As Mulligan points out, there is no attention to copyright issues as these teenage performers go about making their music.  They “see so little wrong with this behavior that the word ‘copyright’ is never even uttered.”  In this way, Glee is a telling illustration of where we are as a culture; what a small group of entertainment industry executives would insist is stealing is everyday practice for many real-life consumers and performers.  Copyright only really works to protect the big name writers and performers; for so many lesser-known musicians and for millions of consumers it is merely a hindrance or, perhaps even worse, a non-issue.

It should be noted that Mulligan does not consider the possibility that fair use might actually support her contention that “remixing isn’t stealing,” even if industry lawyers would disagree.  But the larger question is really whether copyright is doomed to irrelevance in the remix culture.  Is all lost for those who believe that copyright has some important function (however defined) in incentivizing new creation?  If so, is what we gain by the demise of copyright compliance greater than what we lose?

Perhaps there is a middle ground, as illustrated by this remarkable letter written by media consultant Brian O’Leary to incoming Author’s Guild president Scott Turow.  O’Leary cites the research done by his own organization, Magellan Media, which found “an apparent correlation between piracy and a subsequent growth in paid sales.”  O’Leary is not, I don’t think, suggesting that the content industry should encourage piracy, even if such a thing were possible.  But he does suggest that it is counterproductive to fight piracy too aggressively, since “discovery, even using a pirated file, may lead to more sales.”  In short, the natural tendency of the kids from Glee may not be a death knell for the content industries, but an opportunity to refine their business models and consider how to maximize discoverability while still offering added value that will lead to sales.  I was particularly struck by one specific warning that O’Leary offers, that publishers should not undermine discovery (and frustrate consumers) by delaying the release of e-book versions in order to prop up print sales; the e-books, even when distributed without authorization, may themselves support print.

In all this I think there are two lessons for those of us interested in copyright and, especially, in scholarly communications.

In regard to copyright, these two very different communications reinforce the point that the terms “piracy” and “theft” are much too blunt instruments for this discussion.  Piracy has a long history in intellectual property, but it should be reserved for large-scale commercial interference in the marketplace.  The attitude toward remixing and other non-commercial, personal uses of media needs a different term that takes account both of the ubiquity of such uses and their potential.  How about “opportunity?”

For academics, the important message is that there are lots of venues for distributing our work and the most important criteria should be discoverability.  As the original rights holders in scholarly works, faculty authors do not have the same concerns about so-called piracy that the movie and music industry has, for example.  We are free, as long as we retain our rights, to distribute our work in whatever ways lead to maximum access, and we can manage our copyrights for that purpose.  With improved discovery, as O’Leary’s research suggests, comes greater impact, and that should put a “gleeful” smile on the faces of scholarly authors.

As Elyssa says, my fundamental message was that faculty who are using creative assignments involving new media, and the librarians who work with them, need to embrace the space given to them by fair use.  I hasten to add that I did not say that they should “not worry about using copyrighted material,” but I did encourage a degree of reflection about the nature of the use in question.  Events like the lawsuit against Georgia State over electronic reserves and the news coverage about the conflict between UCLA and AIME over streamed digital video have a tendency to make librarians very nervous about all uses of copyrighted works.  But all uses are not the same; our courts have been very receptive over the past three decades to uses that are perceived as “transformative.”

Transformative uses are, broadly speaking, uses of copyrighted works which create something new that has a different purpose than the original work involved.  Transformative works are often identified as those which do not create any kind of market competition with the original work.  Thus a parody of a 1950’s classic song by a 1980’s rap group is a transformative use of the original, and an historical work about the Grateful Dead makes a transformative use of original concert posters for Dead concerts when it uses them to illustrate a time line.  One does not buy a history book instead of attending a concert, nor does one buy 2 Live Crew’s music as a substitute for Roy Orbison’s (although a truly eclectic music fan might buy both).  In a fair use analysis, transformativeness strengthens the argument for fair use based on both the first fair use factor – the nature and purpose of the use – and the forth factor — the effect of the use on the markets for the original.

When students (or faculty) use media like film, music and video clips to create remixes, mash-ups and other kinds of commentaries, this is a strong example of fair use.  These uses are quite different than the largely iterative ones like scanning a book chapter for e-reserves or streaming a video through a course management system.  These may or may not also be fair use – that is a highly controversial issue – but they are very different from creative and transformative uses.  When I realized that the retreat was discussing such student assignments as using advertisement illustrations in “story board” essays about popular culture or re-mix film and music clips to create PSAs for local non-profits, I changed the focus of my remarks from warnings about iterative uses to encouragement of these transformative ones.  To my mind, these kinds of uses, where new scholarly and social valuable works are being created, are at the heart of the rationale for fair use in our law.  While copyright law often seems to inhibit pedagogy, this is one area in which the normative interpretation of fair use offers strong support for creative teaching.

One thing I wanted to stress about transformative use and student assignments was the way in which the fair use analysis actually encourages good scholarship.  It seems clear that the more integrated copyrighted material is into the basic argument or message of the new work, the stronger the argument for transformative fair use will be.  To take one example, music added to a student-made video simply to produce a more pleasing product is much less likely to be fair use than music which contributes to the overall theme of the work in a direct way.  Thus, a conversation with student and faculty creators about copyright and the importance of thinking through the fair use analysis is not only valuable in itself, it can actually support the creation of better, more coherent scholarly work.

I was particular interested in the remarks made by Professor Llewellyn Gibbons of the University of Toledo College of Law, who talked about the Visual Artist’s Rights Act (VARA) and its application in the digital environment.

VARA was adopted in 1990 and adds a section to the Copyright Act (section 106A) that carves out a special right for visual artists.  An artist who creates a covered work under VARA gets a truncated version of the “moral rights” that are recognized in most other countries — a right of attribution and a right to ensure the integrity of the art work.  VARA applies only to a narrow category of works — paintings, drawings, prints, sculptures, or still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed by the artist.  It is interesting to note that this is the only recognition of these moral rights in U.S. law, in spite of our commitment when we joined the Berne Convention to protect such rights for all rights holders.

Professor Gibbons raised the issue of how well or poorly VARA might apply to an artist who works in digital media.  The real problem, he pointed out, is the limitation to works that exist in 200 or fewer copies.  How do we talk about a limited number of copies in an environment that promiscuously makes copies every time material is displayed, download or transmitted?  This question is remarkably similar to one that the Section 108 Study Group, co-chaired by Lolly, grappled with regarding the application in the digital realm of the limit on the number of preservation and interlibrary loan copies that a library can make.

Suppose an artist creates a digital work and displays it on her website.  That, we could argue, is a single copy.  But people will download that work and, without some control, soon there will be more than 200 copies.  And even that way of stating the problem assumes that the ephemeral copies created in a computer’s memory whenever a site is visited do not count (they are not copyright infringements because of section 117 of the Copyright Act, but that does not determine whether they would count toward the restriction in VARA).  Professor Gibbons discussed the possibility that a “download and delete” scheme, presumably based on coding that would prevent the 201st download and would prevent a downloaded copy from proliferating (similar to the DRM used by iTunes?), might preserve VARA rights for such an artist.

I am less than optimistic that the scheme Gibbons suggests could really work, but I look forward to reading his paper when the proceedings of the symposium are published in the Journal of Law & Technology.  In the meantime, it seems very obvious to me that the idea of digital art is completely outside of what Congress was imagining when it drafted VARA 20 years ago.  And that, perhaps, is the most important point.  This attempt to imagine how VARA could apply to digital art clearly demonstrates the inability of copyright law, even with relatively recent revisions, to keep up with changing technology.  It highlights the near impossibility of creating a law flexible enough to respond to new technologies.  The real digital challenge is to create a copyright law that is permeable enough to provide “escape hatches” through which new technological possibilities can slide so that creativity is not inhibited for the long periods of time it takes for law to catch up with human ingenuity.

Flat World Knowledge is essentially a publisher, founded in 2007 and currently focused on the market for “big” textbooks — the ones that cost students an arm and a leg and are issued in a new edition every other year to undercut second-hand resales.  Flat World, in contrast, is publishing their textbooks online, entirely open and free.  The books are licensed under a Creative Commons license.  Like other publishers, Flat World organizes peer-review for the books it publishes and provides copy editing and design services.  So two issues come to mind immediately — how do they make money, and what is in it for faculty who might write or adopt a Flat World textbook.  It is the answers to these questions that really make Flat World such an exciting venture.

First, although students can get free access to their online textbooks (through course-specific URL; more about this in a minute), they also can buy the textbook in several different formats (print, audio and self-print PDF, according to the “How it works” page).  According to Mr. Shelstad, about 50% of students currently opt to purchase a book that has been adopted for their course (at 29.95 for a print-on-demand copy), and Flat World plans to increase that percentage as they add new or improved formats.  Shelstad mentioned formats for hand-held devices, for example, and it seems exciting to me just to know that a textbook publisher is thinking this way.

For faculty who publish textbooks with Flat World, there is an opportunity to earn royalties on every dollar that is spent on their book, as well as the chance to continually update and correct the text.  These authors have a level of continuing control over their work that is unprecedented in the print world.

A unique level of control is also the principal advantage that faculty who adopt a Flat World textbook gain, since they are able to adapt a book for the specific needs of a course they are teaching.  Currently, adopting faculty can move sections of a book around with up / down / delete controls and annotate any portion.   Tools to insert materials and to edit at the word level are in development.  Once a faculty member has adapted and adopted a specific textbook, that version is saved and a course specific URL is created so that students in the class will see exactly the book that has been created, in a collaborative way, for their use.

I was especially interested in how these two different control points — that of the author and that of the adopting instructor — might relate.  I was delighted to hear that the adapted version will be separate from the original, using this system of unique URLs, and that all changes in the adapted texts will be indicated.  This seems to me to be a very sensible way to preserve the integrity of the original authored work while still permitting adaptation for a particular need.

Flat World is showing signs of being a genuinely transformative model for higher education.  They currently have 11 textbooks in their catalog, with 10 more to be added in the coming months.  Even with that relatively modest catalog, there are already over 500 course adoptions and more than 40,000 students using Flat World books.  The staff at Flat World is working on new ways to adapt the books, such as pulling in images, PowerPoint, etc.  It was heartening to hear that one of the reasons roll-out of these features is slow is that Flat World does not want to compromise the high standard they have for design of their books too radically.

Overall this is an exciting model that helps us look forward to the genuinely new ways technology can facilitate classroom and online education.  Just after our phone conversation,  this new announcement came out about Flat World’s partnership with Bookshare that will make textbooks available to people with print disabilities, highlighting yet another possibility for this adaptive technology.

On TechDirt, notice of this arrangement provoked a lot of angst.  Many of the comments expressed outrage at the “fact” that ordinary citizens who have to pay a copyright fee for photographs they take of public buildings, because of the copyright protection afforded to architecture.  That this is the state of the law is affirmed by several of those comments.  In contrast, the blogger who wrote the TechDirt post in the first place asked a differently focused question –”why should the painter have to pay a fee at all?”

All of the venting in the comments on this blog post reminded me of an article I have been reading by Professor Jessica Litman, about which I shall say more in another post, in which she discusses the “independent threat to the health of the copyright system” that arises from the “widespread perception of the current copyright system as illegitimate.”  The outraged comments point up this perception, even though they are largely misinformed.  The important question to address in this particular situation is really that other one — why pay a fee at all? — since the answer should allay some of the outrage.

The basic response to the concern for photographers and artists is that the copyright law provides an explicit exception, a limitation on the scope of the right in architectural works, that makes most drawing, paintings and photos of buildings non-infringing.  Section 120(a) of the Copyright Act (Title 17 of the US Code) says:

Pictorial Representations permitted — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing or public display of pictures, paintings, photographs and other picotial representations of the work, if the building in which the work is embodied or is ordinarily visible from a public place.

So there is no way under copyright law for UT Austin or any other building owner to prevent, or extract fees, for paintings and photographs of such buildings, either because they were constructed before copyright protection extended to buildings (as opposed to just plans) or because of the exception quoted above.

Other types of protection that could allow the extraction of a fee from the artist would usually be trademark issues.  University emblems will almost certainly be subject to such protection.  The issue of the burnt orange color scheme, however, is much more doubtful, especially after the decision earlier this month involving a similar issue around an artist’s use of Alabama’s crimson colors in the U.S. District Court for Northern Alabama.

So to return to the question of why the artist should pay this fee, one possible answer, I think, is that he wants to.  For paintings of buildings on the public property of the University, such a fee is probably neither required or enforceable, unless there are trademark elements included.  But the artist could have entered into a voluntary licensing agreement with the University, perhaps out of a sense of loyalty or fairness.  Or, of course, he may just be badly misinformed.  Unfortunately, we frequently encounter situations in which someone asks about a license in a situation where none is required and ends up paying an unnecessary fee.  Copyright owners (or putative owners) have little incentive to correct these misapprehensions.