A reversal for Georgia State

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

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

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

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

Jury instructions go missing

Jury instructions are one of those things that few people, not even most lawyers, think about very often.  But if you are involved in a trial, they can be vitally important.  The ways in which juries are instructed on particular points of law can determine the outcome of a case, so litigants and the lawyers must spend a lot of time arguing over which instruction should be given and how they should be worded.  Many appeals revolve around the accuracy and appropriateness of the instructions that were given to a jury.

Because they are so important and potentially so contentious, most states develop model jury instructions, or “pattern” instructions, as they are called in North Carolina, for a great many legal doctrines and situations.  Access to these pattern instructions is important for litigants.  Although their use is not required in North Carolina, using a pattern instruction creates a presumption that the jury was properly instructed.  Also, specific variations that a litigant wants a judge to make in an instruction are best proposed as amendments to the pattern.

I admit that I have never consulted the North Carolina Pattern Jury Instructions.  Nevertheless, I was dismayed to receive this announcement from the North Carolina Bar Association telling me that the free access I had to the Pattern Instructions as a member of the Bar would soon be ending. The story it tells is interesting and instructive.

First, the Pattern Jury Instructions are developed by the North Carolina Conference of Superior Court Judges.  That is, they are created by state officials as part of their official duties.  But unlike documents created by Federal employees, there is a copyright in these instructions, and that copyright has been given to the University of North Carolina School of Government.  The SOG, in turn, has given a vendor called CX Corp an exclusive license to distribute the instructions.  For over a decade the Bar Association contracted with CX to provide access as a member benefit to NC lawyers, but that contract is expiring and efforts to renew it have failed.  A familiar story to librarians, of course, and probably due to the same, familiar reason that most licensing renewals fail — a demand for more money than the licensee feels it can pay.

For many North Carolina lawyers, the impact of this new regime will be minimal.  Medium and large firms will just factor in the cost and effort of getting an individual subscription to the Pattern Jury Instructions.  Presumably the UNC School of Government will realize more revenue from this gifted copyright.  But I worry about pro se litigants and those who are represented by solo practitioners or small firms.  Those folks might well be at a disadvantage in a crucial phase of a trial, the debate about how the jury will be instructed.  They will either have to scrape up the money to purchase a print or electronic version of the pattern instructions, find one of the relatively few public law libraries where they can consult them, or else risk advocating for instructions that will be more easily challenged and undermined.

From this unfortunate situation, I want to draw two points that I think are of general relevance to those of us who think about copyright matters.

First, it is an important reminder that we cannot assume that public documents intended for a public purpose are necessarily public domain.  The familiar provision in U.S. copyright law that puts documents created by the federal government in the public domain is, obviously, only about federal documents.  The states can and sometimes do claim copyright in official state documents.  They are often used as revenue sources, especially if there is a target audience of professionals, like building contractors or lawyers, from whom payment can be readily expected.

The problem with this situation is that the different states take different approaches to what is and is not in the public domain, and also that a single state may be wildly inconsistent about its approach to different types of documents it creates.  In most states, most official documents are public domain, at least in the practical sense that they are reasonably accessible without cost.  But odd things, like building codes or jury instructions or even an electronic database of the state’s laws, many be exclusively behind a pay wall.

The other instructive point in this is the realization that copyrights, especially those held by state and local government, may be used to enact policy goals that have nothing to do with copyright.  The purpose of copyright is, explicitly, to incentivize creation.  Presumably the NC Conference of Superior Court Judges did not need the promise of royalties in order to compile the Pattern Jury Instructions; creating those instructions was simply a part of good judicial practice for the state.  So here we had a copyright that wasn’t doing any work.  What can we do with it; how can we use it to make some money?  Here’s an idea, let’s give it to the UNC School of Government as an added revenue source!  They can exploit it in a way that would be inappropriate for the judges, and the state’s flagship public university can reap the benefit.

This isn’t necessarily a bad idea; at least, the purpose is worthwhile.  But it is a public policy that copyright was not intended to serve, and it is worth noting that this can happen, and that not all the policies that are supported this way will be equally laudable.  In the ideal world, states would be more transparent about what they claim a copyright in and why.  And elected representatives should be given the chance to approve, or not, those policy ends that are furthered by the exploitation of copyrights claimed in state documents.  At least that way, there would be some accountability when copyright is used for purposes other than that for which it was instituted.

While I was preparing this post, I encountered a somewhat parallel story about another legal document — the Bluebook that is the required citation manual for law students, lawyers, and litigants in many U.S. courts.  As the blog TechDirt reports, this is another case where access for impoverished litigants may be important, but copyright protection allows access restrictions that impose financial barriers.  Of course, unlike the Pattern Jury Instructions, the Bluebook is a privately created document, so there is less confusion about the appropriateness of the initial copyright.  Nevertheless, Carl Malamud and his Public Resource allies have mounted a campaign asking that the Bluebook be made more accessible and, as it turns out, finding grounds to challenge the continued existence of a copyright in the work.  Fascinating reading.

 

Are fair use and open access incompatible?

There has been a spirited discussion on a list to which I subscribe about the plight of this graduate student who is trying to publish an article that critiques a previously published work.  I’ll go into details below, but I want to start by noting that during that discussion, my colleague Laura Quilter from the University of Massachusetts, Amherst captured the nub of the problem with this phrase: “the incompatibility of fair use with the policies of open content publishers.”  Laura’s phrase is carefully worded; the problem we need to unpack here is about the policies of open content publishers, and the solution is to help them understand that fair use and open licensing are NOT incompatible.

Briefly, the situation is this.  An author has written a paper that critiques previous work, specifically about the existence, or not, of “striped nanoparticles.”  In order to assess and refute evidence cited in some earlier papers, the author wants to reproduce some figures from those earlier publications and compare them to imagery from his own research.  He has encountered two obstacles that we should consider.  First, his article was rejected by some traditional publications because it was not groundbreaking; it merely reinterpreted and critiqued previously published evidence.  Then, when it was accepted by PLoS One, he encountered a copyright difficulty.  PLoS requires permission for all material not created by the author(s) of papers they publish.  One of the publishers of those previous papers — Wiley — was willing to give permission for reuse but not for publication under the Creative Commons Attribution (CC BY) license that PLoS One uses.  Wiley apparently told the author that “We are happy to grant permission to reproduce our content in your article, but are unable to change its copyright status.”

It is easy to see the problem that PLoS faces here.  Once the article is published under a CC license, it seems that there is little control over downstream uses.  Even if the initial use of the Wiley content is fair use — and of course it probably is — how can we ensure that all the downstream uses are fair use, especially since the license permits more types of reuse than fair use does?  Isn’t this why fair use and open licensing are incompatible?

But this may be an overly simplistic view of the situation.  Indeed, I think this researcher is caught up in a net of simplified views of copyright and scholarly publication that creates an untenable and unnecessary dilemma.  If we start by looking at where each player in this controversy has gone wrong, we may get to a potential solution.

Let’s start with Wiley.  Are they in the wrong here in any way?  I think they are.  It is nice that they are willing to grant permission in a general way, but they are probably wrong, or disingenuous, to say that they are “unable” to change the copyright status of the material.  Under normal agreements, Wiley now owns the copyright in the previously published figures, so they are perfectly able to permit their incorporation into a CC licensed article.  They can “change the copyright status” (if that is really what is involved) if they want to; they simply do not want to.  The author believes this is a deliberate move to stifle his criticism, although it is equally possible that it is just normal publishing myopia about copyright.

There is also some blame here for the system of scholarly publishing.  The roadblock encountered with traditional publishers — that they do not want articles that are “derivative” from prior work — is common; most scientists have encountered it.  In order to generate high impact factors, journals want new, exciting and sexy discoveries, not ongoing discussions that pick apart and evaluate previously announced discoveries.  We have found striped nanoparticles!  Don’t dispute the discovery, just move on to the next big announcement.

This attitude, of course, is antithetical to how science works.  All knowledge, in fact, is incremental, building on what has gone before and subject to correction, addition and even rejection by later research.  The standard of review applied by the big and famous scientific journals, which is based on commercial rather than scholarly needs, actually cuts against the progress of science.  On the other hand, the review standard applied by PLoS One — which is focused on scientific validity rather than making a big splash, and under which the article in question was apparently accepted — better serves the scientific enterprise.

But this does not let PLoS off the hook in this particular situation.  It is their policies, which draw a too-sharp line between copyright protection and open content, that have created a problem that need not exist.

First, we should recognize that the use the author wants to make of previously published figures is almost certainly fair use.  He is drawing small excerpts from several published articles in order to compare and critique as part of his own scholarly argument.  This is what fair use exists to allow.  It is nice that Wiley and others will grant permission for the use, but their OK is not needed here.

Second, the claim that you cannot include material used as fair use in a CC-licensed article is bogus.  In fact, it happens all the time.  I simply do not believe that no one who publishes in PLoS journals ever quotes from the text of a prior publication; the ubiquitous academic quotation, of course, is the most common form of fair use, and I am sure PLoS publishes CC-licensed articles that rely on that form of fair use every day.  The irony of this situation is that it points out that PLoS is applying a standard to imagery that it clearly does not apply to text.  But that differential treatment is not called for by the law or by CC licenses; fair use is equally possible for figures, illustrations and text from prior work, and the CC licenses do not exclude reliance on such fair uses.

Next, we can look at the CC licenses themselves to see how downstream uses can be handled.  If we read the text of the Creative Commons license “deed” carefully, we find these lines:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Obviously, the CC licenses themselves expect that not everything that is part of a licensed work will be equally subject to the license; they realize that authors will — indeed must — rely on fair use as one of those exceptions and limitations to copyright.  How should licensors mark such material?  The most usual way is a footnote, of course.  But a caption to the figure that indicates the source of the different pieces and even says that copyrights may be held by the respective publishers would work as well.

Finally, let’s acknowledge that there is nothing new or unusual in the procedure recommended above. Traditional publishers have done things this way for years.  When Wiley publishes an article or a textbook that asserts that they, Wiley, own the copyright, they are not asserting that they own copyright over the text of every quotation or the images used by permission as illustrations.  Such incorporated material remains in the hands of the original rights holder, even after it is included in the new work under fair use or a grant of permission.  The copyright in the new work applies to what is new, and downstream users are expected to understand this.  Likewise, the partial waiver of copyright accomplished by a CC license applies to what is new in the licensed work, not to material that is legally drawn from earlier works.

So I think there is a way forward here, which is for PLoS to agree to publish the article with all of the borrowings under fair use or by permission clearly marked, just as they would do if those borrowings were all in the form of textual quotations.  And I think we can learn two lessons from this situation:

  1. The standard of review applied by open content publishers is more supportive of the true values of science than that used by traditional publishers.  Over reliance on impact factor hurts scholarship in many ways, but one of them is by pushing publishers to focus on the next big thing instead of the ongoing scientific conversation that is the core of scholarship.  The movement toward open access has given us a chance to reverse that unfortunate emphasis.
  2. Open content licenses should not be seen as all-or-nothing affairs, which must either apply to every word and image in a work or not be used at all.  To take this stance is to introduce rigidity that has never been a part of our copyright system or of traditional publishing.  It would be a shame if excessive enthusiasm for openness were allowed to actually undermine the value of research by making the scientific conversation, with all its reliance on what has gone before, more difficult.

How useful is the EU’s gift to libraries?

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

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

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

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

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

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

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

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

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

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

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

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

 

 

MOOCs and student learning

Now that the MOOC on Copyright for Educators and Librarians has finished its first run, it seems like a good time to post some reflections on what I learned from the experience.

The first thing I learned is that offering a MOOC takes a lot of work, and it is easier when that work is shared.  In my case, I was working with two wonderful colleagues — Anne Gilliland from the University of North Carolina, Chapel Hill and Lisa Macklin from Emory — who made the effort of putting the course together much more pleasant.  Both are lawyers and librarians with lots of experience teaching the issues we were dealing with, and we are all friends as well, which made the whole process a lot easier.  We also benefited from the terrific support we got from consultants working for Duke’s Center for Instructional Technology, which may be the single most MOOC-savvy group at any university.

That we had a great team was not really a surprise.  I was a bit more surprised however, and quite pleasantly, by the quality of the student discussion in our MOOC.  I had heard from other instructors about how effective the online discussion forums could be, but was just a bit skeptical.  Then I was able to watch as MOOC participants would pose difficult questions or struggle with the application of copyright law to a particular situation, and repeatedly the other course participants would work through the problem in the forums and arrive at surprisingly good answers. Peer-to-peer teaching is a reality in MOOCs, and is certainly among the best features of these courses.

One thing we know about MOOCs is that they often have participants with considerable background in the topic; often they have enrolled for a refresher or to see how someone else teaches the topic.  These people are a great asset in the MOOC.  Even if they are not amongst the most-likely participants to complete a course according to whatever formula for completion is in place, they are tremendously important to the success of the course because of the contribution they make to peer-learning in the discussion forums.

Acknowledging the contribution of “expert students” also offers a reminder to MOOC instructors to take a more humble approach to the standards we set for completion of our courses.  The open and online nature of these courses means that students enroll with a wide variety of goals in mind.  As I just said, some are experts looking to see how others teach the topic.  Completion of quizzes and such may be unimportant to such participants, even though they are getting valuable career or personal development from the course.

Along these lines, I agree wholeheartedly with this essay by Jeff Pomerantz about apologies for failing to complete a course.  Like Jeff, my colleagues and I got multiple e-mails in which participants explained their “failure” to complete the course.  Like Jeff, we often smiled to ourselves and chocked those messages up to a misunderstanding of what MOOCs are.  And like Jeff, we learned that there are so many reasons for taking a course, so many different goals that participants bring to their involvement, that it is more likely we instructors who need to get a better understanding of MOOCs.

Many of the participants in our specific course were librarians and educators; they were our target audiences, so that makes sense.  These are groups that take assignments and course completion very seriously, which was reflected in our very high completion rate (over 15%).  But it also means that these were folks who wanted to explain to us when they were not going to complete the course according to official standards.  Maybe they did not realize that we were unable to track participation at an individual level due to the technology and the volume of students.  Nevertheless, we needed to treat their desire to explain with respect, and to recognize that many of those who did not earn a certificate of completion probably got what they wanted from the course, and also very likely made important contributions to what other participants learned.

Last week I attended a meeting of Duke’s MOOC instructors, which focused on discussions about how we can use data available about the MOOCs to learn more about the teaching and learning process.  It was a fascinating meeting on several levels, but one thing I got from it was two stories about the kinds of goals that MOOC participants might have.

  • One faculty member who had taught a MOOC explained incidentally his own motivation for taking a different online course.  His own career as a student had been so focused on his own specialty that he had never gotten a chance to take a basic course in a different field that had always interested him.  “There was so much to learn,” he said, “and so little time.” A MOOC gave him a chance to fill that long-felt gap, and I will bet that he was a valuable student to have in the course; very highly motivated, like so many MOOC participants, whether or not he finished the assignments that lead to completion.
  • One of the administrators of Duke’s online initiative told about overhearing two students discussing the fact that each was taking a MOOC, and interrupting the conversation to ask why each had enrolled.  One of the women was a Ph.D. student who explained that there were certain areas of study or skills that she needed to complete her dissertation that were most efficiently gained by taking parts of a MOOC or two.  She registered in order to listen to selected videos that have relevance for her specific research.  She is a perfect example of someone who will not count toward a completion statistic but who is gaining something very valuable through her participation.

The other thing I learned from this meeting about potential research enabled by MOOCs is the myriad ways that these online courses can help improve teaching and learning on our own campus.  Duke has said all along that improving the experience of our own students was an important goal of our involvement with MOOCs.  When I heard this, I usually thought about flipped classrooms.  But that is a very small part of what MOOCs can do for us, I discovered.  I was privileged to listen to a comprehensive discussion about how the data we gather from MOOCs can be used to improve the student experience in our regular classrooms.  Very specific questions were posed about the role of cohorts, the impact of positive and negative feedback, how we can harness the creative ideas students raise during courses, and how to better assess the degree to which individual students have met the unique goals they brought to the course.  All of this has obvious application well beyond the specific MOOC context.

The most important thing I learned from the experience of teaching a MOOC actually has little to do with online courses as such.  It is a renewed respect for the complexity and diversity of the learning process itself, and a sense of awe at being allowed to play a small role in it.

 

 

Who owns that journal? — an update

Earlier this year I wrote about a lawsuit involving the Duke University Press and their dispute with the Social Science History Association over who would control the journal Social Science History. A decision from the trial court in North Carolina has now been issued in the case, so it seems like a good time to update the story.

In my earlier post, I summarized the facts of the dispute this way:

The SSHA has informed DUP that it wants to end its long-standing association and look for a different publisher for its flagship journal, Social Science History.  The Press, however, asserts that language in their original contract means that the SSHA can stop participating in the journal, but cannot remove it from the control of DUP
I also said that there was probably more to the case than met the eye, and the facts recounted in the District Court decision, which is a summary judgment based on the documents filed by both parties, seem to confirm that.
The District Court’s account of the facts of the dispute really helps explain that unusual language that is at the heart of the case — “Discontinue participation in publishing the journal.”  This is very odd language, and it turns out to come about because of an extraordinary agreement.  Apparently in 1996 the Social Science history Association felt they were unable to support the journal anymore, and Duke University Press agree to take over the financial responsibility.  DUP collected dues for the SSHA, took all the risks of publishing the journal, and returned 50% of the dues income to the SSHA each year.  The unusual language about withdrawal of participation comes from this 1996 agreement, which the SSHA decided it wanted to terminate in 2012, after soliciting new bids for publishing services from other academic publishers.
The other facts I found especially interesting involved the move by the SSHA to pressure Duke Press regarding its interpretation of the agreement, by contacting third parties like HighWire Press, which distributes Duke Press journals online, and demanding that they withhold payment of monies apparently due to DUP because of the conflict.  When the lawsuit was filed, the SSHA alleged that Duke Press had violated the agreement and infringed SSHA’s copyright by publishing an electronic version of the journal.
Apparently the full complaint included seven distinct claims made by the SSHA against Duke Press, and three counterclaims by the Press.  So disentangling the decision is difficult.  But it comes down to two key findings.
First, the court holds that the unusual language about withdrawing from participation must be interpreted in light of the agreement as a whole and the intent of the parties that it expresses.  While acknowledging that the interpretation offered by the Press is possible if the wording is read in isolation, overall the court determines that the ownership of the journal always remained with the SSHA.  So on that central issue — who owns the journal and has the right to determine its future — it is the Association rather than the Press, and the Court finds that the 1996 agreement was terminated as of Jan. 1, 2014.
The Association is therefore free to find another publisher, and I think my speculation that the journal will move to a large commercial press that will return higher profits to the Association will be justified.  I am very confident that we will see a significant hike in the cost of Social Science History.
The other important holding in this decision is that Duke Press was not in breach of contract or committing copyright infringement when it published the journal electronically. The court holds that authorization for such publication, while not explicitly included by the 1996 agreement, “is implied by the plain terms of the agreement and is evidenced by the actions of the parties.”  Specifically, the SSHA knew about electronic publication for years, but only objected to it when its efforts to terminate the agreement led to conflict.  It was the SSHA, the court finds, that breached the agreement by causing third parties to withhold funds due to DUP, and the court orders the SSHA to relinquish all claim to those monies.
This case seems both unusual and unfortunate to me.  It is unusual because the specific circumstances that led to the conflict are unlikely to be repeated; it does not set any precedent that we all must now be cognizant of.  It is unfortunate, first, because it pitted two venerable and respected academic organizations against each other.  And even more disturbing is that this is as an illustration of the baleful effects that can result from the large amounts of money that commercial publishing extracts from the academy, and the temptation to get in on the profits.

About that simian selfie

By now, most people know about the macaque monkeys that took pictures of themselves in the Indonesian jungle, and the controversy over who, if anyone, owns a copyright in the resulting pictures.  The events actually took place several years ago, but the popular news media has recently picked up the story because of threats by the photographer whose cameras were used, David Slater, to sue Wikipedia if the photographs, which Slater says are his intellectual property, are not taken down.  Wikipedia refused his take down request, and the story has gone viral.  I know a copyright story has penetrated into popular culture when I am asked about it at home, over the dinner table!

la-fg-british-photographer-monkey-selfie-20140-001There has been so much commentary, including an impassioned defense of the rights of monkey artists, that I am hesitant to wade into the fray.  But I think there are some lessons we can learn from both the story and people’s reaction to it; there is an opportunity here to remind ourselves of some basic principles about copyright law.

So let my offer two comments about the controversy itself, and two comments about the public reaction to it.

First — cards on the table — I am inclined to believe that these photos do not have any copyright protection because they lack any element of human agency.  The fundamental principle of copyright law, stated very early in the U.S. law, is that copyright protects “works of authorship.”  And although I never really thought the idea would be challenged, I think authorship implies human agency.  There must be a spark of creative, a decision to create a work, for something to be a work of authorship, and these photos do not have that.  The story has shifted a bit over time, but it does not appear that Mr. Slater gave his cameras to the monkeys deliberately.  Even if he did, that could hardly be called a creative decision.  He had no control over what they did with the cameras; they were as likely to smash them on the ground as to take pictures.

In the well-known Feist decision about the white pages of phone books, the Supreme Court discussed the idea of a work of authorship, and told us that mere hard work — sweat of the brow, as they said — does not by itself earn copyright protection.  A work of authorship must be original in the sense of not copied, but it also must have a spark of human creativity.  It need not be much, but some human decision is required.

By the way, the Feist decision is a roadmap to why Mr. Slater’s arguments about the money and effort that went into his photo-taking trip to Indonesia do not succeed in convincing me that he should have a copyright in these specific photos.  His other argument, that the monkeys stood in the shoes of a hired assistant, such that Mr. Slater should own the copyright in these photos as the “employer,” also fails, if it were ever seriously proposed. For one to be an independent contractor, human agency is again required.  In U.S. law, there must be an explicit agreement before any copyrighted work created by an contractor could be considered work for hire.  And monkeys do not have legal capacity to enter into a contract.  This is a legal point; no matter how smart other creatures are or the degree to which humans should recognize animal rights, the law, including copyright and contract, deals with relationships between human beings.

Human relations are the foundation of my other legal point about this situation.  We need to remember that copyright has a specific incentive purpose; it is designed to reward creators so that they will continue to create.  The law grants a government-enforced monopoly so that authors and other creators can make enough money to support their creative efforts.  And this justification completely fails when the creator is not a participant in human society.  Granting a copyright in a monkey-taken photograph would be a mockery of the incentive purpose of the law.

Mr. Slater seems to argue the incentive purpose of copyright when he asserts that it takes a lot of hard work and investment to be a photographer, and only a few of the many photos he takes will make any money.  All true, I am sure, but not relevant.  This is not a photo that he took, and it does not meet the standard of a work of authorship eligible for the peculiar legal structure we humans call copyright.  Many reactions to this story have focused on the idea that it is somehow unfair to deny Mr. Slater profit from the photo.  But copyright law is not about fairness, nor does it exist to reward industry or protect an investment.  Laws are passed for many purposes, and fairness is often well down on the list of reasons.  It is silly to expect to be able to use copyright to leverage some result considered “fair” in every situation that involves an (apparently) creative work.

My final observation about the reactions this story has provoked is actually eloquently made by Mike Masnick of TechDirt when he writes about “How that monkey selfie reveals the dangerous belief that every bit of culture must be owned.”  It is curious to see how uncomfortable many people are with the idea that no one at all owns these photos; that they are therefore the property of everyone.  Perhaps it is the unfortunate influence of the big content industries that makes some people uncomfortable with the idea of the public domain.  One of the early articles in this new round of media coverage asked its readers to vote on who owned the copyright in the photo.  Most voters split between Mr. Slater and the monkey, with less than 17% being willing to assert that no one owned it, it was in the public domain.  And apparently Wikipedia has decided to let the public vote on continuing to make the photo available.

Maybe the real lesson we should take from this silliness is that the public domain is real, and it is important.  Much of human culture would not have been possible without free access to our shared literary and artistic heritage.  The U.S. Constitution builds a public domain in to the very words by which it gives Congress the power to pass copyright laws, by requiring that those rights be “for a limited time.”  We cannot have copyright without a public domain; to attempt that would be cultural suicide.  So we need to learn not just to accept the public domain, but to celebrate it.  Perhaps that is why the monkey is smiling,

Signing My Rights Away (a guest post by Jennifer Ahern-Dodson)

NOTE — Authorship can be a tricky thing, impacted by contractual agreements and even by shifting media.  In this guest post by Jennifer Ahern-Dodson of Duke’s Thompson Writing Program we get an additional perspective on the issues, one that is unusual but might just become more common over time  It illustrates nicely, I think, the link between authorship credit, publication agreements and a concern for managing one’s online identity.  A big “thank you” to Jennifer for sharing her story:

Signing My Rights Away

Jennifer Ahern-Dodson

I stared at my name on the computer screen, listed in an index as a co-author for a chapter in a book that I don’t remember writing. How could I be published in a book and not know about it? I had Googled my name on the web (what public digital humanist Jesse Stommel calls the Googlesume), as part of my research developing a personal website through the Domain of One’s Own project, which emphasizes student and faculty control of their own web domains and identities. Who am I online? I started this project to find out.

I was taken aback by some of what I found because it felt so personal—my father’s obituary, a donation I had made to a non-profit, former home addresses. All of that is public information, so I shouldn’t have been surprised, but then about four screens in I found my name listed in the table of contents for a book I’d never heard of. Because the listed co-author and I had collaborated on projects before, including national presentations and a journal publication, I wondered if I had just forgotten something we’d written together.

I emailed her immediately and included a screenshot of the index page. Subject line: “Did we write this?”

She wrote back a few minutes later.

WHAT??!!!  We have a book chapter that we didn’t even know about???!!!!!  How is this possible?  Ahahahahahahahaha!!!!!

It’s a line for our CV! But, wait, what is this publication? Do we even want to list it? Would we list it as a new publication? Is it even our work? How did this happen?

This indeed was a mystery. At the time this was all unfolding, I was participating in a multidisciplinary faculty writing retreat. Once I shared the story with fellow writers, they enthusiastically joined in the brainstorming and generated a wide range of theories including plagiarism, erroneous attribution, a reprint, and an Internet scam (see Figure below). I mapped the possibilities for this curious little chapter called “Service Learning Increases Science Literacy,” listed on page 143 of the book National Service: Opposing Viewpoints (2011)[1].

 

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I needed to do more research and so requested the book through Interlibrary Loan and purchased it online as well.

And then there was the story of the editor. Who was she? Did she really exist? Was she a robot editor—just a name added to the front of a book jacket? I started wondering, now that so much of our work is digitized, are robots reading—and culling through—our work more than people? A quick search on Google revealed she was the editor for over 300 books, mostly for young adults. Follow up searches on LinkedIn and Google+ revealed profiles that seemed authentic.

The book arrives.

About a week later, the book arrived through Inter-library Loan. While still standing at the library service desk, I quickly flipped to page 143.

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What I discovered is a reprint (with a new title) of an article my author and I had published in the Journal of College Science Teaching.[2] It was republished with permission through the journal, conveyed through Copyright Clearance Center. The table of contents included a range of authors and works, including an
excerpt from a speech by George W. Bush.

It all looked legitimate. But how could I be published and not know about it?

In an email conversation with Kevin Smith, my university’s scholarly communication director and copyright specialist, I learned that typically in publication agreements, authors transfer copyright to the organization that publishes the journal. From then on, the organization has nearly total control. It can do what it wants with the article (like republish it or modify it), and for most other uses I might want to make (like including it on my website), I’d have to ask their permission.

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I also learned that republication is not uncommon. Although this book is marketed as “new,” it is in fact really just repackaged material from other sources that libraries likely already have. In this case, our article for a
college teaching journal was repackaged for an audience of high school teachers as part of an opposing viewpoints series, essentially marketing the same content to a different audience.

In a slightly different repackaging model, MIT Press has started re-publishing scholarly articles from its journals in a thematically curated eBook series called Batches.

These two models made visible for me the ways that copyright, institutional claims, and the Internet fuel change at a pace so rapid it seems almost impossible for authors to keep up.

Where to go from here

Although the ending to this mystery is not as thrilling as I thought it would be (someone plagiarized our work! Someone recorded and transcribed a talk! The book is a scam!), what I uncovered was this whole phenomenon of book republishing. Our chapter was legitimately repackaged in a mass marketed book with copyright secured, which allowed our work to be shared with a broader audience (which I see as a good thing). Yet, the process distanced me from my work in a way I was not expecting. In my naïve, yet I suspect widely held view of academic authorship, I assumed the contract I had signed was simply a formality, more of a commitment by the journal to publish the article and an agreement by my co-author and me to do so. I only skimmed the contract, distracted perhaps by the satisfaction of getting published and the opportunity to circulate my ideas more broadly.

As I submerged myself into the murky depths of republishing, I started to think about my own responsibility as both a writer and a teacher of undergraduate writers, to educate myself on authors’ rights. Could I negotiate publishing agreements to retain copyright? Or, at the very least, could I secure flexibility to re-use my work? As it turns out, yes. The Scholarly Publishing and Academic Resources Coalition has created an Author Addendum to help authors manage their copyright and negotiate with publishers rather than relinquishing intellectual property.

Although it is not uncommon for publishers to ask authors to sign over their legal rights to their work, at least one publisher—Nature Publishing, which includes the journals Scientific American and Nature—goes even farther. It requires authors not only to waive their legal rights but also their “moral rights.” Under this agreement, work could conceivably be republished without attribution to the original author. There was a story about this a couple of months ago, see http://chronicle.com/article/Nature-Publishing-Group/145637/.

In my case, I clearly did not do due diligence as an author when I read and signed the agreement for the science literacy article, and neither the journal nor the book editor or publisher was under any legal obligation to notify me that my work was republished or retitled. I wonder, however, what would happen if we applied the concept of academic hospitality to our publishing relationships. Could a simple email notification when/if our work gets republished be a kind of professional courtesy we can expect? Or, should we as authors get more comfortable with less control over our work and choose to share our ideas more liberally in public domains in addition to academic journals, which have limited readership and at times draconian author agreements? Do institutions have any role to play in educating their faculty and graduate students about signing agreements?

In my quest to create a domain of my own, to “reclaim the web” and be an agent in crafting my own author identity online, I discovered that, in fact, I had given up control of some of my own work. Now, I’m aware of the need to balance going public with my work—both online and in print—with a thoughtful and informed understanding of my rights and responsibilities as an academic author.

[1] Gerdes, Louise, Ed. Greenhaven Press.

[2] Reynolds, J. and Ahern-Dodson, J. “Promoting science literacy through Research Service-Learning, an emerging pedagogy with significant benefits for students, faculty, universities, and communities.” Journal of College Science Teaching 39.6 (2010).

 

Planning for musical obsolescence

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

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

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

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

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

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

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

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

Attention, intention and value

How should we understand the value of academic publications?  That was the question addressed at the ALA Annual Conference last month during the SPARC/ACRL Forum.  The forum is the highlight of each ALA conference for me because it always features a timely topic and really smart speakers; this year was no exception.

One useful part of this conversation was a distinction drawn between different types of value that can be assigned to academic publications.  There is, for example, the value of risk capital, where a publication is valued because someone has been willing to invest a significant amount of money, or time, in its production.  Seeing the value of academic publications in this light really depends on clinging to the scarcity model that was a technological necessity during the age of print, but which is increasingly irrelevant.  Nevertheless, some of the irrational opposition we see these days towards open access publications seems to be based on a myopic approach that can only recognize this risk value; because online publication can be done more inexpensively, at both production and consumption, and therefore does not involve the risk of a large capital investment, it cannot be as good.  Because the economic barrier to entry has been lowered, there is a kind of “they’ll let anyone in here” elitism in this reaction.

Another kind of value that was discussed is the cultural value that is supposedly infused into publications by peer-review.  In essence, peer-review is used as a way to create a different, artificial type of scarcity — amongst all the material available in the digital age, peer-review separates and distinguishes some as having a higher cultural value.

Of course, there is another way to approach this kind of winnowing valuable material from the booming, buzzing confusion; one could look at how specific scholarship has been received by readers.  That is, one could look at the value created by attention.  We are especially familiar with attention value in the age of digital consumerism because we pay attention to Amazon sales figures, we seek recommendations through “purchased together” notes, and we look at consumer reviews before booking a hotel, or a cruise, or a restaurant.  Some will argue that these parallels show that we cannot trust attention value; it is only good for inconsequential decisions, the argument goes. But figuring out how to use attention as a means to make sound evaluations of scholarship — better evaluations than we are currently relying on — is the focus of the movement we call “alt-metrics.”

Before we discuss attention value in more detail, however, we need to acknowledge another unfortunate reminder that the cultural value created by peer-review may be even more suspect and unreliable. Last week we saw a troubling incident that provokes fundamental doubts about peer-review and how we value scholarly publications when Sage Publishing announced the retraction of sixty articles due to a “peer-review ring.”  Apparently a named author used fake e-mail identities, and maybe some cronies, in order to review his own articles and to cite them, thus creating an artificial and false sense of the value of these articles.  Sage has not made public the details, so it is hard to know exactly what happened, but as this article points out, the academic world needs to know — deserves to know — how this happened.  The fundamental problem that this incident raises is the suggestion that an author was able to select his own peer-reviewers and to direct the peer-review requests to e-mails he himself had created, so that the reviewers were all straw men.  Although all the articles were from one journal, the real problem here is that the system for peer-review apparently simply is not what we have been told it is, and does not, in fact, justify the value we are encouraged to place on it.

Sage journals are not inexpensive.  In fact, the recent study of “big deal” journal pricing by Theodore Bergstrom and colleagues (subscription required), notes that Sage journal prices, when calculated per citation (an effort to get at value instead of just looking at price), are ten times higher than those for journals produced by non-profits, and substantially higher even than Elsevier prices.  A colleague recently referred to Sage journals in my hearing as “insanely expensive.” So it is a legitimate question to ask if we are getting value for all that money.  One way high journal prices are often justified, now that printing and shipping costs are mostly off the table, is based on the expertise required at publishing houses to manage the peer-review system.  But this scandal at the Journal of Vibration and Control raises the real possibility that Sage actually uses a kind of DIY system for peer-review that is easily gamed and involves little intervention from the publisher.  How else could this have happened?  So we are clearly justified is thinking that the value peer-review creates for consumers and readers is suspect, and that attention value is quite likely to be a better measure.

Attention can be measured in many ways.  The traditional impact factor is one attempt to analyze attention, although it only looks at the journal level, measures only a very narrow type of attention, and tells us nothing about specific articles.  Other kinds of metrics, those we call “alt-metrics” but ought to simply call metrics, are able to give us a more granular, and hence more accurate, way to evaluate the value of academic articles.  Of course, the traditional publication system inhibits the use of these metrics, keeping many statistics proprietary and preventing cross-platform measurements.  Given the Sage scandal, it is easy to see why such publishers might be afraid of article-level measures of attention.  The simple fact is that the ability to evaluate the quality of academic publications in a trustworthy and meaningful way depends on open access, and it relies on various forms of metrics — views, downloads, citations, etc. — that assess attention.

But the most important message, in my opinion, that came out of the SPARC/ACRL forum is that in an open access environment we can do better than just measuring attention.  Attention measures are far better than what we have had in the past and what we are still offered by toll publishers. But in an open environment we can strive to measure intention as well as attention.  That is, we can look at why an article is getting attention and how it is being used.  We can potentially distinguish productive uses and substantive evaluations from negative or empty comments.  The goal, in an open access environment, is open and continuous review that comes from both colleagues and peers.  This was an exciting prospect when it was raised by Kristen Ratan of PLoS during the forum, where she suggested that we should develop metrics similar to the author-to-author comments possible on PubMed Commons that can map how users think about the scholarly works they encounter.  But, after the Sage Publishing debacle last week, it is easier to see that efforts to move towards an environment where such open and continuous review is possible are not just desirable, they are vital and very urgent.