Category Archives: Libraries

Revisiting Section 108

Earlier today the U.S. Copyright Office released its long-awaited review of improvements to Section 108 of the Copyright Act, the section which grants limited, specific exceptions to copyright for libraries and archives. Over a decade ago the Office convened the Section 108 Study Group* to assess improvements to this section, and in 2008 that group produced its report. Since then (and with recent inquiries from the Office to stakeholders) we’ve been waiting to hear from the Copyright Office about its views on updates to Section 108. This Section 108 “Discussion Document” does just that.

Before getting into the document I want to start with two observations. The first is that Section 108 is horribly outdated. Most of its text is exactly the same as enacted in 1976. The piecemeal updates that have been added to address modern library and archives practices, including online uses, haven’t worked well and are awkward additions. I–and many others–have written about the need to update Section 108.

The second is that I’m leery of asking Congress to revise any part of the Copyright Act, including Section 108. From someone who thinks that copyright law already unnecessarily restricts access to lots of information in ways that have no positive effect on the copyright system’s underlying purpose–encouraging the creation and dissemination of new creative works–I don’t think Congress has a great track record on legislative revisions. Since the 1970s Congress has consistently made copyright terms longer, dramatically expanded the number of works protected, and has made using those works riskier. Asking Congress to revisit Section 108 could mean that it gets much worse, rather than better.

All that said, I think many of the Office’s suggestions are pretty good. I can’t go into every detail in this blog post–the Discussion Document is around 60 pages long, and it needs every one of those pages–so, for now, I thought I’d point out the top three positives I see in this document:

1) The Office suggests in a number of places removing hard numerical limits on the number of copies allowed. For preservation purposes, for example, the proposal would allow libraries, archives, and museums to reproduce works “as many times as is reasonably necessary for preservation and security.” This is a major problem under the current statute, which generally only allows for making three preservation copies. Perhaps more significantly, the proposal would also low eligible institutions to make incidental, temporary copies that are needed for making resulting preservation copies and for copies made for users. This is important when thinking about digital access because it would eliminate concerns about whether 108 can apply at all when incidental copies are made in the course of transfer from one machine to another.

2) It would expand the categories of works to which Section 108 applies. The current statute makes several Section 108 exceptions inapplicable to musical works, pictorial, graphic or sculptural works, and to motion picture or other audiovisual works. That restriction currently limits 108’s usefulness–and makes it all the more difficult to understand and apply–without providing a clear benefit for rightsholders of those kinds of works. This document also reframes how the Section 108 exceptions would apply to “published” versus “unpublished” works (the current Section 108 treats unpublished works differently, with the idea that unlike published works, there generally isn’t a commercial market to be harmed by the use of those materials ). The new proposal opts instead to make distinctions based on whether the work was ever “disseminated to the public” by the copyright owner. “Publication” is a notoriously difficult concept, so the move away from it to something a bit broader is welcome, though I’m not sure the concept of “disseminated to the public” is going to be easier to apply in practice.

3) It suggests that institutions should be able to provide remote digital access to users, albeit in some cases limited to one user at a time, for a limited time. This most directly applies to works “not disseminated to the public,” (i.e. unpublished works). For archives, this enhancement could be significant when thinking about how to provide access to preservation copies. Would an online reading room, with technology to allow for controlled digital lending, be permissible under these terms?

The Office’s 108 document also has parts that are likely to cause some controversy. One big one is a suggestion that eligible libraries, archives, and museums could be exempt from copyright liability for violating non-negotiable contract terms that prohibit institutions from engaging in preservation activities otherwise permitted under Section 108. I think this is an incredibly important suggestion, given the number of click-wrap, consumer-oriented license agreements that libraries enter into so they can provide electronic access to their patrons. Many of those contracts prohibit making copies necessary for preservation purposes, but if libraries aren’t saving copies there is a great risk that in the long term, those works may one day become entirely inaccessible to everyone.

Another part of the document likely to cause some controversy is the requirement that eligible institutions implement reasonable digital security measures. I understand the desire for such a limitation, but this is an area where the devil is going to be in the details. Who decides what is reasonable is an open question, and how compliance with that provision is monitored and assessed could be extremely burdensome for some institutions.

Overall, I have to say that I’m impressed. I think the Office did good work in pulling together the results of the Section 108 Study Group report as well as feedback from stakeholders in creating this document. As proposed, the Section 108 envisioned in this document still wouldn’t provide all or even most of what libraries, archives, and museums need to fulfill their missions,  and fair use would remain an important and probably overriding consideration when making uses of copyrighted works. But, as a sort of safe harbor for institutions seeking certainty for activities that they commonly engage in, the types of improvements outlined in this document would be welcome and a great help in facilitating modern (as opposed to 1970s-era) libraries, archives, and museums.

___________

* The 108 study group was jointly convened by the The National Digital Information Infrastructure and Preservation program of the Library of Congress and the Copyright Office.

LSU v Elsevier – Paying Twice (or More) for Scholarship?

When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.  

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense.  The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations,  but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do? 

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?

Moving into the open

Since it was announced that I will move shortly to the University of Kansas, several people have asked me if I intend to continue blogging, and have kindly encouraged me to do so.  This blog, of course, will remain one of the communication outlets for the Scholarly Communications program at Duke, and my Duke colleagues Paolo Mangiafico and Haley Walton, as well as others, will fill the space, I am sure, with interesting and worthwhile reads.

I do intend to keep blogging, however, at a different site and in a different format.  Over the past few weeks, some colleagues and I have assembled a great group of people interested in scholarship, publishing and libraries, and I am excited to announce a new, collective blog called IO: In the Open.

On this new site, this group of people will be writing about how scholarship and scholarly publishing is changing and can change in ways that better adapt to new technologies, needs, and economics:

Amy Buckland
Institutional Repository Manager, University of Chicago Library

William Cross
Director, Copyright & Digital Scholarship, North Carolina State University Libraries

Ellen Finnie
Head, Scholarly Communications & Collection Strategy, MIT Libraries

Patricia Hswe
Digital Content Strategist, Penn State University Library

Lisa Macklin
Director, Scholarly Communications Office, Emory University Library

John Sherer
Director, University of North Carolina Press

Sarah Shreeves
Associate Dean for Digital Strategies, University of Miami Libraries

Kevin Smith
Dean of Libraries, University of Kansas

Claire Stewart
Associate University Librarian for Research & Learning, University of Minnesota

Shan Sutton
Vice Dean, University of Arizona Libraries

The title of this new blog should not surprise folks.  It is born out of the conviction that scholarship should be open because…

Scholarship in the open is better business – it provides a clearer perspective on what it actually costs to produce articles, books and other scholarly output.

Scholarship in the open is better for libraries – it connects us more directly with our researchers and with the life entire life cycle of research. It improves our ability to disseminate the outcomes of research and get the materials they need into the hands of students, teachers and others quickly and efficiently.

Scholarship in the open pushes us towards better copyright laws — it encourages us to think about how copyright could better align with author incentives and reminds us that, because the reasons creators create are so various, the law needs more flexibility than it currently has.

Scholarship in the open is better scholarship – it can be read and evaluated by a much larger and more varied audience. It takes the initial process of evaluating works of scholarship out of the hands of a small elite, some of whom are ill-prepared for the task, and offers the potential for more diverse ways of measuring impact and providing more complete information for the hiring, tenure and promotion process.

Our first blog post at IO: In the Open, by Ellen Finnie of MIT, will focus on the vital issue of how we spend our money in libraries, and how we can think in broader terms about the value of scholarly resources.  Ellen’s post, with its interesting analogy to food-supply chains, will be published on IO within the next day or so.

I hope that the people who have followed Scholarly Communications @ Duke so faithfully over the years will also subscribe to IO: In the Open.  We believe you will find a interesting, committed and diverse set of voices there that will help shape the discussion of these issues in years to come.

If you follow this blog on Twitter (Twitter handle @klsmith4906), that account will also tweet out new post from IO: In the Open.  Or, you can follow our new IO Twitter account:  https://twitter.com/IOIntheOpen.  You can also subscribe directly to the IO: In the Open blog posts by using the widget on the side of the IO page.

Prognosticating about the new LoC

It is safe to say that President Obama’s  nomination of Dr. Carla Hayden to be the next Librarian of Congress drew rave reviews from the library community.  Most Librarians of Congress have been researchers and academics rather than professional librarians.   That tradition has worked well over the years, but times are changing quickly for libraries these days.  The technical, planning and business skills that come from years of daily service in a large library system, which Dr. Hayden has, seem more important than ever now.  Indeed, some of the problems the Library currently has could be attributed to neglect of the technical side of library work by the current Librarian, who clearly stayed in place too long.

So it is not a surprise that library organizations were quick to praise the nomination of Dr. Hayden, who is currently CEO of the Enoch Pratt Free Library in Baltimore.  As Inside Higher Ed tells us, Dr. Hayden is credited with improving the finances at Enoch Pratt and with new technological initiatives.  Just what the LoC needs.

It is also interesting to see that open access advocates have been equally pleased with this nomination.  Public Knowledge, for example, issued this statement welcoming the nomination.  The reaction from writer, blogger and open access advocate Cory Doctorow was a little less restrained, referring to Dr. Hayden as “a rip-snortin’, copyfightin’, surveillance-hatin’ no-foolin’ LIBRARIAN.”  And TechDirt notes that the President explicitly mentioned open access is his statement about Dr. Hayden.  As a reason for nominating a candidate for Librarian of Congress, support for open access is as unprecedented as is Dr. Hayden’s gender or ethnic background.

All this begs the question of what the chances are that Dr. Hayden will be confirmed.  Of course, she might encounter difficulties just because of the general dysfunction in Congress or because of a desire to obstruct anything the President thinks is a good idea.  Carla Hayden’s nomination may just be collateral damage in the ongoing conflict between the White House and Capitol Hill.  But let’s assume for a minute that the nomination does move through the process in Congress — it would be very unusual to see a fight over a Librarian of Congress, after all — and consider the possibilities.

One consideration would be the attitude of the groups that lobby on behalf of Big Content.  The RIAA issued this statement in support(?) of the nomination, which certainly seems to damn with faint praise.  In fact, Cory Doctorow reads this statement as evidence that the RIAA is afraid of Dr. Hayden.  Could it be that she might push the Copyright Office a little bit out of the embrace with Big Content that it has enjoyed in recent years?

This possibility points us to the real drama of the nomination, in my opinion (if drama is not too, well, dramatic a word to use).  The issue, anyway, is the effect that Dr. Hayden’s nomination might have on the efforts to move the Copyright Office out of the Library of Congress.  The reasons given for this effort, which I wrote about here and here, seem twofold.  The first is the fact that the LoC technical infrastructure has become out of date.  As I said in the earlier post, that is something we might expect a new Librarian to address, and it seems certain that Dr. Hayden would be well-placed to make those improvements.  So if that is the concern, it seems that her appointment should slow the momentum to make the CO an independent agency, or to move it to the Department of Commerce.

But statements regarding the idea of moving the CO also make some veiled references to a conflict of mission between the Copyright Office and libraries.  This can only refer to that trend toward the CO becoming a lobbying arm of the content industries, and that conflict — it is shameful, in my opinion, to admit publicly that the Copyright Office is not first and foremost dedicated to the public interest, as are libraries — is only likely to get worse with the nomination of Dr. Hayden.  So if we see foot-dragging and an unwillingness to act on this nomination, I think there will be more behind that inaction than just generic reluctance to accept this President’s nominations.  I think we will be seeing the quiet but firm opposition of the lobbyists from Big Content, who may be hard-pressed to oppose Dr. Hayden openly but will very likely want to sabotage the nomination in order to preserve their regulatory stranglehold over the Copyright Office.

Should you #DeleteAcademiaEdu?

[ Note: Many readers of this blog have probably heard by now that Kevin Smith, who has been the primary author here, will soon be leaving Duke to be the Dean of Libraries at the University of Kansas. We do intend to keep the blog going, and to continue to address the same issues you’ve come to expect from the site, though with a greater variety of authors. So do stay tuned. This post is by Paolo Mangiafico.]

Yesterday afternoon a kerfuffle arose on Twitter about Academia.edu, a social networking site for academics, where many academic authors have profiles, share their publications, and connect with other scholars. You can read about the beginning of the controversy in this article the Chronicle of Higher Education posted this morning.

The ensuing tweetstorm followed a fairly typical trajectory – moral outrage, call to action, a hashtag, and then of course the inevitable backlash, with each side calling into question the integrity of each other’s motivations, or at least the consistency of their actions.

The chief concern, or at least the one that appears to have caused the most heated debate initially, was whether paying for promotion of one’s scholarly work was equivalent to “vanity publishing”, but the discussion evolved into the broader issue of whether the fact that Academia.edu is a commercial service meant academics should avoid it, with several people on Twitter calling that out as hypocrisy, given the many other commercial transactions that academic life is entangled with.

My own opinion is that this is a straw man argument, and it misses an opportunity to have a more nuanced discussion about what’s really at stake here. This isn’t a morality play, and it’s not about whether charging for “monetizing” something is in itself a bad thing – for me it’s about choices, and making informed choices about keeping or ceding control to one’s own work. It’s also about being open vs being closed. Despite the impression that #DeleteAcademiaEdu is just railing against capitalism, I’d argue that it’s really about promoting a more competitive marketplace, one where the data is open for any number of potential services (consortial, member-supported, or even commercial) to do interesting and useful things with it – may the best service win, or may many complementary services thrive.

The challenge with sites like Academia.edu is that this is not possible. By most accounts, Academia.edu is a fine service, and clearly it’s meeting a need, as the number of academics who have profiles in it shows. They are doing very well at motivating academics to put their profile data and publications there. But what happens to that information once it’s there? By my read of the site’s terms of service, no other uses can be made of what you’ve put there – it’s up to Academia.edu to decide what you can and can’t do with the information you’ve given them, and they’re not likely to make it easy for alternative methods of access (why would they?). There doesn’t appear to be a public API, and you need to be logged in to do most of the useful things on the site (even as a casual reader). They were among the first to create enough value for academics to encourage them to sign up, and kudos to them for that, but does that mean your profile data and publications should be exclusively available via their platform? This is what’s called “vendor lock-in” – it’s very good for the vendor, not so good for the users.

While it’s understandable that companies will try to recoup their investments through such approaches, it nonetheless goes against the ethos of academia, and of how the Internet functions best. A few years ago at a conference I heard a speaker say

On the Internet the opposite of ‘open’ is not ‘closed’ – the opposite of ‘open’ is ‘broken’

(If I remember correctly, it was John Wilbanks)

So yesterday when I first started reading some tweets about people deleting their Academia.edu accounts, I tweeted

VIVO is an open source, open access, community-based, member-supported profile system for academics. It has been implemented by many universities and research organizations, and makes linked open data available for access and integration across implementations. In some institutions, like my own, it is connected to our open access institutional repository, so Duke researchers can easily make the full text of their publications be linked directly from their profile – open to anyone, no login required, always in the author’s control. And the custodians of the system and the data are the researcher’s home institution, as well as…  well, here I’ll quote from an article Kevin and I wrote a couple of years ago:

“this brings us to a discussion of another major player in this ecosystem that we have not yet addressed—a set of organizations that are mission driven, rather than market driven; that are widely distributed and independently operated, and therefore less vulnerable to single points of failure, and that were designed to be stable over long periods of time; that are catholic in their scope, strong supporters of intellectual freedom, and opponents of censorship and other restrictions on access to knowledge; and that are in full alignment with the mission of learning, teaching, and research that constitutes the primary reason why authors write academic articles. We are, of course, talking about libraries.”

This, ultimately, is why I think scholars will be better served by having the core data for their profiles and their research tied to open systems like VIVO, and to their universities and their libraries. Sure, the interfaces might not be as elegant, and we might move more slowly than a commercial service, but we’re in it for the long haul, we share your values, and we’re not going to try to lock in your data.

If someone wants to harvest the data from VIVO and our repository and layer on a better social networking or indexing service, that’s great – the data is available for that, and we have an open API. Do you want to charge for the service? No problem, as long as the people you’re charging know that they’re paying for your service add-ons, and not the data itself, which remains open and free to anyone else to use it outside the paid service. Do you have a service (like Academia.edu) that’s really good at convincing authors to enter their CV and upload their articles? Wonderful – make the data available unencumbered, and we might be willing to pay you to do the collecting for us (especially since institutional repositories haven’t been as successful in doing so).

The key reasons why authors should choose first to work with their scholarly communities rather than purely commercial enterprises isn’t that making money is bad – we all have to earn a living – but that the goals and values aren’t necessarily in alignment. I’ve used a lot of words to say something that Katie Fortney and Justin Gonder said in December (in “A social networking site is not an open access repository”) and Kathleen Fitzpatrick said a few months before that (in “Academia, Not Edu”), but the Twitter discussion sparked yesterday has made many more people aware of this issue, so I wanted to underline these ideas, and say a bit more about it than would fit in my tweets yesterday afternoon.

You have a choice, and the choice I hope you will think more about is whether you feel more comfortable investing your time and efforts with your home institution and your library, whose incentives and values presumably align with your own, and who will contribute to an open ecosystem, or with a service whose incentives and values and life span are unknown, and whose business model relies on being closed. If you’re comfortable with the trade-offs and risks, and willing to exchange those for the service provided, then don’t #DeleteAcademiaEdu. But I hope you will use this opportunity to look into whether alternatives exist that will meet your needs while keeping your options open and your data open, and preserving your ability to keep control of your work and make sure it’s not helping sustain an ecosystem that’s broken.

——

If you’ve read this far, I hope you’ll also tolerate this shameless plug for an upcoming event that will be a forum for addressing many of the issues discussed above – the Scholarly Communication Institute. The theme of SCI 2016, to be held in Chapel Hill, NC, in October, is “Incentives, Economics, and Values: Changing the Political Economy of Scholarly Publishing.” We invite teams to submit proposals of projects they’d like to work on that fit this theme, and to build a dream team of participants they’d like to spend 4 days with working on it. For proposals that are selected, we pay expenses (thanks to a grant from the Andrew W. Mellon Foundation) for the team to come to the North Carolina Research Triangle and work on their project alongside several other similar teams, in an institute that’s part retreat, part seminar, part unconference, and part development sprint. You can find out more about the institute at trianglesci.orgproposals are due March 14, so if you’re interested, start putting together your team soon.

Copyright MOOCs, new and refreshed

When my colleagues Anne Gilliland and Lisa Macklin and I released our first Coursera MOOC about copyright, called Copyright for Educators and Librarians, we were very pleased with the reaction.  Although our enrollment for that first MOOC was, at just over 10,000 participants, rather low by MOOC standards, we had a higher than normal percentage of completions, and the feedback we got from colleagues was quite positive.

That course ran in the summer of 2014.  In July of 2015, we were able to release a new version of the same course in an on-demand format, meaning that participants are able to start the course whenever they wish and can proceed at their own pace without a proscribed ending point.

The move to on-demand is important because it brought us a bit closer to our overall goal, which has been to provide a form of copyright education that is accessible in the several sense of that word to all of our colleagues in education, especially.  The course is still free, although there is a small fee if the participants want to receive a “verified certificate” of completion.  We began this project aware that the Center for Intellectual Property at UMUC had recently closed, so the education community had lost access to their series of course offering on copyright that carried continuing education credit.  Our hope was to provide an opportunity to learn about copyright that was free to all, but also could be used, through the verified certificates, by those colleagues who want to learn about the subject AND get some form of (less expensive) credit for this professional development activity.

Now we have taken another big step toward that goal, with the release today of our second MOOC, on Copyright for Multimedia.  Like the first course, this MOOC is on-demand, free to take, and relatively short – four substantive modules and an introduction.  In this second course, the modules focus on four different media – data, images, music and film.  It grew out of our awareness how often the questions brought to us focus on different media.  Many of our colleagues seem confused about how copyright “rules” from the print world, apply in an environment rich with diverse forms of expression and communication.  This confusion is understandable, since copyright was born with print technology and continues to adapt only uncomfortably to these “new” media.

When we are asked about what “copyright for music,” or “copyright for film,” looks like, we try to emphasis that the one copyright law in the U.S. is intended to apply without regard to medium of expression.  Nevertheless, it is perfectly true that some provisions of the law are media-specific.  More significantly, the circumstances in which different media are used are often quite different from the more familiar facts surrounding the use and distribution of print.  There is an lawyer’s maxim that says, “change the facts and you change the outcome,” and that is never more true that when we are talking about different media.

Our new MOOC tries to address these differences, and also to further develop the framework for analyzing a copyright issue that we built in the first course.  Now that both MOOCs are available on the Coursera platform, we hope that they will be a continuing resource to improve copyright understanding for our colleagues.

I want to add a couple of personal notes to this announcement of the two-part series of MOOCs on copyright.

First, I want to say what a wonderful experience it has been to work with Lisa and Anne, who are as smart and creative about teaching as they are about copyright, as well as with the online course team at Duke.  I want especially to note my sense of awe at the creative, complex and realistic scenarios that Anne Gilliland can think up to tease out the implications of copyright in different situations; I hope our participants find them as thought-provoking and amusing as I do.

Second, because of the announcement issued today about my new position as Dean of Libraries at the University of Kansas, and thus my departure from Duke, it seems unlikely that I will participate in any more MOOCs in this series.  Our original plan was for three courses, but the two we now have stand alone and, we hope, also work together as a series.  It is now an open question whether there will be a third MOOC in this series, but the process of creating these two has been delightful, and the product, I profoundly hope, useful to our colleagues and to many others.

Rebels in the Campus Bookstore

A guest post by Will Cross, Director of Copyright and Digital Scholarship at North Carolina State University

As the semester winds down most normal people are sweating through final projects, scheduling visits with family and friends, or looking forward to a well-deserved holiday break by the fire (or at least the warming glow of the new Star Wars movie).  I can’t stop thinking about textbooks.

Several recent events have kept this topic on my mind.  First, Kevin and I are preparing to teach a class in the spring and we’re currently putting the finishing touches on our assigned readings.  Sitting at the breakfast table working through the syllabus, I was struck by a seemingly-unrelated comment from my wife, Kimberly, who is finishing her first semester in a doctoral program.  Making her own plans for the spring, she noted “I need to decide if I’m going to renew my statistics textbook.”

Readers who have been out of school for a few years might be surprised that many students like Kimberly rent, rather than purchase, their more expensive textbooks.  If textbook rental companies like Chegg and College Book Renter are not familiar names, you may also be surprised by how quickly textbook prices have spiraled out of control in the past decade.  Increasing at nearly triple the rate of inflation, textbook costs have outpaced rises in health care and housing prices, leaving students with an expected bill of more than $1,200 a year.

Faced with these unsustainable costs, students like Kimberly find themselves in an arms race, seeking alternative channels to acquire textbooks while publishers work to plug leaks in their captive marketplace.  Indeed, one of the largest copyright cases decided by the Supreme Court in recent years resulted from publishers’ attempt to create a “super-property” right in order to quash the sale of less expensive international textbooks.  The following year a casebook company attempted something similar using license provisions to strip property rights from students who “purchased” (ironically) their property law textbook.

While prices have gone up, student spending has not always followed suit, with many students renting, borrowing, or pirating textbooks.  Many more simply choose their courses and majors based on the costs of textbooks or delay their purchases to determine the extent to which a title is used in class, setting them back days or weeks in assigned readings.  Of greatest concern, a recent PIRG survey revealed that more than 65% of students simply muddle through with no textbook, even though the majority recognized that this presented a “significant concern” for their ability to successfully complete the course.  As a result, more than 10% of students fail a course each year because they simply cannot afford the book.

Textbook costs have priced many students out of equal participation in higher education and colleges and universities should regard this as social justice issue that threatens students’ academic progress.  Students have written powerfully about these issues on social media, using hashtags like #textbookbroke to document the burdens

created by high prices.  For example, tweets from Kansas’ #KUopentextbook project have documented the harm done by students’ lost opportunities to travel to conferences, take unpaid internships, and compete on equal footing in the classroom.  As one student put it, “my wage shouldn’t determine my GPA.”

Closed, commercial textbooks also do significant harm to instructional design and academic freedom, forcing instructors to use one-size-fits-all books rather than diverse, tailored course materials.  This issue received national attention in November when an instructor was formally reprimanded for refusing to assign a $180 algebra book written by the chair and vice chair of his department.  As SPARC’s Nicole Allen notes, the well-intentioned practice of assigning a single book for multiple sections was designed to support a strong local used-book market but in practice it often entrenches a system of static commercial works.  It can also homogenize educational materials, limiting them to publisher-approved narratives that inhibit an instructor’s ability to bring her own voice and experience into the classroom.  Indeed, many publishers include value-added materials like test banks and pre-made assignments designed to create textbooks that are fully “teacher-proof.”

Students are often caught in the crossfire of a broken textbook market where books are sold by a small group of for-profit publishers who control 80% of the market, and purchasing decisions are made by faculty instructors but students are asked to pick up the bill.  This situation – where for-profit publishers leverage faculty incentives to exploit a captive academic market – should sound familiar to anyone working to bring open access to scholarly publishing.  The scale, however, is quite different: the textbook market exceeds the scholarly journal market by roughly $4 billion each year.

As they have with open access, academic stakeholders have begun to rebel, designing open materials that are not just cheaper than closed works but are positively better.  These open educational resources (OER’s) may be peer-reviewed Creative Commons-licensed textbooks like those found in Rice University’s OpenStax program or the University of Minnesota-led Open Textbook Network. They also encompass modular learning objects like those found in the MERLOT repository or even full courses like those offered through MIT’s OpenCourseWareCommunity colleges and system-wide efforts like Affordable Learning Georgia have been particularly effective in this space, with programs like Tidewater’s “Z-Degree” that completely remove student textbook costs from the equation.

In the past several years, academic libraries have joined the fray, raising awareness, offering grants, and collaborating with faculty authors to create a diverse body of open educational resources.  In the NCSU Libraries, we have followed the outstanding examples of institutions like Temple and UMass-Amherst by offering grants for faculty members to replace closed, commercial works with open, pedagogically-transformative OERs.  These projects create massive efficiencies for libraries – spending a few thousand dollars to save students millions – and a growing body of empirical data indicates that student learning and retention are improved by open materials.

It’s no surprise that an open textbook would be more effective than one that a third of students can’t afford to buy.  The greatest potential for OERs, however, comes from the way they empower instructors and engage with library expertise.  The “teacher proof” books offered today frequently reduce instructors to hired hands, reciting homogenized narratives approved by for-profit publishers.  In contrast, as one recent study concluded, an OER “puts ownership of curriculum directly back into the hands of teachers, both encouraging them to reflect on how the materials might be redesigned and improved and empowering them to make these improvements directly.”  Combined with support from libraries for instructional design, copyright and licensing, and digital competencies, OERs have the potential to transform pedagogy at the deepest levels.

For today’s students, textbook prices mean more than just a few extra days of subsisting on ramen noodles.  Too often, students have to choose between adding another thousand dollars to an already historical debt load or trying to get by without essential resources and closed, and commercial textbooks often leave faculty instructors with no choice at all.   These, to borrow a phrase, aren’t the books we’re looking for.

Swatting three bugs at once

In was warm here in North Carolina over the Thanksgiving holiday, and, like many of our neighbors, we left our doors open during the day to enjoy the pleasant breeze.  The downside, however, was that while watching a football game on Sunday, I found myself swatting ineffectively at several small insects that found their way into the house in spite of our screens.  I was reminded of that experience today (the weather is sadly much cooler) when a question about ILL and DVDs was forwarded to me.  It seemed there were three different misapprehensions at work in the question, so I want to take this opportunity to swat these three “bugs” in one blog post (but I am absolutely am not comparing any of the folks who posed this question to insects; it is just that the misunderstandings of copyright law represented therein are “pesky”).  In addition to debunking these three worries, I also want to acknowledge two caveats that arose as I discussed this situation with some colleagues.

So here is the problem.  A librarian is searching for a DVD of a relatively obscure foreign-language film from 1938, and concludes that she cannot obtain a copy through ILL because the professor who is requesting the film plans to show it in her classroom.  The request went to a librarian list as a plea for help in finding a copy of the film to purchase because, the librarian had concluded, ILL was not an option.

As I say, I think there are three potential misapprehensions behind this conclusion that sometimes cause librarians to restrict their options for obtaining material out of a misplaced fear of copyright problems.

The first possible reason someone might be hesitant in this situation is the notion that audio/visual works cannot be loaned through ILL.  It is easy to see the source of this mistake, since various A/V materials are explicitly excluded from the two provisions in section 108 of the copyright law that authorize copying for ILL (subsections d and e).  But we must remember that those two subsections of section 108 are only about making copies for ILL; they have no impact on the issue of loaning originals.  So where an original of a DVD (that is, a lawfully-made copy that is made with the direct authorization of the rights holder) is requested, ILL is perfectly OK.

Now here is one of the caveats.  Many institutions decide not to loan audio/visual works because of work flow and availability issues.  They may fear damage that can occur during mailing.  Those are perfectly fine reasons to decline to loan a DVD, and the holding library is entitle to make such a decision.  Just because the law allows a practice does not mean any particular person or entity is required to do it.  But it is important to recognize that a decision not to loan A/V works through ILL is just that, a decision.  It is not based on a legal prohibition.

The next potential misconception here is that the doctrine of first sale, which is what really does underlie all lending of originals from a U.S. library, somehow does not apply to the particular DVD in question.  But first sale, found in section 109 of the copyright act, does allow the lending of any type of original of a copyright-protected work (with a narrow exception for computer software that is not relevant to this discussion).  Whether it is a copy of a book, a filmstrip, a music CD, or a DVD, first sale — which is an exception to the exclusive right over distribution — allows lending of the lawfully made original.  It does not matter if that loan is accomplished through ILL, or library reserve, or simply between two friends.  Nor does it matter, after the Supreme Court ruling in Kirtsaeng v. John Wiley, where the lawfully-made original came from; as long as it was original made with the consent of the rights holder (i.e. not a bootlegged copy) it can be loaned.

Here is a good place for my second caveat.  These rules from the copyright act about ILL, lending of originals and, in a moment, classroom showings, are default rules.  They are in place unless they have been changed by an agreement between individual parties.  Where there is such an agreement, it is the agreement that provides the rules and restrictions for those parties, while the default rules of the copyright law apply to everyone else and in regard to any other topic or material.  So if the specific DVD was obtained under a license that prohibited lending or ruled out classroom showings, that license should be obeyed.  Likewise if the film is part of a licensed database.  But most individual DVDs do not come with their own license.  Instead, they are purchased under the default rules for distribution, performance, and lending that I am describing here.

Which brings me to the last potential misunderstanding, that a borrowed DVD cannot be used for a classroom showing.  Classroom showing is allowed, as most academics know, as an exception to the exclusive right over public performance.  Actually, the exception is somewhat broader than in-class performance; it allows a public performance or display of a copyrighted work in any “face-to-face teach activity” that takes place in “a classroom or similar place devoted to instruction.”  So it is easy to imagine a film showing that would qualify, as part of an in-person teaching activity, even when not directly connected to a scheduled class or a regular course.  More importantly, for our issue, the copy used for such a showing need only be “lawfully-made,” the same requirement as for the application of first sale, described above.  There is nothing to prevent a classroom showing of a DVD that is borrowed from the library, from Redbox, from your neighbor, or through ILL.

This problem has given us a chance to examine three potential misunderstandings that can sometimes cause librarians to restrict their own activities unnecessarily, out of fear of copyright issues.  It is easy to see how such misconceptions arise, since the law is complicated on these points.  But, properly understood, the law often gives more leeway to libraries than we often realize.  It is nice to have the chance to dispel these myths.  Now if I could just get those bugs out of the house!

Steps toward a new GSU ruling

It looks more and more like we will get a new ruling from the trial court in the Georgia State case about what is or is not fair use for digital course readings.  The case, of course, was reversed and remanded to the trial court after the publishers appealed the initial decision to the 11th Circuit, with instructions to produce a new opinion consistent with the Court of Appeals ruling.    The publisher plaintiffs then asked the trial court to reopen the record in the case and apply the putative new fair use analysis to a different, more recent, set of readings employed by the GSU faculty.  The University opposed this motion, arguing that what would amount to a whole new trial was not necessary.

Last week, District Court Judge Orinda Evans dismissed the motion to reopen the record and issued an order about briefing the court on what a new analysis of fair use for the original excerpts considered in the trial should look like.  Judge Evans wrote that “It does not make sense at this juncture to spend months, probably longer, on what considerations might govern if Plaintiffs prove they are entitled to injunctive relief by virtue of the claimed 2009 infringements.”  The motion is dismissed without prejudice, meaning that the plaintiffs can renew it at a more appropriate time, although I must admit that I do not see what that would mean if the case is to go forward on the original set of readings.

It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage.  Now Judge Evans has explicitly told them, in her scheduling order, that what is required is “consideration and reevaluation of each of the individual claims” in order to redetermine “in each instance… whether defendants’ use was a fair use under 17 U.S.C.  section 107.”  Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now.  Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

A new home for copyright?

The idea that the Copyright Office should move out of the Library of Congress was first raised some years ago by Bruce Lehman, who was, at the time, the Director of the Patent and Trademark Office.  The idea seemed to be that the Copyright Office should join the PTO as an agency within the Commerce Department.  That idea did not seem to be very well-received by many, and I had not heard of the discussion for a while.  But apparently the possibility of moving the CO is still kicking around, and last month current Registrar of Copyright Marie Pallante sent a letter about the topic to Rep. John Conyers, the Ranking Member of the House Committee on the Judiciary.  Her letter was requested after a hearing about the functions and resources of the CO held back in February.

Pallante’s letter makes interesting reading, especially if one is interested in the inside politics of Executive Branch appointments, separation of powers, and the like.  The bottom line, however, is that Registrar Pallante thinks that the Copyright Office should be separated from the Library of Congress, should not move into the Commerce Department, and should instead become an independent agency with its leader directly appointed by the President and confirmed by the Senate.  There has been some discussion about this letter and the ramifications of the debate among my colleagues, and I want to consider two issues that I think are of interest to a wider audience, while admitting that I am shamefully cribbing ideas from those colleagues.

The first issue is why the Copyright Office should leave the Library of Congress in the first place.  Registrar Pallante offers several reasons in her letter.  One is the claim that the Library of Congress is in a Constitutionally awkward position, since it is apparently an Executive branch agency (the Librarian is appointed by the President), but its functions, including advising Congress about copyright law, are at least partially legislative.  While I see the issue, it is not clear to me why it is more pressing for the CO than it is for other offices within the Library, including, for example, the Congressional Research Service.  Nor do I fully understand why making the CO an independent agency, with its head still appointed by the President, would solve this dilemma.  There is certainly an issue of prestige here, but I am not convinced that it is enough to justify a new Federal agency.

The other reason Pallante offers for moving out of the Library of Congress are the “operational challenges,” including staffing and pay.  All bureaucracies are difficult, of course, and rumor has it the LoC is more difficult than most these days.  But, again, it is not obvious that a new agency would necessarily be better.  Everything would depend on the personnel and the budget.  More troubling, however, are the footnotes in Pallante’s letter that refer to the “conflict of interest” between the CO and the Library, which apparently was mentioned by some witnesses during those February hearings.

Is there a conflict of interest between a library and the office that administers our national copyright policy?  If there is, what does that tell us?  To my mind, it suggests that our copyright policy has gotten out-of-line.  We may be developing an approach that sees copyright as a trade regulation that protects specific industries, not as a policy decision about how best to ensure the continuous creation of new works of knowledge and culture.

This concern was clearly raised during the hearings, where Rep. Zoe Lofgren challenged the assumption that the Copyright Office was no longer a good fit with the Library of Congress by suggesting that over the years, the librarians have been better at understanding copyright than some staff at the CO.  To her credit, in her letter Pallante does not endorse the idea of moving the CO to Commerce, where the symbolism of copyright as a sort of trade regulation would be even stronger.  But I would argue that our predecessors knew what they were doing when they centralized copyright services inside the Library of Congress.  Libraries epitomize the social benefits that copyright is supposed to support, and the “optics” of moving the Office, at least, would inevitably undermine that long-standing commitment to the public good.

In fact, if the CO was located in the Commerce Department, as my colleague Brandon Butler points out, it would have to consider all aspects of commerce related to copyright, including those industries that depend on fair use and other copyright exceptions.  The wrong-headed narrative about the competition between the content industry and the technology sector, with the former held up as copyright dependents and the latter as modern-day pirates, would be harder to sustain.  The unfortunate possibility exists that the CO’s desire for independence represents a desire to become even less balanced in its approach than it has been in the past, focusing entirely on its perceived role as enforcer of rules that protect Hollywood from the threatening innovations of Silicon Valley.  An office in the Commerce Department would be less able to take sides.

In terms of rationale and purpose, the Library of Congress is a good fit for the Copyright Office, even if the CO does not, under its current leadership, recognize this.  If a new home is really necessary, Butler makes the wonderful suggestion that the Department of Education should be considered.  The DoE, more than Commerce and maybe even more than the Library of Congress, could refocus copyright policy on the reason we have these laws in the first place — to promote the progress of knowledge and science.  If we lose track of that purpose, it becomes an open question whether we need the law or the CO at all.