October 2011 Archives

Current Issues in Higher Ed Copyright

Not the post I promised, but this week has been a little... weird. Mostly for good reasons.

One of the good things this week was that I met with the University Senate Library Committee to touch base on copyright issues. I was asked to provide a summary of some current hot copyright issues in higher education - so here's that summary (with bonus links to more info!)

Georgia State Case (aka Cambridge University Press et al v. Patton et al) 

Individuals at Georgia State University were sued over the use of journal articles in password-protected electronic reserves and course websites. The parties bringing suit include Sage Publications, Oxford University Press, and Cambridge University Press. Legal expenses of the publisher-plaintiffs are being subsidized about 50% by the non-profit and ostensibly neutral Copyright Clearance Center.

Oral arguments were heard in June, and an opinion is expected at any time. Because the case is currently in District Court (Northern District of Georgia), itis likely any opinion will be appealed. Final rulings are likely many years away. However, it is worth noting that the publisher-plaintiffs have asked the court to find that the 1976 "Classroom Copying Guidelines" (which were intended to outline some minimum standards for fair use) are an appropriate maximum measure of fair use today. They have also asked that the court hold that no more than 10% of any course-based uses should be allowed to proceed without payment, regardless of compliance with the Classroom Copying Guidelines, or use of paid subscription materials or non-copyright-protected materials.

More information:
My own prior posts on this case.
Kevin Smith's "A Nightmare Scenario for Higher Education"

UCLA Case (aka AIME et al. v. Regents of UCLA et al.)

The Regents of UCLA, as well as some individuals, were sued over the conversion of video content owned by the University to online streaming formats. The case was dismissed last week, for a number of reasons. In addition to technical issues such as sovereign immunity and lack of standing, the court ruled that the licenses the University had already purchased for "public performance" covered the online streaming when restricted to UCLA users. They also ruled that incidental copies made in pursuit of the legitimate licensed rights were fair use.

More information:
Christine Ross - "V is for (small) Victory (and for Video)"
Peggy Hoon - "Copyright, Contract, or Complicated? AIME vs. UCLA Dismissed: Implications for Licensing"

Golan v. Holder

A music professor (and professional conductor) is the named plaintiff in this case, which challenges legislation that removed many older foreign works from the public domain (in compliance with some of our treaty obligations.) Oral arguments were heard before the Supreme Court last week. 

More Information:
The Chronicle of Higher Education - "Supreme Court Takes Up Scholar's Rights" by Marc Parry
New York Times editorial in support of the professor-plaintiff - "The Public Domain"

Campus licenses (CCC; CPC; Canada)

In recent years, the Copyright Clearance Center (CCC) has been selling "blanket" licenses in which a single payment satisfies copyright permissions issues across all campus uses. A number of U.S. institutions have signed on to this sort of license, but it is not a complete solution: the CCC does not have the power to authorize the use of some of the materials used on campuses. Although their blanket license has been suggested as a solution to the issues presented in the Georgia State case, they do not clear rights for works owned by Cambridge University Press, one of the plaintiffs!

More Information (on licensing in general):
ARL Policy blog/Brandon Butler - "How Many Times Must Libraries Pay for the Same Coffee, er, Content?"
Paul Courant - "Georgia State in Publishers Weekly: Tom Allen of the AAP vs. Moi"

Canadian institutions are currently grappling with the opposite side of blanket licensing; for many years, academic use in Canada has been (largely) covered by a nationalized blanket license to an organization called Access Copyright. Access Copyright recently raised the rates by a large amount, and a number of universities have balked at the cost. Recently, at least one judicial proceeding has determined that Access Copyright can legally refuse to sell universities licenses on a case-by-case basis - a big setback for the Universities. Some of them are working with the CCC on case-by-case or blanket licensing. Others are committing to the use of nothing but public domain and open-licensed materials on their campuses.

More Information:
Howard Knopf - "Copyright Board Refuses to Require Transactional Licenses from Access Copyright or its Rights Holders"
Michael Geist - "An Unofficial FAQ on Canadian Universities Opting-Out of Access Copyright" and heck, ALL of his posts about this issue.

Google Books settlement

Parties related to the Google book scanning project have been negotiating about terms of a settlement for several years. The presiding judge has denied proposed settlement terms for a number of different reasons, and it is looking increasingly unlikely that a large-scale solution will be found via this process. Google is proceeding with the project, but seems to be pursuing a variety of paths to resolve outstanding legal issues.

Hathi Trust Orphans suit (aka Authors Guild, Inc. et al. v. HathiTrust et al.)

Hathi Trust is a partnership of major research institutions and libraries that hosts a large online library of digitized works, mostly public domain. Recently Hathi announced plans to identify "orphan" works in their collection - currently in-copyright works for which no rightsholder is identifiable or contactable - and make them viewable by individuals on partner campuses. Although discussions had been proceeding between the Authors Guild and Hathi on this issue, the Authors Guild unexpectedly filed suit on September 12.  The suit attacks library digitization very broadly - despite the fact that, as yet, Hathi Trust still only provides full-text access to public domain works. A number of international authors' groups have just announced they are joining the suit. It is very unclear exactly how the case will proceed.

Due to concerns about the procedures for reviewing orphan status, the Orphan Works Project has been put on hold at present. However, it is not being shut down; Hathi Trust has expressed a commitment to their plans, and a firm belief in the fair use legal justification for the project. 

More Information:
Kenny Crews - "HathiTrust and the Litigation Path"
James Grimmelmann - "The Procedural Swamp"
University of Michigan FAQ on the University's Digitization Efforts

There are, of course, lots of OTHER issues in higher ed copyright right now, but those are the ones I had time to write about for yesterday's meeting, and update today!

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On not scaring people.

For folks who haven't thought much about copyright before, the end result of attending one of my presentations or workshops, especially ones focused on fair use, is sometimes a very constraining feeling of fear. I've known about the problem for a while, and have tried a number of more and less successful techniques to prevent or address it. Fear and risk-aversion is SO not a good copyright-education result.

On Monday I had to do a presentation for a slightly larger group than usual (about 50 people), and rather than repeatedly split in to small groups to discuss fair use examples, I switched up the plan a bit, and put some examples on the screen for whole-group discussion. The switchup resulted in a truly unexpected moment of insight. Here's the slide that caused the revelation:

Slide showing an anatomical illustration of a dromedary skeleton and posing the question whether it is fair use to use this image, and 20 others like it from 3 different books, in an appendix to a PhD dissertation

This slide went up on the screen after a long discussion of the details and flexible nature of fair use. Even knowing about my "scaring people" problem, I was kind of shocked that, when I asked "Is this fair use?", the whole group answered back firmly, "No."

Reproducing an image like this would of course not always be a fair use, but the situation described on the slide is certainly not a slam-dunk, easy, clear, 100% "no way". Yet almost everyone in that room was pretty sure it was not fair use. Here was my fear problem demonstrated boldly (and in a distressingly large percentage of attendees.)

Not quite sure where it'd take me, I asked the group to walk through the four statutory fair use factors. What's the purpose? (Educational, non-profit, possibly commentary, they answered.) What's the nature of the copyrighted work? (Published, mostly factual, they answered.) What amount is being used? (Not much, they answered, just a small part of the book. I pointed out that it was all of the image...) What effect would this use have on the market? (None, they answered. I pointed out that if the rightsholder was willing to sell a license for the use, there might, in fact, be some market harm.) By the end of this quick exchange, I was pleased that the group seemed to have backed away from that initial fear-based response. In fact, they may have moved a little too far away - they stampeded kind of quickly towards "totally obviously fair use!" (Fair use is never totally obvious.)

On reflection, I think one of the biggest pieces of my "scaring people" problem may just be a too-fast transition from the general principles to specific application. We went from "here are the things one must think about in relation to fair use questions" directly to "do you think this is a fair use?" When you've only just begun learning about fair use, there are JUST SO MANY THINGS TO THINK ABOUT that even for the very smart, analytical, clear-eyed folks I often work with at the University, it's overwhelming to try to apply them independently right off the bat.

Taking a moment to stop along the way at "Here's a fair use question; let's think it through together" seems to be a really good tool for defusing the fear and sense of constraint. Tried a guided analysis process in a smaller group workshop today, and already the follow-up evaluations seem to show fewer participants feeling overwhelmed and/or confused after they leave. I don't think it's completely solved the problem - the uncertainty inherent in fair use just is kind of scary, especially when you're new at this stuff. But I'm glad to have accidentally uncovered another tool for my fear-defusing toolbox.


About this Archive

This page is an archive of entries from October 2011 listed from newest to oldest.

September 2011 is the previous archive.

January 2012 is the next archive.

I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

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