Monthly Archives: November 2013

Copyright in the Classroom, international IP, Libraries, Open Access and Institutional Repositories

Taking a stand

When I wrote a blog post two weeks ago about libraries, EBSCO and Harvard Business Publications, I was attending the eIFL General Assembly in Istanbul, and I think the message I wanted to convey — that librarians need to take a stand on this issue and not meekly agree to HBP’s new licensing fee — was partly inspired by my experiences at the eIFL GA.

Having attended two eIFL events in the past four years, I have learned that many U.S. librarians are not aware of the work eIFL does, so let me take a moment to review who they are.  The core mission of eIFL is to “enable access to knowledge in developing and transition countries.”  They are a small and distributed staff that work on several projects, including support for the development of library consortia in their partner countries, negotiating licenses for electronic resources on behalf of those consortia, developing capacity for advocacy focused on copyright reform and open access, and encouraging the use of free and open source software by libraries.  The key clientele for eIFL are academic libraries, and all of the country coordinators and delegates that I met at the General Assembly were from colleges and universities.  But eIFL also has a project to help connect communities to information through public libraries in the nations they serve.

The delegates at the General Assembly came from Eastern Europe, Central Asia and Africa.  These librarians face a variety of local conditions and challenges, but they share a common commitment to improving information access and use for the communities they serve.  It was the depth and strength of that commitment that I found so inspiring at the event.  I wanted to encourage U.S. librarians to take a stand because these librarians from all over the world are themselves so consistently taking a stand.

One way these librarians are taking a stand is in negotiations with publishers.  There were lots of vendor and publishing representatives at the General Assembly, and time for each delegation to speak with each vendor (“speed dating”) was built in to the schedule.  Although these meetings were short, they were clearly intense.  One vendor rep told me that they were difficult because the librarians had diverse needs and were well-versed for the negotiations.  He also told me that he enjoyed the intensity because it went beyond “just selling.”  And that is the key.  These librarians are supporting each other, learning from each other and from speakers at the event what they can expect and what they can aspire to with their electronic resources, and taking those aspirations, along with their local needs, into negotiations.  They are definitely not “easy” customers because they are well-informed and willing to fight for the purchases that best serve their communities.  Because they cannot buy everything, they buy very carefully and drive hard bargains.

Another area in which these eIFL librarians are taking a stand is in regard to copyright in their individual nations.  I saw several presentations, from library consortia in Poland, Uzbekistan, Mongolia and Zimbabwe, about how they had made their library consortia into recognized stakeholders in discussions of copyright reform on the national level.  One consortium is offering small grants for librarians to become advocates for fair copyright; another has established a copyright “help desk” to bring librarians up to speed.  One of the eIFL staff emphasized to me the importance of this copyright work.  Copyright advocacy is part of the solution, I was told, to the problem of burdensome licensing terms that have often been seen in those parts of the world.

One story was particularly interesting to me.  An African librarian told how publishers in her country often view libraries and librarians as a major “enemy” because it is believed that they encourage book piracy.  Through the consortium of academic libraries, librarians have now become actively involved in a major publishing event that is held annually in her country, and recently the libraries were asked to nominate a board member to that group.  As a result of these efforts, the relationship between librarians and publishers has improved, and there is much more understanding (thus less suspicion) about library goals and priorities.

eIFL librarians are also taking a stand amongst their own faculties by advocating for open access. There were multiple stories about new open access policies at different universities, and about the implementation of repository software.  There were also multiple presentations to convey the advantages that open resources offer to education.  These presentations discussed MOOCs (that was me), open data, alternative methods of research assessment and text-mining.  If these sound familiar, they should.  In spite of difficult conditions and low levels of resourcing, these librarians are investigating the same opportunities and addressing the same challenges as their U.S. counterparts.  Just to illustrate the breadth of the interest in the whole topic of openness, I wrote down the countries from which the librarians who grilled me about MOOCs came when I spent an hour fielding questions; they came from Azerbaijan, Lesotho, Kyrgyzstan, Lithuania, Malawi, Maldives, Macedonia, Fiji, China, Thailand, Ghana, Belarus, Armenia, Uzbekistan, Swaziland and Mongolia.  They came with questions that challenged my assumptions (especially about business models) and deepened my own understanding of the international impact of open online courses.

There is one last conversation I had that I want to report on, both for its own sake and because of how it illuminates the eIFL mission.  Mark Patterson, the editor of the open access journal eLife, was at the GA to talk about research assessment.  Later I sat and talked with him about eLife.  He told me that the most exciting thing about eLife was its model whereby scientists reclaim the decision about what is important to science.  While the editors of subscription-based journals must always strive for novelty in order to defend and extend their competitiveness, eLife and, presumably, other open access journals, have scientists making decisions about what is important to science, whether or not it is shiny and new.  Sometimes there is an article that is really important because it refines some idea or process in a small way, or because of its didactic value.  Such articles would escape the notice of many subscription journals, but the editors at eLife can catch them and publish them.  And the reason this seems to fit so well into the eIFL context is because it is about self-determination.  Whether I was talking about open access journals with Mark or to the country delegates at the GA, this was the dominant theme, the need to put self-determination at the center of scholarly communications systems, from publishing to purchasing.

Copyright Issues and Legislation, Fair Use, Scholarly Publishing

A discouraging day in court for GSU

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The best word to describe yesterday’s oral argument at the Eleventh Circuit Court of Appeals in regard to the appeal of the Georgia State University e-reserves decision is probably bizarre.  But that has to be qualified; they were bizarre in a very discouraging direction for GSU and fair use in the academy.

When I read the briefs for this appeal, along with Judge Evan’s massive opinion from the trial in which she developed and applied a careful fair use analysis, it was hard for me to imagine how Georgia State could lose on appeal.  The trial judge was right on both the law and the policy of copyright. But the oral arguments showed me that there was a way that it could happen — if the appellate judges got lost in the weeds and started chasing the argument down rabbit holes.  It is worthwhile, if discouraging, to peek down some of these rabbit holes because they help illuminate some of the errors the appellate panel was laboring under.

Although the tenor of the arguments was mostly hostile to Georgia State, lawyers for both sides seemed bewildered by the direction of the questioning, and neither one was able to lay out a very persuasive argument.  The day started badly for Bruce Rich, the lawyer for the publishers, when he was brusquely told to stop puffing about how important and civic-minded his clients were.  He was immediately asked to defend the injunction his clients have sought from the court, specifically because it would impose a bright-line limit on fair use.  The publishers want a definitive statement that 1000 words is the absolute maximum for fair use of their works, but the court was not buying it.  On this issue they also gave Steve Schaetzel, representing GSU, a hard time about Judge Evans’ 10% or one chapter rule, asking if that “bright line” was a legal error (which would justify reversal or remand) because it removes the flexibility from fair use.

This is a difficult issue.  It is hard to see how some standard for amount, the third fair use factor, cannot be used when examining a large group of excerpts used in the same way.  So we have to ask what kind of order do the judges want; they seem to have painted themselves into a corner on the issue of amount.  It seemed clear that they were not happy with the publishers’ proposed injunction, which was the good new of the day, but also possible that they would issue an injunction of their own, which would not be good at all.  GSU made the plausible argument that the 10% standard was an analytic tool, not a bright line, which is supported by the fact that Judge Evans did not treat it as absolute, but flexed it a bit in light of the other factors.  The judges did not seem to get that point.

Another “rabbit hole” was the issue of market harm.  One of the judges, Judge Marcus, raised the question of whether Judge Evans had impermissibly “shifted the burden” on this factor by asking whether publishers offered digital licenses.  The general rule is that defendants (GSU, in this case) have the burden of proving fair use, and lawyers and judges love to watch out for inappropriate burden shifting.  Mr. Rich was quick to agree that this was an error made by Judge Evans, but of course it is no such thing.  She simply ruled on this factor based on facts that were in the record before her.  Specifically, the publishers argued that they were losing licensing income due to the claim of fair use, so she asked if they were offering licenses.  When told that some of the plaintiffs (i.e. Cambridge University Press) were not, she properly concluded that this factor did not always favor the publishers.  But, again, time was wasted pointlessly on this, and the error that Judge Marcus was making was never cleared up.

Then there was the analogy between course packs, and the so-called course pack cases, and electronic reserves.  The publishers push this analogy very hard, and the judges seemed to mostly accept it.  This may be the worst sign for GSU.  Even when Judge Tjoflat acknowledged that he was using the language of course packs as a mere convenience, he seemed unable to get out of the way of its implications.  Schaetzel did make the point, on behalf of GSU, that e-reserves were a lot more like a traditional reserve room than they are like course packs, but the panel persisted in its error.  One difference between the GSU case and the course pack cases, of course, is the wholly non-commercial nature of e-reserves, whereas the course packs in those cases were made and sold by commercial entities.  Also, a course pack creates a physical artifact that a student can keep forever, while an e-reserve reading is ephemeral, available only during the course and inexorably tied to the specific pedagogy.  When the differences were pointed out to Judge Tjoflat, he merely switched to a hypothetical and plowed ahead, clearly trying to extract some kind of admission from Schaetzel even though that admission would be entirely irrelevant.

Perhaps the most bizarre moment in the arguments came at the very end, when Judge Marcus was pushing Schaetzel about the second fair use factor and Judge Evans’ conclusion that it favored GSU because the works in question were informational.  The Judge seemed to lose track of the fair use analysis entirely when he posed what he clearly believed was a devastating question, asking Schaetzel if The Origin of the Species, one of the most important books in science, should lose copyright protection simply because it was factual.  The confusion here is obvious.  First, The Origin of the Species has already lost copyright protection and is in the public domain, yet science still advances.  Second, all the factual nature of the book would mean, under Judge Evans’ analysis, is that the second factor of the fair use framework would be more likely to favor fair use; there is no question of “losing copyright protection” for Darwin’s book or for any of the works in the GSU e-reserves system.  Finally, the very importance of The Origin of the Species is a reason why it should be subject to fair use; it is too central to modern thought to make access to it entirely dependent on paying some publisher a fee every time even the shortest excerpt of the book is used.  That would be crippling to scientific education.

If Judge Marcus really wanted to use Darwin’s masterpiece to explore the second fair use factor, he should have asked Bruce Rich if he thought copyright protection was a major factor in Darwin’s decision to write the book.  The incentives created by copyright, of course, seldom make any difference to academic or scientific authors, who write because it is part of the advancement of knowledge.  It is comical to imagine Darwin, on board The Beagle, calculating royalties as he decides whether or not to share his insights about natural selection.  It is precisely that disinterest in the economic rewards enabled by copyright that allows academic publishers to free-ride on the system and sell works that they obtain for nothing at great profit.  The case brought against GSU is an extension of that free-riding, and a properly focused examination of the second fair use factor would have exposed it.  Unfortunately, the arguments never went there.

So what can we expect next?  It is always possible that the three judges will go back to their chambers, reread the briefs, and discover how off-the-wall their approach during the oral argument was.  So a good ruling, presumably largely affirming Judge Evans, is not impossible.  But it seems quite unlikely after yesterday.  One alternative would be for the Appeals Court to remand the case, sending it back to Judge Evans for reconsideration in light of instructions they would provide.  They could, for example, remand telling her to not use a bright-line 10% standard and not to “shift the burden” to publishers on the fourth factor.  If they did that, it is perfectly possible that Judge Evans would go back to the record and arrive at the same result; she would just have to alter the language of her analysis a bit.  Certainly if a more flexible standard for the amount used is employed, and pedagogical necessity is made the yardstick, Judge Evans might find even fewer infringements.

The more troubling possibility is that the Court of Appeals panel might reverse the lower court and issue an injunction.  It seems clear that they would not be willing to endorse the sweeping injunction that the publishers have requested. They do not want to provide prospective instructions that would remove the flexibility from fair use.  So the most likely thing, if they take this direction, is an injunction related only to the 48 excerpts analyzed in the original opinion, presumably using a different analysis and coming to different conclusions.  Such an injunction would tell GSU how to deal with those works that were actually contested at trial and then, presumably, expect GSU to “get the message” as regards future assertions of fair use without dictating prospective standards.

Perhaps the most important message to come out of this day came from the panel discussion held at GSU after the arguments.  Lisa Macklin, the Director of the Scholarly Communications Office at Emory University, who has a smart and sensible perspective on most issues, reminded us that the problem being fought over in this lawsuit would go away if the academy would more fully embrace open access.  The core problem here is the donation of copyright in academic works to publishers who then exploit them to earn every possible penny of profit.  Scholarship suffers due to the greed of these publishers (my words, not Lisa’s).  So scholarship would be better served if we stop giving the key resource of the academy away to those who are poor stewards of it.  Instead we need to have authors retain copyright and offer those authors a variety of ways to disseminate their work that better serve their needs and the interests of the scholarly enterprise.

Yesterday was a discouraging day, suggesting that storm clouds might be developing in the area of academic copyright.  But if that storm breaks, the opportunity to renew and strengthen our commitment to open access might be the silver lining we can find in those clouds.

Note — this post was updated to correct the spelling of Judge Gerald Tjoflat’s name.  Thanks to Kenny Crews for pointing the misspelling out.

Copyright Issues and Legislation, Fair Use

A wide-angle lens on fair use

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I first saw the news about Thursday’s decision affirming fair use in the Authors Guild v. Google Books case when I turned my phone back on after an eleven hour flight from Istanbul.  The Turkish Air plane was still taxiing at JFK at the time, so when I cheered out loud I got a lot of bewildered looks from my fellow passengers.  I tried to explain to the folks sitting near me what I was so elated about, but I don’t think it translated well.

Fortunately, it is much easier to explain the impact of this ruling here, mostly because so many of our colleagues stepped up to the task quite quickly.  The best thing I can do for my readers is probably simply to direct you to a few of those discussions; I especially recommend those by Kenny Crews, Nancy Sims and Brandon Butler.  There is also this interesting piece by Eric Goldman in Forbes, and this story from the New York Times.

The case, of course, has been going on for over eight years, and got very complicated when a proposed settlement, that would have imposed a sweeping revision to copyright relationships in the U.S., was proposed, revised, and rejected.  A class-action was certified by the judge, but vacated on appeal and the case was sent back to the trial court for a ruling on fair use.  For all that complexity, however, the fair use ruling seems to have been pretty easy.  Certainly Judge Chin handed down a sweeping affirmation of fair use for book scanning when the purposes of that scanning are preservation, indexing and access for persons with disabilities.  Since this parallels the decision made by Judge Chin’s colleague Judge Baer in the HathiTrust case last year, it was perhaps more predictable than many of us thought.  And, of course, there is a growing body of precedent about fair use out of not just the Second Circuit but also the Fourth, Ninth and Eleventh Circuits that all pointed Judge Chin in this direction.

What is most remarkable and valuable about this ruling is not any new ground it breaks in fair use law, but its meticulous placement of that law back where it first arose — in the issue of public benefit and the purpose of copyright.  It looks at fair use with a wide-angle lens, which helps us see more clearly the correct placement of the discussion.  Before he begins his analysis of the question of fair use, Judge Chin catalogs the benefits of the Library Project and Google Books.  That catalog includes a searchable word index of tens of millions of books that benefits libraries and researchers, the facilitation of new types of research through text and data mining, access to books for traditionally underserved populations, especially including the disabled, book preservation, and the generation of new audiences for authors as well as new income for publishers.   After he completes his four factor analysis — finding that three factors strongly favor fair use and only one, the amount used, “weighs slightly against” it — Judge Chin reiterates this list of benefits and concludes that “Google’s actions… advance the arts and sciences [and therefore] constitute fair use.”

Fair use was developed by judges over a century and a half ago to ensure that the exclusive rights in copyright did not choke off the very progress of science and the useful arts they were intended — constitutionally required, in fact — to serve.  By “book-ending” his analysis, as one of my colleagues expressed it, with the public benefits of Google Books and the purpose of copyright, Judge Chin has created a powerful context for his ruling and an important reminder for all of us of what this odd body of law is really for.

In this context, it is very easy to see how selfish and myopic these lawsuits against libraries (in the broadest sense, since the decision in this case focuses a lot on the benefits of GBS to libraries) really are.  The Authors Guild is really asking the courts to forget about students, researchers, blind people, poor people and even the very authors they are supposed to represent in order to preserve some notional expectation of a windfall profit that might be discovered someday when they finally figure out the internet.  As Brandon Butler puts this point, “There is no pot of gold at the end of these lawsuits, and the research tools they are trying to kill are their best hope of finding an audience.”  I am reminded of Aesop’s fable about the dog and his reflection, where the greedy dog with a bone sees his own reflection in a stream and, trying to snatch the bone away from the “other” dog, drops what he already has into the water.  Increasingly the Authors Guild, as well as the publishers in the Georgia State case, look a lot like that greedy and foolish dog.

The Authors Guild has already announced the mind-bogglingly stupid intention to appeal this case.  After eight years of pouring money into it, failing to find the pot of gold they hope to gain from a settlement, and losing on the key legal principle they were fighting for, the AG apparently has learned nothing.  But the chances of a reversal on appeal seem very slim.  Judge Chin’s analysis is tight and firmly grounded in the fundamentals of copyright law.  It is supported by a rapidly growing body of precedent and it parallels another decision made in the same Circuit last year.  Finally, it grows out of a remand, from the same panel that will hear any further appeal, that clearly communicated the belief of those judges who sent the case back that fair use applied to Google Books.  In that remand, the judges who were asked to rule on the issue of class certification sent the case back (without a decision about the class action) with instructions to consider fair use.  Had Judges Laval, Parker and Cabranes not thought that a finding of fair use, which would make the class question irrelevent, was likely, this would have been a futile waste of judicial resources, something overworked federal judges avoid like the plague.  So there is already very strong reason to think that the AG’s appeal will fail.

Finally, in spite of my remark about there being little in this decision that is very new, I think there are two important conclusions that we can take from this ruling.  First, it is a reminder that the commercial nature of a user does not automatically rule out fair use.  In his decision, Judge Chin properly focuses on the use, which has tremendous public benefits and which does not directly generate a profit, rather than the user.  In the context of the educational benefits of the Book Search, the fact that Google is a for-profit company is really trivial to the analysis.  Second, the decision provides an important perspective on mass digitization.  Rights holders often focus on the scale of a project and assume that large-scale reproduction cannot be fair use.  This is the core of the publishers argument in the Georgia State appeal, and it is wrong.  Both Judge Chin and Judge Baer have now concluded (and Judges Laval, Parker and Cabranes have strongly hinted their agreement) that even massive digitization, when it is done for a transformative purpose, can be fair use.

 

Copyright in the Classroom, Libraries, Scholarly Publishing

A line in the sand

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The Chronicle of Higher Education recently published an article about library outrage over the recent decision by Harvard Business Publishing to claw back some functionality for key Harvard Business Review articles that many libraries subscribe to on various EBSCO platforms, and to charge a separate licensing fee to recover that functionality.  I also will have an article dealing with this issue on the Library Journal Peer-to-Peer blog (to be published on Thursday). But I want to say one more thing about it.

Harvard Business Publishing is treating this as an issue between themselves and the institutions that subscribe to HBR via EBSCO.  They accuse faculty of using articles as course readings without paying the “required” extra fee, and are disabling the EBSCO versions to force that additional fee.  But this is a skewed perspective.  From the point of view of the subscribing institutions, what is happening is that they are getting less functionality from EBSCO and are now being asked to pay HBP to regain that function.

Properly viewed, I suggest, this is not a dispute between libraries, or faculties, and Harvard.  It is a dispute between Harvard Business Publications and EBSCO over how to divide up the pie.  And libraries should refuse to make the pie bigger just to settle that dispute.

To be clear, the functions that HPB says are being wrongly exploited — printing, downloading and persistent linking — have been a part of the EBSCO databases for years.  HBP would argue that their special licensing terms with EBSCO (which were impossible to convey to faculty, since they make no sense) have always forbidden classroom use.  But the truth is, these technological changes are intended to prevent faculty from even giving students a reference to an article and asking the students to read that article on their own.  HBP wants to recover a separate fee even for that.

So the demands made by HBP really do break the EBSCO database as it has been purchased for years.  If libraries are going to lose functionality they have been buying over that time, they must demand a reduction in the price that is paid to EBSCO.  What is remarkable in this case is that the value of the lost functionality is easily quantifiable; it is represented by the new licensing fee that HBP plans to charge.

This is what I mean by insisting that this is a dispute between EBSCO and Harvard.  Libraries should refuse to pay more significantly more for the same functionality, especially since that functionality is so central to what we buy journal aggregator databases for.  If we have to pay Harvard this license fee, basic fairness suggests that what we pay EBSCO be reduced by the same amount.  EBSCO has been strangely silent during this controversy.  But libraries should draw this line in the sand — we will spend no more than some reasonable percentage increase — a single digit percentage, certainly — over our current EBSCO subscription to get the same functions we had last year.  Harvard and EBSCO can discuss any changes in the way that money is split between them, but that is not our problem.  If Harvard wants $200,000 more from us, we must pay EBSCO $200,000 less.

Few librarians would dispute the proposition that we cannot keep paying massive increases to get the same publications and same capabilities that we had before.  It is unsustainable, and it is unfair.  This price increase, for that is what it is, is especially massive.  If Harvard Business Publications cannot make do with the revenue they have had for decades and suddenly needs millions more, that is a problem with how they run their business, not with what EBSCO subscribers expect to get, and have gotten for years, for their subscription dollars.  And they need to take that demand up with the platform provider, since it is that platform that they are insisting be broken.

Nevertheless, librarians have not been good at actually saying no.  This is the moment to strengthen our spines and refuse to pour more money into the fraught relationship between Harvard and EBSCO; we must let them settle the matter between themselves.  If we do not draw this line in the sand, we will continue to get that sand kicked in our faces.