All posts by Kevin Smith, J.D.

YouTube, Copyright and Innovation

When Viacom filed a copyright infringement lawsuit against YouTube, which is owned by Google, we all knew that the fur would fly. No one is neutral about Google these days, and YouTube has also created fierce partisans in the copyright wars.

It is quite possible that the lawsuit is simply a bargaining tool in the fight over the licensing payments that Viacom wants from Google, but, if the case goes to trial, the real issue will be how far copyright law can be used to prevent technological innovations that depend, to some degree or another, on using copyrighted material without permission. This debate is at least as old as the photocopier and the VCR, but the terms of the rough deal stuck by the Supreme Court in the 1984 Betamax case are still being contested.

Several newspaper and online columns over the weekend cast interesting light on this debate .

In the New York Times on Sunday (March 18), Larry Lessig of Stanford Law School makes the important point that Viacom is trying to use the courts to get around the compromise on innovation versus infringement that was established by Congress when it passed the Digital Millennium Copyright Act. The DMCA created a “safe harbor” for ISPs that merely hosted infringing material on their servers without specific knowledge of the infringement, so long as they act according to prescribed procedures once they have such knowledge. Now Viacom, emboldened by the Supreme Court decision in the Grokster case, is trying to revise that compromise through the back door, using the Courts new “inducement” theory of secondary copyright liability to undermine the policy Congress enacted.

Many predicted that the Grokster decision would have a chilliing effect on technological innovation; Lessig’s column suggests that the Viacom suit is a huge block of ice to contribute to that chill.

Along the same lines, Fred von Lohmann of the Electronic Frontier Foundation writes about all of the new technologies that might not have seen the light of day if copyright holders could sue based on the potential that users of the new innovation could infringe those copyrights. Even if one excludes the hyperbolic inclusion of reading glasses on his list, von Lohmann makes a powerful point — photocopiers, VCRs, iPods and even public libraries might be subject to restrictions and per-use fees in the world Viacom envisions.

James Boyle, in a column in the Financial Times, tries to put this debate in perspective by noting that, although it is sometimes difficult to feel sympathy for the ravenous giant that Google has become — it is no longer, as Boyle says, “a helpless start-up” — the interests that Google has pursued in its copyright conflicts often line up with the public interest. His reminder that the issues are much more complex than simply yelling “stop thief” at YouTube and Google (a tactic which Google’s rival Microsoft tried in a recent speech and op-ed), and that we as consumers of intellectual property also have an important horse in this race, are welcome indeed.

8 Cool things about the Creative Commons

EDUCAUSE, which is a non-profit organization devoted to promoting “the intelligent use of information technology” in higher education, has recently been offering a series of sort informational pamphlets call “7 things you should know about… ” The most recent item in this series is 7 things you should know about Creative Commons, and it is worth the attention of faculty seeking material that they can use in their classrooms without any of the copyright hassles that often arise.

The Creative Commons is a movement to encourage creators of all kinds of material to make their work available with only “some rights reserved” and with specific authorization for educational and other non-commercial uses already attached. Faculty who can find appropriate articles, image, video or music that is released under a Creative Commons license are way ahead in their ability to build a class without worrying about when and if the need to seek copyright permission. The two page PDF brochure linked above offers examples of teaching with Creative Commons materials, as well as more detail about what the Creative Commons is and how to find CC licensed material.

So what is the 8th cool thing about the Creative Commons? It is this article from the NY Times that describes the upcoming US tour by Brazilian songwriter and pop star Gilberto Gil, who also hapens to be the Minister of Culture for his nation. As a musican and a government official, Gil is an important advocate for the Creative Commons, which is rapidly becoming an international movement. As the article says, “One of Mr. Gil’s first actions after becoming the culture minister in 2003 was to form an alliance between Brazil and the nascent Creative Commons movement.” To anyone teaching about Latin American music and culture, that alliance should be good news indeed.

Troubling (and silly) journal policy

My colleague Aisha Harvey passed on an e-mail pointing out one of the most absurd and troubling requirements I have ever heard of from a publisher. Apparently, at least some journals from Haworth Press, which publishes lots of “niche” journals in library science and other social sciences, claim to require a transfer of copyright to the publisher before they will begin the peer-review process.

Many journals, of course, still require a transfer of copyright before they will publish an article, although more and more are realizing that all they really need is an exclusie right of first publication. But to require the transfer before sending a submission out for peer-review is unheard of and unnecessary. I would not have believe it was true had I not seen the language on a web page of instructions for a Haworth journal myself.

Requiring copyright transfer before review raises the interesting question of what happens when a submission is rejected for publication in the Haworth journal. One has to wonder if this departure from the normal practice of waiting till acceptance to request a transfer indicates that the peer-review process is really a sham and that material is seldom if ever rejected by the journal.

I have published a couple of times in one of Haworth’s library science journals, but I will certainly think twice before doing so again. I hope others in the library community will reconsider both publishing and server as an editor or reviewer for any journal that has this silly policy; as librarians we should both know better and set an example of good practices in scholarly publishing.

Traps for the Unwary

Don’t Sign That Book Contract

The Authors Guild recently ran this ad — Don’t Sign that Book Contract — to warn potential authors of the traps that might lurk behind the fine print in publication agreements. The graphic of a tiny author, pen in hand, standing in the middle of a bear trap, makes their point vividly.

Scholarly authors face similar traps today; with all kinds of new methods for distributing and using scholarly work available to them, especially on the Internet, it is more important then ever to read publication agreements carefully and to negotiate to reserve appropriate rights when necessary. Just as the Authors Guild offers assistance to its members, the Scholarly Communications Office is happy to help faculty and student authors at Duke understand their copyrights and manage those rights as they navigate the publication process. Let us help you stay out of the trap!

Fair Use Act introduced to rein in the DMCA

Yesterday an important piece of legislation was introduced into the House of Representatives by Congressman Rick Boucher (D-VA) and two co-sponsors (one Democrat and one Republican, for those who keep score).

The Freedom and Innovation Revitalizing US Entrepreneurship Act, in spite of its awkward title intended to create the acronym FAIR USE Act, is an attempt to mitigate the negative impact of DMCA anti-circumvention rules on education, among other activities. Note that it is not a full-scale incorporation of fair use as a DMCA exception, which would create furious opposition, but a more limited attempt to improve the situation for education and for libraries.

Last fall, the Library of Congress approved an educational exception to anti-circumvention for the first time — a narrow rule permitting film and media professors to circumvent security measures in order to make compilations of film clips for classroom use. The new exception lasts for three years, after which it would either “sunset” or have to be renewed. The legislation proposed by Rep. Boucher would make all of the current six exception to the DMCA permanent.

More importantly, this bill would expand the scope of exceptions to the DMCA in ways that would really improve the climate for educational use of technology. The film clip exemption would be expanded to embrace all classroom compilations, not just those in film and media studies classes. Circumvention would also be allowed in order to gain access to public domain works, thus preventing commercial interests from “locking up” content that ought to be available for all to use. Finally, it would allow libraries to circumvent technological protections for purposes of preservation, helping to ensure that digital content will not be lost as technology changes.

This bill has been referred to the House Judiciary Committee, and its full text is not yet available on THOMAS, the Library of Congress database for tracking legislation. So stay tuned for further information and updates. But even at this early stage it is safe to say that passage of this bill would be an important step for instructional technology and library preservation of digital works, and it deserves our strong support.

Know Your Copyrights

The Association of Research Libraries offers a concise and clear brochure, Know Your Copyrights, that stresses multiple opportunities to use copyrighted materials in the classroom. It is intended to emphasize the positive things that classroom instructors are allowed to do with copyrighted material, employing the various teaching exceptions built into copyright law. It is an ideal resource for classroom instructors who want to quickly comprehend what they can do, instead of focusing on what is not allowed. The link on the title above offers several ways to download this helpful brochure.

A model publication agreement

As the options for scholarly publication, and for reusing material in multiple different formats, expand, it is increasingly important that scholarly authors retain the right to reuse their own work in the classroom, in later publications and in open access repositories and webpages. While many people assume they have always retained these rights, until recently most publication agreements did not allow these uses, even by the original authors.

Fortunately, more and more publishers, especially academic presses, are beginning to rework their publication agreements to allow for these new oppotunities in the digital environment.

Duke University Press uses a publication agreement that can serve as a model for faculty authors; it is simple, readable, and permits authors to retain an “unretricted right” to make non-commercial uses of there own work. See a copy of this agreement here:

Duke Univesity Press journal publication agreement.

It is also worth noting that Duke University Press will accept an exclusive right of first publication in situations where an author does not want to assign his or her copyright to the publisher. These arrangements are an excellent example of what authors should seek when publishing scholarly work.

The most important message for scholarly authors is to read your publication agreement carefully. For more information, click on the page listed above “For Faculty Authors” or contact the Scholarly Communications Office.

Recent Reads

Two recent books provide brief and interesting insights into two different aspects of scholarly communication.

Richard Posner, the amazingly prolific federal judge, has recently published “The Little Book of Plagiarism.” As both an academic and a judge, Posner is well placed to comment on the rash of high-profile accusations of plagiarism. His book is a thoughtful attempt to sort out why plagiarism is such an issue and to distinguish those situations in which it is worthy of sanction from those in which it is forgiveable and even desirable. Among other useful discussions is his distinction between plagiarism per se and “creative imitation,” which is something upon which culture depends, and Posner’s use of “detrimental reliance,” a concept from contract law, as a way to highlight why certain instances of plagiarism are especially blameworthy. Apart from its overly sanguine assessment of the TurnItIn software product as heralding the end of plagiarism, this is an interesing and helpful meditation on a vexing contemporary issue.

“Art History and Its Publications in the Electronic Age” is a report issued in September of 2006 that takes an in-depth look at the special problems and potential of scholarly publication in art history, where the need to reproduce high quality images adds layers of copyright uncertainty, permissions expenses and production complexity to the already strained system of academic publishing. Its discussion of copyright issues is a balanced look at the needs of artists as well as those of scholarly authors, and its examination of the publication process should be enlightening to many readers. The concrete recommendations about how libraries and university presses might collaborate to improve the climate for art historical scholarship deserve widespread attention and consideration.

The art history report, incidentally, is available on the Internet under a Creative Commons license at http://cnx.org/content/col10376/1.1, or from Rice University Press’s digital print on demand service. I think this is the first POD book I have ever purchased, and I am very impressed by the speed and quality of Rice’s service.

Copyright Resources on the Web

The Association of Research Libraries provides an excellent brocure called “Know Your Copyrights” that summarizes what classroom instructors can do with copyrighted material:

These two sites offer good general overviews of copyright as it affects higher education and in-depth explanations of fair use:

 

This site addresses a number of additional scenarios involving fair use in course management sysytems:

These two checklist can help determine if a specific use falls into either fair use or the TEACH Act:

 

This text is designed to help graduate students understand the impact of copyright law on their research and publishing:

 

This chart will explain the complex determination of whether or not a particular work is in the public domain:

 

When it is determined that permission for a particular use is needed, the Copyright Clearance Center should be the first stop:

Open Access legislation stalled

Three important pieces of legislation for the Open Access movement stalled in Congress last term. None were adopted, and it seems likely that some of these proposals will be reintroduced in the new Congress, although the form may change.

Both the Federal Research Public Access Act, which would have required public access within six months for all published research that was supported by federal funding from the major funding agencies, and the less well publicized CURES Act, which would have mandated public access for funded medical research (much narrower that FRPAA), died when the last Congress adjourned and will have to be reintroduced in the 110th Congress in order to be considered.

The best chance for any public access mandate last term had seemed to be the NIH Reauthorization bill, which contained language to make deposit of NIH-funded research, now merely suggested, mandatory. That language was removed, however, before the Reauthorization bill was approved.

So the status quo on public access reigns.