Copyright Librarian

Adapted from a presentation today at "Enhancing Quality Staff 2012", which a really fun and engaging symposium, and always really well-run (by UMN Libraries colleagues.)

Sometimes it gets a little tiring to work through all the details of copyright exemptions and exceptions. Especially when we're building on other people's stuff to make new things, we can make choices that make everything WAY EASIER - just search for inspiration amongst stuff you already know you can use!

(Note: this is all highly U.S-centric. Sorry, international folks, I don't know your public domain laws. Creative Commons should port, though!)

You Can Use Stuff When...

Copyright doesn't apply
This is also known as the public domain - the body of works available for all of us to use. We all own them! Sometimes it's hard to figure out if something is in the public domain, but there are two times when it's fairly easy:

If it was published, in the United States, prior to 1923
If it was produced by the U.S. federal government.

There is a ton of other stuff in the public domain, including things from well after 1923, but that's the easy stuff. If someone else is making the assessment of public domain status, you also might want to consider the reliability and authoritativeness of that assessment.

Permission has been granted
Here's one way to know you have permission: "Can I use this?" "Yes."

This often works well when you can make contact with the creator directly, but note, this only works if you ask the person who owns the copyright - which is often not the creator!

Open licenses are another way to know you have permission - it's a form of licensing where the rightsholder gives the whole world a license to use the work (though sometimes with some restrictions.) Creative Commons licenses are the most common form of open content licenses; free and open-source software licenses are another example.

Places to Find Stuff You Can Use

Creative Commons Search - http://search.creativecommons.org/
Search through many different sites for Creative Commons licensed content in a variety of media.

Internet Archive - http://www.archive.org/
Slightly overwhelming listing of multimedia content. Creative Commons (& other open licenses) and public domain.

"The Commons" on Flickr - http://www.flickr.com/commons
Photos from archives & museums with "no known copyright restrictions" (i.e., probably public domain)

Open Clipart - http://www.openclipart.org
Vector/clipart images. Widely varying quality. All public domain*.

Flickr Creative Commons content - http://www.flickr.com/search/advanced
Use the advanced search interface on Flickr to find only Creative Commons licensed photographs.

Musopen - http://www.musopen.com/
Collection of sheet music and recordings. All public domain*.

CC Mixter - http://ccmixter.org/
Collection of sound samples and finished musical works. All Creative Commons licensed.

Jamendo - http://www.jamendo.com/en/
Music site. All Creative Commons licensed. In and out of service, lately.

Magnatune - http://www.magnatune.com/
Music site. All Creative Commons licensed, but primarily available to fee-paying members.

Project Gutenberg - http://www.gutenberg.org
Collection of text and scanned-image copies of books. All public domain.

Open Library - http://openlibrary.org
Project of the Internet Archive - somewhat free e-books. Public domain and other.

Librivox - http://librivox.org/
Volunteer-read audiobooks. All public domain*.

Many authors have also released new books under Creative Commons licenses, but they're not easily searchable from any one location.

Al Jazeera's Creative Commons footage - http://cc.aljazeera.net/
Some of the better Creative-Commons licensed documentary footage available, though of course with limited topic coverage.
 
Vimeo - http://vimeo.com/creativecommons
Video site; allows creators to apply Creative Commons licenses to their videos. You can browse CC-licensed videos from this page.

Blip - http://blip.tv
Video site; there is CC-licensed content on here, but no easy search interface that I can find at the moment.  

You can also search YouTube including "creative commons" as part of your search words - then check the full info to see if the video is licensed. (Or look at http://www.youtube.com/t/creative_commons for info on how to license, but they don't quite support the full suite of licenses.)

*For any new work, including present-day recordings of public domain music, copyright automatically exists from the time of creation. Although some creators or performers may want to relinquish all their rights, it's actually kind of legally difficult to do that - most countries, the U.S. included, automatically give some rights that creators cannot sell or give away. Several of the "public domain" resources on this list include new content, but creators on these projects usually at least intend to cede their rights.

Stuff to Help You Use This Stuff

The following free and open-source software is all stuff I use (or have fairly recently used) on my personal computer (Linux Mint), my work PC, or both.

LibreOffice.org - http://www.libreoffice.org
Completely free and open suite of office software that interoperates pretty well with Microsoft.

VLC Media Player - http://www.videolan.org/vlc/
Audio/video player. Will play any format you throw at it.

GIMP (the Gnu Image Manipulation Program) - http://www.gimp.org/
Photo editor - like Photoshop, but free and legal to install on as many computers as you want! Very full-featured, slightly different interface, but if you give it a couple of days, the adjustment is easy even for a longtime Photoshop user.

Inkscape - http://www.inkscape.org
A vector image editor (like CorelDraw or Illustrator). Vector art is infinitely scaleable without loss of print quality, so this is a good tool for making posters, flyers, other one-page layouts. Most clipart (including all the .SVG files on openclipart.org) is vector art.

Audacity - http://audacity.sourceforge.net/
Great audio recorder, mixer, and editor.

VirtualDub - http://www.virtualdub.org/
A good stripped-down open source program for basic video editing.

Zotero - http://www.zotero.org
A very full-featured citation management program that is a browser plugin for Firefox, and that integrates with MSOffice and open office suites.



If you've got any favorite open content, public domain content, or open source software resources, feel free to add in the comments! Anon commenting is okay, but I'm a slow moderator. :)

Recently, a blogger copied from a University-produced blog at significant length without credit or a link back to the original site - behavior that understandably produced pretty negative feelings from the staff members whose work was being reproduced without credit. Because the blogger had suggested that the content was in the public domain, these folks contacted me for clarification. We ended up discussing a lot of issues related to fair use and the mission of the public research university, as well as how best to foster appropriate public use of University-produced materials. It's worth noting at the top here, that the initial situation was resolved with positive feelings all around, including the blogger apologizing for not providing credit.

The following thoughts on plagiarism of public-facing materials produced at a public research institution are adapted from email conversations around the above situation - but might be worth thinking about in other instances of sharing and 'stealing'.

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First off, copying a whole blog post without credit sounds like plagiarism - which is unethical, and in the academic environment is a punishable offense. But plagiarism is often not actually a copyright violation. At times like this, that can be frustrating, but there are actually good reasons for the law to work like that. When engaging with someone who may have plagiarized in a blog environment, I'd stick to talking about plagiarism in terms of journalistic (and blogger) ethics, rather than law - most people usually do care about behaving appropriately on these points, but can be pretty confused about appropriate ways to provide credit, or about what works are free for public use.

Depending on the facts of how a work is produced at the University of Minnesota and how the University copyright policies apply, the copyrights may belong to the Regents (i.e., to the University), to individuals, or to a combination. Bloggers (and others) may be confused about the public domain status of University of Minnesota materials, because the United States federal government does not own copyrights - all federal government materials are in the public domain in the U.S. Many states also have laws that make their own state laws public domain. However, the individual states, and especially units of those states acting as regular business entities, can own copyrights. It is quite common for Regents of state universities to hold copyrights in materials produced by their staff.

It's important to remember that even if the Regents do own the rights, bloggers - and anyone else - do have some rights to re-use the content without permission under the copyright concept of "fair use". At times, fair use does include even the use of an entire work - a concept that has recently been upheld in cases of bloggers reproducing news articles without permission.

Clearly, plagiarism of online content is problematic - but it is actually not true that every user would be violating copyright if they reproduced the whole article, and it is true that individuals do sometimes have the right to use quotations without permission. Because there really is  room in the law for some re-use by individuals, I'd encourage anyone communicating with a possible plagiarist not to overstate what the law prohibits individuals from doing - although I understand why poor behavior and plagiarism might produce the urge to use some strong words.

It's also important not to overstate the limits of use rights in copyright because, as a public research institution, the Regents have articulated institutional commitments to sharing our work with the public - one of the guiding principles of the Regents' Copyright Policy is "The University's mission articulates a commitment to sharing knowledge through education for a diverse community and application of that knowledge to benefit the people of the state, the nation, and the world. In this spirit, the University encourages faculty and students to exercise their interests in ownership and use of their copyrighted works in a manner that provides the greatest possible scholarly and public access to their work."

Throughout the University, we rely on fair use a lot in our research, teaching and scholarship. It's important to remember that that's a two-way street.

One major argument publishers have taken with respect to open access mandates is that they harm the publishers' intellectual property rights. While "harm" is relative, it is true that an open access mandate forces publishers to handle intellectual property rights differently. Just, not in the ways publishers say it does.

There's a hearing about the Federal Research Public Access Act today, and although the background documents are pretty well put-together, and relatively balanced, it's particularly frustrating to read their discussion of publishers' IP rights (pages 9-10).

The document accurately states that "should a federal agency prospectively require recipients of federal funds to ensure that the publication of their work was made in an open access manner as a condition for receipt of federal funding for the research, a {constitutional challenge over government takings of property} would likely not be successful." This is absolutely accurate.

It also states that "this effectively forces journals to yield their intellectual property rights in the peer reviewed article to the NIH requirement or not accept an article funded by NIH for publication." This is not true - and the reason it's not true is WHY THERE IS NO CONSTITUTIONAL PROBLEM WITH SUCH A REQUIREMENT.

The Fifth Amendment to the Constitution does forbid government takings of property without just compensation. But from the time of its creation, the copyright in a journal article belongs to its authors. The NIH-style open access requirement is something authors choose to agree to, or not, long before they ever create the article. Any cession of rights is agreed to by the author, before the rights exist. Considering how important federal grant funds are to many researchers, this is not a completely free choice - but I have heard very few authors actively arguing against such requirements. Most of them recognize the benefits open access provides to them and the research enterprise, and the moral claim that taxpayers ought to be able to access research they funded.

Even if you accept publishers' arguments that they add value through the editing process such that the peer-reviewed, edited version is somehow morally a work of the publishers' authorship (and boy howdy do a LOT of authors not agree with that), their rights are, at best, still derivative of the authors' copyrights. Government open access mandates don't take any rights away from the publishers; authors agree to conditions on their grant funding long before the publishers come into the rights-ownership picture.

The only choice forced on publishers is whether to publish the works of an author who cannot sign over all the rights (because they have already ceded some rights elsewhere), or not. They are not forced to cede their rights, because at the point of cession, the rights are not theirs.

Glad a lot of people are finding my previous post about Pinterest useful and informative. A number of comments, tweets, and emails have pointed out a couple of areas that I glossed over too fast in that post, so here's a couple of additions and clarifications.

1. A couple of people have interpreted the previous post as a wholesale endorsement of (or even "advertisement for") Pinterest.

I actually haven't been using Pinterest, don't have an account on it, don't see myself using it much in the future. Not really my thing. I'm also not affiliated with Pinterest in any formal way, and I don't think I know anyone who works there.

However, I have enjoyed looking at the boards friends have put together or shared links to - if you put the legal and/or ethical issues aside (which I don't think are unique to Pinterest anyway) I think it's a great new tool for curating online content. And I think there are lots of great legal and ethical ways to use it. Which is why I care whether overblown fears stop people from using it.

2. Nope, I am not saying "Pinterest is fair use."

If you don't have much experience with copyright issues, it's really difficult to understand fair use, especially with images as your main examples. Fundamentally, fair use says it is 100% legal to make copies of other people's stuff without permission or payment - SOMETIMES. Quite certainly, some of the copies people have made on Pinterest (remember, "pinning" makes copies, which immediately raises copyright issues that just linking does not) are legal under fair use. Some of them probably are not.

If you want to know if the copies you made are legal fair uses, you should learn as much as you can about fair use*, and use your best judgment. The fearmongers and spreaders of copyFUD would have you believe that you cannot possibly understand fair use well enough to make reasonable judgments about your own uses. I think better of you than that.

If the idea that people can make legal copies without paying sounds like an artistic injustice to you, you might consider thinking about all the ways fair use enables artistic production. Collage, remix, parodies, satire, appropriation art, and even photographs that reference or incidentally copy other images - all rely on fair use.

3. Yes, some copies on Pinterest are undoubtedly legal.

You can make copies of public domain stuff (note: "public domain" does NOT mean "anything that's public online". It means "a specific class of materials in which copyright has ended, or never existed in the first place."  U.S. federal government documents are public domain; works on which copyright has expired are public domain. 

You can make copies of Creative Commons licensed works, if the license allows it and you provide credit appropriately. You may need to learn more about what kinds of copying the various licenses allow, and how to appropriately credit, to make good calls on that.

Check out my "Joys of the Public Domain/Creative Commons" posts for examples of public domain and Creative Commons image copies: Spring Flowers; Sweaters; Rail Snowplows.

You are probably also okay making copies when the owners of the images invite you to do so - however, that can be a little murky. For example, some Etsy users were not happy when Etsy enabled a pinning function throughout the site.

4. Okay, so the Terms of Service are much like other sites; why should that make anyone feel any better?

I agree that the Terms of Service read a bit intimidatingly. But you agree to terms and conditions documents like that quite literally all the time - not just online. Most retail receipts include similar terms, as do most travel and event tickets. And yet, it is incredibly rare for companies to, for example, try to require a user to indemnify them (cover litigation costs) for a lawsuit - much less to sue their own users for breaches of the terms. (It's hard to explain why such one-sided legal agreements are so prevalent in our lives without getting pretty deep into contract theory and a discussion of how many parts of the legal system don't actually work for actual people in the real world - which is a bit beyond my ken, certainly in one blog post.)

It's also not usually attractive for people who might have the right to go after individuals in a lawsuit to do so - the "deep pockets" (i.e., entities that can actually pay damages) are elsewhere. However, copyright is actually an outlier here, and individual users do get sued fairly often - so if you believe your use of Pinterest to have been heavily infringing, some concern, and/or removal of material, may be warranted.

Finally, however powerful contracts may be, they can't functionally give Party B (say, Pinterest) rights that Party A (say, an individual user) doesn't have. So even if you uploaded stuff that you didn't have a right to upload, you have not magically given Pinterest the right to sell that image. You maybe did violate the terms of service, but the point of looking at the TOSs of other social sharing sites (or reading the backs of receipts, or even standard warranties) is to show you that you do that all the time. Not violating contracts is a good idea. But if you don't know you agreed to them, or don't understand them, there's not much you can do except try to be more aware and informed in the future.

* To learn more about fair use:
University of Minnesota Copyright Site - https://www.lib.umn.edu/copyright/useoverview
Stanford Fair Use Project  - https://fairuse.stanford.edu/
Center for Social Media's Fair Use info - https://www.centerforsocialmedia.org/fair-use
EFF's Legal Guide for Bloggers - https://www.eff.org/issues/bloggers/legal/liability/IP

[Update, 3/13/12 - some clarifications and additions.]

There's a couple of different articles circulating about a Pinterest user regretfully deleting her Pinterest boards and/or account, because it's just illegal/unethical/morally wrong/too scary/something else. A number of my friends have shared links to these articles or others about Pinterest and legal issues, accompanied by an announcement that they, too, are deleting their Pinterest boards. This makes me sad, for a number of reasons!

1. While the way Pinterest functions certainly raises a number of copyright issues, they're not significantly different from the issues raised by many other social sharing sites!
   
2. A lot of people are talking about how scary the Pinterest terms of service are - but they are not significantly different from those of many other social sharing sites.
   
3. These posts create a great deal of fear, uncertainty, and doubt about what users are "allowed" to do online - which for a lot of users, including my friends, has clearly translated to choices not to do those things. This is called a "chilling effect", and it's the whole point of spreading FUD in the first place. It's not a good thing.
   
4. There are some unique characteristics of the Pinterest user community - both the fact that a lot of women are using it, and that a lot of photographers and other commercial artists are using it - that are playing into the interactions around the legal issues in some unusual ways. I'm not sure I fully understand it all, but I'm also not sure it's not actually a bit screwed up. 

I have a lot more to say about the first two things, and not much more to say about the third or fourth things right now in any useful form. The TL;DR version is the stuff above. Thought I'd help out you short-attention-span folks.

I'd also add that I've seen a couple of posts in response to these concerns that are NOT raising fear, uncertainty, and doubt, but rather legitimately engaging with the ethical and legal issues. Emily Lloyd's post was interesting; I don't entirely agree, but have had fruitful further discussion, hooray!

Copyright Issues in Social Sharing

The first article I saw about this issue was about a Pinterest user who is a lawyer. This article has REALLY BAD SUMMARIES of that user's understanding of copyright law. The post I'm seeing circulated more heavily more recently is actually the original post by the Pinterest user who is a lawyer. The copyright analysis here is not as badly done, but it is well into the realm of copyFUD (shorthand for "articles spreading Fear, Uncertainty, and Doubt re copyright and fair use".)

[Not to cast any aspersions on my fellow members of the bar - or to suggest anything specific about the experiences of the author of the original post - but it's worth noting in passing here that most lawyers graduate from law school without ever studying any copyright law.]

Pinterest does have a copyright problem - it is not totally obviously A-OK for it to operate the way it does, or for users to use it the way they have been.

The biggest copyright problem is that Pinterest makes copies of the images people "pin". It does not simply create a link to the source image, it actually makes a new copy of the image. (The new copy does link to the source from which the image was pinned, although that's not always the original source of the image.)

When you're making copies, any copies, of copyrightable material, copyright is an issue. But it does not necessarily follow that because copyright is an issue when you make copies, copyright obviously and clearly prohibits the making of those copies. Fair use is one way the law allows people to make copies without permission or payment. The above-linked posts and a lot of other copyFUD suggest that fair use is a) sketchy, b) scary, c) waaay too unpredictable/hard to understand (i.e., scary), and anyway d) never allows copying whole works (except maybe thumbnail images.)

I vehemently disagree with this characterization. While fair use is not a straightforward part of the law, and is not very predictable, it is something that the average user can come to understand, and it does allow for a lot of copying that individuals do. (Perhaps now you want to learn more about use rights in copyright?)

Fair use certainly sometimes allows for making copies of entire works, especially when sharing the whole work is necessary to facilitate commentary on the original. Even where no commentary is being made, the Supreme Court has upheld making copies of entire works as fair use.

There's another reason I think lots of pins may be legal, and it's another fundamental legal underpinning of a lot of web services: implied or express license. If you pinned something at the behest of the original creator (even if they didn't explicitly give you a formal copyright license to do so), that's very likely legal. There are a lot of websites encouraging users to pin their stuff! F'rexample: ModCloth, Homes.com  Since Pinterest is so new, I'm not going to suggest that there's an implied license to pin everything that's public on the web (although that's basically the underlying legal justification of most internet search engines). But I would point out that Pinterest does allow folks to opt-out of letting their image be pinned.

If you're still feeling like fair use is scary (it's not! it's a super-cool engine of creativity, innovation, and free expression!) or too unpredictable for your tastes (fair enough), I'd remind you that there is no explicit legal reason you can print out a webpage or forward an email...

I'm not suggesting that every image every user pinned is obviously a fair use, or covered by an implied license. Lots of users clearly haven't even been aware they're making copies, much less thinking about whether fair use allows them to do so. But I do think fair use probably covers some pinning, and implied or explicit licenses cover some more. At least as much as they cover the random copying users do on Tumblr and many other web services!

Terms of Service 

The Pinterest FUD posts and articles are also highlighting elements of the Terms of Service as problems for users - particularly the indemnification clauses, the clauses where users agree that they will only upload material for which they have the right to upload, and the clauses that include a license of copyrights to Pinterest.

If you are uploading stuff to Pinterest that you don't own or otherwise have the right to distribute, you are probably violating their Terms of Service, and you may be infringing copyrights. If you are violating the TOS, they can... um... cut you off? Delete your account? They can also sue you for breach of contract, and some gung-ho prosecutor could also use a violation of the TOS to bring criminal charges against you, so although those courses of action are unlikely, it might be, you know, a good idea to try to comply with TOSs in general. 

Or at least, to read them?

These elements of Pinterest's TOS are common to just about ALL USER-GENERATED-CONTENT SITES' TOSs (though I'll admit that Pinterest is somewhat unique (and kinda weirdly archaic in a couple of places) in their specific language and points.) Let's take a quick look around...

Tumblr

Indemnity: "Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand..."
Right to share: "Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party [...] (c) infringes any intellectual property right of another or the privacy or publicity rights of another..."
License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."

Full Tumblr Terms of Service

YouTube

Indemnity: "...you agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees)..."
Right to share: "You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.." AND "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein."
License of copyrights: "you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service" AND
"you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content..."

(Not to mention points 9 and 10, in all their caps-locked glory.)

Full YouTube Terms of Service

Facebook

Indemnity: "If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
Right to share: "You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law."
License of copyrights: "For content that is covered by intellectual property rights, like photos and videos (IP content) [...] you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

(Props on their use of human-readable language!) 

Full Facebook Terms of Service 

And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I'd still simplify the language a little.))

Indemnification (sort of): "I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available..."
Right to share: "I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another's permission, I have the right to deposit the Content in the [Server]" AND "The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another's rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder's express permission or as permitted by law."
License of copyrights: "I grant [...] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access."

So anyway. That's my thoughts about the copyright and terms of service issues folks seem to be discussing about Pinterest. Even though it is ridiculously long, I'm sure I left out lots of things, and there are many more thinky things I'm thinking about this, but it is beyond time for me to go home and eat dinner! 

ETA: New post 3/13/12 with some clarifications and additions to this info.

Earlier this week, the Association of Research Libraries released a new document called the Code of Best Practices in Fair Use for Academic and Research Libraries. The document is the result of a multi-year process of interviews and focus groups with librarians and others involved in library work and management, and aims to outline some common situations where many in the library community agree fair use can apply.

Full disclosure: I participated in this project at both the interview and focus group stages. Here are some of my general thoughts on the result:

"Best Practices" vs. "Guidelines"

I really like the community-based best practices approach to talking about fair use, even though it leaves a number of things somewhat uncertain. There is simply no way to provide certainty about fair use that doesn't involve drawing lines far inside the boundaries of what fair use actually allows. And in most situations, guidelines that aim to provide certainty also overstate the bounds of fair use - "30 seconds of video is always okay, more than that is never okay" is terrible information about fair use of video in any context.

Developed with input from members of specific communities of users, these Best Practices documents articulate specific points of fair use that are of high interest to the community in question - where some idea of how to approach the problem would be particularly helpful for community members who are not well-versed in copyright concerns. But the Best Practices documents do not purport to address points (even of high community interest) where informed people don't also largely agree on principles. As the document explicitly states, "[t]he groups also talked about other issues; on some, there seemed not to be a consensus, and group members found others to be less urgent." And those issues are not included in the Best Practices.

I was fascinated to read the Code of Best Practices in Fair Use for Poetry last year, because it articulated several fair use situations I had never considered before, but which were obviously of high interest to people in that community. If I were trying to figure out what the contours of fair use were for poetry readings, I would definitely want to know how things usually work in similar situations. Courts look to common practices to inform the "fairness" and "appropriateness" parts of fair use. Following community norms is not going to save anyone where the community norms are completely out of alignment with the law, but where community norms track reasonably well with legal considerations, they are often considered relevant by courts. As the document points out, "There are very few [fair use] cases specifically involving libraries," so community practices are one of a very few forms of guidance available.

It is difficult to make progress across the uncertain and unlighted landscape of fair use. The bright-line/guidelines approach strongly illuminates a single, supposedly safe path - but leaves travelers entirely unenlightened about the dark areas that comprise the vast majority of the landscape. The Best Practices approach helps us become more aware of the fair use landscape as a whole, and it helps us know where other travelers similar to ourselves have gone and may be going.

"It's totally biased! They didn't consult any copyright owners!"

It's true, they didn't. But this criticism seems wrong-headed on a couple of counts: first, it suggests is that most people who want to understand what fair uses they can make are trying to put one over on copyright owners - but in the cycles of human culture, almost every one of us is both a user and a creator of copyrightable works. There may be opposing sides in copyright discussions, but the idea that the opposing sides of copyright are creators and users is a damaging fiction.

When librarians bring this criticism against a code developed by library organizations, in deep consultation with a large number of library and legal professionals, I'm stymied. Do they think that our entire profession somehow wants to put one over on the creators of all the works we lovingly maintain and make available to the world?

When this criticism comes from major corporate content owners or representatives thereof, I absolutely understand their point. They do have interests in controlling the uses of their work. But (as much as I am loath to bring physical property analogies into the world of intellectual property) I'd offer this comparison: if there is a public easement - a public-right-of-way - over a piece of land, it would be extremely irrational to rely on a land owner to remember the boundaries of a public easement. And if the land owner got to charge money automatically anytime someone stepped outside of the easement (as with copyright's statutory damages), the land owner's incentive to narrow the easement over time would be very very high.

The Eight Principles

There are the eight Principles outlined in the Best Practices document. Each Principle is accompanied by a much more detailed Description of the kinds of situations where it might be relevant, Limitations that must be considered before a use could possibly be fair, and Enhancements that might strengthen fair use arguments. All of that material should be consulted in detail to really understand any of these Principles. Moreover, ARL and the authors have provided an excellent collection of accompanying materials for better understanding, including FAQs (for librarians, for professors, for students), videos, explanations of this unique approach to understanding fair use, and quite a bit more. Go get yourself more educated! I sure plan to!)

Here are the principles:

1. It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.
   
2. It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections and to promote new scholarship drawing on them.
3. It is fair use to make digital copies of collection items that are likely to deteriorate or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.
   
4. It is fair use to create digital versions of a library's special collections and archives and to make these versions electronically accessible in appropriate contexts.
   
5. When fully accessible copies are not readily available from commercial sources, it is fair use for a library to (1) reproduce materials in its collection in accessible formats for the disabled upon request, and (2) retain those reproductions for use in meeting subsequent requests from qualified patrons.
   
6. It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use. 
7. It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable nonconsumptive analysis across the collection for both scholarly and reference purposes.
8. It is fair use to create topically based collections of websites and other materials from the Internet and to make them available for scholarly use. 

It is unfortunate that principle number 5, that it's fair use to make things available to people with disabilities, even needs to be articulated. It is incredibly frustrating that there is a constant need to make this kind of fair use (i.e., that most content is not made available in accessible formats as a matter of course.) And it is utterly shameful that there are organizations and individuals out there who, right now, actively fight against copyright and DRM exceptions for people with print disabilities.

Otherwise, I don't think it's all that important or helpful to talk about the details of each principle from a general perspective. The details only really make sense in relation to an actual library's actual use concerns.

In a few places, a Principle seems a bit more vague than is entirely helpful - but I found the accompanying Limitations and Enhancements helped me understand what they were getting at. The Limitations, in particular, are extremely helpful in understanding the finer legal considerations underlying of each of the Principles.

Overall, the principles seem like reasonable articulations of fair use practices, and are helpfully on point to activities that are increasingly common in libraries. Several of the principles strike me as blindingly obvious applications of fair use in almost any library situation, although I know some institutions have avoided taking full advantage of fair use rights due to uncertainty or a more risk-avoidant institutional mindset.

The specific facts are of course still the real determinants of whether a particular use is fair, and of whether and how an institution chooses to tolerate the uncertainty that is necessarily concomitant with a fair use justification for any activities. But the Best Practices document gives the library community a great jumping-off point for deeper examinations of many of our common copyright use situations, and are a great contribution to the toolbox of anyone dealing with copyright issues, in libraries and beyond.

I can't quite tell whether this piece from The Atlantic is meant to be editorial or news (it's okay if it's both, or neither - I'm not picky about traditional delineations like that.) It's pretty opinion-y, and it's an opinion that I very much share - academic publishing has some very broken economics that need fixing. I appreciate anyone bringing attention to the issue - a large portion of my job is open access education and advocacy - and I absolutely agree with author Laura McKenna's basic point that this cycle broken, and that it's largely a result of "stubborn tradition".

But McKenna is really wrong about a bunch of specifics, and there are a lot of people out there (with a lot of money), who want to shape the narrative around the economics of academic publishing in a really different direction. This article is in a fairly high-profile and general interest publication, but it's so factually incorrect in so many different ways that it invites ridicule to the whole position. So, some responses, starting from the top:

• "I searched for an article about autism on JSTOR, the online database of academic journals."
  
  JSTOR is not "the online database of academic articles" - McKenna does acknowledge later that there are other databases, so this isn't a complete factual error, but I think this phrasing may reflect the root of several of McKenna's other errors.
  
  Most large academic libraries subscribe to hundreds of databases of academic articles. This is itself an artifact of the broken economics of scholarly publishing - especially how badly these databases interrelate and interoperate! If you want to do an exhaustive search in a subject area, it's likely you'll have to look in at least a couple of different electronic locations. It can be frustrating and time-consuming (though hey, before this stuff, researchers were working with bound, paper indexes. Just sayin'.)
  
  A lot of people, including many faculty members, have difficulty navigating this maze of subscription databases. Sometimes they choose to spend most of their research time in a single database or with a single access vendor. It's not a great plan for any in-depth research projects, but it's an okay approach for a first- or second-year undergraduate assignment. It's also not a bad approach for a quick first-pass at a research topic, but for the author's particular topic of autism, I'd suggest, perhaps, PubMedCentral as a resource that might provide richer, more on-topic, and (thanks to a policy of the National Institutes of Health) freely available full-text articles.
  
  JSTOR provides access to a whole lot of articles from a whole lot of journals - in some fields, the majority of relevant journals (though not always the most recent content) are available through JSTOR - so JSTOR is a pretty popular choice for people who narrow their research focus to one interface. But a distressingly large number of people actually hold the mistaken belief that there is literally only one way to find academic articles - and again because of its broad content, a lot of people think this of JSTOR. This misunderstanding may be due to limited outreach from their library, or it may be because a lot of people don't really pay attention to what librarians try to talk to them about. While I'd like to say that most of these people are undergraduates, that's not true - most undergraduates who hold this belief have learned it from an instructor.
  
  Oh, um. That was just the first sentence of the article? Eep. Moving on.
  
  
• "...for the most part, only individuals with a college ID card can read academic journal articles.  Everyone else, including journalists, non-affiliated scholars, think tanks and curious individuals, must pay a substantial fee per article, if the articles are available at all."
  
  Most public research universities offer access to most of their subscription content to anyone who walks in the door and sits down at one of the computers in the library. You can also often get access to an article via interlibrary loan, by asking at a public library that then requests a copy from an academic library. At the University of Minnesota, access to nonaffiliated users who are physically present in the library and use for interlibrary loan are big points of negotiation in our subscription contracts.
  
  A few vendors will not sell us this kind of access, and some others try not to, which I think are both pretty nasty moves on their parts. We will pay for the public to have access, and they don't want to sell. That totally is because they would prefer to have people pay for their own individual access, as McKenna notes, or not offer public access at all.
  
  Access for people who are not affiliated with colleges or universities IS a big problem - and getting bigger all the time as more and more resources (articles, books, other media) are available only under licenses which restrict public access or interlibrary loan. But there are still options and alternatives.
  
  
• "...research is funded by national grants and subsidized through the university. The professor is given travel money and "release time" to conduct the research."
  "Faculty are given course release time to edit the journal and a small stipend. The university provides offices and work-study students to help with the secretarial work."
  
  It is totally true that universities underwrite the labor costs of faculty in the writing and review process. However, a faculty member in many disciplines and at many schools is extremely lucky if she gets travel money or release time for research, or a stipend to edit a journal, or any support from student workers funded by the university.
  
  That is, not only do universities underwrite the labor costs of academic writing and review, most faculty members do so out of their own pockets. Academic publishers' profits are subsidized by the authors and editors themselves, and by federal grants, foundation grants, a million other kinds of grants, as well as by universities.
  
  
• "Academic journals are housed at universities and are subsidized by the university..."
  
  Relatively few academic journals are housed at universities. Most are run through scholarly societies, and until recently many societies were, more or less, publishers. Sometimes a university underwrites the costs of a society publisher, but that's not very common. Over the last decade or two, increasingly, societies outsource publishing of their journals to commercial academic publishers - most of whom are, again, not affiliated with universities.
  
  
• "the journal editor [...] sends it to a for-profit publisher."
  
  A small number of for-profit publishers are increasingly consolidating in the field of academic publishing, but some academic publishers, especially small scholarly societies, are still non-profit.
  
  The major for-profit publishers do make ridiculous profits. Like, 32-42% profits.
  
  
• "The publisher is key, because he needs money to print and distribute the journal for its tiny community of readers. To make that money, the publisher sells the rights to an academic search engine company, like JSTOR."
  
  I don't even know where to start. JSTOR isn't a search engine, and it's not a company. JSTOR is non-profit, and it's basically an archive of published content. Some academic publishers let JSTOR digitize and provide access to old articles, and some let JSTOR provide access to new articles (though usually after a time-delay) in parallel to a separate publisher site. There may in fact be money changing hands, and there certainly is some licensing of distribution rights, but it doesn't work like this.
  
  Non-profit and small independent publishers do need money to distribute their journals - fewer and fewer put anything in print, but publishing online and maintaining online access is not costless. However, they usually get that money from society membership fees, charging libraries for access to the articles, or by letting a big for-profit publisher charge for access and kick back some money to the small publisher. They do not usually get that money by selling anything, rights included, to JSTOR.
  
  
• "Having bought the rights to the academic research, JSTOR digitizes the material and sells the content back to the university libraries."
  
  The publishers usually retain ownership of the rights, even when the content is available in JSTOR. Also, JSTOR doesn't routinely digitize new or recent content because, like everyone else in modern publishing, they usually work from the electronic originals.
  
  
• "To recoup their costs of leasing the information from the publishers, the academic search engines use a subscription model to restrict the content to those who can pay the hefty price tag."
  
  JSTOR is a non-profit. A lot of their charges go back to maintaining the services they already host, developing new services, and digitizing new old stuff.
  
  For-profit academic publishers do set up hefty price tags, and place restrictions on subscription content, but it's for profit, not cost-recovery. Some small publishers charge libraries subscription fees on a cost-recovery basis.
  
  
• "To get access to the Arts and Sciences collection at JSTOR -- only one of the many databases and collections of information -- university libraries must pay a one time charge of $45,000 and then $8,500 every year after that."
  
  This may be true (though lots of libraries have weird individual or consortial negotiated pricing schemes) but OMG it is cheap compared to some single journal titles from commercial publishers. The average yearly subscription cost for single journals in some disciplines is over $4,000.
  
  
• "The challenge is finding a way to get research on the web by bypassing the publisher/JSTOR nexus. If academic journals skipped that needless step of providing a print version of their journals, they could stop this cycle. They could simply upload the papers to a website and take the publishers out of the process."
  
  I think I've pretty much fully addressed the misconception of a "publisher/JSTOR nexus", but wanted to point out that continuing to provide print access is not the thing that's hanging up this dysfunctional cycle. Online-only access carries plenty of costs of its own. The non-profit open access publisher PLoS charges a publication fee of couple thousand dollars an article to underwrite only some of their costs. Many institutions or grants underwrite open access publishing fees or even whole open access publications, though. In the long-run, the costs are much lower to institutions than when subsidizing commercial profits.
  
  Several disciplines have managed to bypass the broken academic publishing economy through a great resource called the arXiv - or through other new models of academic distribution. But lots of academic authors don't adopt the online-distribution, review-after-publication model - or any of the other models that have already been developed or are developing for non-print academic discourse - because they're caught up in peer review and tenure systems that are stuck in the early 20th century.
  

There are things JSTOR does that I do have issues with. I wish it was doing more to provide more open access to the public domain materials it holds, for example. The JSTOR independent researcher program has all kinds of problems. But JSTOR is, for the most part, a pretty good element of the existing landscape, and certainly not the central problem McKenna makes it out to be.

The broken economics of academic publishing are not as simple as they look when you first become aware of the problem, and the details do matter. I agree that breaking out of traditional publishing models is necessary to any fix. I am very glad that many people are already working very hard on a number of promising approaches to reform in this system, and a number of alternatives to traditional models are already available.

There's nothing anyone creates that isn't shaped by everything they've been exposed to all their lives. Sometimes it's conscious, sometimes unconscious. Here's a great example:

The University of Minnesota Libraries offer three different basic copyright workshops for the UMN community. Most are aimed at faculty, but may be open to participation by others. We also offer custom workshops on specific topics, or at specific dates and times, for University of Minnesota departments, workgroups, etc. RCR continuing ed credit is often available. Feel free to contact me to set one up.

If you're not affiliated with the U of MN, but would like to attend one of the online sessions just to listen in, contact me via email. I'll open reg as space is available, and will give preference to librarians looking to develop their own copyright knowledge (or teaching).

Here's the schedule!

Copyright Essentials for Authors and Creators

How many copyrights do you own? How long will they last? Can you post your paper online? Can someone else quote from your paper in their own? This workshop will provide a solid grounding in some of the elements of copyright law that are essential to scholarship, teaching, and research. Learn more about protections in the law for educators, and about your rights as an author or creator. Discuss and debate with your peers about some of the burning questions in the field, and enjoy exploring some entertaining and thought-provoking examples. No direct legal advice will be provided; this workshop is informational and educational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

ONLINE-ONLY session via UM-Connect. Priority given to participants from UM coordinate campuses (Crookston, Duluth, Morris, Rochester) or other UM-affiliates who work out-state.
Copyright in the Classroom (and Online)
Can you show a movie in class? Can you distribute copies of a newspaper article? What are you allowed to post on your Moodle site, anyway? What about your students' work, or their online postings? This workshop focuses on copyright issues in the classroom, and in teaching online. Learn how the library can help you with electronic reserves and links to subscription materials. No direct legal advice will be provided; this workshop is informational in nature.

Primarily intended for individuals currently teaching at the University.


Register: http://z.umn.edu/copyrightinclassroom