How does Fair Use work? (weekly widget)

Fair Use is the only exception to the copyright law that applies to all of the rights in the copyright “bundle” — reproduction, distribution, public display, public performance and derivative works. If it applies, fair use can allow otherwise unauthorized uses that involve any or all of these rights. The problem is that it is very hard to predict when fair use will apply.

Fair use was an exception to copyright created by judges in order to maintain an equitable balance between copyright holders rights and the legitimate needs of users. It was incorporated into the new copyright law in 1976 with no intention to change the flexible, factor-based analysis that judges had been using all along. So instead of a set of requirements that have to be met for all the other exceptions to apply, fair use has a set of four non-exclusive factors that judges are to balance. It is not a checklist nor a mathematical equation, but rather considerations to be balanced in order to help judges decide what is fair.

The four fair use factors listed in section 107 are 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market for or value of the original. In addition to these factors, section 107 lists some illustrative examples of activities that might be fair use — “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.”

Because it is “an equitable rule of reason” applied by judges, and therefore quite uncertain, some people are afraid to apply fair use. Nevertheless, it is an essential tool for higher education and the only copyright exception that is flexible enough to accommodate new uses and new technologies. It is very important, for this reason, that academics continue to consider the four factors and make good faith decisions about fair use whenever appropriate.

NIH public access mandate becomes law

On the day after Christmas, President Bush signed the Omnibus Appropriations bill for fiscal year 2008, ending a long struggle with Congress over earmarks, appropriate funding levels for various government agencies and continued funding for the war in Iraq.  Buried deep in this huge and complex document (section 218, to be specific, although not all the sections seem to be numbered) is language that turns the voluntary program of open access deposit for research articles that are the result of National Institute of Health funding into a mandate.

Beginning immediately, apparently, when an NIH funded researcher has a article about her research accepted for peer-reviewed publication, she is required to deposit a copy of the final version of the article into the open access PubMed Central database within 12 months of publication.

Librarians, and many others in higher education, have lobbied for several years to get this requirement, and others like it for research funded by other taxpayer supported agencies, enacted.  Now the issues of implementation become both real and urgent.  How can we help faculty researchers understand the new mandate?  What publishers can we recommend, and can we help faculty review their publication contracts to be sure compliance (or even earlier public access to the article) is allowed?  Some publishers, like Elsevier, already promise to deposit copies of articles they publish for researchers.  Publishing with such a publisher is an easy way to comply with the mandate, but it will almost certainly result in the full 1 year delay before open access.  For many researchers, there will still be significant advantage in accomplishing open access much sooner than this.  So the task of assisting faculty with understanding their alternatives, negotiating their publication contracts and navigating the mechanics of open access deposit are even more urgent services that academic libraries can and should provide.

Strangling our cultural past

In a recent post about “The Global Garroting of the Public Domain,” William Patry describe beautifully how we have arrived, in the US, at such a long term of copyright protection, and how international trade negotiations are used to continually ratchet up the pressure for ever-stronger and ever-longer copyright rules. The main point of his post, about how US interests now seriously threaten the publishing industry in Korea, not because of piracy in Korea but merely because some large US content owners are anxious to keep older works in this country out of the public domain, is a sad lesson in unintended (at least by some) consequences. His post, as well as some interesting comments on it by Georgia Harper here at Collectanea, reinforces a point made in this space about “policy laundering” using international trade negotiations.

As if to add strength to Patry’s argument that the real purpose behind copyright term extension has never been stronger incentives for future creation, but rather to keep older works out of the public domain, two recent news articles recount cases on exactly that topic. In one, with an international flavor of its own, Japanese news sources report that the Supreme Court in that country has rejected a claim by US movie studios that the 1953 movie “Shane” should continue to be protected even though its copyright expired, under the Japanese law in place at the time, at the end of 2003. A new law put an extension of the term into place as on January 1, 2004, but the court declined to apply the extension to movies that fell into the public domain at the same moment that the new term of protection took effect.

Content owners were more successful in their arguments that some studio outtakes from songs by Elvis could not be used in a new album. Although the producer of the new album by Cargo Record firmly believes that the material was recorded early enough to be in the public domain, the company has decided not to release the album after a threatening letter from Sony BMG. A Sony spokesman was very frank about not wanting to let others “assume” that these works are in the public domain when they “may” not be. A perfect expression of the “chilling effects” that may be the primary purpose of the Sonny Bono Copyright Term Extension Act.

These cases provided added evidence to Patry’s powerful argument that restricting the public domain, not encouraging creativity in the future, is the real motive force behind not only our last copyright term extension but also the calls that are already being heard for further extensions.

Bad impact?

As I have discussed before, impact factors are tremendously important in the process of evaluating the quality of scholarship and the career prospects of academics. So it is especially troubling to read this editorial called “Show Me the Data,” published in the Journal of Cell Biology this week by two scientific journal editors and the director of a university press, raising questions about the reliability of those impact factors on which so much depends.

Impact factors are calculated, and marketed, by Thomson Scientific, which was formerly known as the Institute of Scientific Information, or ISI. For many years ISI has published citation indexes, and the impact factors are an outgrowth of those works. When an academic is being assessed for tenure, promotion, grant funding or even a salary bonus, it is a common practice to consult a citation index to determine the influence of that professor’s work and to look at impact factors to see if she is publishing in the most influential places. So Thomson/ISI has tremendous influence in the whole structure of academic hiring and rank. The editorial in JCB takes a look at how firm the foundation for that influence is.

The editorial reports on the authors’ attempts to replicate the calculations that result in specific impact factors. The data they were able to purchase from Thomson Scientific contained what they believed were errors in Thomson’s own reported methodology and did not lead to results consistent with the published impact factors for the three journals involved in the study. When queried, Thomson replied that a different set of data was used to calculate impact factor than that sold from their “research group.” But even when they were reportedly given access to the other data set, the authors were unable to replicate the published findings. There conclusions raise a significant concern: “It became clear that Thomson Scientific could not or (for some yet unexplained reason) would not sell us the data used to calculate their published impact factor… Just as scientists would not accept the findings in a scientific paper without seeing the primary data, so should they not rely on Thomson Scientific’s impact factor, which is based on hidden data.”

By itself this paper does not close the book on the accuracy of impact factors. There are many questions one would like to ask, some of which are unanswered because of restrictions on how Thomson Scientific allows purchasers to use the data that they buy. But there are already many other reasons to question the role of citation rates and impact factors in the promotion and tenure process, such as their inability to account for new modes of disseminating the results of research and scholarship. This article simply strengthens the case for a more multifaceted and qualitative approach to academic evaluation.

What are the specific teaching exceptions? (weekly widget)

Two exceptions, found in section 110(1) & (2) of the Copyright Act, apply specifically to teaching activities. These are both exceptions to one of the exclusive rights held by a copyright owner, the right to authorize public performances of the copyrighted work. Public performances happen all the time in teaching, whenever a poem is read, a play staged or a film screened for students. All of these performances would be considered public, even when confined to a small class of students, under the broad definition in the copyright act. So a specific exception to the public performance right is included as section 110(1), which allows public performances without permission as part of face-to-face teaching activities of a non-profit educational institution, in a classroom “or similar place devoted to instruction.” The only further requirement to benefit from this exception is that the copy of a film or other audio-visual work that is performed must be legally made. Copies that are purchased from a reputable vendor or borrowed from a library, a friend or a video-rental service are all lawfully made.

The other teaching exception in 110 is the TEACH Act, which greatly expanded the opportunity in subsection (2) for performances via distance education. Unlike subsection (1), the TEACH Act is full of specific requirements to enjoy its benefit. Some of these requirements are rather difficult for many institutions to fulfill; the best summary of how to interpret and use the TEACH Act is found in this TEACH Act toolkit from North Carolina State University.

Because these exceptions are so specific and, in the case of the TEACH Act, so difficult to use, many educational activities have to rely on fair use — the broadest exception in US law to the rights of a copyright holder — if they are to proceed without seeking permission.

Leaky faucets and copyright in Canada

Here in North Carolina, a very severe drought finally motivated me to try to stop the drip in our kitchen faucet.  I tried and tried to tighten the faucet enough to stop the leak, but simply could not tighten enough.  Finally I faced the fact that a more comprehensive solution was required, and we replaced the old faucet with a new, leak-free fixture.

In Canada this month, folks trying to fix their copyright law have illustrated the same principle – it is often not enough to just tighten things up when what is needed is comprehensive repair.  For some weeks rumors have flown that the Canadian government, acting through its Industry Minister, intended to introduce a copyright reform bill that would mirror the Digital Millennium Copyright Act here in the US.  Both the US government and media interest groups in this country have been pressuring Canada to “normalize” its copyright law along the highly restrictive lines modeled by US Title 17.

As this article from the Electronic Frontier Foundation indicates, these plans rather backfired.  A surprisingly large grassroots reaction to the proposal developed quite quickly, led by Professor Michael Geist of the University of Ottawa.  Over 20,000 people joined a “Fair Copyright” Facebook site – a powerful testimony to the new awareness and concern over copyright regulation that is beginning to filter down to consumers.  The result is that the Government decided to delay introduction of their bill, which the opposition had dubbed the “Canadian DMCA.”

We can but hope that this attention and advocacy will not abate in the new year, and that Canada will use this momentum to actually fix its law, striking an appropriate balance between the rights of creative artists and the needs of consumers, as well as educators and new creators.  Simply tightening current rules will not work, as both my leaky faucet experience and the “finger in the dike” approach adopted by the RIAA indicate.

In the course of the campaign against the proposed reform law in Canada, Professor Geist and his colleagues created this YouTube video, which offers over two dozen suggestions about what ordinary consumers can do to influence the debates about copyright.  These simply actions, like making sure that digital media retailers will accept returns if consumers discover DRM systems that they do not want to accept, could profoundly influence both legal policy and commercial practice.  But if I could choose one that I wish would become a New Year’s resolution for many academics, it would be number 23 – “Read license terms.”

What are the exceptions to copyright? (weekly widget)

There are a large number of exceptions to the exclusive rights given to copyright owners. In fact, over 1/3 of the text of the Copyright Act — sections 107 through 122 — are limitations and exceptions to those exclusive rights. All of these sections explain situations in which it is not necessary to obtain authorization from the copyright owner for a given use, even though that use would otherwise infringe one of the exclusive rights. Many of these exceptions deal with very narrow and technical matters, like the rebroadcast of television programs over cable or the reproduction of certain materials for use by the visually impaired. Most of the sections provide for exceptions to specific rights in the copyright “bundle.” Section 110, for example, lists several exceptions to the right to authorize public performances or displays, but it does not refer in any way to the other rights like reproduction or distribution. Only fair use, found in section 107, is an exception to all of the rights held by a copyright owner; when fair use applies, reproduction, distribution, performance, display and the making of derivative works may all be done without authorization.

For purposes of teaching and research, fair use and the first two provisions of section 110 are by far the most important copyright exceptions, and we shall discuss these three provisions in upcoming widgets.

Wolves in sheep’s clothing

A couple of recent developments in the copyright arena remind us that all news is “spun” one way or another (including this blog, I suppose).

A story yesterday in the Chronicle of Higher Education reports that the Copyright Alliance is proposing a wiki site that will help broker permissions requests from academics; the idea is to have representatives of the content industry monitor the site for questions from professors in order to expedite the permissions process. Sounds good, since the process of asking permission is terribly cumbersome and the result is often nothing but silence from the rights holder. But wait; lets look at the example used in the story. A professor wants to show the film “Monty Python and the Holy Grail” to a class on British Humor. Why, we should ask, is that professor seeking permission at all? An in-class screening of a film within the curriculum of a non-profit educational institution is clearly permitted under section 110(1) of the Copyright Act; no permission is needed as long as a legally obtained (bought, rented or borrowed) copy is used.

The fact that this example is used raises some troubling concerns. This wiki would not be the first attempt by the content industries to try to inculcate a more narrow view of the copyright exceptions than is actually the law under the guise of helping with permissions. Even worse, this site could add more ammunition to the claim that as it gets easier to ask for, and pay for, permission for a particular use, the scope of the fair use get narrower. It is imperative that academic institutions and faculty members make their own fair use decisions and ask permission when truly necessary, not merely when there is a convenient hand out to take the money.

Last week also saw the introduction in Congress of a bill called the PRO IP (for “prioritizing resources and organization for Intellectual Property”) Act. In spite of the name, there are many who are pro IP who will not be happy with this bill. Its primary purpose is to ratchet up, once again, the penalties for copyright infringement, both criminal and civil. In the realm of civil damages, this bill would allow music companies to get separate damages for the infringement of each track on an album that has been downloaded without authorization; for a twelve track album the potential damages would rise from a maximum of $30,000 to $360,000. This would be a windfall for some in the content industries, but it is hard to see how it would advance the fundamental purpose of copyright law. I am not at all in favor of illegal file-sharing, but the chilling effect this draconian increase in potential liability could have on legal activities seems to outweigh the benefit it could provide. It is already the case that many people are unwilling to exercise their legal rights because of the scare-tactics used by content owners to prop up their failing business models.

The other major purpose of the PRO IP Act is to create two new bureaucracies in the federal government — a “White House Intellectual Property Enforcement Representative” and a new division in the Justice Department dedicated to IP enforcement. The former office seems to be modeled on the US Trade Representative as an adviser to the President and watchdog over US interests abroad. It is not clear whether there has been some felt need for these additional offices outside of the desire by the big entertainment industries to have as many bureaucrats arguing on their side in the copyright conflicts as possible.

There are comments on PRO IP, as well as some links, here at the Electronic Frontier Foundation site.

Property or privilege

The debate over how best to understand the odd notion of intellectual “property” is long-standing. Many find that an analogy between the products of intellect and creativity on the one hand, and property on the other, deeply inappropriate. There is no doubt that such an analogy is often badly abused. When the recording industry insists that music file-sharing be referred to as “theft,” for example, they ignore a fundamental difference between the physical and the intellectual realms. When physical property, a car, for instance, is stolen, the owner is entirely deprived of the enjoyment of that property. When music files are swapped, on the other hand, the owner may suffer a loss of value in her property, but she is not subject to the same total deprivation.

These issues are explored in a new book and an accompanying blog by Chapman Law School professor Tom Bell called “Intellectual Privilege.” Bell’s basic point is to suggest a better way to look at the legal protection of the products of human intellect; one that neither equates them entirely with physical property nor dismisses all such protection as a burden on the ideal of free use:

“I here offer a third view of copyright. I largely agree with my
friends on the left that copyright represents not so much a
form of property as it does a policy device designed to “promote
the Progress of Science and useful Arts” (as the Constitution
puts it). I thus call copyright a form of intellectual privilege.

Bell’s project promises to generate some fascinating discussion about the nature and uses of intellectual production, and it models an emerging form of scholarship by making the text available pre-publication for public comment. For even more discussion, see the Lessig Blog, where an announcement of Bell’s book has also generated interesting comment.

I look forward to following this debate, but at the outset I want to note that the analogy between IP and physical property is not all bad and is sometimes quite useful. The basis of James Boyle’s now classic article on “The Second Enclosure Movement and the Construction of the Public Domain” is, after all, just such an analogy. And I recently used the analogy with physical property, appropriately, I hope, if less brilliantly, to refute some of the parade of horribles that some have suggested will follow from a mandate to make the products of NIH funded research available in open access.

Bell emphasizes that IP is a bundle of privileges granted by the government to enact certain policy goals. But this definition is equally applicable to physical property; property ownership is a government granted right to exclusively enjoy (that is, to exclude others from) a particular object or piece of land. As with IP, the exclusive rights of physical property ownership are subject to numerous restrictions and exceptions (taxes, zoning, etc.) that help serve public policy ends. The real object of the discussion should be to arrive at a careful understanding of both physical property and intellectual privilege and then look at how they relate, where they differ and what policy alternatives might result from the differing views. Tom Bell has offered us a wonderful opportunity to participate in that project.

Worth noting — a public domain search engine, which describes itself as “the site for collaborative solutions in sustainability, poverty reduction and international development,” has made available, in cooperation with Google, a beta version of a “public domain search engine.” The purpose, of course, is to help people find public domain material that they can use freely, without having to worry about copyright restrictions. Since such material can provide source for education, creativity and economic development, this project fits well into the self-defined mission of Appropedia.

It appears that the search engine focuses primarily on U.S. government material, which is in the public domain from the moment it is created. They have a nice explanation here of how they have gotten to the point of beta launch and where they hope to go. While this is a good start, there is a wealth of public domain material beyond the reach of this plan. Like the Google book search, this project is limited by the difficulty and expense of discovering what is and is not in the public domain. Ironically, while this search engine focuses on federal government materials, the Google Book project treats most government material as copyrighted works, since its definition of the public domain is limited to material published before 1923. Both definitions are radically narrow, and they emphasize the need to revise our copyright law to make the many works that are likely in the public domain (many so-called Orphan Works never had their copyright renewed, for example) easier and safer for the public to use.

In the meantime, however, this search engine, along with the more robust ability to search for material licensed under the Creative Commons licenses, offer great tools for helping scholars, teachers and others escape the straitjacket of our overly restrictive copyright law.

Discussions about the changing world of scholarly communications and copyright