Monthly Archives: May 2010

international IP

Connecting the dots

Several months ago we discussed an article about international copyright that suggested the possibility that the developing countries who are part of the World Intellectual Property Organization (WIPO) could seek to reverse the trend toward harmonizing IP protections at a very high level by “de-harmonization.” Such de-harmonization would by directed at exploiting the space provide for limitations and exceptions in the major international copyright agreements in order to benefit local circumstances.  That article focused on the three fastest growing economies in the developing world – Brazil, Russia, India and China — the so-called BRIC countries.

Now comes this news release announcing that India and Brazil, along with 16 other countries from the developing world, have grouped together to more effectively represent the needs of such countries at WIPO.  As the announcement says, these 18 countries “aim to transform the World Intellectual Property Organization… [in]to a U.N. agency helping members achieve development goals through a balanced and calibrated use of intellectual property.” It sounds like these nations are taking to heart the advice that the WIPO and WTO treaties and agreements leave them room to adjust policy in ways that best suit their own needs, rather than accepting a “one size fits all” approach that favors the rich, content-producing nations.  The news release goes on to complain that strong intellectual property rights protections are being used to deprive people of needed medicines and to “steal developing countries’ traditional knowledge.”

These complaints are familiar to those who follow the negotiations at WIPO even in a cursory fashion, and there has been a new emphasis in recent months on the “Development Agenda” at WIPO and on how to redress the balance between protection of existing rights and access necessary for development.  The formation of this new block within WIPO is clearly an effort to move the organization along this path more quickly.

The timing, however, also makes it very hard to ignore that this new IP group, as well as the emphasis on development that it has been formed to foster, is one of the major factors in the decision by a number of developed nations to forgo WIPO negotiations in favor of the “pluri-lateral” approach being taken with ACTA, the Anti-Counterfeiting Trade Agreement.  As we have explained before, the ACTA treaty is being negotiated amongst a group of wealthy nations outside of the WIPO process.  Such negotiations are allowed by the WIPO treaties, although it is debatable if such sweeping tightening of IP enforcement was ever envisioned when those agreements were negotiated.  In any case, Michael Geist and others have argued that ACTA was born out of frustration with WIPO and the attention that was being paid there to the concerns of poorer countries who fear that rigid enforcement regimes will stifle their economic growth.

The specter raised by these developments is a fragmentation of the international IP community, with rich nations negotiating only amongst themselves for ever stronger measures to enforce intellectual property rights and developing countries talking only to themselves at WIPO about how such enforcement stifles growth and threatens lives.  When we connect the dots that these developments represent, it is an unfortunate and even frightening picture that emerges.

Copyright in the Classroom, Fair Use, User Generated Content

Transformation and teaching

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On Wednesday the Duke Libraries’ Instruction and Outreach department held a retreat on the topic of “Digital Literacies.”  The excellent keynote speaker for the event was Ellysa Cahoy from Penn State University.  As part of the retreat, I spoke very briefly about copyright issues around the use of digital media.  My comments ended up being very different than what I originally planned, based on the things I heard from Ellysa and the Duke faculty who participated in a panel talking about the kinds of new media assignments they were using.  Ellysa has some kind words about the retreat in general, Duke’s superb instruction librarians, and my remarks in this blog post.  On that latter topic, I want to take a minute to clarify and expand on what I said, because I believe the message is quite important.

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.

Scholarly Publishing, Technologies, User Generated Content

Facing the Future of Social Media

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By Will Cross

As a scholarly communications librarian I am naturally excited when scholars embrace a promising new method of communication.  As such, I was delighted to see this new study published in the Chronicle of Higher Education.  Although academia is just scratching the surface of social media use, this study of almost 1,000 professors indicates that roughly 80% are already using social media and about one-third use social media to communicate directly with peers and students.

Of course this blog provides one vital (in every sense) example of such communication, but more interactive tools such as Facebook are also being used by libraries and scholars to promote academic discourse.  Even Twitter has recently been used to address scholarly issues, as with the recent coordinated protests against ACTA.  Scholars have also begun to study Twitter as a source of data for scholarly analysis similar to telephone surveys.  These nascent uses certainly do not present an imminent threat to replace traditional scholarly discussion and publication, but they do suggest the potential for new forms of communication among scholars that can act as a valuable adjunct.

As we enter this brave new world, however, we must be cautious; moving scholarly discourse into digital and commercialized spaces has costs that come along with the benefits.  The most visible example of this fact is the recent conflict over Facebook’s privacy settings.  As the Electronic Frontier Foundation’s Timeline describes, what began as a private tool for communication among friends and colleagues has essentially been transformed into a clearinghouse of personal data that is being mined and sold en masse to advertisers.  This has occurred based in large part on changes in the “default” settings, well-illustrated by this graph, and compounded by the fact that personal information continues to be made available and mined after it is removed from a user’s page and even when a user quits Facebook altogether.

Facebook is the most publicized offender, but more traditional “new media” present similar problems.  As ebook readers pop up on iPads and Android phones it has been revealed that ebook reading habits, personal annotations and highlights are being recorded and aggregated.  Even scholarly darling Second Life has been the subject of a recent class action lawsuit over ownership of content created within the “virtual world.”  This is similar to Facebook’s ill-fated 2009 claim to “perpetual worldwide ownership” of all content that was eventually rescinded when users revolted.

As scholarly communication, and perhaps eventually scholarly publishing, moves into these new arenas we must decide how to respond to these challenges to personal privacy and authorial ownership.  Some have argued for an open alternative to these commercial entities that must, at the end of the day, focus on their bottom line rather than social or scholarly good.  At the same time, businesses are looking to technology to control access and retain all information in social media.

Along with these technological solutions many groups are focusing on providing users with information.  The American Library Association has put out an excellent video called “Choose Privacy” that aims to educate users about these issues so that they may make informed decisions.  Business Week’s list of Ten Reasons to Delete Your Facebook Account goes a step further to argue for a specific action.

However we address these issues we must be cognizant of how social media change the norms of expression.  The Scholarly Kitchen has an excellent discussion of social media and privacy that highlights the way social media such as Facebook are transforming social norms about privacy.  Since these norms themselves influence privacy law and the Fourth Amendment’s complex and often-misunderstood “reasonable expectation” test, today’s social practices may drive tomorrow’s legal changes.

At the same time, the Scholarly Kitchen article cites a study describing the necessary tradeoff between sharing information and sacrificing some privacy.  The challenge for scholars and librarians, I would argue, is to find a balance that permits the appropriate sharing of information but retains the privacy and ownership values necessary for intellectual exploration, reflection and creation.  As is so often the case with new modes of expression, we must be careful to import the social, cultural and legal norms of scholarship that we need while leaving room for new opportunities to flourish.

Authors' Rights, Open Access and Institutional Repositories

Policy consequences

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We are trained these days to dread “unintended consequences” whenever we make decisions; it is a fear that sometimes leads to paralysis.  But not all unintended consequences are negative, and I want to take a moment to celebrate some unexpected things that have resulted from the adoption of an open access policy by the Duke University faculty back in March.

The two biggest consequences so far have been a flurry of activity in the Duke Libraries and some welcome attention from outside the University.

In the latter category, this interview with Paolo Mangiafico, which was posted recently on opensource.com, is a superb summary of the rationale behind the policy and the steps we are taking to implement it.  Paolo, in his rather unique position at Duke as Director of Digital Information Strategy, provided the leadership that was necessary to organize, draft and advocate for the open access policy.  Paolo himself is a unique combination of high-level IT skills with a deep understanding of policy options and consequences, and his description of our OA policy is as articulate as any I have seen.

In the interview, Paolo talks about the decisions that must now be made, both as a matter of technological infrastructure and in terms of re-imagining library services.  Thus his interview nicely encapsulates the reasons behind that flurry of activity I spoke of above.

Another particularly exciting consequence for me personally has been an invitation to speak at the the 8th Berlin Conference on Open Access on the legal issues involved in open access.  The invitation letter clearly indicates that Duke’s new policy is one of the reasons for this opportunity, and I am honored to be invited to this influential gathering, which drafted the Berlin Declaration on Open Access back in 2003.  In 2010, the Berlin Conference will be held in Beijing, China, which deepens my excitement, both because I have never been to China and because of the opportunities  the conference offers to learn about the progress of the open access movement in Asia (although the activities of SPARC Japan are already well-known).  I hope I shall see many friends from North America and Europe in Beijing, and I look forward to the opportunity to meet many new colleagues and friends.

Sometimes unintended consequences offer really delightful surprises.

Copyright Issues and Legislation, Fair Use

Catching up with the First Amendment

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Note — This post is written by Will Cross, this year’s intern in Duke’s Scholarly Communications office.  Will is an attorney now in library school, and comes to copyright law from a deep commitment to First Amendment values.

Last August Kevin wrote about the lawsuit between author J.D. Salinger and the author of a new book; Coming Through the Rye.  This work, which uses the interplay between a 76 year-old character named “Mr. C” (a clear allusion to Salinger’s Holden Caulfield, now grown old) and Salinger himself to create a work of “meta-commentary” on the relationship between the famous author and his iconic creation, was originally found to be an infringement of Salinger’s Catcher in the Rye.  Last week Kevin and I were delighted to see that the Second Circuit had reversed the district court’s decision until we read the opinion.

Rather than reconsidering the fair use and First Amendment issues raised by the amicus brief that Kevin discussed, the court rejected fair use and remanded  based only on a procedural issue.  Although Rebecca Tushnet suggests that the opinion includes some “nice language” about the First Amendment issues, I came away from the case very disappointed.

The opinion seems to give short shrift to the fair use argument itself, particularly since this seems to be exactly the sort of literary “criticism or comment” at the heart of fair use.  As another commentator has noted, it also illustrates just how slippery and troublesome it can be to draw legal distinctions between “criticism” or “parody”  (which are clearly fair use) and “satire” or unauthorized “derivative works” (which are not).  As books such as this and The Wind Done Gone make clear, the line between protected parody and unprotected satire can be difficult to measure, particularly for judges whose expertise may not include literary criticism or analysis.

My larger concern, however, is what cases such as this may mean for free expression.  If an author can stop comment on his work or an investment bank can get an injunction from criticism based on trademark then IP laws designed to promote creation and discussion begin to serve the opposite purpose.

Scholars such as Neil Netanel have argued for years that this tension is significant and due greater consideration by courts, who generally defer to Congress in this area.  As Netanial notes in his seminal article “Locating Copyright Within the First Amendment Skein”, courts have generally been unwilling to directly address the relationship between copyright and the First Amendment based on three presumed “safety vales”: copyright’s limited term, fair use, and the idea/expression dichotomy.

In 2001 Netanel argued that that these protections may be insufficient to safeguard the interests implicated by turning public expression into private property and since then things have not improved.  The copyright term has been extended by Congress and the Eldred Court suggested that such extensions may stretch to “forever minus a day.”  Scholars such a Yale’s Jed Rubenfeld have demonstrated the ongoing difficulties with putting the idea/expression dichotomy into practice.  And cases like this one suggest that fair use itself may be insufficient to protect expression, particularly where copyright boundaries are unclear or one party is more respected or sympathetic than the other.

Of course the Second Circuit’s decision may be appealed and some commentators have suggested that this case may lead to a mandatory licensing scheme similar to music rights.  But whatever the outcome, copyright’s effect on free expression must be taken seriously as an interest protected by the Constitution and resting at the heart of the law and policy that under girds copyright itself.