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GET IT IN WRITING: On Elsevier's Revised Sharing/Hosting Policies

Elsevier, a major academic publisher, announced new policies yesterday articulating how they are comfortable with authors sharing their articles online.

A number of other folks have already reviewed these policy documents, though few have offered a full commentary or interpretation (perhaps because there are just so many moving pieces here.) I found the commentary  from Steven Harnad (comparing to Elsevier's first sharing policy, from 2004) particularly useful. There seem to be a couple of positive changes in the policy, but mostly it's not a huge change from things in the past, and certainly not an improvement. I can't muster the attention needed to try to read and fully parse this level of complexity, so instead I thought I'd offer just the following two observations.

An Object Lesson For Authors

This is at least the third version of Elsevier's article-sharing policy in the last 10ish years. I also know of other publishers who have similar policies that have also changed over time. These policies let Elsevier, and other publishers with similar approaches, obscure the fact that they require authors to give them the copyright in these works; i.e., that authors no longer own these works.

There are a lot of reasons why publishers need to have some of the rights in the work. There are also a lot of reasons (administrative-overhead-wise) why publishers don't really want to negotiate different rights agreements for each individual article. But there are few reasons  other than profit why publishers need -exclusive- ownership of rights. It would be pretty easy to administrate a publication agreement with standardized non-exclusive (that is, shared) rights. Lots of publishers do so already! And publication agreements, copyright agreements, transfer statements, whatever you may call them - those are -contracts-. They can't be altered after the fact except by agreement of the parties, unlike unilaterally-granted "sharing policies", which can be altered (or repealed) whenever, by the unilat that granted them.

Many authors have suggested to me in consultations that they can't possibly negotiate with a publisher, they just don't have that power. But however much any given academic needs a publication credit, the publisher needs your content! There are lots of factors that dictate how much any individual can or should negotiate about a publication agreement - but not having anything the publisher wants is not one of them.

If there's anything you want to be sure you can do with your content in the future, for goodness' sakes get it in your contract.

Why these changes, now?

My guess is that the latest policy revision is an attempt to address criticisms of the immediately-previous version of Elsevier's sharing policy, which allowed authors to archive their final edited manuscript in an institutional repository but only if their institution did not have a policy requiring authors to do that. That was... okay, really, just weird.*

I think this policy is also intended to address the proliferation of article-sharing by authors via for-profit "academic social networking" sites like Academia.edu and ResearchGate. One piece of supporting evidence is that Elsevier is now requiring that certain shared copies bear a Creative Commons license that contains a Non-Commercial clause, limiting their usefulness for for-profit enterprises. The fact that the license also contains -other- limitations (BY-NC-ND is what they're requiring) that few non-profit archives would really want to support is perhaps just icing on the cake.

I actually have a lot of sympathy for publishers' frustration with the sharing that goes on on those sites; those sites are competitors for the for-profit publishers, just as much as we non-profit archives are. They are also more appealing and easier to use than many of our open non-profit repositories - for a variety of reasons, including that they do fewer annoying things like making authors really check whether they have a right to share. So we have less content than the social networking sites, even though we've been at it longer, and even though we are not intending to monetize our users' data or research networks or anything like that. Personal frustrations aside, though, authors who want to share articles are going to do so on whatever platforms are most appealing to them.

So I think the new "Hosting Policy" is also part of the attempt to address sharing on for-profit sites. Trying to set a policy that affects the behavior of entities with whom you are not in any kind of contractual relationship is...  kinda weird. I am pretty darn confused how this hosting policy is intended to interact with the policy on author sharing. If an author thinks they can share, they are legally allowed to do so, and hosts are legally allowed to accept shared copies. That's even true of the for-profits; we just all have to take them down if it turns out the author was wrong. With this new hosting policy, Elsevier seems to be trying to insert another note of uncertainty, at the very least.

In addition to criticisms of older versions of their sharing policy, and a reaction to newer players in the article-hosting arena, I think this revised policy - and the spin that it enables more sharing - reflects growing traction for open access principles in the academic world, and more public focus on related issues. I hope.

*This may not be an exactly accurate characterization of that version of the policy. I have never actually been able to explain it in a way that makes sense to any of the authors who have consulted with me, so...

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A point of certainty in fair use

Fair use exists in order to provide some flexibility in enabling uses that we believe are socially valuable enough they shouldn't require permission and/or payment. But because of that flexibility, fair use is often presented as a dangerously unpredictable piece of the law. Although I avoid that framing, even I frequently use jello as a conceptual analogy for fair use.

Teaching is definitely a socially valuable activity, but in my experience, K-12 teachers are often particularly uncomfortable with the flexibility/uncertainty of fair use (for a variety of reasons), and quiet a few literally never copy anything for their students without permission.

One thing I am absolutely certain of about fair use, is that it definitely allows teachers to copy things for their students without permission sometimes. The law specifically says so:

"[T]he fair use of a copyrighted work [...] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" - 17 U.S.C. § 107

Lemme just repeat that.

"[T]he fair use of a copyrighted work [...] for purposes such as [...] teaching (including multiple copies for classroom use) [...] is not an infringement of copyright." - 17 U.S.C. § 107


I don't blame teachers for feeling a bit unsure about fair use. Many informational materials about fair use for teachers are aimed at risk-avoidance, and a few actually intentionally sow confusion. Even when well-informed, teachers do not always have reason to believe their school systems will be supportive of fair use in classrooms.

I do encourage teachers to question any assumptions they have that they always need permission: fair use definitely applies to classroom teaching, although not all copying for classroom teaching is going to be fair use. I also encourage teachers to raise these issues for discussion in their schools, districts, and professional organizations.

I also give a serious side-eye to people who train, support, or provide information for teachers about copyright, and undercut fair use and tell teachers they cannot or should not ever rely on it. If you're doing that on purpose, you should be ashamed. The fair use statute specifically calls out copying for classroom use from a list of other socially valuable uses. That's not a drafting error.

(Also, don't forget 17 USC § 110(1)!)

Teacher sitting on chair reading to and calling on elementary students sitting on floor - captioned Fair Use Hearts Teachers
(Source)

Young woman laughing at her smiling teacher as they sit at a computer  - captioned Fair Use Hearts Teachers
(Source)

Teacher directs two enthusiastic young students in using a computer - captioned Fair Use Hearts Teachers

Teacher advises group of teen students working on calculations together - captioned Fair Use Hearts Teachers

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Your lawyer works for you.

There are plenty of words that lawyers use frequently that are not part of normal people's conversation. One that lawyers use a lot, but non-lawyers may not have -heard- us use, is "zealous." It's an ideal of the profession to provide "zealous advocacy" for clients, and in fact it is an active obligation of lawyers under professional rules in most US states. (ABA Model Rules of Professional Conduct.)

The positive side of this ideal and obligation are that really, good lawyers -do- do everything in their power to represent their clients well. But on the negative side, the culture of law, the socialization of lawyers, and, let's be honest, the personalities of many of the individuals attracted to legal professions, skew the practices of lawyering toward certain modes of zealous advocacy.

Or, as I put it on Twitter a while ago, often the "default setting for "zealous advocacy" is "adversarial douche"."

Making that comment, I was thinking of a couple of pieces of contract drafting I had seen recently from the lawyers for cultural organizations and arts non-profits. A lot of the time, lawyers draft contracts for parties who have pretty strongly contradictory interests overall, and so their "zealous" mode is to try to make the contract as favorable to their own client as it can be, shifting as much liability and obligations onto other parties as it is possible to do. It can get pretty tiresome when all the parties involved in a contract situation have all lawyers trying to do those things, but it's a common mode in which lawyers operate.

However, when cultural organizations and arts (or other) non-profits contract to work together, most of the time most of the parties have pretty closely shared interests overall. And even where interests diverge (i.e., most parties would usually rather -someone- else carried the liability), the parties are really unlikely to ever want to take a legally aggressive stance toward enforcing the contract - for lack of resources to bring a suit, or just because of the political repercussions of suing a partner organization. Yet the contracts I was seeing were extremely aggressively drafted, with that underlying thread of "zealous advocacy is pressing -every- advantage for my client, and every disadvantage for everyone else."

Now, a really good, experienced lawyer, might have realized independently that "aggressive" was not the right form of "zealous" for a partnership agreement among non-profits with shared goals. But even some very good lawyers are sometimes so caught up in their usual practices that they don't immediately think to switch tactics.

So here's an important thing to think about: you're the client, your lawyer works for you. You actually can, and should, tell them -how- to approach your legal issues. They should be giving you information about the legal issues, and offering you advice on how to approach them, but if you say "I don't want to be an adversarial douche", they should listen to you. It's appropriate for them to try to convince you of certain tactics if they have good reason, but if they don't persuade you, they should listen to you. A lawyer who overrides a client's preferences on this kind of thing is actually not a good lawyer, nor zealously advocating for their client.

This is not just true in contract drafting; it's true whenever a lawyer is communicating on behalf of their client, and especially in public communications. For example, museum policies sometimes include long lists of legalistic "NO" and "You must..." language. Some of that language has often been shaped by lawyers trying to zealously protect the museum - but museum visitors are not adversaries of museums, and communications with them shouldn't treat them as such.

In an institutional context, your lawyer may actually work for your institution, and that may sometimes be a different source of conflict - what one sub-group of the institution wants, legally, may not always be in the best interests of the larger institution in the long run. But even in these kinds of situations, a good lawyer will recognize that different styles of lawyering are appropriate to different contexts - several of my favorite people to work with in our General Counsel's office here at the University of Minnesota will offer their default approach to a particular issue, but then say something like, "but you're the client, if you'd like to go another way, that's okay too."

Lawyers should be particularly sensitive to what mode of "zealous advocacy" they're working in anytime they are making formal legal communications that might be shared with the public. In the Internet Age, that's pretty much -any- formal legal communication, especially to any person or entity with any kind of online presence. There's this thing called the Streisand Effect - technically, it's about how futile and actively counterproductive it is to try to censor information online, but a similar idea applies and multiplies the effects of poorly-thought-out or poorly worded legal threats in general. If your lawyer isn't thinking about their Cease & Desist letter going viral, they are engaging in very poor lawyering indeed.

One great recent example of a lawyer engaging in default "adversarial douche" zealous advocacy, and another lawyer responding with appropriate-to-the-situation zealous advocacy, can be seen in some of the recent exchanges about "Left Shark", a doofy meme derived from the recent Super Bowl XLIX* halftime show. A 3D printed figure of the shark was posted by Fernando Sosa on Shapeways.com, and Katy Perry's lawyers sent a cease-and-desist letter. The letter is pretty aggressive, in a pretty standard lawyerly (read: adversarially douchey) way - and the internet did not take all that kindly to that aggression.

In his response, NYU law prof Chris Sprigman took an entirely different tone. In addition to being just-slightly-snarky in a way likely to generate positive commentary online, it's also just generally much more reasonable and conversational. The calm and collected tone is particularly well-calculated here, when the high-profile firm representing Perry has... perhaps slightly jumped the gun on some of their legal analysis. For example:

"As you likely know, federal courts and the United States Copyright Office have made clear that costumes are generally not copyrightable. Please tell me why you think the Left Shark costume should be treated differently."
It also highlights that one underlying reason some lawyers work in this default mode is that it's a good way to create more work for lawyers.

"My client wants to get back to his business, and he (and I'd wager pretty much everyone else) would be grateful if you'd just back off. Going ahead with these very dubious copyright claims will not benefit Katy Perry. But if you're determined to press on, please do respond to my legal questions, and we can try to work it out from there. "
Sprigman's full letter is available on Mr. Sosa's blog (some images possibly NSFW, depending on where you work.)

Overarching point: your lawyer works for you. With legal documents or in other legal situations, you can encourage them to take an attitude other than "winner takes all" - though there may be some times when an adversarial approach is warranted, even for a non-profit public interest group. You can also, especially in any communications that are directed to -or- likely to be read by the public, direct their tone. Not sounding like a stereotypically "zealous" lawyer may often be a good thing for you and/or your organization, and a good lawyer should recognize that and adapt appropriately.

*Yes, I used that trademarked name without permission or a trademark symbol! Amazing. It's almost like I'm allowed to use words to refer to the things they name, or something.
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11th Circuit Rules On Georgia State Fair Use Case

The 11th Circuit Court of Appeals issued its ruling today in Cambridge University Press et. al. v. Patton - otherwise known as "the Georgia State case." This is a case in which academic publishers (Cambridge UP, Oxford UP, and Sage) sued a public university for use of excerpts from books in online e-reserves and course websites. (Lawsuits funded in part by the ostensibly-neutral Copyright Clearance Center.)

Previously, the District Court ruled that most of the uses in question were fair use. On appeal, it didn't look like things were necessarily going well for academic users. Indeed, today's ruling reverses the lower court's rulings, vacates some results of the ruling, and remands the case back to the lower court for reconsideration in light of the corrections made in today's ruling. But given the possibilities contemplated after oral arguments, (and heck, given the concurring opinion attached to this ruling) things definitely could be worse!

Excellently Good Things

  • The court's opinion confirms that the 1976 Classroom Copying Guidelines are not law, and not an appropriate lens through which to consider fair use in course contexts. (The court also affirms that even though the Guidelines are maybe informative, they were originally intended as a floor, not a ceiling, on fair use.)

    Maybe this isn't great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines. However, I regularly encounter librarians, library workers, teachers, and other educators who have received no other information about fair use - and often, these folks have explicitly been trained that the Guidelines are the One True (and complete maximum) Way to Know Fair Use in classroom contexts. (Oddly enough, many of them have also received their only copyright training at no cost, from generous publishers...) Having an affirming court opinion to refer to that clearly refutes the applicability of the Classroom Guidelines is quite a blessing, from my perspective.

  • The court extensively discusses the public purpose of copyright law. Section B of the opinion (page 46-55) is a masterfully written, quite clear overview of the theoretical underpinnings of U.S. copyright law in general, and of fair use in particular. (I think it's a bit weaker in the second half, but pages 46-50 are really darn good reading.)

    The idea that creator remuneration is -secondary- to the actual purpose of copyright law is often left out of a lot of related public discourse. Most artists (and most lawyers I've met who represent artists or corporate creators) would put creator remuneration at the center of copyright. But this opinion (quoting from many, many other opinions) affirms again that "[p]romoting the creation and dissemination of ideas has been the goal" since the Statute of Anne, and that this is because the creation and dissemination of ideas is a public good. Moreover, the court affirms that "[t]he fair use doctrine also critically limits the scope of the monopoly granted to authors under the Copyright Act in order to promote the public benefit copyright is intended to achieve." 
  • The court agreed that case-by-case, or work-by-work is the appropriate approach to fair use. Since the alternative the Plaintiffs were arguing for was that "a nebulous cloud of infringements purportedly caused by GSU's 'ongoing practices'" were the correct form of inquiry, all institutions that rely on fair use in daily practice got off well here.

  • The court agreed that non-profit educational purposes are especially valuable under fair use law. "Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it."

  • The court affirmed that relevance to a pedagogical goal -is- relevant to fair use. (p. 86) (Plaintiffs had argued relevance to purpose was only relevant for transformative, parodic uses.)

  • The court disapproved of Judge Evans' blanket 10%-or-one-chapter rule. While avoiding bright line rules does make life more difficult for end-users, this was a bright line very few people were comfortable with; it limits other interplays such as relevance to pedagogical purpose.

  • The court would not consider the argument (apparently raised late in the deliberations of the District Court) that the correct frame of reference for measuring the "amount" of the work being used was a single chapter, rather than the whole book. Since the Plaintiffs primarily went along with arguments about how to determine the number of pages in the book, in order to determine how much of the book each chapter was, the court agreed that the discussion had to be had in terms of how much of the book each chapter was, not how much of the chapter.

    Something to remember for your litigation practice, law students. Raise it too late, and the argument's gone.

  • In addition to rejecting the applicability of the Classroom Copying Guidelines, the court also rejected the coursepack copying cases as binding authority, or apparently even as very persuasive. They're vaguely acknowledged, but not followed.

  • The court soundly rejects the idea that excerpts from books substitute for sales of the -actual books-. (p. 94) Unfortunately but unsurprisingly, it then goes on to confirm that unlicensed excerpts do substitute for sales of licenses-to-excerpt. But, also happily, it does affirm that "the ability to license does not demand a finding against fair use." (p. 95)

Not-Surprising Things


  • Section B of the opinion is, as I said, a masterful overview of the theoretical underpinnings of U.S. copyright law. Since we frame our law as deeply tied to economic incentives for authors to create, it's not surprising that this section has extensive discussion of how allowing too much "unpaid copying" will harm the economic incentives, and thus result in an outcome that doesn't further the public good of ongoing development of new knowledge and ideas.

    Two things bother me about the focus on economic incentives - but these things bother me about U.S. copyright theory in general, not this opinion in particular. The first is that this discussion completely fails to acknowledge the many other incentives creators have for creating. In particular, in academic contexts, creators fairly -rarely- receive direct economic benefits for their copyright ownership; its not entirely absent, but definitely a peripheral motive. But even outside academia, there are a lot of other reasons people create.

    The other thing that bothers me about the focus on economic incentives is that market models don't actually reflect reality. I could get into deep critique of Coase or whatever, but this is a blog, and it's Friday night, and also, there are reasons I didn't go into economics full time. However, even the court in this opinion fully acknowledges that we have to do away with a lot of reality to delve much into fair use and economic incentives: "in making fair use determinations, we must conjure up a hypothetical, perfect market for the work in question, consisting of the whole universe of those who might buy it, in which everyone involved has perfect knowledge of the value of the work to its author and to potential buyers, and excluding for the moment any potential fair uses of the work. Then, keeping in mind the purposes animating copyright law--the fostering of learning and the creation of new works--we must determine how much of that value the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author--or a subsequent holder of the copyright--to propagate the work in the first place." (p. 51) (emphasis mine)

  • The court affirmed that course readings are not transformative use. Although I respect the acumen of my colleagues who have argued otherwise, this has always seemed fairly straightforward to me. I am heartened that the court -also- affirmed that transformative purpose is NOT required to find that the "purpose" factor favors the user.

  • The court found that Judge Evans erred in making a blanket determination that the works copied were primarily "factual". You have to look at each work individually, and determining the specific balance within a work is a pretty fine job. (The court also said, though, that this factor is not particularly important in the specific fair use analysis at hand.)

  • The Appeals court held that availability of licenses to digitally excerpt a work was correctly determined by the District Court to affect whether there was market harm.

  • Some of the additional considerations that Judge Evans entertained outside of the "four factors" analysis were held to more properly belong within it. (pp. 106-110)

Weird Things


  • There is a weird element of Section B, where the court describes fair use as an "implied-by-law" license that creators grant in return for the grant of monopoly rights through copyright. While I'm familiar with framing fair use as a quid pro quo for protection most of the time, the framing of it as an "implied license" feels very strange.

  • There's a mildly terrifying digression on pp. 67-70 into whether indirect benefits to a non-profit educational user can obviate their non-profit educational purpose (or at least counterweight it.) Thankfully, the court eventually concludes that "If this analysis were
    persuasive, no use could qualify as "nonprofit" under the first factor. Moreover, if
    the use is a fair use, then the copyright owner is not entitled to charge for the use,
    and there is no "customary price" to be paid in the first place."

    However, the court goes on to entertain, and answer in the negative, questions about whether GSU gained reputational benefits from its course copying. If these indirect reputational benefits undercut a non-profit educational purpose, it raises all kinds of odd issues for fair use in contexts like conference presentations! I'm going to think more about this (and do more research into the lines of fair use cases about indirect, noneconomic benefits.)

  • The court observed that industry "best practices" are "not relevant to individualized fair use analysis". That could be a bad thing, because sometimes industry practices are all we have to go on to determine fair use. But it was a fairly glossed-over discussion, and they may have meant just that individual circumstances of a specific use case are more important than overall best practices...

Things I Don't Like


  • The court's emphasis on how important market harm is, and the subtle and nuanced interplay of the four factors is not at all unexpected. I'm not a fan of their holding that, because they are not transformative, the uses in question are highly likely to be market-substitutions, and thus that the market harm factor is especially important. This, too, though, is not unexpected.

    The thing I really don't like is that the court's emphasis on subtle interplays, and especially on the extra weighting of the fourth factor, creates some incredible barriers for the people who actually have to make fair use determinations about course readings - instructors! By placing additional weight on market harm - a factor about which end users have almost no information - the court is creating major difficulties for end users. It would be hard, but not impossible, for many instructors to find out if a license is available. It's really quite out of the question for individual instructors to correctly hypothesize -future- directions of the market...

    I might be less frustrated by this if the court were not quite so emphatic in its embrace of the importance and value of educational fair use elsewhere: "allowing latitude for educational fair use promotes the goals of copyright." Teachers, definitely use fair use sometimes! Just, do so while having sophisticated business analysis skills for companies about which you have no data!"

    [Edit: Please note, my suggestion that nuance creates challenges for end-users does NOT mean that I think "everyone should just pay for everything" is a remotely reasonable or workable alternative. Nuance is at the heart of fair use, and end users can deal with a lot of uncertainty. Just, particularly when its about information end-users -don't have-, it's problematic.]

  • My frustration in the bullet immediately above is also reflective of another broad-scale problem with current copyright laws. They were drafted for a time when, in order to commit infringement on a scale that was noticeable by copyright holders, one more or less had to have some level of industrial-scale resources. It may have been reasonable then to expect that potential fair users could engage in a complex, intertwined, nuanced and even sort of iterative fair use analysis (though query whether courts -did-, in the '70s). But today, users at a much smaller and more individual scale are the target of infringement lawsuits, and if the statutes haven't been updated, legal analyses could at least take that into account.

    Judge Evans' decision in the District Court, while taking some unusual tacks, was in some ways more on track to provide clarity to the actual individuals who have to make assessments about fair use in instructional contexts. The 11th Circuit opinion takes us (and her, my goodness I don't envy the review on remand) further away from that.

    But perhaps legislative reform is a more appropriate path for developing clarity for end-users. (Ha! I crack myself up.)

  • I sort of feel like factor 1 either intertwines with factor 4, -or- factor 3, but both? Really?? (p. 82)

  • Oh, wait, almost forgot. I don't like that this opinion reverses the lower court's opinion. It would've been nice to have a stronger affirmation of educational fair use. Further legal opinions (if they come) are likely to range from a lot to a bit more limiting. But that's not 100% clear, and they may not come.
Judge Vinson's concurrence is a really nice thing to read -after- the opinion, if you are someone who favors educational fair use. Things could have gone much, much worse. (Non-legal-beagles: a concurrence means (in this instance, at least) that Judge Vinson agrees on overturning the District Court's opinion, and vacating its orders, and remanding the case for further consideration. He just thinks those are the correct course of action for wholly different reasons; i.e., he seems 100% certain that GSU should be paying for ALL COPIES OF EVERYTHING.)

It is difficult to predict what will happen next. This is not a slam-dunk case for the publishers, though it does favor them more than the first District Court opinion. Remand and review will require a great deal of time and resources, again, and the parties may feel that it's not worth that investment, and settle. If so, we won't get more rulings from courts. If they don't settle, we'll get another District Court ruling, different from, but perhaps not entirely overturning, the previous one. And perhaps another appeal after that, and...

In the meantime, it may also be worth remembering that none of this legal interpretation is binding law outside of the 11th Circuit (Alabama, Florida, Georgia.) In other states, we can look to these opinions for guidance, but we can also explore different paths.




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And I thought "Can We Scan This?" was a hard question...

We have some really amazing and interesting things in our Archives and Special Collections; when we have some funds available, there're always things we want to digitize for preservation purposes, and for public sharing. Unfortunately, copyright is often a huge barrier to scanning things and making them available to the world: we can do it if they're in the public domain - but are they? We can do it if we have permission from the rights holder - but who holds the rights? There's an incredible amount of research involved in digitization projects - who did this come from, was it ever published, where was it published first, was a copyright registered, was it renewed, when did the author die, who were their heirs, where do the heirs live...

But lately I've been grappling with a whole -new- set of questions for some digitization projects, thanks to some funding that can only be used to make materials available with an open license. Rather than trying to figure out who, if anyone, could or would object to our scanning project, we have to track down the documentation necessary to establish that we own the copyrights in the materials. In several cases, we can document pieces of the necessary legal chains: individuals signed releases to Entity A, and Entity A gave us the materials - great first step! But Entity A no longer exists, and we have no documentation that Entity A ever gave the copyrights to us - augh! In other cases we have documentation that the rights to some of the materials were transferred to us, but there are chunks of the materials where the rights probably belong to someone other than the group that gave us the rights. So, clearly, we don't own the rights to those chunks - and sometimes, those chunks are anything but clear to pull out of the overall collection.

The oddest thing is how -far- this work is from the risk management mindset that colors so much of copyright use analysis. Rather than uncertain documentation putting us in a riskier situation (are there heirs we didn't know about???), uncertain documentation produces a certain conclusion: If we don't own it, we can't license it.  And in this case, since the money can only be used for licensable materials, if we can't license it, we can't digitize it. :(  Not the most fun set of investigations.

(On the up-side, my various archives and digitization colleagues are all awesome, and great to work with!)
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Music, musicians, music fans, ownership, legitimacy...

(re-posted from previous links-roundup post)
 
There is so much to say about all this, but it's kind of all been said already. Here's a few of the things I've been reading in preparation for talking about it on MPR this morning. MPR's other station, The Current, has some good, concrete coverage of some of the latest flap with local musicians Jeremy Messersmith (who will also be on the show on July 9) and Christian Erickson

Suffice it to say, it all started with the NPR intern post by Emily White (except it didn't, this stuff has been debated for a lot longer than some folks seem to think), and David Lowery's condescending response. The Other Emily White, a music producer, wrote a great defense of Intern Emily White. Dave Allen, himself also a musician, fanned flames while also making some sharp points.

Since lots of the discussion has centered around who gets payment, and how, for music purchases, I was very interested to note the founding last week of Any and All Records, which promises to sign any artist who wants to be signed, and in return promises "to do nothing for you. That said, we also won't cost you anything, we won't take anything from you or own anything of yours either." They seem to have signed well over 200 artists already. As a point of comparison, I also found Steve Albini's early-90s discussion of the relationships between artists and traditional label structures pretty informative.

My reading list on this topic has grown exponentially - especially since some really sharp insights do surface in the general morass of comments on a lot of these posts.

Erin McKeown - http://theclatterofkeys.tumblr.com/post/25432949131/white-vs-lowery-or-i-dont-have-time-for-this

Justin Spohn - http://thisisviolence.net/post/26039099299/why-must-i-be-the-thief

Steve Albini - http://www.electricalaudio.com/phpBB3/viewtopic.php?f=4&t=59318&start=20#p1482891

Jeff Price from Tunecore - http://blog.tunecore.com/2012/06/the-intern-the-artist-the-internet.html

Jonathon Coulton - http://www.jonathancoulton.com/2012/06/20/emily-and-david/

Ethan Kaplan, LiveNation - http://www.blackrimglasses.com/2012/06/22/are-we-really-still-discussing-this-or-my-response-to-david-lowery/

Mike Masnick/Techdirt
http://www.techdirt.com/articles/20120625/01011219455/some-facts-insights-into-whole-discussion-ethics-music-business-models.shtml
http://www.techdirt.com/articles/20120524/02293219056/amanda-palmer-steve-albini-piracy-it-only-helps-musicians.shtml
http://www.techdirt.com/articles/20120620/03552119398/business-model-failure-is-not-moral-issue.shtml

Zac Shaw - http://www.mediapocalypse.com/in-defense-of-free-music-a-generational-ethical-high-road-over-the-industrys-corruption-and-exploitation/

NYTimes' Ben Sisario - http://mediadecoder.blogs.nytimes.com/2012/06/19/npr-intern-gets-an-earful-after-blogging-about-11000-songs-almost-none-paid-for/?smid=fb-share

Wesley Verhoeve - http://www.wesleyverhoeve.com/quixotism/
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I have thoughts...

...they just don't often end up here. I always want to write comprehensively - but many of the things I think about are way too big to write comprehensively about in a blog format. So, in hopes of more of my thoughts making it here, even in incomplete form, some annotated links.

Things That I Have Been Thinking About

  • Origami folding patterns
    Painter Sarah Morris has been making paintings based on the crease diagrams developed by origami artists, who have sued her for copyright infringement. The news stories about this case focus on whether the paintings are transformative, whether they are fair use, and issues of credit and attribution. But the first question that comes to my mind is, how would origami crease patterns be copyrightable in the first place?

    LangvMorrisfigure.jpgAs far as I understand it, crease patterns are algorithmically-generated instructions - incomplete ones, at that - for how to produce an origami figure. Instructions, recipes, diagrams that represent pure facts: not copyrightable. Certainly there's a lot of work involved in developing the crease patterns, but that's not copyrightable either. Origami figures, once folded by an artist, may well be copyrightable in themselves - they're certainly expressive and creative. Newly developed crease patterns may even be patentable! But I'm pretty sure Lang's understanding of origami copyright is incorrect.

  • Annoying permission requests
    A student in a class _about copyright_ requested permission to quote from our Copyright Information site in a class presentation. Our Creative-Commons-licensed site. In a class presentation. Either that student is not going to pass that class, or that instructor is really incompetent.
    Asking permission when fair use applies is a waste of your time and theirs, and shrinks fair use for all of us. Asking permission where Creative Commons licenses apply, or from someone who wants you to share their stuff is really quite disrespectful.

  • National blanket licensing
    Ariel Katz recently discussed the parallels between national blanket licensing and taxation without representation. Since there are frequently proposals to levy blanket fees on file storage media in the U.S., and blanket licenses are imposed on many venues here via extralegal (but close to unavoidable) means, I appreciated his insights on the fundamentally anti-democratic nature of the Canadian system. Choice quote:

    "Canada has established a "dancing tax", collected by, and for the benefit of, private entities, because they asked, nobody could afford to vigorously object, and the Board approved."

[Edited July 9 to move music stuff to new post.]

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On plagiarism and the public research university

dark blue sky with small corner of yellow-brick building intruding lower center
Heller Hall BY-NC jadammel/Joe D.
(photo taken at the U of M)
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'.

-----------------------------------------------------------------------------------------------

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.

edandellow-byncdnd-alankaar.jpg
'ed and 'ellow BY-NC-ND Alan Kaar
(photo taken at the U of M)
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JSTOR opens access to some collections; notes this is(n't) in response to Swartz case

JSTOR announced yesterday that they are opening access to a portion of their older holdings, free for use by the entire world. They noted this was part of a larger effort to make their resources more available to researchers unaffiliated with institutions that have JSTOR access.

They also noted that this was (or wasn't?) in response to the highly publicized downloading by activist Aaron Swartz that led to his arrest & arraignment on computer & wire fraud charges earlier this summer. In a public letter, the JSTOR Managing Director, Laura Brown, stated that they had plans to release this content prior to the Swartz case, but that "it would be inaccurate to say that these events have had no impact on our planning." She is not particularly clear what impact the Swartz case actually did have on their planning, noting that they "considered whether to delay or accelerate this action, largely out of concern that people might draw incorrect conclusions about our motivations." I'm not sure what incorrect conclusions people might draw, or how the timing of the release would affect the correctness of those conclusions, but I'm always happy to hear of more resources being available to more people!
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Could it be that it's all... NOT that simple?

Talked recently with a scholar who was planning to reproduce a number of his own articles in a small print run. He was pleased to hear from our national non-profit rights-clearance center that it was no problem, they'd absolutely be able to help him with all of this, and it would be a breeze for him! Yet somehow, when given the list of publications, even with much waiting, and nudging, and resending-of-the-list-of-publications... a response was not forthcoming.

Handwritten entry from Oliver Cromwell State Papers
Need permission to use this? SURE, we'd be HAPPY to get that for you! No problem! Reasonable price, too!
London defies ban on Xmas; entry from Oliver Cromwell state papers. No known © restrictions. From National Archives, UK

Could it - just possibly - be that it's actually NOT always super-easy to contact some convenient clearinghouse and quickly and easily get permission to reuse works? Even when you are talking about your own works? Especially when your career spans more than 50 years of publishing, across several continents?

Could it be that copyright ownership is actually NOT that simple, and that a model of copyright that functions on the assumption that re-use should always require permission, because it's always easy to get... well, could it be that that WOULDN'T ACTUALLY WORK VERY WELL A LOT OF THE TIME????  *cough* Georgia State *cough*

Maybe. But what do I know? It's not like I see how this stuff causes problems on the ground in the real world or anything.

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About this Archive

This page is an archive of recent entries in the discussion category.

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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.

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