation to discuss this problem, it was interesting to note that several of the lawyers in the room encouraged the librarians to just download the music anyway and ignore the licensing terms, simply treating this piece of music like any other library acquisition.  Their argument was that iTunes and the LA Philharmonic really do not mean to prevent library acquisitions; they are just using a boilerplate license without full awareness of the impact of its terms.  But the librarians were unwilling.  Librarians as a group are very law-abiding and respectful of the rights of others.  And as a practical matter, libraries cannot build a collection by ignoring licensing terms; it would be even more confusing and uncertain than it is to try to comply with the myriad licensing terms we encounter every day!

In the particular case of the Dudamel recording of Berlioz, we know rather more about the situation than is normal, because a couple of intrepid librarians tried valiantly to pursue the issue.   Judy Tsou and John Vallier of the University of Washington tracked the rights back from the LA Philharmonic, through Deustche Grammophon to Universal Music Group, and engaged UMG in a negotiation for library-friendly licensing.  The response was, as librarians have come to expect, both inconsistent and discouraging.  First, Tsou and Vallier were told that an educational license for the download was impossible, but that UMG could license a CD.  Later, they dropped the idea of allowing the library to burn a CD from the MP3 and said an educational license for download was possible, but only for up to 25% of the “album.”  For this 25% there would be  a $250 processing fee as well as an unspecified additional charge that would make the total cost “a lot more” than the $250.  Even worse, the license would be limited to 2 years, making preservation impossible. The e-mail exchange asserts that UMG is “not able” to license more than 25% of the album for educational use, which suggests that part of the problem is that the rights ownership and licensing through to UMG is tangled.  But in any case, this is an impossible proposal.  The cost is absurd for one quarter of an album, and what sense does it make for a library to acquire only part of a performance like this for such a limited time? Such a proposal fundamentally misunderstands what libraries do and how important they are to our cultural memory.

Reading over the documents and messages in this exchange, it is not at all clear what role Maestro Dudamel and the LA Philharmonic have in this mess.  It is possible that they simply do not know how the recording is being licensed or that it is unavailable for libraries to acquire and preserve.  Or they may think that by releasing the recording in digital format only they are being up-to-date and actually encouraging access to music for everyone.  In either case, they have a responsibility to know more about the situation, because the state of affairs they have allowed impedes access, in direct contradiction to Maestro Dudamel’s express commitment, and it ensures that this recording will not be part of the ongoing canon of interpretation of Berlioz.

As far as access is concerned, the form of its release means that people who cannot afford an MP3 player will not be able to hear this recording.  Many of those people depend on libraries, and that option will be closed to them because libraries cannot acquire the album.  Also, access will become impossible at that inevitable point in time when this format for digital music becomes obsolete.  Maybe UMG and the Philharmonic will pay attention and release the recording on a different format before that happens, but maybe they won’t.  The most reliable source of preservation is libraries, and they will not be there to help with this one.  So access for listeners 20 or 30 years from now is very much in question.

This question of the future should have great consequence for Maestro Dudamel and the orchestra.  Without libraries that can collect their recording, how will it be used in classrooms in order to teach future generations of musicians?  Those who study Berlioz and examine the performance history of the Symphonie Fantastique simply may not know about this performance by Dudamel and the LA Philharmonic.  That performance, regardless of how brilliant it is, may get, at best, a footnote in the history of Berlioz — “In 2013 the Symphonie Fantastique was recorded by the LA Philharmonic under the baton of Gustavo Dudamel; unfortunately, that recording is now lost.”  These licensing terms matter, and without due attention to the consequences that seemingly harmless boilerplate like “personal use only” can produce, a great work of art may be doomed to obscurity.

A MOOC on copyright

It has taken a while to get here, but I am happy to be able to announce that two of my colleagues and I  will be offering a four-week MOOC on copyright designed to assist teachers and librarians deal with the daily challenges they encounter in regard to managing what they create and using what they need.

The MOOC will be offered on the Coursera platform and will run for the first time starting July 21.  It is available as of today for folks to sign up at https://www.coursera.org/course/cfel.

It has been a great pleasure working with Anne Gilliland from the University of North Carolina Chapel Hill and Lisa Macklin from Emory University to create this course.  I hope and believe that the course is much stronger because the three of us worked together than it could possibly have been if any one of us did it alone.

This course will be four weeks in duration and focuses on U.S. copyright law.  While we are well aware of all the MOOC participants from other countries — and welcome folks from all over to join us — we also wanted to keep the course short and as focused as possible.  We hope perhaps to do other courses over time, and a more in-depth attention to international issues and to how copyright works on the global Internet might be a good future topic.  In the meanwhile, this course deals with the U.S. law and the specific situations and issues that arise for librarians and educators at all levels.

We especially hope to attract K-12 teachers, who encounter many of the same issues that arise in higher education, and who often have even fewer resources to appeal to for assistance.  That is one reason for the summertime launch.

Another point about the focus in this course — our goal is to provide participants with a practical framework for analyzing copyright issues that they encounter in their professional work. We use a lot of real life examples — some of them quite complex and amusing — to help participants get used to the systematic analysis of copyright problems.

For many in the academic library community, the winding up of the courses offered by the Center for Intellectual Property at the University of Maryland University College has left a real gap.  This course is intentionally a first step toward addressing that gap.  It is, of course, free, and a statement of accomplishment is available for all participants who complete the course.  We hope this can assist our colleagues in education with some professional development, and maybe, depending on local requirements, even continuing education requirements.

We very much hope that this course will be a service to the library and education community, and that it provides a relatively fun and painless way to go deeper into copyright than the average presentation or short workshop allows.

Please propose to us

Later this year, the first in a new series of Scholarly Communication Institutes will be held here in the Research Triangle and we are looking for proposals from diverse and creative teams of people who are interested in projects that have the potential to reshape scholarly communications.

Last year the Andrew W. Mellon Foundation funded a three-year project to continue the long-running Scholarly Communications Institute which has previously been held at the University of Virginia.  Starting in November, the new SCI will be hosted by Duke in close collaborations with UNC Chapel Hill, NC State University, North Carolina Central University and the Triangle Research Libraries Network.  This new iteration of the SCI will benefit, we believe, from the extraordinary depth and diversity of resources related to innovation in scholarly communications here in the Triangle, and it will also take on a new format, in which participants will have a major role in setting the agenda each year.

Starting this year — starting right now! — the SCI invites applications from working groups of 3 – 8 people that are organized around a project or problem that concerns scholarly communications.  These working groups can and should be diverse, consisting of scholars, librarians, publishers, technologists and folks from outside academia (journalist? museums? non-profits?).  We hope that proposals will be very creative about connections, and include people that would like to work together even if they have not previously been able to do so.

The SCI Advisory panel will select 3 to 5 of these working group proposals and cover the costs for those teams to travel to the Triangle and spend four days together  in Chapel Hill in a setting that is part retreat, part seminar, part development sprint and part un-conference.  We want these groups to work together and to interact.  The groups will, we hope, jump-start their own projects and “cross-pollinate” ideas that will advance and challenge each others projects and discussions.

The theme for the 2014 SCI is Scholarship and the Crowd.  It will be held November 9-13 at the Rizzo Center in Chapel Hill, NC.  Proposals are due by March 24.

The goal of the SCI is not to schedule breakthroughs but create conditions that favor them.  The Working Groups selected will set the agenda and define the deliverables.  The Institute will offer the space , the environment and the network of peers to foster creative thinking, with the hope of both advancing the specific projects and also developing ideas and perspectives that can give those projects a broader potential to influence the landscape of publishing, digital humanities and other topics related to scholarly communications.

If you or someone you know might be interested in developing a proposal for this first Triangle-based SCI, you will find the call for proposals and an FAQ at trianglesci.org.