Category Archives: Technologies

Libraries, Scholarly Publishing, Technologies

Dissertations for sale, or, scaring the children, part 2

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When The Chronicle of Higher Education published its “Cautionary Tale” about a dissertation discovered, by its author, to be available for sale on Amazon.com without his knowledge, it was bound to stir up another round of anxiety over how dissertations are distributed in a digital world.

In the particular case, the problem was that ProQuest, which creates the dissertation database once known as Dissertation Abstracts, now offers electronic copies of dissertations through outlets like Amazon.  Authors have the option of preventing this (it is the default) when they submit their dissertations.  To the article’s author, this was an unwelcome discovery.  But two comments should be made about this cautionary tale.  First, ProQuest, and its predecessor UMI, have always sold copies of dissertations; all that has changed is the format and the ease with which they can be found.  Second, the most basic instruction for any author, whether of a dissertation or a best-selling novel, is to read the contract for distribution before you agree to it.

The bigger question is whether or not these sales, and more especially the online distribution of dissertations in open access repositories, which is becoming the norm at many institutions, actually prevent authors from getting their first book published.  The author of the Chronicle piece seems to assume that it will, but such assumptions, without facts, seem to be the real problem.  There are many expressions of fear on this front, and even a few stories of actual rejection which seem to be circulated endlessly.  Fears, of course, are not facts, and students often repeat these fears and demand that universities cater to them  based only on the anxiety of others.  As for the handful of anecdotes, it is hard to know whether the rejection of a book in these stories really was caused by online availability of the dissertation, or by some factor internal to the work itself. To a large degree we are again dealing with FUD – fear, uncertainty and doubt – intended to frighten people.

It is not surprising that publishers would sometimes raise this specter even if they know it is seldom an important issue in actual editorial decisions.  The simple truth is that the academic publishing industry has a vested interest in discouraging any online distribution of scholarship that it does not control.  But it is useful to look at some of the sources behind the anxiety to see what they really say.

First is this statement from the American Historical Association, which actually is quite moderate.  Here is the key paragraph:

While there is no conclusive evidence that electronic publication can make it more difficult to publish a revised version of a dissertation, the division feels that students and their advisers should be aware of the possibility. Editors who had spoken about the topic at a 2011 annual meeting session and had subsequently been interviewed for an article in the Chronicle of Higher Education were divided on whether electronic publication differs significantly from older methods of making theses and dissertations available through interlibrary loan or on microfilm. Some editors stated that they would be more likely to publish a dissertation that had attracted interest online.

This is hardly terrifying stuff; the Professional Division of the AHA goes on to recommend that universities have policies regarding embargoes for online dissertations, and that authors and advisers know what those policies are.  Perfectly sensible, even though it seems to ignore the first clause  in the quoted paragraph: “there is no conclusive evidence that electronic publication can make it more difficult to publish a revised version of a dissertation.”  Two phrases are key in that clause, I think: “more difficult” and “revised version.”

It is difficult to publish a scholarly monograph these days, and the market for books based on dissertations is shrinking all the time.  Is this because of online, open access dissertations?  I don’t think so.  I think it is because library budgets are shrinking, more of the money must go each year simply to maintain journal subscriptions, and dissertation-based books tend to be very specialized and very expensive.  I have never heard a librarian say that she would not buy a book because the dissertation version was in a repository somewhere; cost and the availability of funds are a fully sufficient explanation for the contracting market for revised dissertations.

Yet according to this survey done by some leaders in the field of online dissertations, some publishers do express a greater reluctance to accept a manuscript if there is an online dissertation.  Here I think the issue of revision is key.  Note that many more publishers in the survey say that it is the degree of revision that makes a difference for them, and I believe that the small percentage that said an ETD could be a large factor were answering the question based on a scenario where they were presented with an unrevised, or lightly revised, manuscript.  A much larger percentage, over 40%, either cited the difference between the two documents as a factor or indicated a case-by-case analysis; they recognized that the key factor was revision.

Revision of a dissertation before submission for publication is virtually a sine qua non today, and much more important than online availability (or suppression) of the original dissertation.  Because of the market described above, an unrevised dissertation, which is always directed to the interests of a very narrow group of specialized readers, stands little chance of being accepted, regardless of whether it is also online.  More importantly, there is no evidence, in my opinion, that a publisher would reject a well-revised dissertation that was otherwise marketable simply because an earlier dissertation by the same author and on the same topic was online.  Availability as an ETD is an excuse, or a boogeyman, far more often than it is a real reason for turning away a marketable monograph.

So what is a dissertation author to do?  First, relax, but plan to revise.  Second, take the advice of the AHA and know the policies that will apply to you at your degree-granting institution and that prevail within your discipline.  Third, use embargoes on your work when they really will help, both in ProQuest and at your local campus.  Finally, read what you sign before you sign it.  This last point is a life lesson that all scholarly authors should learn, not just those at the dissertation stage of their careers.

Open Access and Institutional Repositories, Scholarly Publishing, Technologies

How to say goodbye to a University Press

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Ever since the University of Missouri announced on May 24 that it would end its subsidy of the University of Missouri Press, which seems to indicate its imminent closure, it has been interesting to listen to the reactions.  As Jennifer Howard says in her piece for the Chronicle of Higher Education, the response to this decision has been rather quiet, compared to howls of protests heard about earlier, similar decisions.  But there are three types of comments in reaction to the announced closure that I have heard, and each, I think, misses the point to some degree.

First, nearly all of those who have criticized the decision do so on the basis of the fine books that the University of Missouri Press has published over its 50 plus years in business.  The Press has published the collected works of Langston Hughes, Harry Truman and Mark Twain, for example.  This is a distinguished history of which the University should be proud.  But these books will continue to exist even after the Press ceases operations, and accomplishments in the past are not the point.  The question is whether or not the Press is capable of matching those accomplishments in the future.  The University seems to have determined that it is not.  There will surely be high-quality books in the future, but they will have to find other publishers and, perhaps, different platforms.

Second, some of the critics of the decision have suggested that it is foolish to close the Press to save such a small amount of money — the $400,000 per year that the University has been giving the Press for some time to cover its operating deficit.  But the question should not be how much money, but what value is returned on the money spent.  For its $400,000, the University sees about 30 books published each year, which means each title is subsidized at a cost of over $13,000.  These are expensive books from the University’s point of view, I imagine, and if this option is contrasted , for example, with the possibility of supporting three new tenured positions in literature, the value proposition looks quite different.

One rhetorical move that is very common in these debates is to contrast the small amount of press subsides with the high salaries of football coaches on the same campus.  While it has emotional appeal, this is a dangerous strategy because it highlights the value issue.  For better or worse, universities are mostly convinced that they see a significant return on investment from athletics; some even argue in many cases that these programs are self-supporting and return revenue to the institutions.  Demanding that universities take money from athletic programs to support presses may seem to have a certain high-brow appeal, but it emphasizes that some university presses cannot support themselves and do not provide, apparently, sufficient support to the universities’ missions either.  [A great deal more data about university sports subsidies and their relationship to library budgets can be found in this Inside Higher Ed essay by John V. Lombardi.]

In her book Planned Obsolescence: Publishing, Technology and the Future of the Academy, Kathleen Fitzpatrick documents how university presses began their lives as places to publish the work done at their parent universities.  Only after a period of time did they begin to demand autonomy to broaden their lists and retain their profits (see pp. 175-187).  If they now are asking once again to be supported by those parent universities, presumably they must once again show how they support the specific mission of the parent.  If they do not do that, the return on investment is inevitably going to seem insufficient.

Finally, there is one other reaction to the Missouri announcement that misses the point, I think.  In his Chronicle blog post on The Consequences of Closing University Presses, Frank Donoghue moves very quickly from mourning the lose to asserting that digital publishing is not the solution for university presses.  Donoghue cites a ten-year old quote from Jenefer Crewe of Columbia University Press about how publishing costs are mostly due to human labor, so that digitally published books would probably lose as much money as printed ones do.  This is hardly a comforting thought, and does little to make the case that universities should continue to support the traditional model, whether the books are published digitally or on paper.  Indeed, it reminds me of the much older quote from Chester Kerr, long-time Director of Yale University Press, who said this back in the Sixties about university presses:

We publish the smallest editions at the greatest cost, and on these we place the highest prices, and then try to market them to people who can least afford them.  This is madness.

So it seems that we have known for years that the business of publishing small editions of beautiful academic books was unsustainable.  Even if digital publishing cannot reduce labor costs, surely it can reduce some of the expense of printing a book.  I wish some one would tell us what percentage of the costs really are printing, shipping, marketing and storage, so that universities could begin to develop new models based on solid numbers.  And Crewe’s speculation includes costs for infrastructure that are surely lower today then they were ten years ago, as well as for “selling subscriptions to libraries,” which might not be necessary if we think more broadly about the dissemination of scholarship.

The overall lesson here, I think, is that we need a broader conversation about how to distribute scholarship.  Neither the traditional press model nor an entirely open access digital solution is likely to be THE answer, although each will almost certainly be part of the answer.  Not all traditional academic publishers will survive, which is a reality both sad and necessary.  Nor will all digital publishing experiments survive.  But in both cases, some will, and as we move forward the best alternative is to be very transparent about costs, quality, service and value, and to be open to having diverse options striving, and sometimes thriving, side-by-side.

Copyright Issues and Legislation, Scholarly Publishing, Technologies

Debating derivatives

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During a recent visit to another university, I got into an interesting discussion with students about the difference, if there is one, between derivative works, the exclusive rights in which are reserved to copyright holders, and transformative fair uses.  The latter, of course, are considered “not infringement.”  The class of graphic arts students that attended my presentation was quite naturally confused about where the line between these two very different adaptations of an original work is.  I really couldn’t help them very much, but more about that in a minute.

When I got back to my office, one of my first tasks was to read the complaint in the lawsuit filed by the e-text platform company Kno against textbook publisher Cengage, alleging breach of contract.  The allegation is that Cengage has breached its contract to allow publication of content that it owns on the Kno platform, allegedly because certain features of the platform infringe Cengage’s copyrights.

Two qualifications are necessary.  First, a complaint is only one side of the story, so conclusions cannot be drawn from it.  Second, this may just be a contract dispute in which the two parties are bargaining for the best terms they can get, and litigation is simply a strategy in the negotiation.  That would be an unfortunate use of judicial resources, but it does happen.  Nevertheless, it is worth looking at the copyright issues that are raised, even if they never reach the stage of a decision on their merits.

According to Kno’s complaint, Cengage alleges that several features of the Kno platform create impermissible derivative works.  Specifically, Cengage allegedly objects to a “smart links” feature that inserts links to external educational resources into the text, to a “quiz me” feature that can create review quizzes from certain diagrams, and a “journal” feature that allows studies to record their own notes and pulls out from the text the excerpt to which the relevant notes refer.  The pedagogical value of each of these features is obvious, I think, but it is interesting to ask if they really do create derivative works.

Traditionally, derivative works are those that adapt the actual expression that is protected in a work, and usually they adapt the entire body of that expression.  Thus, a translation or an adaptation (novel to play, play to movie, etc.) are the paradigmatic examples.  Based on these criteria, it does not seem like inserting “smart links” into a text creates a derivative work, just a more useful one.  On the other hand, the “Quiz Me” feature does adapt some of the original expression in the text, but it adapts only a small portion.  Here, I think Kno could argue that this is a transformative fair use rather than a derivative work (they do raise fair use as one potential response to Cengage’s objections).

It is the “Journal” feature that seems to be most in dispute, based on how much the complaint has to say about it.   Students repeatedly tell us, of course, that one prerequisite to adopting e-texts is the ability to annotate the works, so this seems like a necessary part of any e-text platform.  It also seems like a classic fair use of the excerpts.  Insofar as the journal is just a layer over the top of the text, it hardly seems to implicate copyright at all.  And where excerpts are pulled out for the student to comment upon, that is exactly what fair use permits.  It is hardly different than if the student kept a separate notebook and copied out key phrases and passages, as I did throughout law school.  If that is fair use, and no one really disputes that it is, so, it seems to me, is the journal feature of the Kno platform (as described in the complaint).

My biggest concern about the dispute described in this complaint is the possibility that it shows us another publisher trying to disable they very possibilities that make e-books attractive to consumers because they do not understand how those features work and feel threatened by them.  E-texts specifically offer tremendous new potential for innovative learning, and ways to study a subject that work for a variety of different learning styles.  But these are possibilities only if the publishers get over their intense fear of the digital environment and their express desire to introduce “inconveniences” so that their digital products mirror the limitations of the print world.

After all this, let’s go back to the debate about derivatives versus transformative fair use.  My proposed criteria for what makes a derivative do not entirely solve the question.  Both derivatives and transformative fair uses adapt the original expression of the work in question.  In two examples above I suggest that the amount of the original work that is used may make a difference (it is, after all, one of the fair use factors).  This is helpful, I think, but probably not sufficient.  Perhaps the determinative question will be if there is market harm; courts that find transformative fair use usually remark that there is no direct market competition, and no “customary” licensing market, for the new, transformative use.   These reflections suggest, I think, a broad outline of how to make this slippery distinction, but they do not make it easy.  And they suggest that the dispute between Kno and Cengage really will turn on the terms of the license that is at the heart of the issue.

Authors' Rights, Licensing, Scholarly Publishing, Technologies

Why boycott Elsevier?

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The snowballing petition on which scholars pledge to boycott Elsevier is gaining a good deal of attention.  There is an article in today’s Chronicle of Higher Education, and this more general article about the future of Elsevier’s business model from Forbes.  As of today the boycott pledge has over 2100 signatures.

As the Chronicle article points out, the petition lists three “charges” against Elsevier:  their extremely high prices, the practice of “bundling” so that institutions have to buy journals they do not want in order to get the ones they do and hence have less money to buy other things, and corporate support for the Research Works Act and other legislation that would threaten the free flow of information.

While I agree that all of these things are significant problems in the current scholarly communications environment, I have to say that Elsevier is not the only “sinner” guilty of these infractions, or necessarily even the most culpable among commercial publishers.  This does not mean I am particularly sympathetic to Elsevier, and I am glad to see the petition for a couple of reasons.

First, the boycott movement is coming from scholars themselves.  It is not simply a matter of radical militant librarians (some of my favorite people, btw) who are upset about high prices.  This petition represents a growing awareness amongst scholarly authors that traditional publication models not only are no longer the only option, but in fact may be bad choices for those concerned with the overall dissemination of knowledge.  It is simply becoming clearer to many scholars that the values they hold are not the same as the ones that commercial publishers are pursuing.

Second, when framed as a divergence of values it is much easier to see that the core issue in this movement is who will control the the changing course of scholarly communications and the scholarly record.  It seems less and less acceptable to trust commercial publishers with the responsibility for scholarship now that we no longer will be dependent on the printed artifacts they created.  As scholarship becomes digital, we are quite rightly seeking new models of control that serve the needs of scholars first, regardless of the business models that may thereby be left behind.

One of the reasons I do not believe in the “abolish copyright” movement is because I think the control over how a work is disseminated and used by others will continue to remain important to scholarly authors.  Copyright desperately needs reform (or else it needs more scholarly authors who use Creative Commons licenses to leverage their economic rights to protect things like attribution, which actually matter to academics) but it is not likely to become irrelevant in the digital environment.  Instead, scholars will seek new ways to use the rights that vest in them (not their publishers) to control their works in ways that best serve their own needs and the interests of their particular discipline.  Boycotting Elsevier may not bring about that revolution by itself, but it is a step toward demanding that the rights and concerns of scholarly authors themselves actually drive decisions about how scholarship is shared in the digital environment.

Copyright Issues and Legislation, international IP, Public Domain, Technologies

Losing our focus

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Today the Supreme Court issued a decision in the case of Golan v. Holder which is a significant defeat, I think, for the public domain in the United States.  Reading the opinion has made me wonder if we have really strayed from our fundamental commitments about intellectual property.

The case involved the complex and technical issue of restored copyrights in foreign works – works that were originally created and published abroad.  As part of the U.S.’s decision to join the Berne Convention and other international treaties on intellectual property, Congress enacted an amendment to the Copyright Act, now found in section 104A, that restored copyright in foreign works that had risen into the public domain in the U.S. but were still protected in their countries of origin.  The effect was to remove works from the public domain after they had already lawfully become the property of every U.S. citizen.  Several groups, including musicians, publishers and others who had relied on the ability to freely exploit these public domain works, brought a lawsuit to challenge the constitutionality of this unprecedented alteration in the terms of the copyright bargain.

Those groups lost today.  Six Justice of the Court found that the “Uruguay Round Agreements Act,” which enacted this restoration of copyrights, neither exceeded Congressional authority under the copyright and patent clause of the Constitution nor created a conflict with the guarantee of free expression found in the First Amendment.  The full decision can be found here, and there is a brief report from the Chronicle of Higher Education as well.  For me, several recent readings and discussions provided a context as I read the decision.

Last night my colleague Will Cross and I were teaching a class session on copyright for library students.  Will discussed (among other things) two aspects or principles of copyright decision making that seem relevant to today’s decision.  First was the idea that the federal courts tend to show great deference to Congress in the area of copyright.  That deference is very evident in today’s majority opinion: “This Court has no warrant to reject Congress’ rational judgment that exemplary adherence to Berne would serve the objectives of the Copyright Clause.”

The other principle Will discussed was the incentive purpose that is given as the reason, in the Constitution, for allowing Congress to enact intellectual property laws.  This purpose is pretty clearly rejected by the majority, when Justice Ginsberg writes that “Nothing in the text or history of the Copyright Clause, moreover, confines the ‘Progress of Science’ exclusively to ‘incentives for creation.’”  It is hard to see how else that clause can be read, and Justice Breyer, in his dissent, provides a compelling account of why the U.S. enacted copyright in the first place, and why it is supposed to be limited.  He goes on to note that “The statute before us, however, does not encourage anyone to produce a single new work.”

It seems clear to me, as it does to Justice Breyer, that the wording of the Constitution’s Copyright Clause was to restrain Congress and direct that laws serve a specific purpose.  The majority of the current Court, however, does not see it that way.  We really have opposing visions of copyright law at work here, and the deference to any Congressional enactment, no matter how one-sided and counter-productive to new creativity, has made the Constitutional language increasingly ineffective.  It is one of those situations where we must hope that, over time, the persuasiveness of the dissent will eventually move it to be the majority view.

I recently read an article from 1890 on “The Evolution of Copyright” by Brander Matthews.  It was written just as the Berne Convention was being formed, and its intent was to commend the new international organization to U.S. lawmakers.  Matthews is clear about how much the Berne approach, modeled on the French “natural rights” view of copyright as it is, differs from the approach taken in England and the U.S.  Clearly he hopes the U.S will change course.  For nearly a hundred years that did not happen, but perhaps now we are seeing, unfortunately in my view, the steady erosion of the instrumentalist view of copyright that has prevailed in the U.S. for some time, and is enshrined in our Constitution, in favor of a natural rights approach that favors those who already own rights even when that favoritism disadvantages those who would create new works.

To slightly change focus, however, I want to end with one note of optimism.  The past couple of weeks has seen, in my opinion, a remarkable awakening of public interest in copyright and access issues, sparked by a couple of unfortunate pieces of legislation.  There has been a lead article about open science in the New York Times, and the 24 hour shut down of Wikipedia in protest over one of these bills – the Stop Online Piracy Act — has made digital copyright a topic of national discussion.  The web site PopVox has set up a central site for comments and advocacy against the other bill, called the Research Works Act and designed to undermine efforts toward public access for publicly-funded research.  With all this attention, it is still possible to hope that public pressure, and especially concern over the functioning of the Internet, will begin to turn our national focus back toward that instrumental and incentive-based view of copyright.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing, Technologies

Breaking technology

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In the past few weeks I have seen several news reports and other actions that seem to form a pattern, where the traditional publishing industry has set out to break digital technologies in order to preserve their traditional business models.

Of course, the most radical effort to break the Internet so that it does not threaten the legacy content industries is the Stop Online Piracy Act, about which much has been written.  I was disheartened by the plausible suggestion that the decision to suspend the House’s hearings on SOPA last year and renew a push for it in 2012 was not due to real objections but was merely a ploy to solicit more donations from the movie and recording industries. Unfortunately, this is often the way the legislative “sausage-making” process works.  But I want to look at some other attempts to hobble digital technologies that strike closer to the publishing that is the most common form of dissemination on our campuses.

On Christmas Day the New York Times ran this story about the “tug of war” between publishers and libraries over e-books.  The writer is very sympathetic to publishers’ efforts to maintain exactly the revenue streams they have been accustomed to in the pre-digital era, but what struck me most is the language used.  Repeatedly the article talks about “inconvenience” and “friction,” stressing that “borrowing an e-book… has been too easy.”  As the author says “to keep their overall revenue from taking a hit… publishers need to reintroduce more inconvenience for the borrower.”  This librarian commentator makes the key point: it isn’t that the technology does not work, but that publishers do not want it to work as well as it does.  They want to break the technology that is available, so that user experiences are less seamless.  They only see a role for themselves if they can offer assistance overcoming inconveniences that they have introduced in the first place!  And perhaps they are right about that.

Another example of this failure to do what digital technologies allows you to do can be found in this article from the Chronicle of Higher Education, which reports on a study about textbook choices that found that e-textbooks offered little savings.  The problem, the authors acknowledge, is not the technology but “publisher pricing decisions.”  It seems we cannot really take advantage of the benefits offered by these new technologies until we free ourselves of ties to publishers who cannot imagine any other way of doing business than the way, and at the price, that it always has been done.

Last week Bloomberg News reported on a lawsuit brought by HarperCollins to prevent the publication of an apparently unauthorized e-version of a popular children’s book.  The suit will turn on the language of the contract between the author and HarperCollins, about which I cannot comment.  But it is striking to me that the publisher is not complaining about competition with their own e-version of the book because they do not offer one.  They simply want to stop anyone else from creating an e-book unless and until they figure it out (presumably when they decide how to introduce sufficient inconvenience).  They may have the legal right to do that, but they are clearly not interested in responding to consumer demand.  Indeed, it seems that the author of the book is interested in providing a digital version, but the publisher has told her that they have that right and she does not.  The lesson is that authors who do not want their readers to be burdened with artificial inconvenience should negotiate more carefully with their publishers.  It may often be in the best interests of authors to withhold the right to offer an electronic version of the work in an initial publication agreement and consider seeking another platform or publisher, one perhaps less wedded to inconvenience, for the e-book version.

This, of course, is a process increasingly familiar to academic authors.  For years scholarly authors of journal articles have engaged in a tug-of-war with publishers over how best to exploit digital technology to serve the best interests of scholars and scholarship, rather than just the profit motives of publishers.  Once again the publishing community has resorted to legislative attempts to try to dictate what scholarly authors can and cannot do with their own copyrights.  Over the holidays the “Copyright in Research Works act,” a re-tread from the last legislative session, was introduced again.  The bill would reverse public access programs like that of the National Institute of Health and make other such programs illegal, essentially telling taxpayers that they have to pay twice to see the research they have funded.  The publishers are clearly asking Congress to break the Internet legislatively so that their toll-access sites are the only source for scholarly information.

What I find most astonishing is the immediate expression of support for the bill that came from the Association of American Publishers, and this sentence in particular:

The Research Works Act will prohibit federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding.

I am stunned by the audacity of the claim that research articles are “produced” by private sector publishers!  I think the producers of these works are sitting at desks and labs scattered around my campus, and thousands of other college and university campuses.  They are not paid by publishers either to do the research or to write their articles.  And I do not believe that the journals that publish those articles actually add any copyrightable expression to what has been written and revised by our faculty members.  If they do, the scholarly authors have a right to complain, since such additions without the author’s cooperation would compromise the integrity of the scholarly record.

We cannot say it often enough.  The intellectual work for scholarly publications is done by academics, not publishers.  They own the copyright in those works up until they are asked to transfer it to the publisher as a condition of publication. And if publishers persist in interfering with that copyright ownership and insisting that scholars cannot take advantage of the tremendous opportunities that digital technologies offer, the solution is to stop giving them those copyrights.

Copyright Issues and Legislation, international IP, Technologies

Using copyright for its intended purpose

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At its roots, copyright in the Anglo-American legal system is a statutory grant of rights intended to be an engine for innovation.  Copyright and patent legislation is the only type of law whose authorization in the Constitution is specifically tied to a purpose — “to promote the progress of science and useful arts.”  If copyright legislation does not serve this purpose it is, arguably, unconstitutional.

This is part of the real irony of SOPA, the bill currently being considered by the House of Representatives that would fundamentally alter how the Internet works in the U.S. in order to protect the traditional entertainment industries.  Such a bill, which would kill innovation in the name of protectionism, may be unconstitutional. That it is a bad idea is especially clear when we look at how other countries are considering adjusting their copyright laws precisely to better support innovation and economic growth.

In Brazil, a third draft of proposed copyright legislation has recently been released.  As Pedro Paranagua, a Brazilian copyright expert, tells us, there is both good and bad in the bill, but as I read his list of incorporated provisions, I am jealous of the attention being given to the real purpose of copyright, which is economic development through innovation.  Exhaustion of rights, what we call first sale in the U.S., would be defined in a way to prevent the recent debacle in which Omega abused copyright, in my opinion, to suppress legitimate price competition for its watches.  Collecting societies would be overseen by government watchdogs, and contract principles about serving the public interest and avoiding undue burdens would be explicitly incorporated into the copyright law.  Compulsory licenses would be available for uses of orphan works, and creators would have the explicit ability to dedicate their work to the public domain.  Finally, there is a proposed set of exceptions that covers at a lot of the socially beneficial uses that are still unreasonably controversial in the U.S.

Even one of the things that Pedro is nervous about, ISP liability under a notice and take down scheme, seems like a good idea that the U.S. must fight to maintain.  The notice and take-down system under the DMCA has allowed a lot of innovative businesses to thrive (YouTube being the most prominent), and that system is under severe threat if the provisions of SOPA get enacted.  So while Paranagua worries about a DMCA-style regime in Brazil, I am desperately hoping that we can keep that regime in place in the U.S.

Brazil has also been at the forefront of the World Intellectual Property Organizations discussion of limitations and exceptions.  The resulting WIPO agenda, looking primarily at exceptions for libraries and for access for persons with disabilities, reflects many of the ideas mention above, including cross-border uses (the subject of first sale and the Costco dispute), a solution to the problem of orphan works, and the relationship between copyright law and private contracts.

This last issue brings me to the most detailed document I have been looking at recently, the “Consultation on Copyright” released by the British government.  The UK has undertaken a thorough review of their copyright law in the past couple of years, explicitly to address the places where copyright interferes with innovation rather than fostering it.  The consultation is seeking hard data about the impact of the changes that were proposed by the commission it set up, called the Hargreaves Commission.  Many of the provisions are similar to the ones I have already mentioned.  But here is the language the really caught my eye:

The Government agrees that, where a copyright exception has been established in UK law in order to serve certain public purposes, restrictions should not be re-imposed by other means, such as contractual terms, in such ways as to undermine the benefits of the exception.
Although contract terms that purport to limit existing exceptions are widespread, it is far from clear whether such terms are enforceable under current contract law. Making it clear that every exception can be used to its fullest extent without being restricted by contract will introduce legal and practical certainty for those who rely on them.

I have argued in the past that contracts should not be allowed to preempt copyright’s limitations and exceptions, at least in cases where the contract at issue is not subject to “arms length” negotiation.  Here the Conservative government seems to be embracing that position (not because I suggested it, of course, but because the Hargreaves commission did) and even carrying it further.  Recognizing that copyright exists to serve a public purpose, and that that purpose should not be undermined by one-sided private agreement, such a “click-through” contracts on websites, would be an important step toward providing the consistency and certainty that all law-making aims for.

The point of this very quick and cursory survey of international proposals for copyright reform is simple.  Throughout the world, even in those countries that, unlike the U.S., embrace a natural-rights account of copyright, reform is focused on supporting innovation and not allowing a system that worked in the past become an obstacle for the future.  Yet in the U.S. all of our copyright proposals, and even statements from our Registrar of Copyrights, seem focused on protecting the old ways and staving off as long as possible the innovation that provides our best economic hope.  If we cannot learn from our competitors and our trading partners, we will certainly be left behind.

 

Copyright in the Classroom, Fair Use, Technologies

Streaming video case dismissed

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Yesterday a judge in Los Angeles dismissed the copyright infringement lawsuit brought by AIME, the Association for Information Media and Equipment, against UCLA.  The lawsuit had alleged that UCLA was infringing copyright by ripping DVDs to create a digital stream, which was then made available through a closed course management system to students in a particular class.  There are several technical issues that dominate the decision, but there is a little bit of good news, hardly definitive, for the fair use claim that was being made by UCLA.

The two major reasons for the decision were sovereign immunity — the doctrine that state entities can seldom be sued in federal court — and lack of standing.  AIME tried to argue that UCLA had waived its sovereign immunity when it signed a contract with AIME, but the judge rejected that argument as too broad.  So a major part of the decision applies only to state entities; it does not translate to private universities.

As for standing, AIME had a little bit of the “Righthaven” problem; they simply did not own the copyrights that were allegedly infringed, so they were not the proper plaintiffs to bring the case.  AIME wanted to claim what is called “associational” standing as a group that represents individual copyright holders, but the judge rejected that idea; she held that “individual copyright owners’ participation is necessary” in order to assert copyright infringement.  It has never been entirely clear why the lawsuit was brought the way it was, and it is a relief, from the point of view of legal consistency, that this attempt to assert associational standing has failed.  With Righthaven and a few other groups trying to create a business model based on copyright trolling, the failure of this claim for standing represents another welcome barrier to that activity.

Not, I hasten to add, that AIME is in any sense a copyright troll.  The lawsuit was, in my opinion, inept, but it was clearly motivated by zeal and a sense of righteous indignation rather than baser motives.  Calmer judgment simply got overwhelmed.

On the copyright issue, which is where I was most anxious to see the reasoning, everything pretty much turned on language in the AIME license that granted public performance rights to the licensees.  Given that language, the case would seem to have been doomed from the start.  But as a result, UCLA did not have to make the case that the streaming, as a potentially public performance, was justified by one of the specific educational exceptions in section 110 of the Copyright Act.  That argument may yet be plausible, but it was not decided in this case.

What solace the higher education market can take from this case is in a few lines in which the judge seems to accept without discussion two assertions — that streaming is not a “distribution” such as to infringe the exclusive right to authorize distribution, and that copying incidental to a licensed right (the right of public performance) was fair use.  These points were not, as I say, discussed or unpacked, just accepted as part of a general dismissal of the copyright infringement claim for “failure to state a claim upon which relief can be granted.”  Thus this ruling does not offer the higher ed community a slam-dunk fair use victory, it merely sharpens a couple of the arrows in the quiver of that argument.

It is interesting to note that the copyright claims, along with most of the others, were dismissed “without prejudice.”  This means that AIME could refile them, and the judge gave AIME two weeks to do so if it wants.  The problem, however, is that all claims against the Regents and against the individual defendants in their official capacity were dismissed with prejudice.  So AIME could file the same claims again, but not against these defendants and not until it solved the standing issue.  A claim against the individuals as individuals would still be possible, but it is doubtful it would have the effect AIME wants; instead, it would look like the act of a desperate bully who does not know when to retire from the field.

Whatever happens next in this case, if anything does, what the dismissal without prejudice should tell the rest of us is that the issue of most significance to higher education — whether or not streamed video for a course-related audience is fair use — has not been brought to a final judgment.

Open Access topics, Scholarly Publishing, Technologies

What does scholarly communications mean to you?

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Recently I had a somewhat unusual question from a library student who is working in a library where part of her assignment is to look for grant funding opportunities related to developing a scholarly communications program.  After telling me that the whole concept of scholarly communications was somewhat bewildering, the student asked me what search terms I thought she should use when looking in databases of grants and funders.

The question was sufficiently off center, I think, that it forced me to reflect on the meaning of this “baggy monster” discipline from a different perspective and to formulate a fairly succinct but comprehensive reply.  Here is my answer:

“Let my answer this by suggesting four words that I would search on and, with a bit of explanation about each word, maybe give you some perspective on what scholarly communications means (in my opinion, anyway).

“Publishing” – the origin of most scholarly communications work is in trying to understand how the publishing process for scholarship is changing in the light of new technologies, and what the library role is in assisting or adapting to those changes.

“Copyright” – when some institutions talk about scholarly communications, their major need is advanced knowledge about copyright law.  This has become a problem on lots of campuses, again because of advances in technology, and it explains why so many people who are hired into scholarly communications positions (including me) are lawyers.

“Open Access” – this is the area where the seems to be the most push for change to traditional publishing models, and the place where libraries are developing lots of programs.  Libraries often administer institutional repositories, for example, which provide open access to faculty and student scholarship.  These efforts co-exist, usually, with traditional publication, and figuring out if and how scholarly publishing will transition to open access is the big issue for scholarly communications right now.  BTW, other open access projects in libraries include hosting open journal publishing platforms, administering funds to pay the article processing charges that some open access journals charge, and advocating for public access programs like the NIH’s PubMed Central requirement.

“Research process” – at its core I believe that libraries’ attention to scholarly communications means a deeper involvement with the whole research process as it occurs on our campuses, where in the past we have focused only on the output and input (published works) stages.  This means that libraries may be more involved in help to curate research data, manage versions of research output, and focus on access to the local resources of a particular campus, rather than on those published resources that are increasingly available to all without the intervention of libraries.

Looking back on what I have written, I guess I would add “technology” and “institutional repository” as search words.”

While I hope this reply was helpful to the student, I realize how incomplete and sketchy it is.  It seems like a perfect opportunity to ask others to comment. So please leave a comment and suggest other words that would be appropriate search terms and other ways to describe and discuss the ones I have mentioned.  Let’s see if this can be a useful thought experiment.

Copyright Issues and Legislation, Technologies

Am I really “the public”?

This post is a collaborative work by David Hansen and Kevin Smith.

One of the consistent themes in this space has been the increasingly poor fit between the copyright law as it stands and new technological options for communication that seem to be developing so quickly.  While it is not directly related to scholarly communications, a recent court case about remote DVD players serves as a nice illustration of the tensions that arise when we tried to pour the new wine of technology into the old wineskin of our 1976 copyright act.

As explained by Wired.com, the system works as follows:

The company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the remote control. Unlike the other streaming movie services, Zediva doesn’t turn a movie into a file on its servers that it can serve to as many users as care to see it at once. Instead, Zediva’s servers have DVD drives and actual DVDs. So when you rent a movie, that disc goes out of circulation until you release it back to the company, just like in one of those increasingly rare real-world video stores. And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.

One article calls Zediva a business relying on a “loophole.” But these “loopholes” are key to figuring out how copyright law applies in the digital age, and whether we will allow terminology routed in the mid-20th century to restrain innovation in the 21st. The judge presiding over the Zediva case viewed its conduct as outside the law, and ordered the service to halt operations. Central to the his order forcing Zediva’s to temporarily halt operations was his holding that the service likely “transmits” the DVD content to “the public,” thus violating the rights holders’ exclusive right to control public performances of the work (17 U.S.C. § 106(5)).

Copyright law defines the public performance right as exclusive control over either performance or display of a work to a group outside a normal circle of family or social acquaintances, and “to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” The terms “transmit” and “the public” are italicized because it is the definition of these two terms that determines both the case and the way copyright law responds to new cloud-based, personalized services like Zediva.

First, what does “transmit” mean? The copyright statute states that “to ‘transmit’ a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” The judge in the Zediva case concluded that the service “clearly transmits plaintiffs copyrighted works” because the service “communicates” images and sounds beyond the place from which they are sent. But this raises the question—who communicates to whom? The Zediva judge held that “the fact that Zediva’s customers initiate the transmission by turning on their computers and choosing which of Plaintiff’’s copyrighted works they wish to view is immaterial.”  Transmission, under this theory, is omnipresent. While this construction is plausible based on the bare definition, it leads to absurd results. Can I really “transmit” or “communicate” with myself? Those rather existential questions aside, under this view every personal act to receive copyrighted works that are stored in a remote location is therefore a “transmission.” Of course, even under this expansive definition of “transmission,” there is still no infringement unless those “transmissions” are “to the public.”

So this raises the question, what does “the public” mean?   There is no definition of “the public” in the act, but it does specific that “the public” need not receive the transmission “at the same place . . . [or] at the same time.”  But can a transmission really be public if it is initiated and received by the same person?  The Zediva judge interprets it this way, based on the relationship between Zediva as a corporate entity and its users as “the public at large.”  But it is not at all clear that this is the sense that “the public” should have when interpreting the copyright act, where public is intentionally contrasted with “private.”

As with the judge’s treatment of “transmission,” this approach to “the public” leads to absurd results.  I am a user of Dropbox, which is a commercial service.  If I save a copyrighted article, of which I have made an authorized copy, to my Dropbox folder, then download it to my iPad (as I often do), have I really transmitted that article to the public?  The judge does try to distinguish personal copies from those retained by the Zediva service, but his use of “the public” does not seem to provide any principled ground for this distinction.

Of course it is possible that the Zediva customer will have thrown open his doors and invited the masses to see the rented video stream, but that is just as possible if the DVD of the copyright work is on site as well.  Does the mere fact of transmission make that risk any greater?  If not, how do we justify restricting the transmitted performance more than the “physical” one?  As this TechDirt column suggests, this approach seems to mean that copyright compliance depends on the length of the cable between the DVD player and the recipient’s TV.

This whole case serves as a reminder of how important it is for us to examine carefully those words in the law that seem obvious, vague or even unimportant.  These “loopholes” actually are central to figuring out how the law will accommodate new technologies and where, potentially, the law itself must change.