Monthly Archives: February 2012

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

An extraordinary week

It has been an extraordinary week for open access advocates, and it is only Wednesday!  For those keeping score, here is a recap of events, along with some commentary.

On Monday, Elsevier issued a press release withdrawing its support for the Research Works Act.  The RWA, of course, was a bill proposed in the US Congress that would have rolled backed the National Institutes of Health public access mandate and forbidden any other research funding agencies from adopting similar policies that would give taxpayers unfettered access to the research for which they have paid.

Within hours of Elsevier’s press release, the sponsors of the RWA in the House of Representatives announced that they would not pursue passage of the bill.  It seems it was Elsevier’s legislation from the start, so the publishing giant got to call the shots for Congress.  The announcement from Representatives Issa and Maloney contained the first extraordinary statement of the day, when they said that “The American people deserve to have access to the research for which they have paid.”  This, of course, is what they had tried to prevent, and we must read the statement with a suspicious eye.  But on its face, it seems to acknowledge the fundamental justice behind public access policies.
When the sponsors of the RWA folded their tents so promptly, I think we were left wondering if its introduction was simply a strategic move to stake out legislative ground, or a trial balloon by Elsevier to gauge support for open access.  If strategy it was, it seems to have failed spectacularly.

Elsevier followed up its withdrawal of support for the RWA with an open letter to the mathematics community.  These scholars, remember, are at the core of the boycott directed at Elsevier that has been gaining momentum for over a month and is still growing.  That letter also contained some extraordinary statements; in it the publisher seems to promise to lower some of its prices (although they base this promise on an arbitrary pricing standard that they have created) and to acknowledge that the bundling of journals into high-priced and inflexible packages (which they call “large discounted agreements”) is a problem.  I wonder if they mean this, or if it is simply more strategy?

The letter to the mathematicians contains an appeal for collaboration between Elsevier and the scholarly community.  In that vein, I respectfully offer three paths that mathematicians might pursue regarding Elsevier in the coming months:

  1. Talk with them, by all means, but don’t believe everything you hear.  Two principles are important to keep in mind.  First, their primary value is returning a profit to their shareholders, not the progress of your work or your discipline.  Second, they have no product to sell if you do not give them your intellectual property for free, so you have a lot of power here.  In a New York Times article published yesterday about the open access debate, scholars who support open access are called dishonest for continuing to submit their works to traditional journals; the boycott you have started reverses that alleged dishonesty and gives you considerable influence.  Don’t waste it.
  2. Keep exploring alternative publication models.  Even if Elsevier lowers its prices and introduces more flexibility into their bundling, it is hard to see the toll-access model as the path to the future.  For mathematics, where grants are smaller and many scholarly societies depend on subscription revenues, a “flipped” pricing model such as is being explored in physics with the SCOAP3 experiment, might make the most sense.  But in any case, it is important to keep experimenting with new ways to disseminate scholarship, especially more openly.
  3. Whenever you or a colleague/student does publish with Elsevier, look carefully at the publication agreement that is offered and cross out any language that ties your right to self-archive your work to the non-existence of an open access mandate from your institution of funder (you can find a sample agreement with this language here).  This is an outrageous interference with academic freedom, and authors should not tolerate it.  Simply pick up your pen and cross out any language that says you may only post a final manuscript of your work if you and your colleagues have not adopted a policy saying that you must do so.  In this regard, it is worth noting this article by Kristine Fowler from the AMS website analyzing the relative success that mathematicians have had negotiating the terms of their publication agreements with the largest publishers in their discipline.

Meanwhile, all of us – mathematicians, linguists, librarians, anthropologists or whatever — should transfer the energy we put into opposing the Research Works Act toward support for the Federal Research Public Access Act, which was introduced in both House of Congress a couple of weeks ago.  The case for FRPAA is made far better than I could put it in this essay on “Values and Scholarship” that was published by all 11 provosts of the universities that make up the CIC (Committee on Institutional Cooperation) in last Thursday’s edition of Inside Higher Education.  Their extraordinary, unified vision for scholarship in the digital age should provide the touchstone by which this discussion moves forward.

Copyright Issues and Legislation, Scholarly Publishing, Technologies

Debating derivatives

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During a recent visit to another university, I got into an interesting discussion with students about the difference, if there is one, between derivative works, the exclusive rights in which are reserved to copyright holders, and transformative fair uses.  The latter, of course, are considered “not infringement.”  The class of graphic arts students that attended my presentation was quite naturally confused about where the line between these two very different adaptations of an original work is.  I really couldn’t help them very much, but more about that in a minute.

When I got back to my office, one of my first tasks was to read the complaint in the lawsuit filed by the e-text platform company Kno against textbook publisher Cengage, alleging breach of contract.  The allegation is that Cengage has breached its contract to allow publication of content that it owns on the Kno platform, allegedly because certain features of the platform infringe Cengage’s copyrights.

Two qualifications are necessary.  First, a complaint is only one side of the story, so conclusions cannot be drawn from it.  Second, this may just be a contract dispute in which the two parties are bargaining for the best terms they can get, and litigation is simply a strategy in the negotiation.  That would be an unfortunate use of judicial resources, but it does happen.  Nevertheless, it is worth looking at the copyright issues that are raised, even if they never reach the stage of a decision on their merits.

According to Kno’s complaint, Cengage alleges that several features of the Kno platform create impermissible derivative works.  Specifically, Cengage allegedly objects to a “smart links” feature that inserts links to external educational resources into the text, to a “quiz me” feature that can create review quizzes from certain diagrams, and a “journal” feature that allows studies to record their own notes and pulls out from the text the excerpt to which the relevant notes refer.  The pedagogical value of each of these features is obvious, I think, but it is interesting to ask if they really do create derivative works.

Traditionally, derivative works are those that adapt the actual expression that is protected in a work, and usually they adapt the entire body of that expression.  Thus, a translation or an adaptation (novel to play, play to movie, etc.) are the paradigmatic examples.  Based on these criteria, it does not seem like inserting “smart links” into a text creates a derivative work, just a more useful one.  On the other hand, the “Quiz Me” feature does adapt some of the original expression in the text, but it adapts only a small portion.  Here, I think Kno could argue that this is a transformative fair use rather than a derivative work (they do raise fair use as one potential response to Cengage’s objections).

It is the “Journal” feature that seems to be most in dispute, based on how much the complaint has to say about it.   Students repeatedly tell us, of course, that one prerequisite to adopting e-texts is the ability to annotate the works, so this seems like a necessary part of any e-text platform.  It also seems like a classic fair use of the excerpts.  Insofar as the journal is just a layer over the top of the text, it hardly seems to implicate copyright at all.  And where excerpts are pulled out for the student to comment upon, that is exactly what fair use permits.  It is hardly different than if the student kept a separate notebook and copied out key phrases and passages, as I did throughout law school.  If that is fair use, and no one really disputes that it is, so, it seems to me, is the journal feature of the Kno platform (as described in the complaint).

My biggest concern about the dispute described in this complaint is the possibility that it shows us another publisher trying to disable they very possibilities that make e-books attractive to consumers because they do not understand how those features work and feel threatened by them.  E-texts specifically offer tremendous new potential for innovative learning, and ways to study a subject that work for a variety of different learning styles.  But these are possibilities only if the publishers get over their intense fear of the digital environment and their express desire to introduce “inconveniences” so that their digital products mirror the limitations of the print world.

After all this, let’s go back to the debate about derivatives versus transformative fair use.  My proposed criteria for what makes a derivative do not entirely solve the question.  Both derivatives and transformative fair uses adapt the original expression of the work in question.  In two examples above I suggest that the amount of the original work that is used may make a difference (it is, after all, one of the fair use factors).  This is helpful, I think, but probably not sufficient.  Perhaps the determinative question will be if there is market harm; courts that find transformative fair use usually remark that there is no direct market competition, and no “customary” licensing market, for the new, transformative use.   These reflections suggest, I think, a broad outline of how to make this slippery distinction, but they do not make it easy.  And they suggest that the dispute between Kno and Cengage really will turn on the terms of the license that is at the heart of the issue.

Authors' Rights, Copyright in the Classroom, Copyright Issues and Legislation, Scholarly Publishing

What were they thinking?

When the Chronicle of Higher Education ran this story about the relatively new intellectual property policy at the University of Louisiana, one of my colleagues reacted with the question in my title.  It is a valid thing to ask — how did the University system think this was going to go when they drafted the new policy?  The same forces that presumably led to revision of the policy in the first place — increasingly various and potentially profitable work created for the online environment — will also lead faculty authors and creators to pay more attention to IP policies.

It seems the university system has been surprised by the opposition the policy has generated, but such surprise speaks poorly of their awareness of the realities on their own campuses.  I am reminded of the surprise that content industries have expressed at the opposition to the Stop Online Piracy Act or the European dissent over ACTA.  What, exactly, did they expect?  The days when no one pays attention to such policies are past, and that is a very good thing.

The works created by faculty raise a complicated situation in a couple of ways, and need to be treated differently than works created by employees in a corporate environment.  For one thing, there is the issue of academic freedom.  Although the copyright law could well support the claim that all faculty works, even traditional scholarship like journal articles and books, are work for hire, the case would be much more complicated than the university system seems to imagine.  As I say, academic freedom would pose a unique obstacle, since courts have recognized a First Amendment interest in academic freedom.  So there is a constitutional argument could be used to counter a work for hire claim at a public university.  Also, there would be an argument over the traditional “teacher exception” that courts recognized for many years.  Although there have been no decisions definitively invoking the teaching exception since the 1976 Copyright Act took effect, it would still provide a line of defense against work for hire claims that the universities would struggle to overcome (this article by one of the scholars quoted in the article explains this ambiguous situation).

Then, of course, there are the practical problems.  Having a policy like this is sure to make it harder for the universities in the Louisiana system to recruit top faculty.  Even if individual campuses modify the policy into something wholly different than the system-wide template, which they would be wise to do, the question will always hang over recruitment, and the balance of decision-making may be tilted in some cases involving highly productive  and savvy professors.  On the university side, the mountain of paperwork they will create for themselves if they really undertake to review every contract for publication seems not to have occurred to the drafters.  But any small additional profit they could hope to make by claiming a portion of royalties is sure to be devoured by increased administrative costs.

As I read the article, I was struck by the sense that the university system was trying to create a single policy that would treated patented works and those subject to copyright in the same way.  Any superficial sense that this might seems to make is easily dispelled, however; there a good reasons to deal differently with these two varieties of intellectual property.  Copyright, for one thing, is easy and cheap to get.  It is, in fact, automatic whenever original expression in fixed in tangible form.  There is no need for the university employer to intervene to help the employee creator protect her rights.  With patents, the situation is wholly different.  Patents are difficult to get and it usually requires an investment of tens of thousands of dollars to successfully “prosecute” a patent.  And patents, when they generate a profit (which few actually do), offer much larger gains.  So creators need more help from the university to get a patent, and universities have a greater incentive to provide that assistance, than is the case with copyright.

Also, the “significant use of university resources” is really quite different with copyrighted materials than it is with patents.  Often the resources employed to create something subject to copyright are resource the university would supply in any case — a library, computers in faculty offices, art supplies for artists who both create and teach, a video camera in a dance studio, etc.  Resources used in equipping labs to pursue patentable inventions, on the other hand, are often extremely specialized and sometimes costs millions of dollars.

This does not mean that the copyrighted productions of a faculty are less important than those subject to patents; their very ubiquity testifies to how vital such works are to the tasks of teaching and research.  But the conditions of creation are so different that policies that conflate the two are seriously misguided.

One point I try to make whenever I discuss copyright ownership policies on university campuses is that such policies should distinguish between ownership of the underlying rights and uses that other parts of a scholarly community can be licensed to make.  For example, a university need not claim ownership over the design of an online course by a faculty member as long as it assures, by policy or by separate agreement, that it has a perpetual license to use that courseware.  Thus the faculty member’s academic freedom and reasonable expectation to own her own work is upheld, but the university does not have to worry about having to redesign the course if the faculty member leaves or to pay her twice for it.  The designer, of course, is also able to reuse her work at a new institution, so everyone’s needs can be met.  A careful policy on copyright ownership should be a kind of matrix that identifies types of works and groups of users who might have an interest in those various kinds of works.  Then the decision about ownership can be made at an appropriately granular level, and the use rights of those with recognized interests in each category can also be assured.

Copyright ownership policies are important, and becoming more so everyday.  Campuses that do not have such policies need to remedy that situation sooner rather than later, and before conflicts develop that will leave the decision to courts applying the default rules of the copyright law.  The policy proposed by the University of Louisiana System is a poor model and an apparently ill-considered stab at such a policy.  But if the controversy it has generated causes faculty in Louisiana and elsewhere to think hard about these issues, perhaps some good will result.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Grasping at straws

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Last week, “Inside Higher Ed” ran an article about the release by the White House of all the comments submitted to the Office of Science and Technology Policy in response to their request for information about public access to federally-funded research.  I was gratified to see that they chose to quote from the comments submitted by the Duke University Libraries.  But I was also appalled when I read the quote from comments submitted by the publisher Wiley Blackwell in response to the question about appropriate embargo periods for public access.  The Wiley official wrote that “Any embargo period is a dramatic shortening of the period of copyright protection afforded all publishers.”

This statement strikes me as deliberately misleading.  Publishers are not afforded any period of copyright protection by the copyright law, anymore than plumbers or ophthalmologist are.  This kind of misinformation is intended to create the illusion that publishers’ business models are somehow favored by federal law and thus inviolate, but that is not true.  Only one group is afforded copyright protection and the term for which that protection lasts — authors (under section 201(a) of the copyright law, Title 17 of the U.S. code).  If publishers hold any rights, they hold those rights only because they are transferred to them by the authors whose works they publish.  And if those authors choose, they can transfer less than the full copyright, and for less than the full term of protection.

Increasingly the transfer of copyright to publishers in exchange for using their distribution networks seems like a very bad bargain indeed.  As the ongoing boycott of Elsevier dramatically indicates, scholarly authors are becoming much more vocal and open as they demand a better solution for distributing their works.  It has always been problematic to give away the rights under copyright for free to publishers who then sold the works at a high profit, in which authors did not share.  Now there are many other options available to authors, many of which publishers are anxiously trying to undermine.  It is very important to some publishers that authors do not come to understand the power they have based on the fact that they hold all of the rights under copyright and can leverage those rights to do what is best for them.

Statements like the one from Wiley Blackwell reflect, I think, an increasing sense of panic in the publishing community.  Disinformation is seen as one way to fight the growing realization that they may become as irrelevant in the Internet age as blacksmith and buggy whip makers became in the age of the automobile.

We see this sense of panic manifest in several ways.  When Oxford University Press tries to claim that essays written for edited volumes are “work made for hire,” they are grasping at a legal straw that cannot hold up for them.  Likewise when publishers like Elsevier and the American Chemical Society write publication contracts that try to make authors’ retention of rights, or not, dependent on the kinds of internal policies that exist on the authors’ university campuses.  Such contracts are more cries of anger and fear than legal agreements.  In all of these cases, the publishers are looking for a legal lever they can push that will stave off irrelevance.  But the law does not work that way in general, and copyright is written to benefit authors and give them control over their works, not to prop up a particular business model.

Companies that survive are those that adapt to technological change, not those that desperately try to use legal coercion to prevent the change.  The movie industry learned this when their attempt to prevent home video recording failed; they were forced to adapt, and they found new ways to flourish.

Instead of resisting public access to taxpayer-funded research and writing byzantine contract language intend to punish authors who seek to exploit their legal rights, publishers need to look at how they can provide services to authors that will be necessary and desirable in the digital environment for scholarship.  Last month I had lunch with an official of a major publisher who talked about this approach to his business and was full of creative ideas.  Unfortunately, he is still a minority voice.  But misrepresenting the state of the copyright law is not the future for the publishing industry; services for authors is the future.  It is time for publishers to stop grasping at straws, for authors to stop giving away all of their rights under copyright, and for both groups to work together to figure out what the future of scholarship is going to look like.

Copyright Issues and Legislation, Fair Use

Fair Use ferment

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There is a lot happening in fair use these days, even as we are still waiting for a decision in the Georgia State copyright infringement v. fair use case.

One of the realities of modern political campaigning is that candidates like to use popular music or other material to increase the energy and appeal of campaign events or advertisements.  And they often do so without authorization, causing some content owners to complain.  The Republican primary this year offers two examples, the comparison of which is instructive.  First, Mitt Romney ran ads using a short clip of Tom Brokow reporting, on NBC News back in 1997, about Newt Gingrich being disciplined by the House of Representatives.  NBC and Brokow complained, and the Romney camp explicitly invoked fair use as their defense.  Then on Tuesday came reports that a lawsuit has been filed against Newt Gingrich for unauthorized performances of the song “Eye of the Tiger” (the theme from Rocky III) at campaign events.  I have not yet seen any response from the Gingrich camp about the lawsuit, but I have to say I think Romney’s use is more defensible as a fair use than is Gingrich’s.

The news clip Romney used is a straightforward, factual report of an action taken by the U.S. Congress.  So the use of the news item does seem like fair use.  And Tom Brokow may be a celebrity, but his publicity right surely cannot extend to suppress news reports if they are repeated in contexts he does not like; the messenger should not be allowed that kind of control over the message, when the message is a matter of public interest.

On the other hand, Gingrich’s use of the Rocky song is just to amp up the energy at rallies and deliver a general “comeback” message.  It is not educational, transformative, or, in itself, a matter of public interest.  It is precisely the kind of use for which a license could have, and probably should have, been sought.

More relevant to fair use in educational contexts is the recent opinion from the General Counsel of the U.S. Patent and Trademark Office addressing the question of whether it is fair use for patent examiners to provide unauthorized copies of research articles to patent applicants during the examination process.  There are a lot of parallels here to the distribution of course readings to students enrolled in a particular course, so I expected an equivocal opinion.  But the USPTO finds that this practice is clearly fair use, and argues that three of the fair use factors favor that finding, while the remaining factor, amount, is neutral,  even though entire works, assuming a journal article is the entire work for fair use purposes, are at least sometimes distributed to applicants.  Even more surprising, the PTO rejects consideration of a licensing market when analyzing the fourth factor, finding that such a market for the PTO’s use is not “cognizable” (even though I am sure the CCC would be willing to sell such licenses).  This ruling could be an interesting precedent for academic cases; I hope it is brought to Judge Evans’ attention in the GSU case.  Can universities likewise argue that they too can ignore the availability of licenses when making a fair use determination about course readings?

It is worth noting that the PTO opinion puts a lot of stress on the “noncommercial, governmental purpose” of the use. I am not disputing the value of that purpose at all, but I would point out that section 107 of the Copyright Act does not mention “governmental” use as one of its exemplars of fair use.  On the other hand, five of the six exemplars — criticism, comment, teaching, research and scholarship — are clearly educational uses.  If the PTO thinks they have a good case for fair use, isn’t ours even stronger?

Last, but very far from least, is the release this past week of the Code of Best Practices in Fair Use for Academic and Research Libraries.  The Code represents a long process of consultation with librarians to determine what they think are best practices around core library functions.  It is a “practice community” document, rather than a set of negotiated guidelines.  One of the best descriptions of the Code is this one from University of Minnesota “Copyright Librarian” Nancy Sims.

I won’t repeat Nancy’s excellent points about the Code here, except to make two small comments.

First, the Code is not legal advice.  Although I was part of a group of lawyers who reviewed the drafts, we never declared that all the practices outlined were absolutely fair use or entirely without risk for the very simple reason that fair use does not work that way.  The Code is designed to facilitate careful thought about specific situations in libraries and consideration of relevant practices.  It should help libraries maintain a balanced view of how fair use works in our profession, but it is not a bright line rule or final arbiter.

Second, the eight principles should always be read with the limitations and enhancements that accompany them in the Code.  This too is a reflection of what the Code is about — deep reflection about how to responsibly provide our core services.  The librarians who participated in the development of the Code (including Nancy) provided a wonderful framework for good decision making, and it would be a disservice to them not to take the whole framework seriously.  There are no shortcuts in fair use, but there are some very helpful sign posts, including this new Code.