Category Archives: Copyright in the Classroom

Swimming in muddy waters

Since the ruling from the Eleventh Circuit Court of Appeals in the Georgia State copyright case came out two weeks ago, most commentators have come to the same conclusions.  It is a mostly negative ruling, in which publishers actually lost a lot of what they were fighting for.  Georgia State also lost, in the sense that the case is not over for them and they are no longer assured of being reimbursed for their attorney’s fees and court costs, as Judge Evans had originally ordered.  But apart from those parties to the case, has the library community lost by this decision, or gained?  Once again, what we have gained is mostly negative — we know that we do not have to strictly observe the 1976 Classroom Copying Guidelines, we know that the cases involving commercially-produced course packs do not dictate the fair use result for e-reserves, we know that 10% or one chapter is not a bright line rule.  But there is little benefit in knowing how NOT to make fair use decisions; it is easy to see why one commentator has pled for bright line rules.

One affirmative point we can take from the case is that we know we still can, and must, do item-by-item analyses to make fair use decisions.  But what exactly should the process for those decisions look like?

As Brandon Butler from American University has pointed out, the decision-making processes will be different when we are assessing uses for teaching that are transformative versus those, like e-reserves, that are not.  We still have a good deal of freedom when the use is transformative — when the original material becomes part of a new expression, a new meaning, or a new purpose.  And this is important for a great deal of scholarship and teaching.  We should not lose sight of this important application of fair use, or assume, incorrectly, that the 11th Circuit ruling creates new limits on transformative fair use.

But when we must make decisions about digital course readings, we need to apply the “old-fashioned” four factor test.  What does it look like after the Appeals Court ruling?  I am afraid it has gotten pretty muddy:

The first fair use factor — the purpose and character of the use — continues to favor fair use whenever that use is undertaken by a non-profit educational institution.  If a commercial intermediary is involved, as was the situation in the course pack cases, this is no longer true.  But where there is no profit being made and the user is the educational institution itself, the first factor supports a claim of fair use.  And that is where the clarity ends.

The second factor — the nature of the original — can go either way, depending on the specifics of the work involved.  Is it more factual or interpretive?  This is a judgment call, and one which librarians may be hard-pressed to make when processing a number of e-reserve requests in a discipline they are unfamiliar with.  The good news is that the Court said that this factor is relatively unimportant, so the safest course may be to consider this factor neutral; call it a draw — at least where the item is not clearly creative — and move on.

On the third factor we thought we had a rule, even if many of us didn’t like it — 10% or one chapter was the amount that Judge Evans said was “decidedly small” and therefore OK for fair use for digital course readings.  The bad news is that we no longer have that rule.  The good news is that we no longer have that rule.  The 11th Circuit panel wanted a more nuanced approach, that balances amount with the other factors and especially looks at how appropriate the amount used is in relation to the educational purpose.  When the other factors line up in favor of fair use, this approach could well allow more than 10%.  If the other factors tend to disfavor fair use, only a much shorter portion might be permissible.  It is just very hard, after this ruling, to have clear standards about the amount that is usable, and that makes things difficult for day-to-day decisions.

With the fourth factor — impact on the market for the original — the 11th Circuit made things even more unclear.  The panel actually affirmed the lower court in its analysis of this factor, emphasizing that it is permissible to take into account the availability of a license for the specific use as part of evaluating this factor.  So if a license for a digital excerpt is unavailable, does that mean this factor favors fair use, as Judge Evans said?  Maybe, but the 11th Circuit added two complications.  First, it said that the Judge should have included the importance of license income to the value of the work in her fourth factor reasoning, rather than treating it as an additional consideration for breaking “ties.”  Second, they said that the fourth factor should have more weight in non-transformational settings.  How are we to put these instructions into practice?  Libraries do not have access to publishers’ accounts, as the judge did, so we cannot assess the importance of licensing income (nor can we trust publishers to give us straight answers about that importance).  And what does more weight mean?  If there is no digital license available, does more weight on this factor mean more room for fair use, perhaps of a larger excerpt?  Again, maybe.  But it also seems to mean that where such a license is available, even 10% or one chapter might be too much for fair use.

How does one swim in water that is this muddy?  The answer, of course, is very carefully.  We must keep on making those decisions, and we do have space to do so.  The fair use checklist, by the way, received a relatively sympathetic description from the 11th Circuit, but not a definite embrace.  At this point, my best advice is to keep on doing what we have been doing, thinking carefully about each situation and making a responsible decision.  I would recommend a somewhat more conservative approach, perhaps, than I might have done three weeks ago, especially when a license for a digital excerpt is available.  But the bottom line is that the situation is not much different than we have always known it to be, there is just a little more mud in the water.

Planning for musical obsolescence

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

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

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

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

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

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

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

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

Please propose to us

Later this year, the first in a new series of Scholarly Communication Institutes will be held here in the Research Triangle and we are looking for proposals from diverse and creative teams of people who are interested in projects that have the potential to reshape scholarly communications.

Last year the Andrew W. Mellon Foundation funded a three-year project to continue the long-running Scholarly Communications Institute which has previously been held at the University of Virginia.  Starting in November, the new SCI will be hosted by Duke in close collaborations with UNC Chapel Hill, NC State University, North Carolina Central University and the Triangle Research Libraries Network.  This new iteration of the SCI will benefit, we believe, from the extraordinary depth and diversity of resources related to innovation in scholarly communications here in the Triangle, and it will also take on a new format, in which participants will have a major role in setting the agenda each year.

Starting this year — starting right now! — the SCI invites applications from working groups of 3 – 8 people that are organized around a project or problem that concerns scholarly communications.  These working groups can and should be diverse, consisting of scholars, librarians, publishers, technologists and folks from outside academia (journalist? museums? non-profits?).  We hope that proposals will be very creative about connections, and include people that would like to work together even if they have not previously been able to do so.

The SCI Advisory panel will select 3 to 5 of these working group proposals and cover the costs for those teams to travel to the Triangle and spend four days together  in Chapel Hill in a setting that is part retreat, part seminar, part development sprint and part un-conference.  We want these groups to work together and to interact.  The groups will, we hope, jump-start their own projects and “cross-pollinate” ideas that will advance and challenge each others projects and discussions.

The theme for the 2014 SCI is Scholarship and the Crowd.  It will be held November 9-13 at the Rizzo Center in Chapel Hill, NC.  Proposals are due by March 24.

The goal of the SCI is not to schedule breakthroughs but create conditions that favor them.  The Working Groups selected will set the agenda and define the deliverables.  The Institute will offer the space , the environment and the network of peers to foster creative thinking, with the hope of both advancing the specific projects and also developing ideas and perspectives that can give those projects a broader potential to influence the landscape of publishing, digital humanities and other topics related to scholarly communications.

If you or someone you know might be interested in developing a proposal for this first Triangle-based SCI, you will find the call for proposals and an FAQ at


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.

A line in the sand

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.






A vexing question

I think it is time we talked about a difficult and sensitive issue.  I have been asked the question over and over again during the past few years, and I recently saw it discussed on an electronic list.  Should libraries stop buying materials from the publishers who are suing Georgia State University over electronic reserves?  Numerous librarians have asked me since the case began if they could protect the environment for research and teaching by refusing to buy materials sold by Oxford University Press, Cambridge University Press and Sage Publishing.  Another version of this question that I have also heard is whether or not libraries should try to avoid doing business with the Copyright Clearance Center, which is helping to finance the lawsuit, either by restricting e-reserves to portions within the trial court’s definition of fair use or by insisting on dealing directly with the publisher of the work, not the CCC.

I say this is a difficult and sensitive issue because any attempt to organize a movement along these lines raises worries about violations of anti-trust laws.  I have to say immediately that I am NOT an expert on anti-trust, and I frankly do not know where the boundaries lie.  I do know that organized boycotts that attempt to force prices down are problematic; anti-trust law is very concerned to protect the role of the competitive market in pricing, so organized movements to reduce prices are quite likely, I believe, to be considered “combinations in restraint of trade.”  It is less clear to me what consumers can do when they object to a business practice of a company, rather than price.  There have been apparently legal boycotts against retailers based on their labor relations practices; this article, for instance, refers to a call for such a boycott by a former Clinton administration cabinet secretary, who apparently did not get into trouble.  Where the line is between price boycotts, which I think are likely to be illegal, and permissible boycotts over business practices, I do not know.

But there is another, more fundamental reason why I do not think libraries can or should organize over this issue.  Library buying decisions are mission-driven and must be made locally.  For some schools, it may be possible to decide not to buy Oxford, Cambridge and Sage titles because of the lawsuit without compromising their mission to serve teaching and research on their campuses.  Other schools would find that to be an intolerable burden on their ability to facilitate education.  It depends on the needs of a campus and is probably a conversation that each library should have with its own community.

I want to emphasis this again.  The reason we are so disturbed by this unprecedented attack on higher education from academic publishers is precisely because it threatens to undermine our core mission.  It would be a mistake to undermine that mission ourselves just because we are so angry at those publishers.  So this is what I tell librarians who ask me this question:  If you believe you can refuse to buy from these publishers without harming your fundamental mission, or if you have the support of your faculty, then I think you have made a courageous decision that I admire.  But if you are considering a unilateral decision without consultation with the teachers, students and researchers in you own community, then I think you have more work to do.

The conversations I am advocating here could have a different effect as well.  After all, this deplorable lawsuit is not a “library problem,” it is an academic problem; an issue that needs to be addressed by the higher education community.  There were, remember, more faculty members called to testify at the trial in 2011 than there were librarians.  And it is our faculty members who supply, for free, the content that these publishers publish and the reviewing work that assures its quality. To my knowledge there is nothing in the law that prevents faculty authors from deciding to publish in and review for different publishers instead of those who are attacking basic scholarly practices.  A large group of mathematicians and others made such a pledge some time ago to withhold their scholarship and their labor from publishing giant Elsevier, a move that garnered a great deal of publicity to their complaints and made a real difference on the public policy front.  I would be delighted to see librarians and faculty authors on campuses across the US have a similar conversation about how decisions about where to publish or review get made, and whether some decisions are better for the overall scholarly environment than others.

Law and politics in the GSU case

Last week we saw the first real flurry of activity reported in the publisher appeal of the Georgia State University fair use victory.  The news items and filings call our attention to both the legal and the political aspects of the appeal.

Starting with the law, over the weekend I gave the publishers’ Appellants Brief a preliminary examination, and want to highlight four points from that brief that the library community needs to be aware of and to know how to refute.

The most fundamental part of the publishers’ argument is the analogy between the practice of e-reserves at Georgia State and the cases that were decided in the 1990s regarding printed course packs.  At trial, Judge Evans rejected this analogy for a good reason that the publishers largely ignore.  They assert that the Judge impermissibly distinguished print from digital “course packs” and thereby violated the principle that copyright law requires “media neutrality.”  It is quite true that courts often tell us that copyright should be technologically neutral, although that is by no means a hard and fast rule — the fact that there is a special provision in the law itself regarding Digital Audio Tape proves that Congress itself is not really dedicated to “media neutrality.”

But of course the real problem with this argument is that it entirely misses the point of the distinction Judge Evans drew.  She simply did not decide to treat digital materials differently from print; she quite properly treated a non-commercial use differently from a commercial use in the fair use analysis.  The publishers want to throw sand in the Appeals Court’s eyes here by distracting them from the correct fair use analysis, which looks at specific circumstances.  In this case, there was no commercial intermediary for the e-reserves, but there was for the course packs involved in the cases the publishers cite.  Fundamental difference in facts equals different result on fair use, and no error on the part of the trial judge.  Instead, a persistent and probably willful failure to understand basic fair use law on the part of publishers.

A second argument that is key to the publishers’ brief is that only transformative uses can be fair use.  Judge Evans specifically found that the e-reserves at GSU were not transformative, and that is a point that the Appeals Court should re-examine carefully.  But even if that is affirmed on appeal, it does not rule out fair use.  Again, a complete reading of Judge Evans’ ruling shows that she got the fair use point exactly right — a use does not have to be transformative in order to be fair use.

When the Supreme Court re-calibrated the fair use analysis to focus on transformativeness in Campbell v. Acuff-Rose Music, they made this point explicitly, noting in a footnote that some uses could be fair without being transformative.  The publishers acknowledge that Judge Evans cited this footnote, but go on to argue, incredibly, that there is no justification for this contention in the statute, even though they recognize that the statue gives as one of its paradigmatic examples of fair use “multiple copies for classroom use.”  They still argue that Judge Evans should have given great weight to the alleged non-transformativeness of the use, apparently feeling that Congress did not intend the plain sense of that language about multiple copies for classroom use, or that it somehow was only sanctioning transformative multiple copies for teaching (a contention that does not even make linguistic sense).  It is absurd, but it shows how desperately hard it is to undermine the careful work Judge Evans did and how completely the publishers believe that the law is designed to serve their needs and only their needs.

Two other legal points before we turn to politics.  First, the publishers insist strenuously on the 1000 word limit for classroom copying that comes from the 1976 Guidelines on that topic, and which Judge Evans rejected.  They make no mention of the 10% standard from those guidelines, which the Judge did adopt, because the language of the Guidelines is “whichever is less.”  It is precisely that language, of course, that makes the Guidelines “impractical and unnecessary,” as Judge Evans said, and why they were never agreed to by most higher education groups.  Second, the plaintiff’s brief asserts that Judge Evans erred by approaching the analysis of market harm on a work-by-work basis.  Instead she should have looked at the overall impact of these “digital Course packs” on publishers overall, and accepted, apparently, their analysis of market harm even though it was not borne out by the revenue figures they were forced to provide to her. This argument overlooks the best reason of all for evaluating market harm on a case-by-case basis, the fact that publishers and the Copyright Clearance Center do not make digital licenses available on a uniform basis.  Each publisher takes a different approach and even within a publisher’s list there will be licensing differences for some works.  Although the CCC is touted to the courts as a uniform licensing solution, libraries that use it, and even those few who use its blanket license, know that it is far from uniform.  Since libraries must continue to do work-by-work analysis to obtain licenses, at vastly different prices and terms, and with uneven availability, the courts MUST look at fair use and market harm on a work-by-work basis.

Based on the weakness of the brief, I think the law still favors GSU.  But politics is a different matter.  Last week we learned that the United States government has asked for extra time to decide if it will intervene, and it has made clear that its intervention would either support the publishers or favor neither party.  The one thing we know for sure is that the Obama administration has no intention of defending educational fair use.  Why not?  Probably because of the revolving door between the Copyright Office (and other administration advisers on IP) and industry.  Most of the people who talk to the administration about IP policy have been either lawyers for the industry or lobbyists.  Unfortunately, the educational community cannot view this administration, or most of its predecessors, for that matter, as impartial arbiters of fair policy on copyright matters.

It is still possible, and even likely, I think, that the Court of Appeals will largely uphold the lower court ruling on GSU.  Judge Evans’ analysis was very careful, even fastidious, and there is is not much room to knock it down.  The publishers’ brief wants to win on “big picture” issues unique to its business model, but we can hope that the Court of Appeals will understand that this is not what fair use is about.  But even if they do, we are still left with an unfortunate situation, in which so much scholarly work, work created for a social benefit and usually with costs underwritten by taxpayers, is turned over gratis into the hands of commercial entities.  And those entities have proven that they will not shrink from fundamental attacks on teaching and research in order to squeeze every penny they can from that work, money that comes time and again from the public.  This is iniquitous for the public and for the scholarly authors, it is reaping what one does not sow, and it turns the purpose of copyright law on its head. But it is also business as usual for the commercial scholarly publishing business.

Last fall I had extended conversations with two senior executives from two of the plaintiff publishers in the GSU case.  I came away from those conversations convinced that both men genuinely saw themselves as providing a benefit for scholarship.  I do not doubt their sincerity, although the one who told me he could “live with” a 10% standard for e-reserve fair use obviously had little input on this brief, which jettisons 10% for a maximum of 1000 words.  But they are wedded to a business model that was once necessary for scholarship and simply is not any longer, and their denial of that fact, and desperate defense of the businesses they run (which is only to be expected) now poses a threat to the educational mission of colleges and universities.  The copyright in most of these works is owned by our faculty members, and it is well past time that we just refused to transfer those rights to commercial entities that undermine our best interests.  Libraries and faculty senates must accelerate the pace at which they embrace new models — and non-profit older models — for the dissemination of scholarship.  We know the change is coming, and actions such as those undertaken by these publishers as they continue to push the lawsuit against GSU, prove beyond doubt that we cannot wait much longer before scholars simply take their works and their rights out of commercial hands.

The collision of copyright and e-science

Last week I was attending a meeting on campus that had nothing to do with e-science (which today refers to virtually all science, I suppose) when a very fortuitous event occurred.  Professor Jerome Reichman of the Duke Law School handed me a copy of the April 2012 issue of the Minnesota Law Review (vol. 96, no. 4).  That entire issue is an article written by Reichman and Professor Ruth Okediji of the University of Minnesota Law school called “When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods in a Global State.”  It is a long article at 118 pages, although, because of the structure and conventions of law review articles in general, it is a quicker read than one might expect.  More importantly, however, it is a very rewarding excursion into the ways that copyright law around the world have developed and become an obstacle to scientific research, an even more “immediate and pervasive threat”, the authors suggest, than the more attention-grabbing problem of patent thickets.

The purpose of this post is to summarize the article and commend it to those who want more.  The growing interest in e-science on campuses makes this a timely topic; we need to understand the potential difficulties that copyright law can create for digital research and scientific communications. And I have to begin by saying how grateful I am to Jerry Reichman for making the effort to keep me current with the work he and Ruth Okediji are doing.  They are superb scholars whose work could and should have a direct impact on how universities support research and advocate for laws that facilitate, or at least do not impede, that research. Their joint work has tackled scientific issues and IP before, so I am delighted they are turning their considerable intellects to copyright and science.  Jerry is also a good friend and, as I now know thanks to my young cousin who had him as her Contract Law professor a couple of years ago, a fine teacher.

Reichman and Okediji begin their article with an historical examination of the “growing divide between copyright law and scientific research” that encompasses both the unique conditions in the U.S. and international obstacles to science that arise out of the complex of treaties and directives that are now in place.  They demonstrate convincingly that the traditional balance that has facilitated scientific research for years has been subverted recently by a variety of factors.  Among these unhappy developments are the trend toward ever more protectionist approaches to copyright, database protection rules in the EU and judge-made protection for facts and data in the U.S.,  the use of technological protection measures to lock up data that would otherwise be free for scientific reuse, and an overemphasis on the so-called three-step test from the Berne Convention, which is too often applied without any normative guidance.

In the course of this discussion, Reichman and Okediji make an interesting observation about limitations and exceptions to copyright in general, and fair use in particular.  They note that the traditional European approach to exceptions focuses on specific, narrow exceptions that lack flexibility.  There is little surprise in their conclusion that the EU needs the flexibility of fair use.  But they are also critical of the “all or nothing” approach that fair use fosters, where a use is either forbidden as infringing, or, if found to be fair use, does not allow for any compensation of the rights holder.  In some situations, they suggest, especially when the path to scientific progress leads through commercial users, a “take and pay” rule, similar to what is found in the EU three-step test, might be welcome.

The overall situation that Reichman and Okediji outline is most unpromising, as they suggest that the rights of scientific users are shrinking even in the area of print media, and have been virtually eliminated for science conducted in the online environment.  Again, the growing trend toward copyright or copyright-like protection over data is a large part of the problem.

In the area of e-science, Reichman and Okediji offer scientific research a Hobson’s choice between ignoring laws that have become unmanageable and unreasonable, or foregoing research opportunities.  The two paragraphs in which they lay out these unavoidable options are worth quoting in full:

If the relevant intellectual property laws were strictly enforced, and the scientific community continued to respect them, scarce public resources earmarked for basic research would be siphoned off to intermediaries from scientists seeking access to and use of their own published research result.  In that event, the public pays twice for the same output, plus a surcharge for mushrooming transaction costs … Less innovation, not more, is the predictable result over time.

Conversely, if intellectual property laws are ignored by researchers determined to carry on with their work irrespective of unreasonable legal constraints, automated knowledge discovery tools will become transformed into engines of massive infringement.  It is hard to see how systematic disregard of intellectual property laws, coupled with growing contempt for the legislative process that fosters them, will benefit authors, artists and other creators in the long run, especially when those condemned to outlaw status are not free-riders on costly musical and cinematic productions, but publicly-funded scientific researchers in pursuit of greater knowledge and applications that benefit humanity as a whole.

This is a situation that cries out for reform, and it is clear from the above that reform must begin by distinguishing scientific and academic research from commercial productions.  One-size fits all copyright laws are failing the scholarly community, and legislators and judges need to begin to treat scholarly works differently.  Fortunately, Reichman and Okediji provide us with a detailed set of recommendations about what kind of reforms are needed.

One reform they suggest that judges could accomplish would be the aforementioned “take and pay” approach to some uses that might otherwise be defended, probably unsuccessfully, as fair use.  The authors point out that Justice Souter suggested just such a possibility in a footnote to the Supreme Court’s decision in Campbell v. Acuff-Rose Music (the “Pretty Woman” case) but no judges have, up till now, taken the hint.  The discussion from Reichman and Okediji on this point alone justifies a close look at the article.

Many of the other reforms they suggest are grouped under the heading “What E-Science Really Needs from Any Legislative Reform.”  In that astonishing collection of suggestions, Reichman and Okediji include a tailor-made exemption for scientific research, rules allowing the breaking of technological locks more freely for research purposes, and limitations on the ability to override copyrights limitations and exceptions by using terms of use and other contractual arrangements.  And one other that we should mention that is particularly relevant in the international context is an alignment between database protection rules and copyright exceptions.  Not only should copyright exceptions be used to adjust database protection laws, say the authors, but these exceptions, both as the apply to copyright per se and to sui generis data protections, must be “preemptory, mandatory and immune from both contractual overrides and TPMs” (citing a report from the Max Plank Institute).

There is so much to digest in this article that I feel a little abashed trying to summarize it.  But one thing is certain, I think.  The attention that Reichman and Okediji shine on the conflict between copyright laws and scientific progress is simultaneously profoundly welcome and deeply troubling.  Welcome because we must look at the problem squarely and honestly, and troubling because we have such a long way to go to solve it.

Another fair use victory for libraries

Note to readers — a commenter has correctly pointed out that I was a bit over-enthusiastic in this post.  It is not strictly true that no infringement has been found in any of the cases against libraries.  In the Georgia State case the Judge did find five instances of infringement among the seventy-five digital excerpts that were challenged.  But the Judge also held that the University’s fair use policy was a good faith effort to comply with the law and, for the purpose of awarding costs and attorneys’ fees,  determined that GSU was “the prevailing party.”  GSU was simply ordered to revise its policy to reflect places where the Judge felt it had not adequately defined fair use.  To be adequately cautious, however, my comments at the end of the first paragraph and of the full post should have said that fair use has been an effective tool for academic libraries that has been upheld in each case and has prevented any significant liability.

We knew some time ago that the second complaint filed in the copyright infringement case brought against UCLA by the the trade association AIME over streamed digital video had been dismissed.  But last week Judge Consuelo Marshall filed her order that explained the grounds of that dismissal.  What we have learned is that this case is a slight victory for fair use in libraries.  On the specific issue we do not have clear guidance, just an affirmation that fair use arguments for streamed digital video are not unreasonable or obviously wrong.  But it is helpful to see this ruling as part of an overall picture, one in which all three cases claiming copyright infringement by academic libraries which were defended on the basis of fair use have now been decided at the trial court level and NO INFRINGEMENT HAS BEEN FOUND.

In the AIME v. UCLA case, the reasons for the dismissal are primarily that the plaintiffs lacked standing  — the legal right to seek judicial redress of a claim — and that the defendants have either sovereign immunity or qualified immunity based on their status as state officials performing their jobs.  A lot of the interest in the ruling is in the part that discusses qualified immunity, because that holding involved deciding whether or not a reasonable person in the position of the official charged would have know that his or her actions would be “clear violations of established copyright law.”

As for the standing issue, the Court says pretty much the same thing I said at the time the second complaint was filed — the plaintiffs have not shown any facts that make this complaint different from their first one, which was dismissed earlier.  These plaintiffs simply are not the right people to bring this case, and the folks who would be in a position to claim copyright infringement have not stepped forward to support the complaint.  Perhaps those other parties understood the risk that there would be another positive ruling for fair use, and did not want to take the chance.

But as I say, the real action is on the issue of qualified immunity, where a plaintiff must prove, to overcome such immunity, that the defendants either knew or reasonably should have known that they were infringing copyright law.  In the light of what the Judge calls the “ambiguity” of the fair use issue, she declines to so rule, and hence dismisses the complaint against these defendants (including library and IT staff) because of their qualified immunity.

Judge Marshall’s fair use analysis is very cursory, but still quite interesting.  On the first factor, the purpose of the use, the Judge simply states that it favors fair use, presumably because the use is educational and non-profit.  This is no surprise.  On the second factor, the Judge rec0ognizes that the works involved, performances of Shakespeare plays, are creative, but also that they are being used in an educational context.  She finds this factor to be neutral.  As to amount, Judge Marshall thinks this factor weights “slightly” against fair use — the entire films are being streamed, of course, but she finds “compelling” the argument that this streaming is analogous to the “time shifting” upheld by the Supreme Court as fair use in the Sony video recorder case.  Finally, as to the impact on the market factor, the Judge says this factor FAVORS fair use because there is no difference in a streaming situation as to market harm than would be the case in the clearly permitted situation where a classroom full of students watched an entire movie together.  The recognition of this essential similarity as to market harm strikes me as fundamentally important.

So the Judge holds that “there is, at a minimum, ambiguity as to… fair use.”  In fact, her analysis would be very likely to uphold fair use, but she does not need to reach such a ruling in order to find in favor of qualified immunity and dismiss the complaint.  Judge Marshall then goes on to examine the licensing terms under which UCLA obtained these videos, to see if those terms state unambiguously that streaming is not allowed.  Here too she finds ambiguity, and thus upholds qualified immunity regarding that assertion as well.

Legally, the bottom line in this case is that all of the claims are dismissed with prejudice, which means that they cannot be refiled, although, of course, the dismissal could be appealed, if AIME and Ambrose Video are inclined to waste even more money.

For libraries, I think there are several takeaways from this case:

1.  The fair use issue as to streamed digital video was not decided.  This is not a blanket authorization for schools to proceed with such projects; they still require careful thought and a local decision that balances the risk of copyright litigation with the pedagogical value of proceeding.

2.  It is very important to look at licenses for the videos in question, where they exist.  It seems clear that an unambiguous license would have overcome qualified immunity in this case.

3.  The grounds for this dismissal apply only to the state officials involved; the same analysis would not apply to a private institution, although the fair use analysis, of course, could be raised by such a college or university.

4.  Overall, the atmosphere for fair use on campus is a lot better today today than it was six months ago.  We have seen a pretty convincing victory in the Georgia State e-reserves case, a sweeping one in the HathiTrust case, and a tepid affirmation of fair use (probably!) in this streamed video case.  Although the first two of those cases are being appealed (we do not know if AIME will appeal this latest decision), we now know that courts are quite sympathetic to fair use by academic libraries and on college campuses.  We know that most of the arguments that content providers have long offered to discourage reliance on fair use have been rejected.  We know that no campus has yet been found guilty of infringement when it makes reasonable fair use of lawfully acquired materials for limited teaching purposes.

Redefining research

The last month has seen extraordinary changes in the copyright law of Canada, including two Supreme Court decisions that I wish we could import south of the border to the U.S.

At the end of June a comprehensive reform of the Canadian copyright law known as bill C-11 received its final approval in the Canadian Senate and “royal assent.”  It seems that this means C-11 is now formally the law in Canada, although according to University of Ottawa law professor Michael Geist the reforms do not actually take effect until after there is an “order in council” process that creates the new regulations around the bill.

This new copyright reform contains some very good news for education in Canada.  I have not studied the bill thoroughly, but will note the handful of reforms that seem most important.

First, the exception to the exclusive rights of copyright in Canada that is known as “fair dealing” was expanded by the addition of three additional purposes to the two — research and private study — already mentioned in the provision.  Those new purposes are education, parody and satire.  The way fair dealing works, in order for a finding that an activity that implicated one or more of the exclusive rights was not an infringement because it was fair dealing, a court must first decide if the activity fit into one of the enumerated purposes, and then do an analysis to decide if that activity within one of the purposes was fair.  The Supreme Court of Canada enunciated six factors that are used in this second step of the process, which really look a lot like US fair use.  But the absence of education from the list of dealings that were eligible for a finding that they were fair (the first step in the analysis) was a significant problem for universities and schools.  Bill C-11 remedied that problem, and it has really changed, I would imagine, the debate over the license for universities that has been offered by the collective rights group know as Access Copyright (which recently jumped in price from $3.75 per student to $26).

Another major benefit for universities in the bill, and another reason the Access Copyright license seems less worth the major increase, is that there is now explicit permission for instructors to show films and other works that can be performed to an audience of students on the premises of the institution.  This, of course, sounds a lot like the US provision for face-to-face teaching found in section 110(1) of our copyright law.  There are also new provisions in C-11 that explicitly authorize reproduction by institutions and their employees for the purpose of instruction and that address the rights of distanced students to receive lessons via “telecommunications.”  There is a helpful summary of the impact of C-11 on education here, from the British Columbia Library Association.

Less that two weeks after the royal assent to bill C-11, the Supreme Court of Canada ruled on five copyright cases that had been before it.  Two of those cases had major implications for the definition of “research” in the fair dealing provision which is outlined above.  Collective rights organizations had challenged two practices — Access Copyright had asserted that teachers making copies for students was outside the scope of fair dealing, and a misic licensing organization called SOCAN had made the same assertion about short preview clips of songs that consumers could listen to before buying the complete piece.  Both organizations were seeking additional licensing fees for the challenged practices, and both lost.

In her opinion, Justice Rosalie Abella significantly expanded the definition of research, following a 2004 Supreme Court decision that had stated that the word should be read expansively.  She ruled that those short music clips should be encompassed as research, recognizing that the term can encompass casual information seeking in addition to formal academic study.  And she held that the private research of students does not require that they actually make the copies; that research and researchers can be guided by a teacher without giving up their rights under fair dealing:

With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.

Another important part of these decision about instructional copying is that Justice Abella found little or no harm to the market for published work caused by this copying.  The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales.  This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance  and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses.  I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional  revenue stream for publishers is.

The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case.  The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not.  By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us.  In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study.  In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience.  Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.

US courts are often quite reluctant to be seen to be influenced by international law.  But at the very least, this ruling from the Supreme Court of Canada shows the plausibility of the analogy that sees traditional, allowable educational activities simply being transferred to an online environment.  The change in technology should not entitle rights holders to additional fees any more than, in Canada, the human inter-mediation of a teacher does.