January 2012 Archives

Best Practices in Fair Use - a couple of thoughts

code-of-best-practices-cover~s200x200.jpgEarlier 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.

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Academic publishing is full of problems; lets get them right.

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.

All culture is remix - Despicable Me/Hogwarts

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:

Miss Hattie totally looks like Dolores Umbridge.jpg
Description: side-by-side freeze-frames of two movie characters, both pale-skinned women with brown hair in bouffant styles, both wearing pale pink sweaters and maroon skirts or dresses, both in offices with multiple pictures hung on the walls.

On the left, "Miss Hattie", a character from the movie "Despicable Me" who runs a children's home and exploits her charges as unpaid labor in a shady cookie-selling empire, while maintaining a facade of loving care. On the right, "Dolores Umbridge", a character from the movie version of "Harry Potter and the Order of the Phoenix" (and subsequent installments), who takes over the running of Hogwarts Academy and abuses the children in her care "for their own good", while maintaining a facade of loving care.

While "Despicable Me" didn't come out in theaters until 2010, I'd be willing to bet the character design of Miss Hattie was well underway before "Harry Potter and the Order of the Phoenix" was out in 2007. And yet, these characters who have similarly nasty temperaments and similarly odious relationships to children, look strikingly visually similar as well. Could it be that, because of shared cultural referents, people working in separate environments came up with very similar ways of representing an idea? Yeah, it could.

(Do I have a whole folder full of bookmarks from TotallyLooksLike.com? Yeah, I do.)

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Spring Copyright Workshops Open!

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!

Can I Use That?: Dealing with Copyright in Everyday Life

Quotation, criticism, review, collage, parody - Copyright presents some big challenges in all of those situations! Participants in this workshop will develop an understanding of the complexities of copyright by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.

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

Mon, 02/13/2012 - 2:00pm - 4:00pm
Location: 310 Walter Library

Mon, 03/05/2012 - 2:00pm - 4:00pm
Location: S30A Wilson Library

Wed, 03/07/2012 - 1:00pm - 3:00pm
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 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.

Wed, 02/22/2012 - 2:00pm - 4:00pm
Location: Magrath Library Instruction Room (Room 81)

Tue, 02/28/2012 - 10:00am - 12:00pm
Location: 101 Walter Library

Fri, 03/23/2012 - 10:00am - 12:00pm
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.

Fri, 02/03/2012 - 1:00pm - 3:00pm
Location: S30A Wilson Library

Mon, 02/06/2012 - 10:00am - 12:00pm
Location: Magrath Library Instruction Room (Room 81)

Register: http://z.umn.edu/copyrightinclassroom
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Have you contacted your elected representatives?

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About this Archive

This page is an archive of entries from January 2012 listed from newest to oldest.

October 2011 is the previous archive.

March 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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