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Where does FERPA fit?

When I wrote my last blog post about contract law and the issue of licensing student work for public distribution, several people asked me about FERPA, the Family Educational Rights and Privacy Act.  Basically, the questions amounted to this: Don’t we need to think about more than just the copyright licensing issue when we put student work in public, or when we require students to do their work in public?  And the answer, of course, is “yes.”  That previous post was focused on the licensing question, and made only a passing reference to potential privacy issues.  Here, I would like to look more closely at the issue of FERPA and student work in public, while acknowledging that I am not a FERPA expert.

The examples I gave about the types of assignments that might be made public, or might be done in public from the start, offer an interesting hierarchy regarding FERPA, I think.  So I want to address them in three categories.  First, things like theses, final papers and honors projects that an institution might want to put in its repository, then the issue of art exhibitions, and finally FERPA concerns when students work directly in a public forum.

The conversation started around the idea that a school might want to put final papers from a class, or perhaps capstone or honors papers, into its open access repository.  I noted that, as a matter of copyright law, it was probably enough to inform the students of this intent in the syllabus, so that subsequently handing in the work form an implied license.  I still think this is enough to deal with the issue of copyright, but it is not enough from the perspective of FERPA.  Rather, FERPA requires a written, dated and signed waiver for  educational records, such as these types of assignments, that are “in our keeping,” to be made public.  So for a final paper or project that is handed in to faculty and then released to the public through a repository, a document waiving FERPA in regard to that paper or project must be obtained.  This written document could also serve as an explicit copyright license, but, as I say, it is necessary as a waiver of FERPA, while copyright can be licensed by implication.

The situation is more ambiguous when we ask about art projects that are handed in with the expectation that they will be part of a public exhibition.  Once again, what I said about an implied copyright license for public display applies, but it seems like the FERPA waiver is also often implied.  On the surface there seems to be no difference between the art project handed in for a grade and the final paper or honors thesis.  We know we cannot put out a stack of papers and invite others, even other students, to look through them.  Yet, with art exhibitions, schools seldom obtain FERPA waivers; they simply hang the works, which surely are also “educational records in our keeping,” on the walls of a gallery and invite the public in to look.  My friend Stephen McDonald, who is General Counsel for the Rhode Island School of Design and one of higher education’s foremost authorities on FERPA, often speaks of an “implied pedagogical exception” to FERPA, and I think that construct might apply here.  The Family Policy Compliance Office at the Department of Education, which oversees FERPA compliance, has said fairly often that FERPA is not intended to interfere with ordinary pedagogical practice.  And they have been clear that putting a thesis or dissertation on a library shelf, which also involves public access to an educational record, is not a problem.  Perhaps the art works can be thought of in a similar way.  And it may be important that art is made for display; that is what its creators expect, and inclusion in an institutional art exhibit is desirable for them.

So in this example, it seems that both a copyright license, for public display of an art work, and a waiver of FERPA privacy rights are being implied.  I think it is important that we separate copyright and FERPA in our minds, and think about each of them carefully.  But it is interesting to see how they diverge and converge.

Finally, what do we make of those assignments where students are asked to do their work in public right from the start, either by creating a web page, developing a blog, posting a video to YouTube, or having a class discussion on Twitter?  This is not an abstract question; our faculty are making such assignments all the time.  A library school student I know recently told me that she elected not to sign up for a class because of a requirement that each student post a specified number of tweets.  Once again, I think that the copyright situation is addressed by an implied license.  But what of FERPA? The first question is really whether these kinds of materials are educational records as defined by FERPA in the first place.  The issue is whether the “records” are ever “in our keeping” when the student creates them directly on a public platform.  It may well be that FERPA is not implicated at all in this scenario, based on a strict reading of its definition of an educational record.  And, of course, that reading is entirely congruent with what student expectations must be in this situation; they would hardly expect privacy when their work is a webpage or a set of tweets. In my opinion, however, this does not entirely settle the matter.

Even if FERPA does not apply, some of its principles, based on the idea of protecting our students, are important and should be accounted for.  A couple of years ago I was asked precisely this question, and those interested can read this blog post on the HASTAC site that was written by Professor Cathy Davidson, formerly of Duke and now at the CUNY Graduate Center, based on advice I gave about this type of assignment.  To summarize that advice here, I suggested three important steps to respect student privacy even if FERPA was not implicated by the assignment to work in a public forum.  These steps are, I believe congruent with what I have been saying about implied licenses throughout these two posts.  First, students should know about the requirement in advance; they should be informed by the syllabus while they still have an option not to take the class.  Second, provision should be made for students to participate pseudonymously, a step that would clearly resolve any FERPA problem that might exist.  And, finally, I suggested that provision be made, at least in the instructors own mind, for an alternative assignment that could be available to the student who really needs to take the course but, for whatever reason, does not want to do his or her work in public.  Of course, instructors are entitled to assess the validity of those reasons, consider the pedagogical benefit from public work, and evaluate any proffered reasons why a pseudonym would not be a sufficient solution.

I actually suspect that the recalcitrant student who simply does not want class work done in public is a vanishing breed.  Most of our students today are very comfortable with having their writing, art works, and opinions on the Web.  But when they are not, we should take steps to accommodate their discomfort without compromising the pedagogical value we believe is behind the assignment.  Indeed, the fundamental conviction behind all of this extended discussion about student copyright and FERPA rights is to suggest that these legal regimes can be managed in such a way that students are respected while still taking advantage of the pedagogical opportunities that the digital environment offers.  Neither of these legal structures needs, or should be allowed, to make the Internet a “no go zone” for student work; they just call on us to think carefully and respectfully about that work, and the students who create it.

A win, oddly

Because I am on vacation this week and have very intermittent Internet access, I am hardly the first to announce that the Second Circuit Court of Appeals affirmed the lower court decision (mostly) in the Authors Guild v. HathiTrust lawsuit. I am a bit paranoid about major decisions coming down on days when I am out of touch, but that is another matter. The important point is that the decision is another important win for libraries and fair use, brought to us by the foolishly litigious Authors Guild. It is the first of three major appeals in fair use cases that academic libraries should be watching carefully, and it may help cause a domino effect in those other two (the Georgia State and Google Books cases).

This potential for impact on decisions currently being written by other judges is increased by the fact that the Second Circuit, in discussing transformation as a major element in fair use deliberately cited precedents from its own previous cases, but also cases from the Ninth Circuit and two other Circuit Courts of Appeal. The judges seem to be deliberately rejecting the idea that the circuits are split about transformative fair use.

This decision is very good news for libraries, and the ARL Public Policy Notes description of the decision is well worth reading. But for all its positives, it has to be admitted that there are some oddities in this decision.

Basically, the Court did three different things in this decision:

  1. It affirmed the lower court ruling that the Authors Guild did not have standing – the right to bring the lawsuit – of behalf of its members. Another reminder of the oft-repeated rule that only a rights holder may sue to defend those rights, and associations that claim to represent rights holders but do not own any rights are not proper plaintiffs. A simple lesson the Authors Guild declines to learn.
  2. The court also affirmed that mass digitization for the purpose of creating a searchable index of full-text materials, as well as to provide access to those materials for persons with disabilities, is fair use. There is a lot of language in this opinion that reinforces the ARL Code of Best Practices for Fair Use in Academic Libraries.
  3. Finally, the judges remanded the case back to the lower court in regard to its opinion about fair use for preservation. This is one of the oddities in the decision, so let’s address that one first.

The oddity about this remand is that it does not actually question the conclusion that digitization for preservation can be fair use. Instead, the Court sent this portion of the case back to the lower court to decide if there was any plaintiff remaining in the case, once it was determined that the AG lacked standing, who was at any real risk of having a preservation copy of their book released by HathiTrust while there were still copies commercially available. In short, The Court of Appeals suggested that any ruling about fair use might have been premature because there was no plaintiff in a legally-recognizable position to raise the challenge. It is still entirely possible that, if such a plaintiff is found in the remaining group of named authors, fair use could nevertheless be affirmed. And, because of the rest of the ruling, it would be hard to see what difference even a ruling against fair use for preservation would make to the actual practice of the HathiTrust. So this was really a technicality, and quite strange.

By the way, in regard to the key argument raised by the Authors Guild that the library-specific exception in section 108 precludes libraries from relying on fair use, the court paid almost no attention. It dismissed this silly argument in a footnote (footnote 4 on page 13). This was a losing argument from the start, and the reliance placed on it by the AG shows just how out of touch they are in their approach to copyright.

I think three points are important about the fair use decision favoring HathiTrust in this case (the factor-by-factor analysis is handled well in the ARL post).

First, the Second Circuit accepted the same broad approach to the issue of transformation as has become common in other decisions. It is not just actual changes to the original work that can support a finding of transformation, but a “different purpose… new expression, meaning or message.” And, as I said, the Court appealed to a broad consensus across the country in defining transformation this way.

Second, the Second Circuit held that the lower court was wrong to find that digitization for the purpose of facilitating access for persons with visual or print disabilities was transformative, but found that it was fair use nevertheless. This is important, because in the Georgia State appeal the plaintiffs are arguing that because Judge Evans found that copying for electronic reserves was not transformative, she was in error to still find fair use. But in the HathiTrust case the Second Circuit recognizes what is there for all who read Supreme Court opinions to see, that when a use is transformative it is very likely to be fair use, but when it is not transformative, it can still be fair use if a careful analysis of the factors indicates that conclusion. That is what the Second Circuit finds in regard to HathiTrust and its copies for the disabled, and it is what Judge Evans found in GSU. Both were correct decisions in keeping with the clear precedent from the Supreme Court.

Finally, there is the oddity of the Second Circuit panel’s treatment of the fourth fair use factor when it is analyzing the indexing function of HathiTrust. First, the appellate panel calls the fourth factor the most important consideration, and cites the case of Harper & Row v. The Nation for that proposition. But the Supreme Court really renounced that position 20 years ago in the “Oh Pretty Woman” case, so this is the first part of the oddity. The Second Circuit then goes on to define the idea of market harm very narrowly, saying that the only harm to a market that is recognized for the purpose of the fourth fair use factor is when “the secondary use serves as a substitute for the original work.” This seems to be how the court aligns itself with the ruling in “Pretty Woman,” but it is a strange way to get there. The effect of this proposition is to rule out consideration of almost all licensing markets when looking at the fourth factor. This is a conclusion that must be causing serious heartburn in the publishing community. While the Authors Guild continues to make fair use easier and more inclusive with their absurd litigation campaign, they cannot be winning themselves many friends amongst rights holders.

The bottom line is that this decision is very good for libraries and others who depend on fair use. It adds another precedent and some additional bits of analysis to our claims of fair use. But we should recognize that it grows out of what was a very dumb lawsuit to begin with. As is so often the case, we should be emboldened by this ruling, but not too much. The best protection the library community has against aggressive litigation is still, as it always has been, careful and responsible reflection. In that context, fair use is an increasingly safe option for us.


A significant number of subscribers got spammed by this list today. Routine maintenance of the development server at Duke triggered a mistaken torrent of hundreds of old posts. The biggest problem was that there was a partial subscriber list as part of the development instance of the blog. That list has been removed, so this particular problem should never happen again. There was no hacking involved, and subscriber e-mails did not get harvested or released to anyone.

I am very sorry this happened. I certainly understand if folks want to unsubscribe from the list, but emphasize again that the production version of the blog did not cause this and was not compromised. The list of subscribers that was inadvertently associated with the development instance is no more.

Publishing ironies

Would Karl Marx have waived his copyright on principle?  I don’t know for sure, but I rather doubt it.  Marx was not entirely in sympathy with Proudhon’s famous assertion that “property is theft,” and in any case probably expected to make at least part of his living off from his intellectual property.  Nevertheless, there is something rather odd about a left-wing press asserting its own copyright to prevent the digital distribution of the Collected Works of Marx and Engels.  Marx’s interests are not being protected, of course; his works have been in the public domain for many years.  But Lawrence & Wishart Publishing wants to protect its own income from this property by asserting a copyright in new material that is contained in the volumes, including notes, introductions and original translations, and it has demanded that the Marxists Internet Archive remove digital copies of the works.

It is interesting to consider who is being hurt by the distribution and by the take down demand.  The distribution, as I say, does no harm to Marx or his descendants, since the copyright has already expired.  The party harmed, of course, is the publisher, which can continue to collect revenue from public domain works, and is entitled to enforce exclusivity if, as in this case, there is new material that is currently protected by copyright.

So we have the irony of Marxist literature being protected by that most capitalist of business structures, a monopoly, and a left-wing press asserting that monopoly to limit dissemination of Marxist ideas.

Does the take down demand harm anyone?  Much of this literature is available in other forms on the Internet, owing to its public domain status.  Potential readers will presumably be harmed, to a degree, because English versions of some more obscure works by Marx and Engels will become unavailable if the translations in the Collected Works were the first of their kind.  But I can’t help thinking that the folks who are really harmed by this decision are the contemporary scholars who contributed to the volumes published by Lawrence and Wishart.  Perhaps they thought that by contributing to a collected works project they had the opportunity to offer a definitive interpretation of some particular essay or letter.  Perhaps they hoped to make an impact on their chosen field of study.  But those opportunities are greatly reduced now.  Potential readers will find the works they are looking for in other editions that remain available in the Archive, or they will not find them at all.  They will look to other scholars to help them understand those works, scholars whose writings are more accessible.

While I cannot dispute the right of Lawrence and Wishart to demand exclusivity, it is a clear reminder about how poorly the traditional system of publishing, based on state-enforced exclusivity, serves scholars in an age when there are so many opportunities in the digital environment to reach a much larger audience.  I suspect that the price of the Collected Works set is high, and the publisher is quite obscure (a colleague here just shrugged when I mentioned the name), so its distribution will be quite limited.  It is a sad illustration of how traditional publishing that relies on subscriptions for digital material is inextricably mired in the print model, trying desperately to reproduce the scarcity of print resources in defiance of the abundance possible in the digital environment.  The losers in that effort are the scholars whose ability to impact their field is deliberately reduced by this effort — beyond their control — to preserve exclusivity and scarcity.

“Beyond their control” leads directly to the other irony from the publishing industry that I want to share in this post.  A colleague recently sent me a PDF of the preliminary program for the conference being held in Boston next month of the Society for Scholarly Publishing.  It was the description of the very first seminar that caught both her eye and mine:

Seminar 1: Open Access Mandates and Open Access “Mandates:” How Much Control Should Scholars Have over Their Work?Many universities now mandate that faculty authors deposit their work in Open Access university repositories.  Others are developing this expectation, but not yet mandating participation.  This seminar will review various mandatory and non-mandatory OA deposit policies, the implementation of different policies, and the responses of faculty members to them.  Panelists will discuss the degree to which academic institutions ought to determine the disposition of publications originating on their campus.

It is hard to believe that the SSP could print this session description with a straight face.  Surely they know that the law deliberately gives scholars a great deal of control over their work, in the form of copyright.  Scholars exercise that control in a variety of ways, including when they vote to adopt an open access policy, as many have done.  So where is the threat to scholar’s control over their own works?  Perhaps at the point where they are required to relinquish their copyright as a condition of publication.  If the SSP were really concerned about scholars having control over their own writings, the panel for this session would be discussing how to modify copyright transfer policies so that scholarly publishers would stop demanding that faculty authors give up all of their rights.

The SSP has carefully written the session description to make it sound like open access policies are imposed on faculty against their will.  But every policy I am aware of was adopted by the faculty themselves, usually after extensive discussions.  And the majority of policies have liberal waiver provisions, so that faculty who do not wish to grant a license for open access do not have to do so.  On the other hand, publishers almost never provide a similar way for authors to opt out of mandatory copyright transfer, other than paying a significant fee for an author-pays OA option, which offers authors a chance to buy what they already own.  Perhaps this concern about authorial control could be channeled into a discussion about the new models of scholarly publishing that are developing that do not require copyright transfer and that seek alternate ways to finance the improved access so many university faculties are indicating they want.

There is a lot to talk about here, especially in terms of authorial control.  Consulting the authors whose material is published in the Collected Works of Marx and Engels might have engendered discussion of a solution to the issue about the Marxists Archive other than simply demanding removal.  Maybe those authors should have resisted the demand to transfer copyright wholesale to Lawrence and Wishart in the first place. But publishers continue to think in terms of total control over the works they publish; that is the real threat to authors and that is the problem that the SSP ought to be addressing.

Walking the talk

All of the presentations at the SPARC Open Access meeting this week were excellent.  But there was one that was really special; an early career researcher named Erin McKiernan who brought everyone in the room to their feet to applaud her commitment to open access.  We are sometimes told that only established scholars who enjoy the security of tenure can “afford” to embrace more open ways to disseminate their work.  But Dr. McKiernan explained to us both the “why” and the “how” of a deep commitment to OA on the part of a younger scholar who is not willing to embrace traditional, toll-access publishing or to surrender her goals of advancing scholarship and having an academic career.

Erin McKiernan is a Ph.D from the University of Arizona who is now working as a scientist and teacher in Latin America.  Her unique experience informs her perspective on why young scholars should embrace open access.  Dr. McKiernan is a researcher in medical science at the National Institute of Public Health in Mexico and teaches (or has taught) at a couple of institutions in Latin America.  For her, the issue is that open access is fundamental to her ability to do her job; she told us that the research library available to her and her colleagues has subscriptions to only 139 journals, far fewer that most U.S. researchers expect to be able to consult.  Twenty-two of that number are only available in print format, because electronic access is too expensive.  This group includes key titles like Nature and Cell.  A number of other titles that U.S. researchers take for granted as core to their work — she mentioned Nature Medicine and PNAS — are entirely unavailable because of cost.  So in an age when digital communications ought to, at the very least, facilitate access to information needed to improve health and treat patients, the cost of these journals is, in Dr. McKiernan’s words, “impeding my colleagues’ ability to save lives.”  She made clear that some of these journals are so expensive that the choice is often between a couple of added subscriptions or the salary of a researcher.

This situation ought to be intolerable, and for Dr. McKiernan it is.  She outlined for us a personal pledge that ought to sound quite familiar.  First, she will not write, edit or review for a closed-access journal. Second, she will blog about her scientific research and post preprints of her articles so that her work is both transparent and accessible.  Finally, she told us that if a colleague chose to publish a paper on which she was a joint author in a closed-access journal, she would remove her name from that work.  This is a comprehensive and passionately-felt commitment to do science in the open and to make it accessible to everyone who could benefit from it — clinicians, patients and the general public as well as other scholars.

Listening to Dr. McKiernan, I was reminded of a former colleague who liked to say that he “would rather do my job than keep my job.”  But, realistically, Dr. McKiernan wants to have a career as a teacher and research scientist.  So she directly addressed the concerns we often hear that this kind of commitment to open access is a threat to promotion and tenure in the world of academia.  We know, of course, that some parts of this assertion are based on false impressions and bad information, such as the claim that open access journals are not peer-reviewed or that such peer-review is necessarily less rigorous than in traditional subscription journals.  This is patently false and really makes little sense — why should good peer-review be tied to a particular business model?  Dr. McKiernan pointed out that peer-review is a problem, but not just for open access journals.  We have all seen the stories about growing retraction rates and gibberish articles.  But these negative perceptions about OA persist, and Dr. McKiernan offered concrete suggestions for early-career researchers who want to work in the open and also get appropriate credit for their work.  Her list of ideas was as follows (with some annotations that I have added):

1. Make a list of open access publication options in your particular field.  Chances are you will be surprised by the range of possibilities.

2.  Discuss access issues with your collaborators up front, before the research is done and the articles written.

3. Write funds for article processing charges for Gold open access journals into all of your grant applications.

4. Document your altmetrics.

5. Blog about your science, and in language that is comprehensible to non-scientists.  Doing this can ultimately increase the impact of your work and can even lead sometimes to press coverage and to better press coverage.

6. Be active on social media.  This is the way academic reputations are built today, so ignoring the opportunities presented is unwise.

7. If for some reason you do publish a closed-access article, remember that you still have Green open access options available; you can self-archive a copy of your article in a disciplinary or institutional repository.  Dr. McKiernan mentioned that she uses FigShare for her publications.

The most exciting thing about Erin McKiernan’s presentation was that it demolished, for many of us, the perception of open access as a risky choice for younger academics.  After listening to her expression of such a heartfelt commitment — and particularly the pictures of the people for whom she does her work, which puts a more human face on the cost of placing subscription barriers on scholarship — I began to realize that, in reality, OA is the only choice.





Its the content, not the version!

My last post about copyright assignment and different versions of a scholarly article set off a small controversy, some of which can be found in the comments to that ppost and some of which took place on other social media venues.  Yesterday Richard Poynder posted to the Lib-License list about this discussion, and I felt compelled to respond, since it seems clear this is not an isolated misunderstanding that will fade away.

Here is part of Richard’s post, which summarizes the discussion:

Last week, the Scholarly Communications Officer at Duke University in the US, Kevin Smith, published a blog post challenging a widely held assumption amongst OA advocates that when scholars transfer copyright in their papers they transfer only the final version of the article.

This is not true, Smith argued.

If correct, this would seem to have important implications for Green OA, not least because it would mean that publishers have greater control over self-archiving than OA advocates assume.

However Charles Oppenheim, a UK-based copyright specialist, believes that OA advocates are correct in thinking that when an author signs a copyright assignment only the rights in the final version of the paper are transferred, and so authors retain the rights to all earlier versions of their work, certainly under UK and EU law. As such, they are free to post earlier versions of their papers on the Web.

And here is the response that I just sent to the LibLicense list, in which I focus on copyright as protection over expressive content, rather than arbitrary distinctions between different versions of that content:

I had really hoped I could ignore this rather muddled controversy, mostly due to a lack of time to address it.  But a tweet from Nancy Sims, of the University of Minnesota, made me realize that my original post used slightly careless language that may contribute to the confusion.  So I feel I should set that straight, and respond to the whole business.

I wrote that different versions of an article were derivatives of one another.  That is probably a defensible position, but Nancy made the point much clearer — the different versions are still the same work, so subject to a single copyright.

Throughout this discussion, the proponents of the position that copyright is transferred only in a final version really do not make any legal arguments as such, just an assertion of what they wish were the situation (I wish it were too).  But here is a legal point — the U.S. copyright law makes the difficulty with this position pretty clearly in section 202 when it states the obvious principle that copyright is distinct from any particular material object that embodies the copyrighted work.   So it is simply not true to say that version A has a copyright and version B has a different copyright.  The copyright is in the expressive content, not in different versions; if all embody substantially the same expression, they are all the one work, for copyright purposes, because the copyright protects that expressive content.  Hence Nancy’s perfectly correct remark that the different versions are the same work, from a copyright perspective.

Part of the point I wanted to make in my original post is that this notion of versions is, at least in part, an artificial construction that publishers use to assert control while also giving the appearance of generosity in their licensing back to authors of very limited rights to use earlier versions.  The versions are artificially based on steps in the publication permission process (before submission, peer-review, submission, publication), not on anything intrinsic to the work itself that would justify a change in copyright status.  If we look at how articles are really composed — usually by composing one file and then editing it repeatedly, it is easy to see how artificial, in the sense of unrelated to content, the distinctions are.  How much time must elapse before a revision is a different version?  If I do some revisions, then go have a cup of tea before returning to make other revisions, have I created two different “versions” entitled to separate copyright protection?  The question is absurd, of course, and shows how unworkable the idea of different copyrights in different versions of the same work would be.

It has been said that no publisher makes the claim I am here suggesting.  But if we look at actual copyright transfer agreements it is easy to see that they do.  The default policies for Wiley, for example tell authors that they can archive a pre-print and archive a post-print, subject to certain conditions, including rules about the types of repositories that the archiving can take place in and a limitation to non-commercial reuse.  If an author transfers rights only in the final version, how can Wiley make restrictions on the use of these earlier versions?  The better — indeed the only logical — interpretation is that the copyright that is transferred covers the work as a whole, which is the nature of copyright, and that Wiley then licenses back to authors certain rights to reuse different versions.  Those version rights are based on what Wiley wants to allow and to hold on to, not on any legal distinction between the versions.  Elsevier’s policies are similar — they allow the preprint to be used on any website, the post-print to be self-archived on a scholarly website ONLY if the institution does not have a mandate and with acknowledgement of the publisher, and do not allow any archiving of the final version.  Again, all of this is grounded on a claim that a copyright that is inclusive of the different versions, because they are the same work, has been transferred to Elsevier.

Let’s imagine what would happen if a dispute ever arose over a use of an earlier version of an article after the copyright had been transferred.  A court would be asked to determine if the use of the earlier version was an infringement of the copyright held by the assignee.  Courts have a standard for making this determination; it is “substantial similarity.”  So if the re-used version of the work was substantially similar to the work in which the copyright was assigned — that language is itself bound up in the misunderstanding I am trying to refute — a court would probably find infringement.  This has been that case in situations where the works were much more different that two versions of a scholarly article.  George Harrison, for example, was found to have infringed the copyright in the song “He’s So Fine” when he wrote “My Sweet Lord,” even though the court acknowledged that it was probably a case of unconscious borrowing (see Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177, S.D.N.Y. 1976).  And the author of a sequel novel to “Catcher in the Rye” was held to have infringed copyright in Salinger’s novel even though they told very different stories, due to similarities in characters and incidents (Salinger v. Colting, 607 F. 3d 68, 2d Cir. 2010).  If these very different “versions” of the same work were held to be copyright infringement, how is it possible that two versions of the same scholarly article could have separate and distinct copyrights?

In many ways I wish it were true that each version had a distinct copyright, so that transfer of the rights in one version did not impact reuse of the earlier version.  That situation would make academic reuse much easier, and it would conform to a basic sense that most academics have that they still “own” something, even after they assign the copyright.  But that position is contrary to the very foundations of copyright law (and not just U.S. law), which vests rights in the content of expression, not in versions that represent artificial points in the process of composition or publication.  And much as this mistaken idea may be attractive, it has dangerous consequences; it gives authors a false sense that the consequences of signing a copyright transfer agreement are less draconian than they really are.  Instead of plying our faculty with these comforting illusions, we need to help them understand that copyright is a valuable asset that should not be given away without very careful thought, precisely because, once it is given away, all reuse of the expression in the article, regardless of version, is entirely governed by whatever rights, if any, are licensed back to the author in the transfer agreement.

A week of copyright principles

Starting today, the Electronic Frontier Foundation is sponsoring Copyright Week, which will last for six days.  Each day is dedicated to one of six principles that, EFF asserts, should guide copyright policy and practice.  They are, in my opinion, excellent principles, that really connect back to the original purpose of copyright as an engine for cultural growth and development.

Copyright Week begins today, and the first principle is “Transparency.”  Transparency is always an important element of public policy, and recently it has been especially threatened by bilateral and multilaterial trade negotiations, which take copyright discussions out of the (relatively) public arena of lawmaking and move them to the often quite secret space where a few bureaucrats work out agreements with little regard for the overall public interest and little awareness of consequences of their agreements outside of their limited vision.  That kind of negotiation and back room dealing brought us SOPA two years ago, and it is no coincidence that Copyright Week, which will end on the second anniversary of the “great SOPA blackout,” kicks off with the newest SOPA-like threat, the “Trans-Pacific Partnership Agreement” or TPP.

Partners in the Copyright Week program include the American Library Association and the Association of Research Libraries.  To get the ARL’s take on TPP, please read this blog post.

The overall schedule for Copyright Week can be found here, where each day a set of links about the theme for that day will offer readers perspective on the principle for that day.  You can also follow the ARL’s Policy Notes blog for the principles and links. It promises to be an interesting and informative six days; a chance for all of us to learn something and to gain a more comprehensive view of the copyright debates that are going on around us.

The Future of Research Libraries, part 2

To finish my thoughts about the Duke University Libraries Seminar on the Future of Researc h Libraries and the presentation made by Professor Ian Baucom, I want to turn to the final two issues we discussed – globalization and publishing.  And I want to be very clear that although I refer to Ian’s remarks a lot, these posts are based on my memories of, and conclusions from, what he said; I am solely responsible for anything that seems over-simplified or poorly-reasoned; Ian is much too smart to be blamed for such failings.

Support for the increasingly global mission of universities, including Duke, is a difficult problem for academic libraries.  We are accustomed to thinking in terms of collections tied to a physical location, of course.  In the digital age, we also are beginning to think of a global digital library; lots of the efforts toward public access and open access are directed toward the goal of a global library of digital resources that is accessible to all.  But Ian reminded us that it is wrong to think of this as a clean disjunction.  In between these two options, the physical domestic collection and the entirely digital global one, are the satellite campuses that many schools, including NYU (in Singapore) and Duke (in Kunshan), are beginning to operate.  As Ian told us, the global university really has three foci — the “original” domestic campus, overseas campuses in diverse parts of the world, and the online campus that is truly global.  Universities are stretching out in all of these directions, and libraries will continue to be challenged to provide support for the full spectrum of global education.

One thing I especially liked in Ian’s discussion of global education was his approach to MOOCs.  Throughout his talk, Ian emphasized the difference between offering a bunch of courses and teaching a curriculum; in a sense this is a version of the distinction between information and knowledge.  MOOCs, at this point, are largely collections of classes that individuals can take for personal enrichment and, sometimes, for specific, “one-off” types of credit.  But we have yet to see a workable curriculum based on such open online courses, although that may come eventually.  Until then, the importance of all three parts of the vision Ian outlined for global education remain important; as we expand globally, we cannot leapfrog over those physical centers for education, because they offer what purely online education as yet does not — a way to pursue an organized and intellectually coherent course of study.

The issue of publication arose in the conversation partly from Ian’s emphasis on interdisciplinary study and partly from the discussion of global learning.  I specifically asked Ian about the impact of increasingly interdisciplinary research on the publication of scholarship.  He responded by talking about his own work in environmental humanities.  When he began that collaborative work with climate scientists, he said, there was no obvious outlet for scholarship in this area.  Because it defied the traditional niches of scholarship and because it was developing so quickly, traditional publication outlets were unavailable or inappropriate.  Over time, outlets for this area of scholarship have developed, but, Ian told us, they are mostly directly online and openly accessible.  In short, the needs of rapidly developing interdisciplinary scholarship have caused it to leap over traditional publishing and move directly online.  The journals and online centers for this area of scholarship that have developed are very high quality, Ian said, but he reminded us that libraries have an important role to play in this evolution of publication venues that do not participate in the traditional imprimatur process of impact factor and journal branding.

In regard to the global focus of education, Ian made an interesting point about the “flow” of scholarship.  As we begin the process of of expanding our reach globally, we often think about how to make English-language scholarship more broadly accessible abroad.  But scholarly work is already happening in all of the nations to which we wish to expand; our potential partners are also producing work, and familiarity with that scholarship is likely to be as necessary for successful partnership as their familiarity with American work.  So Ian suggested that there was a huge opportunity for libraries to work on “reversing the flow” and beginning to organize to translate major works of contemporary scholarship from other nations into English.  Presumably this would require very targeted efforts and extensive collaboration.  Indeed, perhaps the best lesson from this suggestion, and from Ian’s entire talk, was that libraries need to have large, even outrageous, ambitions, but also to accept that none of us can realize those ambitions alone — we will need lots of collaborators — and that we must accept small-scale projects as the gateway to large-scale change. As the old union organizing song tells us, many stones can form an arch, but singly none.

Finally, I want to share a reflection I had about how we measure the value of libraries in this age of change and the de-emphasis on physical collections.  For years the ARL focused its metrics of quality on the size of those physical collections of books and journals.  Some years ago, it moved to looking at expenditures, as a way to account for all the resources that libraries were buying that were not physical and thus not amenable to enumeration.  But today, when new and high-quality resources are springing up online that do not offer either a way to be physically counted or a cost that can be tabulated, and especially as libraries themselves begin to “publish” such resources, even expenditures seems an inappropriate metric.  What we really need is a way to count readers, to tabulate the differences we have made in the scholarly lives of faculty, staff and the broader public, whether that impact was accomplished through books that were checked out, journal packages that were purchased, open access resources that we have hosted or digital collections that we scan and curate.  If librarians want to compete to feel good about our continuing role in the fast-changing world of scholarly communications, we should look at the lives we touch, rather than becoming too attached to the formats and costs of the resources through which we touch them.

Protecting IP?

The American Association of University Professors recently issued a draft report, seeking comment, on the topic “Defending the Freedom to Innovate: Faculty Intellectual Property (IP) Rights After Stanford v. Roche.”  The report is very interesting; a strongly-worded warning that universities might be trying to assert more ownership over the IP rights in works created by faculty as the potential monetary value of that IP continues to rise.  I want to make one comment about the report itself, and then use one of its significant themes to make some further observations.

By way of background, Stanford v. Roche was a patent dispute that was decided by the Supreme Court in 2011.  At issue was a diagnostic test for the HIV virus that was developed by a Stanford faculty member who worked both in a Federal-funded lab at Stanford and for a private biotech company.  Part of the problem was conflicting language in the two employment agreements — when he joined the Stanford faculty, Professor Holodniy agreed that he would assign the rights and title in his inventions to Stanford, but when he was employed by Cetus, his agreement “hereby” assigned those rights in anything he invented to Cetus.  The Supreme Court held that the immediate assignment in the Cetus contract overrode a promised assignment in the Stanford contract.  Along the way they rejected Stanford’s proposed interpretation of the Bayh-Dole act claiming that that Federal law required that Universities receiving Federal funds own the patents in inventions that came out of those labs.  Instead, the Court affirmed that eligibility for patent rights (they are not automatic) vests initially in the inventor and are then subject to assignments made by employment contracts.  Universities are allowed to own and exploit patents to inventions that arise from work done by their faculty under federal grants, according to Bayh-Dole, but they do not automatically own those rights under the legislation.  Since the Roche assignment was immediately effective, it trumped a promise to assign made in the Stanford contract.

The AAUP report focuses on the declaration that faculty own those inchoate patent rights, at least in the absence of a direct and immediate assignment to the university.  But it is important to recognize that Stanford v. Roche involved compete assignments of those rights, both of which were made as conditions of employment.

That is why I am troubled by the easy analogy that the AAUP report makes between patent rights and copyright.  It suggests in several places that ownership of copyrighted materials could be treated as employer-owned, just as Stanford was allegedly suggesting patent rights should be.  But the report doesn’t really offer much substance behind this threat, citing only a conflict of interest policy at the University of Pennsylvania, which has no bearing on copyright ownership, and an academic article written by some university attorneys.  Yet copyrights are really quite different.  Unlike patents, they arise automatically as soon as original expression is fixed in a tangible medium of expression.  Patent rights, on the other hand, require an application process that is long, costly and requires the specialized services of a patent lawyer.  It is odd to me that in the section of the report defining the different types of IP rights, this difference is not mentioned.

The reason this seems significant to me is because it provides a possible rationale for a university to make a claim over patents developed on campus, and that reason does not apply equally to copyrights.  When an invention developed on campus is patented, often the university invests significantly in obtaining those rights; unlike copyrights they do not simply arise directly as fruits of the research.  While copyrights really are just spontaneous developments from the direct tasks faculty are hired to do, patent rights are not, even if the inventions themselves are.  Patent rights cost money — often something over $20,000  — well beyond the investments made in the research itself.  So even if we accept the AAUP’s argument that the investment a university makes in supporting the research that leads to an invention should not automatically give that institution a right to share in any profits, the investment in actually obtaining the rights over that invention also needs to be considered.  And the fact that no similar costs are associated with copyrights provides a sound reason, in my opinion, for the normal differentiation, which is that institutions make no or limited claims over copyrights (as “work made for hire”) but assert a greater interest in patent rights, if they can be secured.

What really struck me about the report, however, and it is an emphasis I fully agree with, is its argument that both the universities and faculty research share an obligation to put scholarship in the service of society:

Patents are regularly used in industry to exclude others from using inventions.  But faculty members should often be focused instead on creating conditions that give the public access to inventions… Commercial development of university knowledge to stimulate economic growth is unquestionably good.  But some administrative practices associated with patenting and licensing operations may negatively affect economic growth as well as scholarship.

This is exactly right.  In both the patent and the copyright arenas, concern for social welfare and the maximum impact of scholarship on economic and cultural development should have pride of place in IP practices.  But in the copyright arena, we need to acknowledge that it is not usually institutional policies that undermine public access and economic development, it is the ingrained practice of giving copyrights away for free to commercial interest so that they can be exploited for private gain.  It is unfortunate that the AAUP does not take the next step in its logic and remind its members that making provision for open access is a vital part of the commitment that the Association encourages.

“[F]aculty members should often be focused instead on creating conditions that give the public access.”  To do this, faculty authors must move beyond the practice, tied as it is to centuries-old technology, of surrendering copyright without remuneration AND without any guarantee that the fruits of their research will actually reach those who could benefit most from them.

During this Open Access Week, I hope the AAUP will look at this obvious extension of the appeal it is making in its draft report.  University exploitation of patents may well be a threat to academic freedom and to public benefit, but so are the commercial companies that exploit the copyrighted products of academic labor for huge profits and lock up access to scholarship in order to defend those profits.  Universities are harmed by this system, scholars are harmed by it, and society is harmed by it.  The threats against which faculty IP rights need to be defended come from several directions, and the AAUP needs to recognize that.

Many people probably saw this story about a scientist who inquired about payment after she was asked to blog on a prominent scientific web site and was called a “whore” for declining to provide her writings for free.  There are troubling gender and racial dynamics behind this outlandish reply, of course, but it also strikes me as very telling about the attitude toward scholarship and the value of copyrighted work.  The expectation that scholars will give away their work for free is so ingrained that any suggested departure is treated quite rudely, to say the least.  The result is that faculty scholarship makes money for lots of people, but not for the authors (at least, not directly) and certainly not for their universities, who have to pay millions to buy back the work they supported in the first place.

If we stop and think about it, this is an offensive situation.  The remark of that blog editor has the salutary effect of illustrating just how offensive the routine expectations of publishers really are.  Scholars need to defend their IP rights, as the AAUP report calls on them to do, and that defense should start with a refusal to transfer their copyrights without much stronger assurances that their work will be available to provide the social, economic and scholarly impact for which it was written for in the first place.  Perhaps the AAUP could begin to organize that kind of response, in order to make good their commitment to public access and economic growth.



Repeating myself about the WIPO treaty

I do not usually link and re-post my own work on this site, but this situation is a little different.  I have written two columns for Library Journal’s Peer-to-Peer column about the WIPO’s successful negotiations to arrive at a treaty dealing with copyright limitations for the blind and visually impaired.  It seems odd  not to address those negotiations and the treaty that came out of them at all in this space, but there is also no reason to reiterate what is available on the Library Journal site.

So in the interests of appropriate inclusion and efficiency, here is the link to the column I wrote before a treaty had been agreed on, and here is the column released today that addresses the result of the negotiation process.  There are lots of other sources of information about the treaty, but I hope readers find these comments useful.