Guest Post by Arnetta Girardeau, Duke University Libraries, Copyright & Information Policy Consultant

As you may have already heard, January 1, 2019 marked a very, very special “Public Domain Day.” When Congress extended the term of copyright in 1998 through the Copyright Term Extension Act, it set off a long, cold public-domain winter. For twenty years, no work first published in the United States entered the public domain. But now, spring is here! On January 1, 2019, works first published in 1923 became free to use. And in 2020, works first published in 1924 will enter the public domain, and so on and so on! It’s exciting stuff.  What does that mean to us as creators, makers, teachers, or writers?  It means that we suddenly have access to more materials to rework, reuse, and remix!  Works such as Charlie Chaplain’s The Pilgrim, Agatha Christie’s Murder on the Links, and “The Charleston.”

Throughout the year and across the country, festivities are planned—including a live streamed panel at the US Copyright Office on January 16, and a incredible lineup of speakers and talks at a live event, “A Grand Re-Opening of the Public Domain,” co-hosted by Creative Commons and the Internet Archive in San Francisco on January 25.

At Duke, we’re celebrating this introduction of new materials into the Public Domain with a competition to showcase what our community can do with the public domain.  We want to see how Duke faculty, staff, and students can use items from 1923 and earlier, all of which are now in the Public Domain!   We have provided a few representative images along with this post, but feel free to create with any works that you find that are in the public domain (if you have questions about what is and isn’t in the public domain, you can contact us and we’d be happy to talk!) Selected entries will be posted on the blog and on Library social media. We have a small number of giveaways to thank you for participating.

What can you do?

• Write new lyrics to a song
• Create a wallpaper for your mobile phone
• Make a work of art
• Create a score for a silent movie made in 1923.

What else do you need to know?

Any member of the Duke community may enter.  Faculty, staff, students, and retirees are all welcome.

• Multiple entries are allowed;
• Send in entries between January 9 and January 31 at midnight;
• Use public domain content;
• Submit your entries here https://duke.qualtrics.com/jfe/form/SV_035Q9SkqV5RGmZ7

You can read more about the Public Domain in this article by the Duke Law Center for the Study of the Public Domain.

Thanks to the David M. Rubenstein Rare Book & Manuscript Library for providing many of the images!

If you have any questions about entering the showcase, or how to incorporate other people’s work into your own, consult the Arnetta Girardeau, Copyright and Information Policy Consultant, at arnetta.girardeau@duke.edu.

I’m very pleased to announce a new report, A Framework for Library Support of Expansive Digital Publishing, released today by the team here at Duke University Libraries. The report is about how libraries can more fully embrace their role in the evolving space of digital humanities publishing. This is the summary:

This report offers a framework for how libraries can begin to embrace their role in the maturing space of digital humanities publishing, particularly as they seek to support what we call “expansive digital publishing” — challenging digital publications that can span disciplinary and institutional boundaries; use many different technologies; have multiple scholarly outputs; grow over time; operate over the long-term or are multi-phase; aim to engage with multiple audiences; and, in general, use digital tools and methods to explore or enable scholarship that would be more difficult to achieve through traditional publishing.

This report is the result of an ambitious project, generously funded by a grant from the Andrew W. Mellon Foundation, that aims to address how libraries engage with scholars, publishers, humanities institutes, promotion and tenure committees, and many others on expansive digital publishing projects. We covered everything, from financing to producing, evaluating, and preserving some of the most complicated and gnarly digital projects that scholars are now exploring. In our view, these types of publications embody many of the best characteristics of networked digital scholarship. They open new possibilities for engaging in conversation with a broad set of readers — both peer scholars and publics — and, simultaneously, revise and expand knowledge based on this engagement. They are also, for the same reasons, some of the most challenging to truly “publish” as scholarly works within the full meaning of that term.

For readers of this blog who typically look here for a discussion of legal challenges,  I hope you’ll indulge me by reading this report, as it grapples with the significant cultural and organizational challenges that face scholars of new, more broadly accessible forms of digital scholarship. For many areas of scholarship, I think these challenges are far more significant than the legal and financial ones that I typically write about.

One of the best parts of studying for and writing this report was receiving the generous, thoughtful and diverse comments that the digital publishing community contributed. You’ll find an impressive list of contributors who have already added their thoughts to this effort in one way or another here. To help further that conversation, we’re pleased to be able to share the report with the world through PubPub (thank you, MIT Press!), which will allow you to add your own comments or suggestions as you read.

Full citation:

Full citation:  Hansen, D., Milewicz, L., Mangiafico, P., Shaw, W., Begali, M., & McGurrin, V. (2018). A Framework for Library Support of Expansive Digital Publishing. A Framework for Library Support of Expansive Digital Publishing. https://doi.org/10.21428/680f3353  

Hello world! I’ve left this blog quiet for the last several months as we have eased into some leadership changes at Duke University Libraries that have reinvigorated our focus on addressing information needs across the full research lifecycle, from collections to discovery to research to publication and back again. That focus reflects on several major principles and goals of the Libraries’ strategic plan, Engage, Discover, Transform. I’m really excited about the direction we’re headed.

Closely connected with those goals are a few long-term projects that I’ll be posting about over the next few months. I’m pleased to announce one today: The Library Copyright Institute.

The Library Copyright Institute is a collaborative project with colleagues from UNC-Chapel Hill, North Carolina Central University and NC State University, all part of the Triangle Research Libraries Network (TRLN).  You can read the full press release here.

The project is meant to be a pilot to develop a program of systematic, deep instruction on copyright law for librarians. The Institute is specifically targeted at training librarians at institutions with fewer resources and no copyright expert on staff. The premise of the Institute is that we’re all better off when the whole library community is widely and deeply engaged on the legal issues that most directly affect our ability to help users. Regardless of what library you work at, we all need to be able to confidently apply fair use, understand licenses, and assess public domain status. Having fewer resources should not mean that the beneficial rights granted by copyright law are unavailable to librarians, researchers, teachers and students at those institutions.

We’ve already identified a number of excellent instructors who have indicated a willingness to help us teach what we expect to be a 3-day intensive experience, hosted sometime in late summer 2019 at NCSU’s James B. Hunt, Jr. Library. We will have an open call for applications sometime in Spring 2019 and for those selected, attendance will be free (including lodging and food). We’re aiming to reach librarians in the Southeast with this first version of the Institute, but are designing the program with an eye toward replicating the Institute in other regions in the future.

I look forward to seeing how this project progresses. If you have an interest in what we are doing, I’d love to hear from you: david.hansen@duke.edu.

The Library Copyright Institute was made possible in part by a grant from the Institute of Museum and Library Services (IMLS Grant RE‐87‐18‐0081‐18).

I had not intended to write about the case decided last month involving the claim by Warner/Chappell Music that they owned the copyright in the song “Happy Birthday To You.”  I figured that it would be so widely covered that I would have little to contribute.  Obviously I have changed my mind, and it is partly because of the nature of the coverage I have seen.

Consider this story from Reuters, which says that the judge in the case ruled that Warner/Chappell Music does not hold a valid copyright in the song, and that that ruling puts “Happy Birthday To You” in the public domain.  Unfortunately, this is only half right.  The decision is complicated and careful, making a number of important distinctions, as legal arguments must always do.  The court held, in fact, that the tune to “Happy Birthday,” originally written for a song called “Good Morning To You,” is in the public domain.  But about the lyrics to “Happy Birthday,” the court remained uncertain. Judge George King held that there is no evidence that Warner/Chappell Music ever received a valid transfer of rights in the lyric, so they are not the legitimate copyright holder, but he lacked sufficient evidence to determine the status of the lyrics with certainty.  The decision lists several possible scenarios, including that the lyric is itself in the public domain, but it also acknowledges the possibility that the song is owned by someone who is either unknown or not able to be found.

In short, the lyric to “Happy Birthday to You” was found to be an orphan work, although the court didn’t put it that way.  This is a scenario familiar to most folks in the library community, where we can gather some evidence about ownership of a work, but cannot arrive at a definitive conclusion about the existence of rights, or the ownership of them if they do exist.  There is a nice discussion here of the problems involved in proving that one owns an older copyright, as in this case, by Laura Quilter from U. Mass Amherst.  But what really interests me about the situation uncovered in this decision is how it reflects on the proposals being floated by the Copyright Office to address the orphan work problem through extended collective licensing.

The Copyright Office scheme would require users to pay a set licensing fee to a collective rights management organization (CRO) if they wanted to use a putative orphan work.  The CRO would then be responsible to make reasonably diligent efforts to find a rights holder.  If a rights holder was found, licensing revenue would be disbursed by the CRO.  If an owner could not be found, the money would eventually be dedicated to some fund for the benefit of creative artists and, of course, to the maintenance of the CRO’s own bureaucracy.

Two things we can be sure of about this proposal.  One is that it would create a bureaucracy which would inevitable take its own maintenance and support as a top priority.  It is well-documented that such agencies have high overhead and pay out relatively low amounts to artists, even in situations where those artists are known or easy to identify.  The second thing I think we can be sure of is that this scheme would reduce the role of fair use in mass digitization projects.  Even if the shame included a so-called savings clause for fair use, the existence of a licensing scheme, even when the purported licensor does not actually hold the rights, would chill efforts to apply fair use to many projects.

With that background in mind, what does the “Happy Birthday” decision add to our think about this ECL proposal?

First, let’s think about the situation that lead to the case, where Warner/Chappell music was collecting licensing fees without any valid claim of ownership in the “Happy Birthday” song.  I am not asserting that Warner/Chappell Music was necessarily acting in bad faith; they had some reasons to believe they were valid rights holders, but those were dismantled in the court’s opinion.  Nevertheless, for many years users paid fees that we now believe were unnecessary, and fair use was badly curtailed, especially in things like documentary films, by litigation threats.  This situation would be replicated under the Copyright Office’s ECL plan.  Users would be paying fees to a licensor that did not actually hold rights, so those fees would be a pure loss in the economic realm of copyright (although they would support the creation of an otherwise unnecessary bureaucracy).  In the same way as with “Happy Birthday,” the availability of a putative licensor would have a chilling effect on fair use, especially where the use would be publicly accessible, as with documentary films, in the case of “Happy Birthday,” or mass digitization projects, in the case of libraries.  The upshot of both situations is the same — economic loss without any real public benefit.

The second consideration we can glean from the “Happy Birthday” case is about just how hard it is to determine the rights holders for many orphan works.  With all the powers of discovery and subpoena that were available to the court, it was unable to determine if the “Happy Birthday” lyrics were in the public domain, or, if they are still owned by someone, who that owner might be.  In a ECL scheme this problem would exist both for users and for the CRO, and it is severe enough to render the whole plan inefficient and unworkable.  If users were required to make some determinations before applying for such a license, that would increase the cost of every project without producing much in the way of useful results; many situations, as with “Happy Birthday,” could require tremendous investment of resources without bearing any fruit.  On the other side, the CRO would be unlikely, in similar situations, to ever actually find a rights holder to pay.  Here too, lots of resources (provided by the users) could easily be wasted in fruitless quests for rights holders.  And, of course, any leftover money would equally be wasted by providing for the expenses of an organization that would be unneeded and unable to fulfill its purpose.

If we take a serious look at what happened in the “Happy Birthday” case, where a putative rights holder was found to be collecting fees for something they did not own, and the actual rights situation was found to be undeterminable even after all of the discovery at the power of the court was exhausted, we should see an object lesson in what a bad idea, economically, an extended collective licensing scheme for orphan works would be.  Fair use is a workable and economically much more efficient approach to digitization projects that involve orphan works.

When I wrote my last blog post about contract law and the issue of licensing student work for public distribution, several people asked me about FERPA, the Family Educational Rights and Privacy Act.  Basically, the questions amounted to this: Don’t we need to think about more than just the copyright licensing issue when we put student work in public, or when we require students to do their work in public?  And the answer, of course, is “yes.”  That previous post was focused on the licensing question, and made only a passing reference to potential privacy issues.  Here, I would like to look more closely at the issue of FERPA and student work in public, while acknowledging that I am not a FERPA expert.

The examples I gave about the types of assignments that might be made public, or might be done in public from the start, offer an interesting hierarchy regarding FERPA, I think.  So I want to address them in three categories.  First, things like theses, final papers and honors projects that an institution might want to put in its repository, then the issue of art exhibitions, and finally FERPA concerns when students work directly in a public forum.

The conversation started around the idea that a school might want to put final papers from a class, or perhaps capstone or honors papers, into its open access repository.  I noted that, as a matter of copyright law, it was probably enough to inform the students of this intent in the syllabus, so that subsequently handing in the work form an implied license.  I still think this is enough to deal with the issue of copyright, but it is not enough from the perspective of FERPA.  Rather, FERPA requires a written, dated and signed waiver for  educational records, such as these types of assignments, that are “in our keeping,” to be made public.  So for a final paper or project that is handed in to faculty and then released to the public through a repository, a document waiving FERPA in regard to that paper or project must be obtained.  This written document could also serve as an explicit copyright license, but, as I say, it is necessary as a waiver of FERPA, while copyright can be licensed by implication.

The situation is more ambiguous when we ask about art projects that are handed in with the expectation that they will be part of a public exhibition.  Once again, what I said about an implied copyright license for public display applies, but it seems like the FERPA waiver is also often implied.  On the surface there seems to be no difference between the art project handed in for a grade and the final paper or honors thesis.  We know we cannot put out a stack of papers and invite others, even other students, to look through them.  Yet, with art exhibitions, schools seldom obtain FERPA waivers; they simply hang the works, which surely are also “educational records in our keeping,” on the walls of a gallery and invite the public in to look.  My friend Stephen McDonald, who is General Counsel for the Rhode Island School of Design and one of higher education’s foremost authorities on FERPA, often speaks of an “implied pedagogical exception” to FERPA, and I think that construct might apply here.  The Family Policy Compliance Office at the Department of Education, which oversees FERPA compliance, has said fairly often that FERPA is not intended to interfere with ordinary pedagogical practice.  And they have been clear that putting a thesis or dissertation on a library shelf, which also involves public access to an educational record, is not a problem.  Perhaps the art works can be thought of in a similar way.  And it may be important that art is made for display; that is what its creators expect, and inclusion in an institutional art exhibit is desirable for them.

So in this example, it seems that both a copyright license, for public display of an art work, and a waiver of FERPA privacy rights are being implied.  I think it is important that we separate copyright and FERPA in our minds, and think about each of them carefully.  But it is interesting to see how they diverge and converge.

Finally, what do we make of those assignments where students are asked to do their work in public right from the start, either by creating a web page, developing a blog, posting a video to YouTube, or having a class discussion on Twitter?  This is not an abstract question; our faculty are making such assignments all the time.  A library school student I know recently told me that she elected not to sign up for a class because of a requirement that each student post a specified number of tweets.  Once again, I think that the copyright situation is addressed by an implied license.  But what of FERPA? The first question is really whether these kinds of materials are educational records as defined by FERPA in the first place.  The issue is whether the “records” are ever “in our keeping” when the student creates them directly on a public platform.  It may well be that FERPA is not implicated at all in this scenario, based on a strict reading of its definition of an educational record.  And, of course, that reading is entirely congruent with what student expectations must be in this situation; they would hardly expect privacy when their work is a webpage or a set of tweets. In my opinion, however, this does not entirely settle the matter.

Even if FERPA does not apply, some of its principles, based on the idea of protecting our students, are important and should be accounted for.  A couple of years ago I was asked precisely this question, and those interested can read this blog post on the HASTAC site that was written by Professor Cathy Davidson, formerly of Duke and now at the CUNY Graduate Center, based on advice I gave about this type of assignment.  To summarize that advice here, I suggested three important steps to respect student privacy even if FERPA was not implicated by the assignment to work in a public forum.  These steps are, I believe congruent with what I have been saying about implied licenses throughout these two posts.  First, students should know about the requirement in advance; they should be informed by the syllabus while they still have an option not to take the class.  Second, provision should be made for students to participate pseudonymously, a step that would clearly resolve any FERPA problem that might exist.  And, finally, I suggested that provision be made, at least in the instructors own mind, for an alternative assignment that could be available to the student who really needs to take the course but, for whatever reason, does not want to do his or her work in public.  Of course, instructors are entitled to assess the validity of those reasons, consider the pedagogical benefit from public work, and evaluate any proffered reasons why a pseudonym would not be a sufficient solution.

I actually suspect that the recalcitrant student who simply does not want class work done in public is a vanishing breed.  Most of our students today are very comfortable with having their writing, art works, and opinions on the Web.  But when they are not, we should take steps to accommodate their discomfort without compromising the pedagogical value we believe is behind the assignment.  Indeed, the fundamental conviction behind all of this extended discussion about student copyright and FERPA rights is to suggest that these legal regimes can be managed in such a way that students are respected while still taking advantage of the pedagogical opportunities that the digital environment offers.  Neither of these legal structures needs, or should be allowed, to make the Internet a “no go zone” for student work; they just call on us to think carefully and respectfully about that work, and the students who create it.

Because I am on vacation this week and have very intermittent Internet access, I am hardly the first to announce that the Second Circuit Court of Appeals affirmed the lower court decision (mostly) in the Authors Guild v. HathiTrust lawsuit. I am a bit paranoid about major decisions coming down on days when I am out of touch, but that is another matter. The important point is that the decision is another important win for libraries and fair use, brought to us by the foolishly litigious Authors Guild. It is the first of three major appeals in fair use cases that academic libraries should be watching carefully, and it may help cause a domino effect in those other two (the Georgia State and Google Books cases).

This potential for impact on decisions currently being written by other judges is increased by the fact that the Second Circuit, in discussing transformation as a major element in fair use deliberately cited precedents from its own previous cases, but also cases from the Ninth Circuit and two other Circuit Courts of Appeal. The judges seem to be deliberately rejecting the idea that the circuits are split about transformative fair use.

This decision is very good news for libraries, and the ARL Public Policy Notes description of the decision is well worth reading. But for all its positives, it has to be admitted that there are some oddities in this decision.

Basically, the Court did three different things in this decision:

1. It affirmed the lower court ruling that the Authors Guild did not have standing – the right to bring the lawsuit – of behalf of its members. Another reminder of the oft-repeated rule that only a rights holder may sue to defend those rights, and associations that claim to represent rights holders but do not own any rights are not proper plaintiffs. A simple lesson the Authors Guild declines to learn.
2. The court also affirmed that mass digitization for the purpose of creating a searchable index of full-text materials, as well as to provide access to those materials for persons with disabilities, is fair use. There is a lot of language in this opinion that reinforces the ARL Code of Best Practices for Fair Use in Academic Libraries.
3. Finally, the judges remanded the case back to the lower court in regard to its opinion about fair use for preservation. This is one of the oddities in the decision, so let’s address that one first.

The oddity about this remand is that it does not actually question the conclusion that digitization for preservation can be fair use. Instead, the Court sent this portion of the case back to the lower court to decide if there was any plaintiff remaining in the case, once it was determined that the AG lacked standing, who was at any real risk of having a preservation copy of their book released by HathiTrust while there were still copies commercially available. In short, The Court of Appeals suggested that any ruling about fair use might have been premature because there was no plaintiff in a legally-recognizable position to raise the challenge. It is still entirely possible that, if such a plaintiff is found in the remaining group of named authors, fair use could nevertheless be affirmed. And, because of the rest of the ruling, it would be hard to see what difference even a ruling against fair use for preservation would make to the actual practice of the HathiTrust. So this was really a technicality, and quite strange.

By the way, in regard to the key argument raised by the Authors Guild that the library-specific exception in section 108 precludes libraries from relying on fair use, the court paid almost no attention. It dismissed this silly argument in a footnote (footnote 4 on page 13). This was a losing argument from the start, and the reliance placed on it by the AG shows just how out of touch they are in their approach to copyright.

I think three points are important about the fair use decision favoring HathiTrust in this case (the factor-by-factor analysis is handled well in the ARL post).

First, the Second Circuit accepted the same broad approach to the issue of transformation as has become common in other decisions. It is not just actual changes to the original work that can support a finding of transformation, but a “different purpose… new expression, meaning or message.” And, as I said, the Court appealed to a broad consensus across the country in defining transformation this way.

Second, the Second Circuit held that the lower court was wrong to find that digitization for the purpose of facilitating access for persons with visual or print disabilities was transformative, but found that it was fair use nevertheless. This is important, because in the Georgia State appeal the plaintiffs are arguing that because Judge Evans found that copying for electronic reserves was not transformative, she was in error to still find fair use. But in the HathiTrust case the Second Circuit recognizes what is there for all who read Supreme Court opinions to see, that when a use is transformative it is very likely to be fair use, but when it is not transformative, it can still be fair use if a careful analysis of the factors indicates that conclusion. That is what the Second Circuit finds in regard to HathiTrust and its copies for the disabled, and it is what Judge Evans found in GSU. Both were correct decisions in keeping with the clear precedent from the Supreme Court.

Finally, there is the oddity of the Second Circuit panel’s treatment of the fourth fair use factor when it is analyzing the indexing function of HathiTrust. First, the appellate panel calls the fourth factor the most important consideration, and cites the case of Harper & Row v. The Nation for that proposition. But the Supreme Court really renounced that position 20 years ago in the “Oh Pretty Woman” case, so this is the first part of the oddity. The Second Circuit then goes on to define the idea of market harm very narrowly, saying that the only harm to a market that is recognized for the purpose of the fourth fair use factor is when “the secondary use serves as a substitute for the original work.” This seems to be how the court aligns itself with the ruling in “Pretty Woman,” but it is a strange way to get there. The effect of this proposition is to rule out consideration of almost all licensing markets when looking at the fourth factor. This is a conclusion that must be causing serious heartburn in the publishing community. While the Authors Guild continues to make fair use easier and more inclusive with their absurd litigation campaign, they cannot be winning themselves many friends amongst rights holders.

The bottom line is that this decision is very good for libraries and others who depend on fair use. It adds another precedent and some additional bits of analysis to our claims of fair use. But we should recognize that it grows out of what was a very dumb lawsuit to begin with. As is so often the case, we should be emboldened by this ruling, but not too much. The best protection the library community has against aggressive litigation is still, as it always has been, careful and responsible reflection. In that context, fair use is an increasingly safe option for us.

A significant number of subscribers got spammed by this list today. Routine maintenance of the development server at Duke triggered a mistaken torrent of hundreds of old posts. The biggest problem was that there was a partial subscriber list as part of the development instance of the blog. That list has been removed, so this particular problem should never happen again. There was no hacking involved, and subscriber e-mails did not get harvested or released to anyone.

I am very sorry this happened. I certainly understand if folks want to unsubscribe from the list, but emphasize again that the production version of the blog did not cause this and was not compromised. The list of subscribers that was inadvertently associated with the development instance is no more.