Category Archives: Copyright in the Classroom

That pesky checklist

The recent flurry of activity in the copyright infringement lawsuit brought by publishers against Georgia State University has focused attention – mine, at least – on the “Fair Use Checklist” that has been adopted for use in quite a number of college and university copyright policies.  As part of the mini-controversy over the naming of Dr. Kenneth Crews from Columbia University as an expert witness for the trial, the plaintiffs have objected that Dr. Crews, as a co-author of the checklist that is part of GSU’s new policy (see a previous post on this topic here) cannot be an impartial witness.  In one sense this seems an odd objection, since experts are hired by each side in a lawsuit precisely because thy favor the position taken by the party that hires them, but it also offers a chance to reflect on the use and misuse of the fair use checklist and to begin to explain publishers’ ambivalent attitude toward it.

There are two obvious problems with the checklist, it seems to me.  First, it can encourages a falsely mechanical view of fair use, where a “score” of seven pro versus six con, for example, means something is definitely fair use, while a one-digit reversal means it is not.  That, of course, is not how fair use really works, and no score card can actually predict the results of a judicial evaluation of the fair use factors.  Second, the checklist would be pretty easy to manipulate so that it tends toward the result someone is seeking.  There has been some discussion, for example, about whether or not there needs to be an equal number of check boxes on each side (favoring fair use v. disfavoring fair use) in order for the checklist to itself be fair.  Although this seems plausible, it is important to remember that courts have not necessarily articulated an equal number of circumstances to be considered on each side of the argument, and the checklist seeks to guide its user through the considerations that are actually in play, not some artificial list created without regard to case law for the sake of balance.

Against these two problems, both of which can be quite real, there are also a couple of sound reasons for using the checklist.  First, the very mechanical nature that makes it an imperfect tool also makes it one that can be used quickly and without an entire course in copyright law by staff and faculty.  These are the major groups that need to make fair use decisions day in and day out; the checklist is a way to at least be sure that they think about all of the factors that are relevant.  There are many people on college campuses that seem to believe that any educational use is a fair use, and the checklist helps counter that simplistic belief and remind all of its users of the full-range of necessary considerations.  Second, the checklist provides documentary evidence that a full fair use analysis was undertaken.  Since part of the “remedies” section of the copyright act gives college and university employees partial protection from damages for infringement when they make a good faith fair use decision, even if they turn out to be wrong, evidence of detailed analysis helps protect the institution from potential liability.

These two arguments in support of using a checklist may help explain the ambivalence that the publishers have shown toward its use.  The Association of American Publishers has announced support for several university policies that include the checklist, including Cornell’s and Syracuse’s, but they have lately seemed more hostile towards it.   It is easy to see why, really.  On the one hand, it is in publisher’s interest to have university employees get beyond a simplistic view of fair use, which is usually too generous, and look more closely at the full range of considerations that need to be taken into account (this explains, I think, the use of a version of the checklist by the Copyright Clearance Center as well).  On the other hand, that deeper consideration will, itself, make universities less attractive targets for litigation, which seems to be the chosen weapon in the battle to narrow educational fair use.

I have to admit that I too feel a good deal of ambivalence toward the checklist, albeit for somewhat different reasons.  I would like every staff and faculty member who must make fair use decisions to have a complete and nuanced view of the doctrine they are applying.  But I recognize how impossible that is.  Until our campuses are populated entirely by IP lawyers (may that day never come!), I will continue to believe that the fair use checklist is a highly imperfect, but even more highly necessary, tool for navigating the traitorous waters of contemporary fair use.

Can a “batty” ruling effect needed change?

It is thoroughly unbelievable news that US District Court Judge Deborah Batts has issued a permanent injunction against the US publication of a book that purports to update the story of Holden Caufield, the protagonist of J.D. Salinger’s “The Catcher in the Rye.”  The new book, written by Swedish author Fredrik Colting and already published in Britain, is called “Sixty Years Later: Coming through the Rye” and is told by a 76-year-old man called Mr. C.  There is little doubt that Mr. Colting is trying to ride the continuing popularity (which I personally have never understood) of “Catcher in the Rye” by creating a sequel.  But there is a great deal of doubt about whether this is a copyright infringement.  The portions of the decision I have been able to read suggest that Judge Batts got all of the major copyright issues involved completely wrong.

First there was the fair use argument.  In a very similar case involving a retelling of the the story of “Gone With the Wind” from the point of view of one of the slaves at Tara, the Eleventh Circuit Court of Appeal correctly recognized that the new work was a fair use of material copied from “Gone with the Wind.”  And in the recent decision finding that “The Harry Potter Lexicon” was not a fair use,  Judge Robert Patterson, in the same judicial district as Judge Batts, went out of his way to make clear that an author of an original work cannot control all sequels, prequels and reference works.  Judge Patterson even writes, citing other precedents in the Circuit, that “a work is not derivative, however, simply because it is “based upon” the preexisting work.” (p. 39)  But that erroneous conclusion is exactly the foundation of Judge Batts’ decision.

Judge Batts seems to know only one fair use precedent — the “Oh Pretty Woman” case from the Supreme Court — and she applies it slavishly.  Since she does not think that the new book is an actual parody of the original, she holds that it is an infringing derivative work.  But it should be clear to anyone who is a federal district court judge that there are other kinds of fair use than parody; indeed, a quick read of section 107 itself would get one that far.

The real problem, however, is that this should not have been decided as a fair use issue.  In the two cases cited above, there was a substantial amount of material that was actually copied from an original into the new work.  In the case of the “Wind Done Gone,” specific dialogue was reproduced, with commentary and perspective from the “new” protagonist.  In the case of “Coming Through the Rye,” there seems to be no evidence of actual expression that is copied in the sequel.  Judge Batts focuses her objection on the conclusion that “Holden Caufield is delineated by words” and that therefore Holden is copyrighted.  But this ignores the fundamental distinction between expression, which is protected by copyright, and ideas, which are not.  All ideas are delineated by words, but that does not give the ideas themselves, even the idea of a solipsistic teenager who inevitably grows up, copyright protection.  Even before she reads section 107, Judge Batts needs to read section 102(b) of the Copyright Act.

Indeed, her decision is so unaccountable that its leads this commentator at TechDirt to question whether there really is an idea/expression dichotomy in copyright law at all.  But that dichotomy carries a lot of weight in US law; it is frequently cited, including by the Supreme Court, as one of the basic concepts (along with fair use) that keeps copyright law from becoming an infringement of free speech.  Now that Judge Batts has read the distinction out of the law (or failed to read the law at all), the conflict with free speech becomes all too apparent, when a new book can be banned in the US because an old author doesn’t like it.

So what good can come from this ridiculous decision?  First, it should be, and very likely will be, overturned on appeal.  But more importantly, it should prompt Congress to look again at the exclusive right, granted in copyright law, to prepare derivative works.  That right has not always been part of copyright; there was a time when even abridgments and translations were held not to infringe on an original.  The pendulum has now swung the other way, and we grossly overprotect some original works from legitimate reuse because we think those new creations are derivative works.  As is frequently pointed out, Shakespeare could not have written his plays under today’s copyright regime in the US.  It is time for clearer definition of what is and, more importantly, what is not a derivative work that is entitled to protection.  If outrage over Judge Batts’ decision can prompt such clarity, some good might come from this very bad ruling.

Openness and academic values

An interesting controversy arose recently at San Jose State University, when a professor objected to the fact that one of his students posted source code he had written as part of some class assignments onto the web.  Amazingly, the professor claimed that sharing this code was tantamont to plagiarism, since it made the student’s work available for others to copy, and might be copyright infringement.  This latter claim seems to have been based on the professor’s belief that, as the author of the assignment, he had a copyright interest in the work of the student.  There is a report and comment about this case from Ars Technica here, and one from Inside Higher Ed here.  The University’s Judicial Affairs office did not comment on the copyright claim, but it did determine that the student had not violated the academic integrity policy and could not be prohibited from posting his own work.  There are lots of opportunities here to elucidate copyright issues and ponder the important values of academia.

As far as the copyright issue is concerned, it seems pretty clear that the professor does not really have a claim here, at least not if all he did was to pose a problem for his students to solve.  Ideas, we must recall, are not protected by copyright, only expression is.  Computer code is protected by copyright from the moment it is fixed; the Copyright Office considers software a “literary work.”  That protection is vested in the author, and no interest is owned by a person who merely set the parameters of the work or suggested ideas which might be used.  Patents, which are also available for software, do protect ideas, and perhaps the SJSU professor is confusing the two very different kinds of protection (although there is no indication that anyone has sought a patent).  Unlike a patent, there is no need to apply for copyright protection.  That protection is owned by the author of the expression.

Which brings me to the most important reminder to be taken from this case.  It is that students own the copyrights in the works they create at our institutions.  As the digital age offers new opportunities to disseminate scholarship, including student scholarship, we need to remember that students own their copyrights (just as professors own theirs) and formulate appropriate policy to respect those rights and facilitate use and sharing as needed.

On the plagiarism charge, I think it is clear that SJSU was correct to affirm the ability of students to share their work.  If open access sharing is thought to be a problem because of the mere potential for plagiarism, all publication would pose a similar threat.  And especially in the area of computer science, where open source code is a common norm, it is important for students to learn the value of sharing in terms of the ability of a community to review and improve a scholar’s work, and to develop judgment about when a particular work is ready to be shared.

There are many reasons to share scholarship, and very few reasons to keep it secret.  Scholarship that is not shared has very little value, and the default position for scholars at all levels ought to be as much openness as is possible.  There are a few situations in which it is appropriate to withhold scholarship from public view, but they should be carefully defined and circumscribed.  After all, the point of our institutions is to increase public knowledge and to put learning at the service of society.  And there are several ways in which scholars benefit personally by sharing their work widely.  The SJSU student hoped that potential employers would see his work and be impressed; how can a university object to that hope?  Indeed, it reflects the professional ambitions of most scholars, and they, like our student, benefit in that ambition if they share their work as openly as possible.  Openness should be the default for academic work, and closed access only an alternative when there are clear and coherent reasons that justify it.  In this case, the student has something important to teach the professor about the important values of academia.

An approprate way to close this reflection is to point to the web site for the Open Student organization, where students are working constantly to remind the academy that openness and public access are key elements to embodying our educational mission.

Enforcing scarcity

For those in academia who take comfort in the comparative dearth of copyright infringement lawsuits against professors, this news out of Argentina will come as a rude awakening.  Just as we have gotten used to the idea of academic presses suing academic institutions, as in the Georgia State University case, now we have a professor being charged with infringement in a criminal case (which is not really unusual in South American copyright suits).

So what did Professor Horacio Potel do?  He made Spanish language translations of some 20th century classic works in philosophy (Heidegger, Derrida and Nietzsche) available to his students.  He asserts that such versions simply are not available for purchase to his students.

Unfortunately for Professor Potel, lack of availability is not really a defense against copyright infringement.  In a country with a fair use provision (US, Japan, Israel), such unavailability might help with the forth fair use factor, the impact (or lack thereof) on markets for the original.  Rights holders, however, often point out that this factor includes potential markets, and asset that it should be their option whether and when to exploit a particular market.  Thus the answer to Professor Potel’s dilemma from those who hold the rights in these works is basically that his students are out of luck.  For those following the debate about whether copyright laws do more harm than good at The Economist, this instance where copyright is being used to enforce the unavailability of educational resource ought to weigh heavily on the harm side of the balance. (By the way, the voting on the motion showed 71% agreeing that the law did do more harm than good, while 29% felt it was more beneficial).

It is worth noting, while looking at an international infringement case, that the principle international treaty on copyright law, the Berne Convention for the Protection of Literary and Artistic Works, does not contain the same broad exclusive right for “derivative works” that is found in US law.  This is probably a good thing, since it is sometimes very difficult to define exactly what is a protected derivative work.  Leaving that definition up to individual countries seems like a good idea, but it really won’t help Professor Potel.  The Berne Convention does mandate that its members protect two specific derivatives — translations, in article 8 (sorry, Professor) and cinematic adaptations in article 14.  I have little doubt that Argentinian law includes those exclusive rights, so Prof. Potel must, I fear, base his defense on social utility and lack of market harm, two claims that don’t seem to carry much weight these days.

Learning from ambiguity

I have long believed that one of the most important skills one can develop in life is the ability to tolerate ambiguity and to learn from all side of a complex and irresolvable situation.  Perhaps that philosophy helps explain how I can tolerate being a copyright lawyer in the current IP environment.  But I continue to have an especially ambivalent reaction to the case involving the plagiarism detection software called Turnitin.  I wrote about the district court decision over a year ago. Now the appeal has been decided — a win for Turnitin on ever front, upholding the major parts of the district court ruling and reversing only that aspect that disfavored iParadigms, the Turnitin parent company — and I still find myself feeling rather torn.  So now I am trying to learn from the ambiguity.

The heart of the case, and the major issue affirmed by the Fourth Circuit Court of Appeals, is that Turnitin makes a fair use of submitted papers when it copies and stores them to be compared with later submissions.  On this issue, I have been convinced; the 4th Circuit opinion has put to rest my earlier doubts.  I still don’t think Turnitin is a particularly useful tool, especially for higher education, but the reasoning of the court on the fair use issue is so clear and compelling that I cannot resist their conclusion.  Besides, I really wanted to agree with them on this point all along.

There are two important points that I want to emphasize in the appellate decision that really help explicate fair use.  First, the Court is very clear that a work can be transformative, and so a favored candidate for fair use, even when the second work does not add anything to the original, but merely copies it for a different “function or purpose” that that for which the original was created.  Here is the conclusion of the Court:

“The use of the copyrighted work need not alter or augment the work to be transformative in nature.  Rather, it can be transformative in function or purpose without altering or actually adding to the original work.”

The Ninth Circuit has made similar rulings regarding Internet indexing in Kelly v. Arriba Soft and Perfect 10 V. Amazon, but it is nice to see this conclusion, which really broadens the scope of the transformative use analysis, arise in another circuit as well (especially in the one in which I live and work).  This is a significant advance in the analysis of transformative uses over its original discussion by the Supreme Court in the “Oh Pretty Woman” case, and it offers grounds for hope that many of the innovative uses of copyrighted materials that new technology make possible could be considered transformative.

Even more exciting to me, is this remark made by the Court as it considered the second fair use factor, the nature of the original copyrighted work:

if the disputed use of the copyrighted work “is not related to its mode of expression but rather to its historical facts,” then the creative nature of the work is mitigated… the district court concluded that iParadigms’ use of the plaintiffs works “related solely to the comparative value of the works” and did not “diminish the incentive for creativity on the part of the students.”

This specific holding would benefit only a fairly limited class of uses, I think, but it is significant to me because it involves the Court’s recognition that the incentive structures for different kinds of works differ.  Since the incentive structure for academic work is significantly different from that of commercial production, I would argue, the scope of transformative fair use for academic work should be broader than it might be for Disney films or songs by U2.  The reasoning of the Fourth Circuit here, its willingness to ask how this specific use impacts the incentive for these specific authors, takes a step toward that kind of argument.

In general this decision is a very comprehensive and cogent fair use analysis that deserves to be widely read.  So why am I still feeling ambivalent?  Because the Court never did address the issue that troubled me most in the lower court’s ruling, the assertion that the “click-wrap” license that the plaintiffs had to agree to in order to get access to the site was valid and enforcable, even thought the plaintiffs were minors and took steps to indiccate that they did not agree to the non-negotiable terms.  The appellate ruling, based as it was on fair use, never needed to address this holding, but I continue to think it was a mistake.  The fact that courts will give such weight to contracts that users can neither negotiate nor avoid suggests to me that this is a problem in need of a legislative solution.  I would like to see the copyright law ameded to state that non-negotiable contracts do not preempt copyright law; that is, that consumers cannot give away their statutory rights as users of copyrighted content unless they have a meaningful chance to do so intentionally and with forethought.  If we could add such a provision to the federal law, my ambivalence about the Turnitin case would vanish altogether.

Ancient texts and a modern database

What could be controversial about the United Nations launching an online database of 1,200 ancient documents from around the world, the World Digital Library?  Surely this is a significant contribution to making scholarship more efficient and open.

But several commentators, such as this one from Slashdot, have noted that the legal page of this database appears to suggest that there is copyright to be reckoned with in these documents.  As Slashdot notes, since some of these materials are over 8,000 years old, this sounds like an unprecedented claim.  It seems worthwhile to take a minute and try to sort out what is being said on this page, and what might lie behind it.

First, it is worth noting that the language the UN uses about copyright is very general and indeterminate.  It merely says that the country that contributed the material is the proper source for copyright information and that it is the responsibility of the user to determine what copyright issues, if any, need to be addressed.  This is pretty much just “cover your (self)” language designed to permit the UN to say “we warned them” if any disputes should arise.  But are there really any possible disputes?

I know of no national copyright law per se that could claim an interest in materials this old for any person.  But that is not to say that governments themselves might not claim such an interest, perhaps under laws designed to protect “national patrimony.”

Another possibility, depending on how the UN site is structured, would be a claim under a database protection law.  Although the United States pretty well rejected database protection in the Supreme Court’s Feist v. Rural Telephone Service case, it is a fact in other countries.  The US Supreme Court said that no copyright protection is available for “sweat of the brow,” so a database that merely compiles public domain documents or facts in an obvious and unoriginal way (like a phone book) is not entitled to protection.  The Feist ruling would probably include a database like the World Digital Library if US law were applied.  But other countries have taken measures to protect “sweat of the brow” by adopting special legislation that gives copyright-like protection to those who compile databases.  The European Union’s Directive on the Legal Protection of Databases is one such law.  If that law applied, and it could well apply to a dispute arising about materials from one of the EU member countries, certain uses of the material in the database would be prohibited.  It is not at all clear that these database laws would prohibit isolated copying of ancient documents found therein, but they would certainly bar wholesale or systematic copying.

The area of database protection is a complex and contested one.  There have been recent protests in Europe arguing that the database directive is ineffective and stifles innovation.  In the US, there have been abortive attempts to introduce similar legislation, but they seem to have subsided, at least for now.  Anyone who would like to know more about the nature and scope of database protection in the United States cannot do better than read Prof. Mike Carroll’s recent blog post on the subject, “Copyright in Databases.”

A call to action

Anthony Falzone from Standford’s Fair Use Project gave a superb lecture on the impact of fair use on scholarship and free speech at the University of North Carolina, Chapel Hill on Tuesday.  I am trying to contain my disappointment over the need to cancel his lecture at Duke scheduled for the day before due to a freak March snowstorm.  I hope that I will soon be able to point Duke folks who did not get to hear Tony, as well as interested listeners from elsewhere, to a podcast of the lecture.  In the meantime, I want to emphasize two aspects of Tony’s talk, one from the very beginning and one from the very end ( but note that the middle was fascinating too).

In setting the context for his discussion of fair use, Falzone made the fairly common point that copyright is a monopoly, which is something we usually disapprove of in the US as economically and socially inefficient and harmful.  Jamie Boyle, in his book on The Public Domain, discusses the reluctance felt by Jefferson and Madison over copyright for this very reason.  But Falzone went a step further to stress that copyright is a monopoly over speech.  For me this fell into the category of things I knew but had not fully considered; Tony helped my really think about what it means to give someone a monopoly over expression in a nation where free expression is the first guarantee in our Bill of Rights.

The message I came away with is that fair use is not really primarily about who has to pay whom, when and how much.  Rather, fair use is a safety valve that protects one of our most fundamental values.  Do we really want a copyright owner, for example, suppressing an expression of political speech such as the Barack Obama HOPE poster or the Ben Stein movie Expelled?  From this perspective, fair use is a fundamental and absolutely necessary part of the fundamental structure of copyright in the context of American values.  It is an incentive for creative expression just as much as the exclusive rights themselves are.  Without fair use, I asked myself, would copyright’s monopoly be unconstitutional?

At the very end of his lecture, Falzone returned to this emphasis to ask his audience to get involved.  Specifically, he remind us that our practices, as librarians and academics, help shape the norms about copyright use.  And courts do consider these norms within various industries and user groups as they rule on copyright matters.  This is why statements of best practices are so important.  Falzone ended his talk by asking us to exercise fair use, especially those transformative uses that are becoming more common in a digital age and which courts tend to favor when deciding fair use cases.  These transformative uses (parody, criticism and comment, as well as all kinds of remixes and mash-ups) are precisely where new creative expression is born; they are wonderful opportunities for teaching and learning.  Here more clearly than anywhere else, fair use serves both the mission of education and the fundamental purpose of copyright law to support new creation.  The message is not that “anything goes,” but that in higher education especially we must not allow the “chilling effects” of fear give us cold feet about creative and socially beneficial fair uses.

Defending hope

Despite a recent appearance on CNN, Anthony Falzone, the Executive Director of Stanford’s Fair Use project, isn’t talking much about his latest case, which is perfectly proper.  Nevertheless, the case has all the necessary elements to attract a great deal of attention.

Street artist Shepard Fairey seems to admit that his used a photograph taken by an AP photographer to create his image of Barak Obama inscribed with the word “HOPE.”  The image became downright iconic during and immediately after the election.  The work has certainly had an impact on Fairey’s career, both positive and negative.  Just yesterday I saw a commercial-like feature about him on the USA Network; he is, they say, “character approved.”  In the spot Fairey comments on the thrill of being a street artist and, as he says, doing something he is not supposed to do.  According to this story, the thrill caught up with Fairey on Friday when he was arrested in Boston, apparently for defacing public property, although the nature of the warrants is not clear.

As the story about his arrest notes, Fairey is also being sued by AP over his use of the photograph to create those famous Obama posters one sees everywhere.  AP is asking for credit and compensation from sales of the image; Fairey is asserting fair use.  Which brings me back to Anthony Falzone, who is defending Fairey in the copyright suit.  Although he acknowledges that fair use is to be the defense, Falzone has otherwise said little, which is the appropriate course for a lawyer in an ongoing case.

Anthony Falzone will be talking, however, about the other high profile copyright cases he has litigated, when he speaks at Duke and at the University of North Carolina on March 2 and 3.  Many of his cases involve both fair use and free speech issues, and they often either directly involve scholarship or have grave implications for scholars.  Some of his previous cases have included helping James Joyce scholar Carol Schloss win agreement that her use of letters in a scholarly book was fair, in spite of objections from the Joyce estate, and successfully defending filmmaker and conservative pundit Ben Stein on fair use grounds when Yoko Ono objected to a brief clip of “Imagine” use in the film “Expelled.”  Perhaps Falzone’s most widely-publicized case was his defense of the publisher of “The Harry Potter Lexicon” against a coyright infringement claim from JK Rowling and Universal Pictures.  About all of these cases, Falzone will have much to say when he visits the Research Triangle.

Falzone’s lecture at Duke is called “From James Joyce to Yoko Ono to Harry Potter: the Impact of Fair Use on Scholarship and Free Speech.”  It will be at 5 pm on March 2, in the Center for Interdisciplinary Engineering, Medicine, and Applied Sciences (CIEMAS) Auditorium A on West Campus.  A reception will follow the talk.  This promises to be an exciting and timely discussion of the role fair use plays in supporting both scholarship and the fundamental values of free expression.  Hopefully many people in the Duke community will come out to hear Falzone, either on March 2 or the next day at UNC.

Security blankets?

The report that some major music companies are considering a blanket licensing arrangement with college campuses whereby the schools would pay into a central collecting agency and the music industry would stop its campaign of litigation, has, quite understandably, generated a lot of Internet buzz. Neither the technorati nor academia really seem sure how to react. To the folks at Techdirt, this is a terrible idea that would amount to a “music tax.” At the Electronic Frontier Foundation, on the other hand, this is official sanction for an idea they have been advocating for a long time. Ars Technica is more cautiously optimistic, and warns against a knee-jerk reaction that anything proposed by the music industry must be bad.

What caught my eye in all the debate, however, was a quote in the Ars Technica piece, attributed generally to EDUCAUSE, in which the licensing scheme was described as “a covenant not to sue.” Certainly an end to the lawsuits and threats of lawsuits directed against students who share music across campus networks would be welcome. But I find the phrase a dangerous gloss on blanket licensing schemes, and it prompts me to consider just how much security these blankets really offer.

The starting point, of course, is to recognize that a license, even a blanket license, is private law — a contract between parties that is binding only on those parties. Such licenses do no impact the rights or obligations of anyone who is not part of the agreement. Thus if three of the four major record labels signed up for a blanket license, and thus promised not to sue college students, the fourth label could continue to pursues such lawsuits unimpeded.

Recognizing this legal situation is especially important for understanding the Annual Campus License offered to institutions by the Copyright Clearance Center, which is a blanket license that much more directly impacts the scholarly communications system. Under that license, some percentage of the publishers who license their works through the CCC (thus a percentage of a portion) agree to accept a blanket payment in exchange for permission to make all of the uses of covered content that the campus wants for the year. Uses covered by the license include classroom distribution, e-reserves, inclusion in a course management site and course packs, but not interlibrary loan. The license applies only to textual material produced by the participating publishers; music and video, as well as text published by non-participants, is simply outside its scope.

Campuses seem to approach this license in two different ways. Some see it realistically as but one tool in the struggle to use copyrighted content in responsible ways. For those campuses, the license may help save time and make costs more predictable, but it will not necessarily streamline the permissions process, since it will require that each work for which permission is needed be checked against the list of participants in the license and individual arrangements sought for items not included therein. Other campuses regard the ACL as a kind of covenant not to sue, assuming that they are safe, or at least safer, regardless of how careful (or not) their permissions process is, as long as they pay the large cost of the license. By this logic, finding the items used that are both infringing (i.e. not fair use) and not covered by the license would be a difficult and unrewarding task for potential plaintiffs, even if they do not participate in the ACL. And there might even be peer pressure within the publishing world not to go after ACL subscribers, since they have an agreement with, and are paying lots of money to, many of the big players. The CCC is careful not to endorse this view of the license, but there are persistent whispers along these lines in the academy and even some anecdotes about individual marketers making these types of assurance “on the QT.”

One aspect of these blanket licenses that I think deserves attention on college campuses is their resemblance to the “big deals” for periodical databases that many academic libraries signed onto in the past decade or so. In those deals, a high but relatively predictable price is paid for access to lots of content, a significant portion of which is probably not really usable in the specific setting. Some libraries have come to regret these deals and to long for the days of disaggregated purchases of content, when decisions could be made based on actual expected use; the classic cost/benefit analysis. A similar dynamic seems likely around blanket licenses, and institutions may have even less control over their costs with copyright licenses than they did with the big serials purchases. In the serials world, we typically negotiated around two cost control mechanisms – the ability to cancel some small percentage of little used journal titles within the scope of the larger collection and/or a cap on the annual increase in subscription fees. It seems unlikely that the licensors for either the music or the publishing industry would agree to allow campuses to delete some providers whose content they do not expect to use from the license in order to reduce costs. And we just do not know what annual price increases will look like for these licenses. Finally, we should remember that these licensing deals, backed as they are by the threat of lawsuit, will be even harder to get out of, once a campus has signed up, than the big serials agreements have been. That fact, and its implications for budget planning, should give us pause as we consider how much security these blankets really offer.

Stuck in the middle

It was with both a sense of resignation and a deep awareness of the irony of the situation that I read this short article in the Chronicle of Higher Education (and the comments that follow it) titled “Free our Libraries, Cry University Presidents.”  Such a brief report cannot convey (I hope!) all that actually went on during this ‘summit” of university presidents, but the article certainly implies that one aspect of the event was assigning blame to university libraries for our inability to make everything free for all on the Internet.  The presidents in attendance, we are told, “urged libraries to halt what they described as an assault on the public’s right to knowledge, done in the name of copyright.”

It is, of course, both ironic and ill-informed to blame libraries for an assault on the public’s right to know.  Our professional organizations, after all, have an official and highly visible commitment to that right that is, as far as I know, unmatched by any other such group.  To assign that blame because of libraries’ regard for copyright deepens the injustice of the position, if that really is the stance that was taken.  Copyright, of course, is a legal fact.  It is also, at its core, a system designed to support “the public’s right to knowledge.”  Librarians often believe, as these university presidents apparently do, that that system has become badly out of balance and is no longer serving the purpose for which it was created.  But neither group may simply disregard it because they find it inconvenient.

What I find most interesting about the position, as it is presented in the article, is how accurately it reflects the uncomfortable space librarians and others who are concerned about copyright currently occupy in higher education.  Many faculty members and administrators press us to tell them that what they want to do with copyrighted material is legal.  Often they hold the simplistic view that anything done in the name of education is acceptable.  Sometimes the sense of entitlement is more visceral than this, reflecting what I occasionally call (based on my background as a theological librarian) the “The Lord has need of it” syndrome.  Librarians are often the ones who have to say “no” in many of this instances; we are the ones who usually have at least some training in copyright issues, and we are also the ones who sign the licenses for access to so many campus resources.  Undoubtedly there are librarians who are overly cautious, as well as a few who adopt the same insouciant attitude they find in others on their campuses.  But by and large, it is librarians who try to instill respect for copyright, at least as a good idea if not as a successful implementation of that idea, and who explain its limitations to our colleagues.  And yet, from the other side, librarians are sometimes vilified by the major copyright holders as willful scofflaws; Pat Schroeder’s remark, in her role as President and CEO of the Association of American Publishers, that all librarians are pirates is justly infamous.  All this makes it difficult for librarians, committed as we are to access for all and to continuous learning and creativity, to know where to stand.  The old saying that if you are making both sides angry at you, you are probably doing something right, may be true, but it is not very comforting for a profession founded on public service.

To be fair to the meeting that was held last week, however, it is important to recognize that the “cry” of “free our libraries” comes from a paper prepared for the event by Richard Johnson, founding Executive Director of SPARC and a consultant for a major organization of academic librarians.  His point in this short paper is not the overly simplistic one implied by the Chronicle article, but the more complex and nuanced argument that library partnerships with commercial interests need to be examined carefully and negotiated to promoted a balanced set of interests that does not shortchange the public, especially in terms of access to public domain works.  Johnson does not call for librarians simply to free themselves from the “bonds” of copyright at all; instead, he suggests quite rightly that:

we need new funding strategies, coordinated library action, and
forward-looking principles to guide us. It’s time to sort out the right roles and
responsibilities for companies, libraries, governments, and private funders and to get
about the work of building an Internet public library that puts the public first.

If this was the real focus of discussion at the Boston Libraries Consortium summit, even poor, abused librarians, caught, as they are, in the “no man’s land” of the “copyfight,” surely can agree.