Category Archives: Libraries

Authors' Rights, Libraries, Open Access and Institutional Repositories

An open letter to J.R. Salamanca

46 Comments

Dear Mr. Salamanca,

Earlier this week, only days after it filed its ill-advised lawsuit against the HathiTrust and five of Hathi’s partner universities, the Authors Guild gleefully announced that they had been able to find, with relative ease, the author of one of the books on Hathi’s initial list of orphan works.  You, of course, were that author, and the work in question was your 1958 novel The Lost Country.

It is not a comfortable position to be a pawn in a game of “gotcha,” especially when it involves litigation.  What I want to say to you is the same thing I say to faculty authors at the institution where I work: “Consider carefully where your own best interests lie, and manage your copyright to serve those interests.”

In one sense, your situation is quite unusual.  Apparently you still hold the rights in The Lost Country, perhaps because you recovered them from your publisher based on a contractual arrangement.  This was unusual in the 1950’s, when federal copyright did not attach to a work until it had been published, and it is, unfortunately, still not the case for many authors, particularly those who write academic books.  For many of them, rights must be surrendered in order to have a work published in the first place.  So you are ahead of the game in that sense; you have a chance to really manage your copyright for your own benefit.  Congratulations.

It seems clear that your book was included on the list of potential orphans in error.  Of course, inclusion on that list was precisely intended to catch such situations, so the system worked as it should.  Your book has not been included in any distribution of orphan works.  Now you have a chance to decide, however, if you would like to allow a more open distribution.

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies.  We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity.  So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work.  Amazon.com shows only two used copies available for sale.  In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage.  It has not left the facility once since then, and our system shows no circulations in the prior decade, either.   One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard.  They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition.  The Authors Guild simply does not have the ability to create a new market for your book.  Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust.  Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books.  Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

In your own case, let’s suppose a Duke student has recently seen the Elvis Presley movie made from The Lost Country.  Intrigued, she “Googles” the book and finds that there is a copy held by our library.  But to get it she has to send a request, wait 24 hours or so, then pick it up at one of the library service desks.  Years of experience with college students suggests to me that most just won’t bother; they will move on to something newer and easier to access.  On the other hand, if  that same record that she found with her Google search also contained a link to the book through Hathi, she might read a chapter or two.  She might get hooked.  You will have found a reader.

This is what libraries do; such serendipitous discovery is what we hope for everyday, and it is why we signed up with the HathiTrust.  What Hathi offers to you is the opportunity to continue to find readers for the book on which you worked so hard.

Your “case,” if I can call it that, illustrates two things.  First, that the process of identifying orphan works in the Hathi corpus needs to be tested and refined, which Hathi is committed to doing.  Second, in the rare instance like yours where the process actually turns up an author who does still own copyright, the rational course for that author is to embrace the mission of Hathi and of libraries everywhere of connecting books with readers, and to exercise their right to make their book(s) fully viewable.  Please believe me, that is a much better option than having a book live out its term of copyright on hard-to-access shelves in high-density storage.

Copyright Issues and Legislation, Fair Use, Libraries

Is it all about the Orphans?

5 Comments

In my post about the Author Guild’s lawsuit against HathiTrust and some of its university partners, I promise to consider further the question of why the complaint was so focused on orphan works.  Why the plaintiffs put so much emphasis there, since presumably they cannot show that they or the members they represent actually hold any copyrights in those specific works?  In a story for Inside Higher ed., a spokesperson for the Authors Guild maintains that the suit really isn’t about orphan works; nevertheless, I continue to think that that is exactly what it is about. Jennifer Howard from the Chronicle of Higher Education gets it right, I think, when she writes that “The plaintiffs seek to take control of those files out of the hands of libraries until Congress establishes guidelines for the use of digital libraries and orphan works.” The lawsuit seems most understandable, I maintain, as part of a strategy to dictate the terms by which the orphan works problem is “solved,” and we need to look closely at what that strategy might involve.

In his excellent post about the lawsuit, Professor James Grimmelmann makes two comments about the Authors Guild’s “grand strategy” with which I respectfully disagree.  He says that the AG has switched positions and now opposes action on orphan works, and he suggests that the effect of the lawsuit will be to discourage Congress from getting into the orphan works arena at all.  On the contrary, I believe that this is part of a campaign to get Congress to address orphan works by setting up a licensing scheme, similar to the one Canada uses, in which each use of an orphan work must be licensed and a royalty paid.  I think the hope is to collect royalties on using orphans that will ultimately be distributed to authors (or publishers?) of similar “categories” of work.  With the failure of the Google Books Settlement, I think this is the next attempt by the content industries to sell what they do not own on behalf of parties they cannot identify, and then keep the money.

One of the first bits of evidence I cite for this opinion is this short report about comments sent to the European Union, as it considers its own orphan works directive, from the International Federation of Reproduction Rights Organizations.  IFFRO is the trade group for collective rights management groups, including US groups like ASCAP and the Copyright Clearance Center.  In their comments, they tell the EU that “Orphan works should be administered through collective management and licensing,” the rules and conditions of which should be left in the hands of those who publish similar “categories” of works.  IFRRO does not address where the money would go, but the Canadian model for orphan works gives us a clue; when royalties are paid to collecting societies in Canada, they are normally held for five years (in case a rights holder surfaces) and then become part of the regular funds of the rights organization, presumably for distribution.

What IFRRO is essentially asking the EU for is the same kind of license to exploit orphan works that Google was hoping to get in its book project settlement.  That settlement seems to be completely dead, but the prospect of monetizing orphan works put dollar signs in the eyes of the Authors Guild.  Now I think the AG is hoping to clear the way for Congress to establish a scheme for collecting money from users of orphan works, probably using the Copyright Clearance Center, and distributing it eventually to their members.  They want to make sure that no plausible mode of using orphan works, especially a non-commercial one, gets any traction, so that their lobbyists can go to Congress and say “only you can address this problem, and we have a plan all ready for you.”

It’s really worth looking at the Canadian model, which is described in this excellent article by De Beers and Bouchard on “Canada’s ‘Orphan Works’ Regime: Unlocatable copyright owners and the Copyright Board,” The Canadian law, we should note, authorizes an administrative board, not a collective rights organization, to grant licenses upon application for particular uses.  But the royalties it orders are often determined by and paid to the collective rights groups, and I strongly suspect that it is a variation on this broad scheme that the Authors Guild would like to push.

In addition to its contextualized discussion of how the Canadian scheme works, the article’s authors raise quite a few really important and challenging considerations about the specifics of any orphan works legislation.  For example, how do orphan works schema address the special problems posed by “moral rights,” which are often held by a party different than the copyright (economic rights) holder?  Also, exactly when can an orphan works license be issued?  For exactly which works is licensing permitted, and what kinds of uses will be licensed?

The Canadian Copyright Board always requires the payment of royalties for orphan works licenses.  As we look at their system, it is important to ask how these payments fit in to the incentive scheme for new creation that copyright is intended to create.  Are these payments, at least quite often, simply a tax on users that do not serve any role in encouraging new works?  If a similar model is proposed in the US by industry groups, especially involving the collective rights groups, we would have an even greater problem of “rent seeking.”

The most significant issue raised by the article is the relationship between licensed uses and those that benefit from a statutory exemption.  In the US, that raises the issue of how a licensing scheme for orphans would fit in with fair use, which is exactly the issue the Authors Guild tries to duck by not addressing fair use in its complaint against Hathi. If we approached orphan works by creating a licensing regime, would a license be available even if a use was arguably fair use?  Who would decide?  And would the license thereby provide a protection against liability for a negative judgment on the fair use case, thus usurping the role of the federal courts?

As I read about the standards by which the Canadian licensing board makes it decisions about which uses to license and how to set royalties, I realized they were using criteria very similar to the fair use analysis.  The good faith of the user, the commercial or non-commercial nature of the use and the character of the original work all come into play.  This suggests to me that fair use — which is found in US law but not in Canada, of course — already accomplishes a lot of the work that a licensing scheme for orphan works might be expected to do, and that fair use is really the best model for dealing with orphans in the U.S.

Really the choice between a license model and fair use is an instance of the proverbial choice between security and liberty.  By suing over a fair use claim about orphan works, the Authors Guild, I think, is hoping to force libraries to opt for security, and therefore pay for licenses.

The details, problems, and dangers of Canada’s solution to orphan works led me to conclude, even before this new lawsuit made me suspect that a similar, but privately administered, system was going to be pushed in the US, that a better solution under US law would lie in the remission of potential damages (which Congress considered several years ago).  In short, we should treat orphan works as simply a species of fair use and define a protection against liability for good faith users of orphan works that is similar to that which we already grant to employees of educational institutions (under 17 U.S. Code section 504(c)(2)) who make good faith determinations about fair use.  That is precisely the solution Hathi makes plausible, and that the Authors Guild wants desperately to suppress  lest Congress figure out that a fair use solution could really works.

Copyright Issues and Legislation, Fair Use, Libraries, Open Access topics

Stop the Internet, we want to get off!

7 Comments

It seems I spoke too soon.  Only hours after I posted on this site a comment about why the HathiTrust orphan works project should not be controversial came news that the US Authors Guild, joined by similar associations in two other countries and eight individual authors, has filed suit to enjoin Hathi from proceeding with the project and seeking to impound all seven million digital volumes held by Hathi that may still be protected by copyright.  Professor James Grimmelmann of New York Law School declares that “the Orphan Wars are upon us.”

Let’s start by being very clear about what these plaintiffs are asking.  In their complaint they list 62 works to which named plaintiffs hold copyright and also assert “associational standing” based on their representation of other unnamed copyright holders in unnamed works.  To protect those few works from distribution by Hathi, which as I far as I can tell is not actually imminent, the plaintiffs ask to impound and remove from Hathi 7 million files.  AG President Scott Turow calls Hathi “an intolerable digital risk.”  To me the real risk is that the foolish actions of Turow and his handful of followers (all but one of the plaintiffs are officers of one of the associations) will threaten the tremendous cultural potential of Hathi and similar projects simply because they are frightened of the Internet and have not yet figured out how to make money off of it.

Professor Grimmelmann has an excellent analysis of the complaint at the link above, and Kenny Crews of Columbia offers his comments here.

My own reading of the initial complaint — I doubt it is the final version — suggests a notable absence of logical argument.  The press release the plaintiffs issued yesterday was full of protests and anguish, but did little to state a real case against Hathi.  As it turns out, the complaint itself is not much clearer.

As Grimmelmann points out, one issue for the association will be standing to sue.  Assuming that plaintiffs hold valid copyrights in some works that were digitized by Google and are held in the HathiTrust, they claim to have standing to object to the digitization of their works — but Google is not named as a defendant — and to the distribution of digital files back to the universities and into the HathiTrust.  By itself, this would not, in my opinion, support an injunction; there is no sense of imminent harm.  So then the complaint makes a dramatic turn and addresses the orphan works project, claiming that it is an illegal distribution.  But they provide no evidence that any of the plaintiffs actually hold any rights in those works identified as orphans or that they represent anyone who does.  So if the whole argument is needed to justify the injunction being sought, there may be a question of whether any of these plaintiffs have standing to seek it.  They need to show an immediate prospect of particularized harm, and I don’t think they can do it.

Another place where logic fails in the complaint is when the plaintiffs try to explain why the digitization and preservation is illegal.  Early on in the document they note that “The Universities have publicly defended their unauthorized digitization activities by claiming their conduct benefits society and is permissible under the fair use doctrine set forth in section 107 of the United States Copyright Act.”   They then declare that “[t]his position is without legal support” and immediately turn to a discussion of section 108 of the copyright act.  They never again mention fair use or address it as a potential defense, although they dedicate three pages later on to an elaborate, and irrelevant, discussion of section 108, which is the section that lays out specific exceptions for library preservation and for interlibrary loan.

The argument here seems to be that section 108 fully defines what libraries can do with copyrighted work and, if it is not permitted under 108 or authorized by the rights holder it is therefore infringing.  But this is wrong; the argument is defeated by a single short phrase found in section 108 itself, at subsection (f)(4), where the law states that “Nothing in this section… in any way affects the right of fair use as provided by section 107.”  Libraries still can rely on fair use, and it is interesting that the text of the law itself calls fair use a “right,” not merely a defense.  Like it or not, the plaintiffs’ claim will have to withstand an assertion of fair use, and if they cannot address that fair use claim they are doomed, one hopes, to failure.

The fact is that the Authors Guild has not been doing very well on the litigation front recently.  Their attempt to sue Google and then settle with it in a way that would allow the monetization of orphan works has failed, and the case is currently in limbo.  It is interesting to speculate on whether or not this filing is intended in any way to influence the outcome of that case; perhaps they hope to persuade Judge Chin in that case that Google and its partners are not reliable actors to deal with the orphan works problem.  The Authors Guild was also recently dealt a setback in its long-standing Tasini litigation when another judge refused to certify a class for class action status.  Instead of becoming litigation-shy, it appears that the Authors Guild wants to raise the stakes.  At least they have not tried to bring this case as a class action as well.

The reference to how we might solve the orphan works problem in this country and elsewhere gives us a clue, I think, to what is behind this lawsuit and why it takes such an odd and twisted form.  I think what is really going on here is an attempt to forestall ANY exploitation of orphan works until and unless the industry lobbyists can convince Congress to pass legislation that allows them to make money from those works. The plaintiffs never address the defendants’ claim, to which they refer, that Hathi provides a social benefit, and I think that the point of the lawsuit is to make sure that they get paid before anyone is able to take advantage of that benefit.  I will have more to say about this possibility in my next post.

Fair Use, Libraries

Why is adopting orphans controversial?

3 Comments

Ever since Duke, along with Cornell, Emory and Johns Hopkins Universities, announced that we would be participants in the Hathi Trust’s Orphan Works project, I have been talking with a number of different reporters, trying to explain what the project is and why we are doing it.  I was rather pleased to see that the best article written by reporters with whom I spoke was in the Duke Chronicle, our student-run newspaper.

One of the most difficult points to explain to reporters with no background in the minutia of copyright law (and why should they have one?)  is exactly what an orphan work is.  Several interviewers have simply seen them as part of the general class of e-books, and I have had to take pains to dissect that broad concept for them.

Basically, “e-book” can refer to commercial products sold or licensed under the authority of the rights holders — this is the largest category of e-books in most library collections — and to digitized public domain works such as those included in Project Gutenberg (whose founder Michael Hart died recently).  In between are orphan works, a third category of works defined, in some sense, by the fact that they do not fit into either of the other two.  Orphan works, whether in print or digitized, are books that are still protected by copyright (not public domain) and yet for which no rights holder can be located or permission for use obtained.  That’s really the key point about orphan works — there is no one to ask for permission, no one who can be found who is commercializing the work or even has the right to do so.  The options for these digital books is either total obscurity, or access under fair use; there is no third alternative.

The rights holders for orphan works probably fall into two categories.  The first is publishing firms that have gone out of business and for which there is no record of a “successor in interest.”  The other are the heirs of individual rights holder who have died without explicitly directing the disposition of their intellectual property.  Identifying a work as an orphan involves a reasonably diligent search to determine if a specific work still has an identifiable rights holder or if, in the absence of other evidence, it falls into these “orphaned” categories.

Making the digital files of orphan works held in Hathi Trust available to restricted scholarly audiences should really be a no-brainer.  The absence of any market that can be harmed, combined with the limited educational and research use, makes the fair use case quite easy.  So I was curious to see that one short article about the project called it “controversial,” while this online forum invited readers to vote on whether or not it is “within copyright law.”  I would very much like to know where the controversy is, and what reasons those who have voted “no” in the poll have for their opinion.  I suspect there are some significant misunderstandings about the project behind those votes.

Whatever controversy there may be apparently exists because of a single quote, printed in the Chronicle of Higher Education when Hathi and the University of Michigan first announced the project, which called the project illegal and the product of “elfin whimsy.” It was the kind of ill-conceived remark that I think anyone who talks to reporters dreads blurting out without proper reflection.  But it is important to understand that there is no whimsy at all behind the project or the decisions made to participate.  All of the participants have discussed the situation with both campus lawyers and academic administrators.  Each, to my certain knowledge, has made a careful and responsible decision.  On each campus, I believe, the same fundamental realization has dawned — this project is not a risk, either to the schools or to the legitimate interests of publishers, nor the product of a radical interpretation of the law.  It is exactly the core of what fair use was developed to accomplish.

Copyright Issues and Legislation, Fair Use, Libraries, Technologies

Why Can’t I Digitize My (Institution’s) Library?

8 Comments

By David Hansen, J.D., Scholarly Communications Intern

On Tuesday Judge Denny Chin set a deadline of mid-September for Google, the Authors Guild, and the AAP to work out a settlement for Google Books. The lawsuit, filed in 2005, seems to have been going on forever, and I wonder what, in the meantime, libraries can do to move forward. After looking at my own (personal) digital library, I wonder how the same principles regarding digitization might apply to institutional libraries.

Over the weekend I joined Google Music, a service that uploads my collection of music and stores it . . . somewhere. Somewhere in Google’s cloud. With it, I can access my entire collection of music from any computer. It’s great.

What is not great is my internet connection. I’ve had the service for about a week, and at this point only about half of my music collection is uploaded. Uploading large amounts of data understandably takes time, and since Google Music “store[s] a unique copy of Your Music on your behalf,” each and every file has to be transferred.  Uploading these copies is generally considered “space-shifting,” which is something that Google –and the courts—have concluded is lawful “personal use.”

Apparently there are other approaches to what Google Music does. Ars Technica has published this article outlining the legal positions of Google Music, Amazon Cloud Player, Apple’s iCloud, and MP3Tunes. All three services provide online streamed copies of user’s music collections. Apple does so with licenses from the record labels.

Google Music and Amazon Cloud Player both seem to operate as a “digital locker,” making unique copies of the user’s own files. They presumably rely on time-shifting cases that make users’ actions lawful, and on the Cartoon Network v. Cablevision case (discussed at length in the Ars article) which held that Cablevision would not be directly liable for “publicly performing” the works in question, although it provided a DVR service that allowed users to record and retransmit their own unique copies of previously transmitted shows. The court in Cartoon Network placed some emphasis on the fact that each user only had access to their own personal and unique copies of the recorded shows.

MP3Tunes acts in a similar way, but with two differences: First,  MP3Tunes will delete redundant copies when more than one user uploads identical files. This de-duplication process, while obviously more efficient than the Google and Amazon services, may conflict with the Cartoon Network case because each user accesses one centralized copy of their song, rather than multiple users accessing multiple ‘unique’ copies of the their own recordings. The second major difference is that MP3Tunes is currently being sued by EMI. Most of the suit focuses on the safe harbor provisions of the DMCA, and whether MP3Tunes can be held liable directly, notwithstanding the Cartoon Network case cited above, for “publicly performing” the works in question.  But another major issue is whether space-shifting to the cloud is a permissible fair use.

For libraries that want to make digital copies of their print collections—i.e., space shifting—there are some limited exceptions in the law that permit copying for preservation (section 108 of the Copyright act).  There is a need, however, to provide more complete digital access to the entire campus community beyond that which is contemplated by section 108. The University of Michigan (along with Florida, Illinois, and Wisconsin) has recently announced that it will be making available to campus users copies of orphan works, held jointly by the University of Michigan and HathiTrust, based on an assertion of fair use and its own risk analysis. The fair use argument relies on the idea that only works in each respective library’s print collection will be made available online to their users through the HathiTrust; one print copy, one digital access. No one is gaining access to books they don’t already own—just different, electronic access to those already in the print collection. The parallel to the ‘digital locker’ analogy that supports Google Music is strong, and the fair use argument for Michigan is bolstered even more by the fact that it isn’t in it for the money (as Google is).

This fair use assertion makes an end-run around section 108, but looking at the fair use factors, it is still appealing. Even more so for Michigan because a large part of the scanned corpus of the HathiTrust comes from Michigan, so for many books it would also be able to make the argument that the digital copies are not just practically the same books that are in its collection, but that they are identical copies of UM books, meeting some of the concerns of the Cartoon Network court.  Other libraries have less to rely on in that respect, as fewer (or none) of their physical copies were scanned for inclusion in the database. But the fact that Michigan and these other libraries are only making orphan works available means that even if the fair use analysis is slightly off, there is still almost no chance anyone will be sued. The orphan works identification process that Michigan has used (detailed here) employs a more than reasonably diligent search for copyright owners, and leaves little chance that there are any rights holders available or willing to bring an infringement suit.

Risk notwithstanding, though, I wonder, what’s wrong with a library digitizing its entire collection (not just orphan works) under the space-shift theory?  If the library takes those books out of circulation (perhaps in high-density storage) and limits online access to one user at a time (essentially, recreating the limitations of a physical visit to the library), the fair use analysis is still very much in the library’s favor. Google, in its amicus brief in support of MP3Tunes, makes the point well:

“[j]ust as the Supreme Court has held that ‘time-shifting’—recording television broadcasts for later viewing—is a lawful fair use, Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984), so too is ‘space-shifting’ lawfully acquired music onto digital music players or cloud-based equivalents, Recording Indus. Assoc. of Am. v. Diamond Multimedia Sys., 180 F.3d 1072, 1079 (9th Cir. 1999). A contrary holding would treat tens of millions of iPod owners who lawfully acquire their media as no better than those who misuse new technologies to pirate music and movies. “

Should space-shifting books be any different? These cases, admittedly, deal with space- and time-shifting for personal uses, and not for uses of educational institutions. That distinction may be critical in the end.  But shouldn’t uses for “teaching . . .  scholarship, or research” — which are specifically called out in the section of the copyright act that codifies fair use — carry at least as much weight as “personal use,” which has no mention anywhere in the act?

Finally, if a library can digitize its own library and make it available to patrons, can that library pool its digital holdings with other libraries, so that there is no needless duplication of digital copies? Storing these works in digital format is not cheap, and while my meager 20GB music collection has taken a half a week to upload to GoogleMusic’s “cloud”, the creation and duplication of millions of volumes of digital volumes is a monumental and inefficient task.  Such a restriction, as amici in the MP3Tunes case have argued, would be incredibly burdensome to both digital libraries and users in general.

Authors' Rights, Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Open access, copyright wars and the Trojan horse

2 Comments

On our recent trip to Turkey, I happened to be wearing a SPARC open access t-shirt on the day we visited the site of ancient Troy, and my wife took a picture of me holding a model of the Trojan horse with the t-shirt.  How one views the Trojan horse, of course, is a matter of perspective.  To the Trojans it was a nasty trick, but to the Greeks it was a new way to gain access that had previously been denied.

I bring this up because of the coincidence with the forum on the Georgia State copyright case that was published in the Chronicle of Higher Education, also while we were in Turkey.  A number of the participants, myself included, suggest that the open access movement is the way to respond to aggressive copyright enforcement in the scholarly publishing industry.  It is worth considering the various ways in which open access is a Trojan horse solution for scholarly communications — the movement that launched a thousand journals and burnt the topless towers of Elsevier, so to speak.

Last week the Duke University Libraries announced the launch of its first library-sponsored open access journals on the Open Journal System platform.  Both of these small journals — one a long-standing publication and the other a new, international collaboration — are edited by Duke faculty members and are fully peer-reviewed.  The OJS system automates many of the administrative tasks of the journals, adding greater efficiency to the volunteer editorial labor that has always been the core of scholarly journal production.  For authors who publish in these journals, the two great difficulties in scholarly communication — copyright management and access to the greatest number of readers — are solved; authors retain their copyrights and are free to do with their articles whatever they believe serves their needs and interests best, while potential readers have unfettered access.  The Libraries bear the small cost of administering the technology as a service to Duke and to the wider community of scholars.

These journals add to a series of efforts toward open access made by the Duke Libraries and the Duke faculty.  In 2010 the faculty adopted an Open Access policy to facilitate greater “reach for their research” and to provide access to those who cannot, for various reasons, rely on the traditional model of restricted, subscription-based access.  The Libraries have been developing the DukeSpace repository in order to make the vision expressed by the faculty in that policy into a reality.  Last fall, Duke also implemented a COPE Fund (Compact for Open access Publishing Equity) designed to help authors pay article processing fees if they decide that publishing in an “author-pays” open access journal is the best choice for them.  The COPE fund is a joint project underwritten by the Libraries and the Provost’s Office; it has seen steady, but not overwhelming, requests for assistance from faculty authors.

We are proud of these initiatives at Duke, but we recognize that none of them are unique.  Many institutions are adopting some or all of the same strategies.  The point is that these efforts really do remove the conflicts about which so much has been written in the past few days (much of it by me).  Insofar as I have have suggested nightmare scenarios, open access avoids them all.  If scholarly authors insist on retaining their copyrights, even when they publish in traditional journals, the problem of having that copyright enforced against the scholars’ own interests simply does not arise.  If they retain rights to post in an open access repository, the access problems, whether they involve electronic reserves, faculty posting in a course management system, or inter-library loan, simply do not arise.  And if more scholarly articles are just published directly as open access works, either in free open access journals like the ones the Duke Libraries have just launched, or in an author-pays journal with the support of a COPE fund, these problems once again simply do not arise.

Is open access a Trojan horse?  Not really.  The Trojan horse was meant to deceive, while the open access movement has always been honest and up-front about its goals.  But it is still true that traditional publishers have proved, through a series of actions designed to increase their own revenues at the expense of higher education, to be poor stewards of the copyrights and the scholarship that we have long entrusted to them.  The metaphor of a war has, unfortunately, begun to surface in the debate.  But there are also articles like this one, in which a researcher points in a more irenic direction, suggesting that open access is the future of scholarly publishing. The variety of open access mechanisms that are being initiated now, and the yet-unknown ones that will be tried in the future, offer an opportunity to cut short the war and put the management of scholarship into the hands that can best serve the overall interests of research and teaching, those of the scholarly authors themselves.

Copyright in the Classroom, Copyright Issues and Legislation, Libraries

A second front

14 Comments

For obvious reasons there has been a lot of attention paid to the Georgia State copyright infringement case recently.  In that litigation three academic publishers are asking a judge to fiercely restrict  academic fair use in favor of a pay-per-use system that, in my opinion, disregards the expressed intent of Congress in the 1976 Copyright Act and  is foreign to the purposes of that law.  The trial was completed yesterday, and a decision from the judge can be expected over the summer.  But in our justifiable anxiety about that case, we should not miss the fact that is is only one part of an overall strategy to undermine the educational exceptions to copyright; yesterday the publishing community opened a second front in their attack on education by issuing a statement of principles designed to hobble inter-library loan.

The statement is presented by the Association of Scientific, Technical and Medical Publishers, who have been carrying on a quiet campaign of intimidation regarding ILL, especially ILL between countries, for some time now.  The statement of principles seems to have been prompted by a series of documents issued by the Association of Research Libraries that defend current ILL practices (full disclosure — I am one of the authors of a portion of this report).  In response, the STM publishers propose a set of rules that would gut section 108, which authorizes ILL, and would once again channel more money to publishers without supporting the creation any new content.

The principles that the STM publishers propose would have several novel effects.  First, they would forbid ILL across national borders without specific permission (paid, of course) from the publisher.  Second, they would make digital delivery entirely the province of the publishers (for a fee, undoubtedly).  Libraries would not be able to e-mail a journal article to a patron, even though nothing in the current law forbids such a practice.  Third, it would impose a vague standard of “due diligence” — language not found in the law — on all document delivery for “private, non-commercial use.”  Presumably this is the thin end of a wedge to attack all private research use for which permission fees are not paid.  It is important to understand that such a standard would give the United States the most restrictive copyright law in the world, and it would do so without the intervention of Congress.

The only document delivery which the STM publish want to allow — and even this would seem to be subject to their new due diligence standard — is printed copies which patrons would be required to physically retrieve from the library.

Distance education students would be out of luck under these proposed principles, as would those who were trying to write doctoral dissertations while working in areas where a research library is not at hand.  Once upon a time I was such a doctoral student, and I can testify that such a situation is untenable.  But the needs of higher education simply are not the concern for these publishers; they want more money out of us, and they want it every time a scholarly work is used in any way.  Never mind that our faculty members are the authors of these works; once the copyright is transferred to the publishers they see that as a resource they can exploit to the maximum regardless of the harmful effects that exploitation has on the very enterprise that supplies them with content.

Increasingly, this seems to be a war for survival.  I understand that traditional publishers are getting more and more desperate as the digital revolution proceeds and they continue to dither about how to address it.  But academic faculty members are the source of almost all the content these publishers publish, so this behavior is an extreme example of biting the hand that feeds them.  It is even more stupid, in my opinion, than the strategy of recording industry who is suing its own customers, because these publishers are attacking a group that is both their customers and those who supply them with a product in the first place.

As these attacks on higher education continue to escalate, it becomes increasingly clear that the economic viability of higher education, already in doubt by some, depends on rebelling against these traditional publishing practices.  In the digital age it is simply not necessary to rely on these publishers, and they seem to be doing all they can to make it impossible as well.  I wish I did not feel that I have to hope this apparently self-destructive behavior proves to be exactly that.  But it must serve as wake-up call to academic authors that traditional practices are now being abused in a way that would make much academic practice impossible.  Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use, Libraries

A nightmare scenario for higher education

75 Comments

In anticipation of the trial starting on Monday in the copyright infringement case brought against Georgia State University by Cambridge, Oxford and Sage publishers, and partially financed by the Copyright Clearance Center, there has been a flurry of motions, mostly relating to the admission of various pieces of evidence.  But amongst that deluge of paper is a truly frightening document, the proposed injunction that the plaintiffs are requesting if they win the case.  I have always known that there was a lot a stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU.  It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future.  It would make GSU responsible for every conceivable act of copying that took place on their campus.  In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done  without permission.

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers.  In any case the order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works.  The administrative costs alone would be staggering, not to mention the permission fees.

Permission fees are the real purpose here, of course.  The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction.  The way the injunction would accomplish this would be by entirely eliminating fair use for Georgia State.

There is absolutely no mention of fair use or section 107 of the copyright law in this proposed order.  Instead, the coping that would be permitted without permission is entirely defined by the bright line rules of the 1976 Guidelines for Classroom Copying (see pp 68-70).  Actually, it is the guidelines PLUS an additional requirement that is being sought as the sole standard for non-permissive copying.

The guidelines’ rule on brevity would entirely circumscribe such copying if this injunction were granted.  That rule permits a copy of only 10% or 1000 words of a prose work, which ever is less.  Many schools that adopt 10% as a fair use standard will be shocked to find that, under this definition, that is often still too much to be acceptable, since the 1000 word limit will usually take over.

Also, the rule about cumulative effect — a limit on the total number of excerpts that can be made — would be enforced across the entire institution.  Two classes could not use the same work without paying permission, and Georgia State would be responsible for making sure that no system across its campus was providing access to any more than two excerpts (for the whole campus and of no more than 1000 words each) by the same author.

Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying.  The point of this rule is nakedly obvious.  If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees.  Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.

Not only would the minimum safe harbor for fair use that the guidelines say they are defining become a maximum — the sum total of fair use — but that maximum would be shrunk much further by this 10%/90% rule.  The intentions of Congress in adopting fair use, including its clause about “multiple copies for classroom use,” would be mocked, gutted and discarded, at least for Georgia State.

I believe that compliance with this order, were the publishers to win their case and the Judge to adopt the proposed injunction, would be literally impossible.  For one thing, the record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible.  Also, there is really no permission market that is broad and efficient enough to meet the demand that this order would create; the CCC might get what it paid for in underwriting the litigation if this order became the law for Georgia State, but they do not have the coverage, even with their Annual Campus License, to support this kind of regime if it were broadened to other campuses and other publishers.  Yet you can be sure that if those things happen, all of our campuses would be pressured to adopt the “Georgia State model” in order to avoid litigation.

This proposed order, in short, represents a nightmare, a true dystopia, for higher education.  We can only hope, I think, that Judge Evans is clear-sighted enough, and respectful enough of what Congress intended when it passed the 1976 Copyright Act, not to adopt this Orwellian proposal, even if she finds in favor of the plaintiffs.  No judge likes to issue an order that cannot be obeyed, and this one would be so far outside the stated policies of the United States in its copyright law that an appellate court could, and likely would, overturn it purely on those grounds.

Authors' Rights, Libraries, Scholarly Publishing

Double talk

1 Comment

For almost two years now a small group of lawyers and repository managers in the U.S. have been discussing and drafting model language that libraries can use to insert in vendor contracts with publishers that will ensure the self-archiving rights of faculty at the specific institution who publish in the journals that are part of the licensed collection.  The model language, and a considerable amount of background information can be found on this blog.  A similar effort has been underway at JISC, the Joint Information Services Committee in the U.K., for which information can be found here.

Obviously these efforts have struck a nerve, because yesterday the International Association of Scientific, Technical and Medical Publishers issued a statement opposing these efforts.  The statement is a model of misdirection — affirming, in the best tradition of political double speak, exactly the values they think their opponents hold while trying to claim that it is merely the means, not the goal, that they oppose.  It is worth taking a close look at this statement.

The STM statement makes four basic points, as follows:

  1. “Conflating” authors rights with institutional content licenses would add complexity and uncertainty to the process.
  2. Publishers are already doing well in terms of responsiveness to authors and in disseminating the results of research.
  3. Scholars “value fora that provide comprehensive coverage of a discipline,” while institutions are pushing repositories in order to enhance their own reputations.
  4. The impact of institutional repositories should be the subject of objective research and assessment.

The first of these arguments is really interesting, since it is publishers own policies that have driven institutions to adopt this strategy.  Publishers often tell individual authors that they cannot accept authors’ rights addenda to individual publishing contracts because they need consistent agreements.  Yet they have never been concerned that libraries must negotiate different agreements with each publisher when they are in their vendor roles.  Now suddenly they want to avoid complexity, but only if it will serve to shut the other avenue toward authors’ rights.  Can we expect a new willingness to accommodate individual authors who seek to self-archive?  I don’t think so, especially after working with an author this week whose request to shorten the 18 month embargo imposed on self-archiving by his publisher was turned down flat.

This experience, and countless ones like it, convince me that the second point is simply not true.  Responsiveness to author needs tend to stop at precisely the point where the author wants to take advantage of the new opportunities offer by the digital environment to increase his or her impact on her field.  Impact on the field is a collective goal for publishers, but it comes right behind maximizing profit, and it does not including helping individual authors in any way that is perceived to threaten those profits.

The third point is a rather disingenuous attempt to drive a wedge between authors and the repositories on their campus, by characterizing the motives of each side so that they seem divergent.  The use of the term “institution-centric repositories,” which seemed to have been coined specially for this statement, is indicative of the desire to put authors and their institutions at odds.  In fact, authors really do want maximum impact for their work, and institutions are not just seeking a “showcase” with their repositories.  When my institution adopted an open access policy, in fact, the most compelling argument for both the faculty council and the administration turned out to be “knowledge in the service of society,” which is one of Duke’s overarching strategic emphases.  Both groups recognized that traditional toll-access publication was not serving this shared goal very well.

Finally, the impact of open access repositories has been subject to a great deal of research already.  Most of it has supported the values that are behind the effort, and these publishers don’t like such conclusions.  Thus the implication that they are the only ones capable of carrying out “objective” research and the reference to a project which is being lead by the STM Association itself.

All in all, this statement provides a model of partisan double speak, but it does little to forward the conversation.  Licensing negotiations are one of the few places where institutions wield real power, the power of the purse, in their relationship with publishers.  It is, therefore, a very appropriate venue to pursue the goals that are shared between faculty authors and their institutions.  Such negotiations may be complex, but they always have been.  What is new is that institutions are beginning to stand up for their own shared values.

Copyright Issues and Legislation, Fair Use, Libraries, Scholarly Publishing

GBS and GSU: two cases, going forward

3 Comments

The last week has seen two important decisions in copyright cases with significant interest for higher education.  The first, of course, is the rejection of the amended settlement in the Google Books case; that decision has gotten lots of attention, so instead of rehashing it I want to suggest what I think the future holds in that dispute.  Much less attention was paid to an order in the Georgia State case over alleged copyright infringement in providing digital readings to students, about which more in a bit.

The rejection of the Google Books settlement is pretty comprehensive.  To my mind, the core of Judge Denny Chin’s reasoning is that the massive licensing mechanism that would be created to allow Google to proceed with marketing a digital books database is simply beyond the power of the courts.  He argues both that it is outside the scope of the issue originally presented in the case, and thus inappropriate for a settlement ruling, and that the mechanism itself is something that Congress, not the courts, has the prerogative to create.

Given the sweep of the rejection, and especially its finding that the “forwarding looking business model” is outside of the authority of the federal courts, this seems like a difficult decision to appeal.  Nevertheless, I believe that it will be appealed, because I think the parties have very little choice.  The other key part of Judge Chin’s decision, to me, is his strong suggestion that the settlement be converted to an opt-in agreement rather than an opt-out one.  This would destroy its attraction to both sides, I believe, since it would exclude the ability to exploit orphan works.  Without that huge financial opportunity, I don’t think settlement is worth it to either party.

Aside from reforming the settlement agreement in this way so that it could be approved by Judge Chin, the parties have two other options — continue the original litigation or appeal the rejection of the settlement as it stands.  The first option seems unattractive to both parties at this point.  Both would risk losing, of course, but more to the point, neither would have much to gain, at least not in comparison to the huge profit opportunity they think they have found in settlement.  So I believe both sides will resist either returning to the original issue or reformulating the agreement in the way the Judge suggests and will instead appeal his decision, hoping to preserve that agreement more or less as it stands.

One interesting area of speculation is about what impact Judge Chin’s elevation to the Second Circuit Court of Appeals will have on the case as it proceeds.  If the parties went back to the district court  for trial, a new judge would presumably be assigned.  If they appeal, as I expect, a panel of the Second Circuit that does not include Judge Chin will hear the case.  But will an appellate panel by less willing to overturn a decision made by their new colleague?  Personally, I don’t think that would be a significant factor, since I would expect this clear and carefully reasoned decision to be upheld on its own merits.

If more litigation is in the future for Google Books, that is even more certainly the case in the Georgia State dispute.  Last Thursday Judge Orinda Evans issued an order denying the motion to dismiss made by GSU on sovereign immunity grounds and setting a date — May 16 — for a trial.

The motion to dismiss made by Georgia State raised the issue that federal courts (which are courts of limited jurisdiction; they can hear only certain types of cases) usually are not allowed to hear cases against state governmental entities.  This case is based on a “loophole” in that rule that allows a plaintiff to sue a government official in his or her official capacity in order to stop an ongoing violation of federal law.  This loophole has generally been applied to prevent state violations of civil rights, but here the issue is copyright infringement.  The issue GSU raised was the degree of control that the named officials, who include all of the Georgia Board of Regents and the President of GSU, actually have over the actions that are alleged to be infringing.

One of the established principles in the type of case I have been describing is that there must be a “nexus of control” such that an injunction in the case (damages are not allowed) can actually lead to an effective remedy.  Courts hate to issue ineffective orders, so they will not allow me, for example, to sue the Governor of North Carolina if the DMV suspends my drivers license because the Governor has limited influence over day-to-day decisions at DMV.  This issue of whether or not the defendants are close enough to the alleged illegality to actually control it is normally considered a purely legal matter that can be decided by a judge without trial.  But in this case, Judge Evans has essentially postponed her decision about sovereign immunity until she hears all the facts at trial; in legalese, she is treating the question as a “mixed” issue of law and fact.  She will thus decide at trial if that nexus of control exists.  If it does not, she will dismiss the case on the grounds that she was never authorized to hear it.  If there is sufficient control for her to decide the case, however, she will then rule on whether or not the alleged infringements were, in fact fair use.  If she finds for fair use, she will not issue an injunction because there would be no reasonable suspicion of ongoing infringements that she would need to remedy.

It is clear that Judge Evans is ready for a trial after almost three years of maneuvering in this case; she has set a trial date less than 60 days from now.  There has been extensive discovery, so the parties ought to also be ready for trial.  All that remains open to question is whether both parties actually want a trial, or if the imminent prospect of one will push them to seek a settlement.  Since I have already indulged in so much speculation this morning, I will add my personal observation that neither side has shown much interest in a settlement of the case thus far, and I think both will opt to go to trial.  Both sides, I think, believe strongly in the principles they each think they are defending, and it is difficult to imagine what the middle ground would be upon which they could agree.  So I will set aside May 16, fully expecting to hear news from the long-awaited trial of Cambridge University Press v. Patton, et al.